Professional Ethics and Professional Accounting System Notes | B.A. LL.B. (Five Year Course) Semester 5 | Mumbai University | munotes

A Bar Council is a statutory body created by the Advocates Act, one for each State and one for India. It is not a club, not a trade union and not a bar association; those exist too and are quite different things, which is a distinction beginners get wrong.

The Act's own words: sections 1 and 2

Section 1 is short. The Act is the Advocates Act 1961, it extends to the whole of India, and it came into force on dates the Central Government appointed for different provisions, which is why several chapters of the Act have different commencement dates.

Section 2 is the definitions section, and three of its clauses do the work.

Section 2(1)(a): "advocate" means an advocate entered in any roll under the provisions of this Act. The definition is circular on purpose. It closes the profession: after this Act there is no other way to be an advocate.

Section 2(1)(i): "legal practitioner" means an advocate or vakil of any High Court, a pleader, mukhtar or revenue agent. That clause is a bridge to the older statutes; those categories are historical now, and chapter [Advocate, Lawyer, Legal Practitioner and Pleader: The Words the Act Defines] explains what survives of them.

Section 2(1)(k): "roll" means a roll of advocates prepared and maintained under this Act.

The Act's architecture, in one page

The Advocates Act has seven chapters and it is worth seeing the shape now, because the four modules of this subject follow it almost exactly.

Two things are not in that table and are the reason this subject has three authorities rather than one.

The duties are not in the Act. The six duties MU lists in topic 2.2 are in the Bar Council of India Rules, Part VI Chapter II, made under section 49(1)(c). They are rules, not sections, and they are cited by rule number. Module II is almost entirely about them.

Contempt is not in the Act either. It is in Articles 129 and 215 of the Constitution and in the Contempt of Courts Act 1971, and it is a power of the courts, not of the Bar Councils. Module IV is about it, and about the fact that one piece of bad behaviour can be caught by both jurisdictions at once.

What sort of course this is

MU prints this subject as Practical Training I and its own Course Objectives say it is "as prescribed by the Bar Council of India(BCI) as a compulsory clinical course."

That has a practical consequence worth stating plainly. The University does not set a written theory paper on this subject. All three of MU's Semester I examination timetables for the LL.B. (3 years) set four papers each, and this is not among them. Assessment is by the college.

That is a reason to take the subject more seriously rather than less. It is the only subject in the degree whose contents you will be governed by personally, every working day, from the moment you are enrolled. The Bar Council does not stop applying rule 25 to you because your college assessed you generously.

A worked example

Priya finishes her LL.B. in April and wants to appear in the Bombay High Court in May for a family friend whose flat has been sealed.

She cannot. Work through the Act in order.

1. Section 2(1)(a): an advocate is a person entered on a roll. Priya is not on a roll, so she is not an advocate.
2. Section 29: advocates are the only recognised class of persons entitled to practise law. So Priya is not entitled to practise.
3. Section 33: no person shall be entitled to practise in any court or before any authority unless he is enrolled as an advocate.
4. Section 45: a person who practises when not entitled to do so is punishable with imprisonment which may extend to six months.

So the first thing Priya must do is apply for enrolment under section 25 to the State Bar Council within whose jurisdiction she proposes to practise, which for her is the Bar Council of Maharashtra and Goa. That is the next chapter.

There is one door left open, and a student should know it. Section 32 lets a court, authority or person permit any person who is not an advocate to appear in a particular case. It is a discretion exercised case by case, it is not a route into practice, and it is dealt with in chapter [The Right to Practise: Sections 29 to 34].

What this subject is NOT

It is not a course in how to win cases. Advocacy skill is not what is regulated here. An advocate can be brilliant and be struck off, and can be mediocre and never face a complaint.

It is not morality. The rules are narrower than morality and in places they cut across it. Rule 11 obliges an advocate to accept a brief he may find repugnant. A private failing that would embarrass anyone may be no concern of the Bar Council's, as Module III shows when it deals with misconduct outside professional work.

It is not a branch of criminal law. The disciplinary proceeding under section 35 is not a prosecution, the punishments in section 35(3) are not sentences, and an acquittal in a criminal court does not end a disciplinary case on the same facts.

Quick revision

• Advocate, section 2(1)(a): a person entered on a roll under the Act. Not a law graduate.
• Roll, section 2(1)(k): the register each State Bar Council maintains under section 17.
• The Act has seven chapters: Bar Councils (3 to 15), enrolment (16 to 28), right to practise (29 to 34), conduct (35 to 44), miscellaneous (45 to 52), transitional (53 to 60).
• The duties are not in the Act. They are the Bar Council of India Rules, Part VI Chapter II, made under section 49(1)(c).
• Contempt is not in the Act. Articles 129 and 215 of the Constitution and the Contempt of Courts Act 1971.
• The profession is self-regulated: Bar Councils made of lawyers hold the disciplinary power.
• This subject is MU's Practical Training I, a Bar Council of India compulsory clinical course, assessed by the college.

Test yourself

1. A law graduate has passed the LL.B. but has not applied for enrolment. Is she an advocate? No. Section 2(1)(a) defines an advocate as a person entered on a roll under the Act. A degree qualifies a person to apply; it does not make them an advocate.

2. Which provision makes the Bar Council of India's rules on professional conduct binding, and what happens if one is broken? Section 49(1)(c) empowers the Bar Council of India to make rules prescribing standards of professional conduct and etiquette. Breach of such a rule is misconduct, punishable under section 35.

3. Distinguish a Bar Council from a Bar Association. A Bar Council is a statutory body created by the Advocates Act, with power to enrol advocates and to punish them for misconduct. A Bar Association is a voluntary association of lawyers practising in a particular court and has no statutory disciplinary power over the right to practise.

4. Why is it said that the legal profession is self-regulated? Because the Advocates Act gives the power to admit, to discipline and to remove advocates to Bar Councils, whose members are advocates elected by advocates, rather than to the Government or to the courts.

5. Name the two authorities outside the Advocates Act that this subject is built on. The Bar Council of India Rules, Part VI Chapter II, for the duties of an advocate; and the Constitution together with the Contempt of Courts Act 1971 for contempt.

(b) Age

"He has completed the age of twenty-one years."

Completed, not attained in the current year. A person whose twenty-first birthday falls next week is not qualified today. There is no upper limit anywhere in the Act.

(c) The degree

This is the longest clause and it is long because it deals with a changeover that happened in 1967. Reduced to what a student today needs:

• A degree obtained before 12 March 1967 from any University in the territory of India.
• A degree obtained before 15 August 1947 from any University in an area then within India as defined by the Government of India Act 1935.
• A degree obtained after 12 March 1967 after undergoing a three-year course of study in law from any University in India recognised for the purposes of this Act by the Bar Council of India.
• A degree obtained after a course of not less than two academic years commencing from the academic year 1967-68 or earlier, from a recognised Indian University.
• In any other case, a degree from a University outside India, if the Bar Council of India recognises it.
• A barrister called to the Bar on or before 31 December 1976; or a person who has passed the articled clerk's examination or another examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court; or a person holding another foreign qualification recognised by the Bar Council of India.

Three points a student is asked about.

"Recognised for the purposes of this Act by the Bar Council of India" is the operative phrase for anyone graduating now. A degree from a university that is not recognised by the Bar Council does not qualify, whatever the university itself says.

The five-year integrated course is not named in the clause, because the clause is older than it. It qualifies as a course of study of not less than three years from a recognised University.

The Explanation settles a question that used to cause disputes: "a person shall be deemed to have obtained a degree in law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice board or otherwise declaring him to have passed that examination." So the qualifying date is the date the result is declared, not the date of the convocation or of the printed certificate.

(d) Omitted

Clause (d) was omitted by the Advocates (Amendment) Act 1973 with effect from 31 January 1974. There is no clause (d) in the live section, and an answer that lists six conditions is wrong.

(e) Conditions in the State Bar Council's rules

"He fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter."

This is the clause that makes enrolment slightly different from State to State. The rules typically deal with the form of the application, the certificates and affidavits required, and verification.

(f) The fee

"He has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 1899, and an enrolment fee payable to the State Bar Council of six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council."

Then a proviso for members of the Scheduled Castes and the Scheduled Tribes who produce a certificate from the prescribed authority: one hundred rupees to the State Bar Council and twenty-five rupees to the Bar Council of India.

Those four figures are printed in the Act, substituted by the amending Act of 1993 with effect from 26 December 1993. They are not what most State Bar Councils were charging, and chapter [What Enrolment Costs: Section 24(1)(f) and Gaurav Kumar] is about what the Supreme Court did about that in 2024.

Section 24(2) and 24(3): the people the Act had to carry across

These two sub-sections exist because in 1961 there were already thousands of people practising law who were not advocates. They are transitional and no student enrolling today comes in under them, but they are examinable as part of the section.

Section 24(2) lets a vakil or pleader who is a law graduate be admitted if he applied within two years of the appointed day and fulfils clauses (a), (b), (e) and (f). Note the absence of clause (c): the degree condition is relaxed for them.

Section 24(3) does the same for four further categories: a person who for at least three years was a vakil, pleader or mukhtar or was entitled to be enrolled as an advocate of a High Court; a person who before 1 December 1961 was entitled otherwise than as an advocate to practise law; a person who before 1 April 1937 was an advocate of a High Court in what was then Burma; and a person entitled to be enrolled under a rule made by the Bar Council of India. Each must apply and fulfil clauses (a), (b), (e) and (f).

Section 24(4) was omitted in 1976.

A worked example

Rohan is twenty-two. He holds a three-year LL.B. from a University in Maharashtra whose law course the Bar Council of India recognises. His result was declared on the University's website on 6 May 2026, and his printed marksheet is dated 30 June 2026. He is an Indian citizen. He wants to enrol with the Bar Council of Maharashtra and Goa.

Is he qualified under section 24?

• (a) Indian citizen. Satisfied.
• (b) Twenty-two, so he has completed twenty-one. Satisfied.
• (c) A three-year course from a recognised Indian University, obtained after 12 March 1967. Satisfied. By the Explanation, the date he obtained the degree is 6 May 2026, the date the result was declared, not 30 June. That matters if a Bar Council rule sets a time limit running from the date of the degree.
• (e) Whatever the Bar Council of Maharashtra and Goa's rules require, typically an application in the prescribed form with certificates.
• (f) Rs 600 to the State Bar Council, Rs 150 by bank draft to the Bar Council of India, and stamp duty if chargeable.

He is qualified. He then applies under section 25, the enrolment committee disposes of the application under section 26, his name goes on the roll under section 17, and he receives a certificate of enrolment under section 22.

Change one fact. Rohan's degree is from a University whose law course the Bar Council of India has not recognised. He now fails clause (c), and no amount of merit cures it, because the clause makes recognition by the Bar Council the test and not the quality of the teaching.

What beginners get wrong

Section 24 is not a right to be enrolled. It says who is qualified to be admitted. Section 26(2) lets the enrolment committee propose refusal, and section 24A can disqualify a person who meets every clause of section 24.

Clause (d) does not exist. It was omitted in 1974.

Age is not linked to the degree. A person who graduates at twenty must wait until twenty-one. There is no provision for enrolling early and practising later.

The fee in the Act is not the fee on the notice board. That gap is the subject of a 2024 Supreme Court decision and is dealt with in its own chapter.

Quick revision

• Section 24(1) lists five live conditions: (a) Indian citizen, with a reciprocity proviso for foreign nationals, (b) completed twenty-one years, (c) a recognised law degree, (e) conditions in the State Bar Council's rules, (f) enrolment fee and stamp duty. Clause (d) is omitted.
• The degree must be from a University recognised by the Bar Council of India for the purposes of the Act.
• The Explanation to section 24(1): the degree is obtained on the date the result is declared, not the date of the certificate.
• Fee under (f): Rs 600 to the State Bar Council and Rs 150 to the Bar Council of India; for SC and ST candidates, Rs 100 and Rs 25.
• Sections 24(2) and 24(3) are transitional, for vakils, pleaders and mukhtars who were practising in 1961. They relax clause (c) but not (a), (b), (e) or (f).
• The section opens "subject to the provisions of this Act, and the rules made thereunder", which is how the Bar Council's own rules can add a condition.

Test yourself

1. State the five live conditions in section 24(1). Indian citizenship, subject to reciprocity for foreign nationals; completion of twenty-one years of age; a law degree from a University recognised by the Bar Council of India; such other conditions as the State Bar Council's rules specify; and payment of stamp duty and the enrolment fee.

2. A candidate's convocation is in December but her results were declared in May. From which date is she a law graduate for the purposes of section 24? From May. The Explanation to section 24(1) deems the degree to have been obtained on the date the University publishes the result declaring her to have passed.

3. Can a foreign national be enrolled as an advocate in India? Yes, but only under the proviso to clause (a), and only if duly qualified Indian citizens are permitted to practise law in that person's own country. The rule is one of reciprocity.

4. What is the enrolment fee prescribed by the Act, and does the Act make any concession? Six hundred rupees to the State Bar Council and one hundred and fifty rupees to the Bar Council of India. For a member of the Scheduled Castes or Scheduled Tribes producing the prescribed certificate, one hundred rupees and twenty-five rupees respectively.

5. Why do sections 24(2) and 24(3) exist, and what do they relax? They carried across the vakils, pleaders, mukhtars and others who were already practising when the Act came into force in 1961. They relax the degree requirement in clause (c) while still requiring clauses (a), (b), (e) and (f).

6. Does satisfying section 24 entitle a person to be enrolled? No. It makes him qualified to be admitted. Admission is dealt with by sections 25 and 26, and section 24A may disqualify a person who satisfies every clause of section 24.

Clause (b) needs no moral turpitude at all. A conviction under the Untouchability (Offences) Act 1955 disqualifies by itself, without any inquiry into whether the offence involved moral turpitude. That Act is now titled the Protection of Civil Rights Act 1955, and clause (b) refers to it by its original name because the clause has not been re-typeset.

Clause (c) reaches employment, not crime. A person dismissed or removed from employment or office under the State on a charge involving moral turpitude is disqualified even though no court has convicted him. The Explanation ties "State" to Article 12 of the Constitution, which covers the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. So dismissal from a public sector body that answers the Article 12 test counts; dismissal from a private firm does not.

Note also that clause (c) says dismissed or removed. A person who resigns before the inquiry concludes, or whose service is terminated by some lesser order, is not within it.

The two-year proviso

The disqualification is temporary. It ceases to have effect after two years have elapsed since release, dismissal or removal.

The starting point is different for each clause and students get this wrong.

• For clauses (a) and (b), the two years run from release. If the person was sentenced to imprisonment, that means release from prison, so the clock does not start on conviction.
• For clause (c), the two years run from dismissal or removal.

So a person convicted of an offence involving moral turpitude and sentenced to three years' imprisonment is disqualified for the three years inside and two years after, five years in all from conviction. A person convicted and fined, with no imprisonment, is disqualified for two years from the conviction, since there is no custody from which to be released.

Section 24A(2): the probation exception

The Probation of Offenders Act 1958 lets a court, instead of sentencing certain offenders, release them after admonition or on a bond of good behaviour. Section 12 of that Act provides that a person so dealt with shall not suffer disqualification attaching to a conviction under any other law.

Section 24A(2) says the same thing for this Act in terms: sub-section (1) does not apply to a person who, having been found guilty, is dealt with under that Act. So a person found guilty of an offence involving moral turpitude but released on probation is not disqualified from enrolment, and is not disqualified for two years either, because sub-section (1) never applies to him at all.

A worked example

Ajay applies to a State Bar Council for enrolment. He satisfies every clause of section 24. Three facts emerge from his verification.

Fact one. In 2020 he was convicted of cheating under the penal law and sentenced to two years' imprisonment. He was released on 1 March 2023.

Cheating is an offence involving moral turpitude, so clause (a) applies. The proviso runs from release, which is 1 March 2023, so the disqualification ceased on 1 March 2025. If Ajay applies today, he is not disqualified by this conviction.

Fact two. In 2024 he was convicted of an offence under the Protection of Civil Rights Act 1955, fined, and not imprisoned.

Clause (b) applies and needs no finding of moral turpitude. There was no imprisonment and so no release, so the two years run from the conviction in 2024. The disqualification is still running, and Ajay must be refused.

Fact three, in the alternative. Suppose that for the 2024 offence the court, instead of convicting and sentencing him, found him guilty and released him on a bond of good behaviour under the Probation of Offenders Act 1958.

Section 24A(2) applies. Sub-section (1) does not apply to him at all, so there is no disqualification and no two-year wait.

What the Bar Council does. Faced with a proposed refusal, the enrolment committee must, under section 26(2), refer the application to the Bar Council of India for opinion with a statement of grounds, and under section 26(3) it must dispose of the application in conformity with that opinion. It cannot simply refuse on its own.

What it does NOT mean

It is not a punishment. Section 24A is a condition of entry. The punishments for an advocate are in section 35(3) and are imposed on a person already on the roll, after a disciplinary proceeding. Module III deals with those.

It does not apply to an advocate already enrolled. A conviction after enrolment is dealt with as misconduct under section 35, not under section 24A. That is why an advocate convicted of assault in Hikmat Ali Khan v. Ishwar Prasad Arya, AIR 1997 SC 864, was proceeded against under the disciplinary provisions and had his name removed from the roll, rather than being said to have become disqualified.

A pending case is not a disqualification. Only a conviction, or a dismissal or removal, is.

The disqualification is not for life. Two years after release, dismissal or removal, it ceases by the force of the proviso itself, without any application to have it lifted.

Distinctions

Quick revision

• Section 24A was inserted in 1973, with effect from 31 January 1974.
• Three disqualifications: (a) conviction for an offence involving moral turpitude; (b) conviction under the Untouchability (Offences) Act 1955, now the Protection of Civil Rights Act 1955, with no moral turpitude required; (c) dismissal or removal from employment or office under the State on a charge involving moral turpitude.
• "State" in clause (c) has the Article 12 meaning.
• Proviso: the disqualification ceases after two years from release for (a) and (b), and from dismissal or removal for (c).
• Section 24A(2): sub-section (1) does not apply to a person dealt with under the Probation of Offenders Act 1958.
• A pending prosecution is not a disqualification. Only conviction is.
• Section 24A is a bar to entry; misconduct by an enrolled advocate is section 35.

Test yourself

1. Does a conviction under the Untouchability (Offences) Act 1955 require proof of moral turpitude before it disqualifies? No. Clause (b) operates on the conviction alone. Only clauses (a) and (c) use the phrase "moral turpitude".

2. From what date do the two years run for a person sentenced to imprisonment for an offence involving moral turpitude? From his release. The proviso says the disqualification ceases after two years have elapsed since his release, so the period spent in custody does not count towards the two years.

3. An applicant was dismissed from a private company for dishonesty. Is he disqualified under section 24A(1)(c)? No. Clause (c) applies to dismissal or removal from employment or office under the State, and the Explanation gives "State" the meaning in Article 12 of the Constitution. A private company is not within it.

4. An applicant was found guilty of an offence involving moral turpitude and released on probation under the Probation of Offenders Act 1958. Is he disqualified? No. Section 24A(2) provides that sub-section (1) does not apply to such a person, so the disqualification never arises and there is no two-year period to wait out.

5. An advocate on the roll is convicted of an offence involving moral turpitude. Is he now disqualified under section 24A? No. Section 24A governs admission to the roll. Conduct of an enrolled advocate is dealt with as professional or other misconduct under section 35, on which the disciplinary committee may reprimand, suspend or remove him.

6. Can a State Bar Council refuse an application on its own, having found a disqualification? No. Under section 26(2), where the enrolment committee proposes to refuse it must refer the application to the Bar Council of India for opinion with a statement of the grounds, and under section 26(3) it must dispose of the application in conformity with that opinion.

Read those two together and the effect is strong: a State Bar Council cannot refuse enrolment on its own. Every proposed refusal goes to the national body, with reasons, and the national body's opinion binds. This is a real protection for an applicant, and it is the answer to a question about what remedy a rejected applicant has.

Section 26(4): where an application has been refused, the State Bar Council shall as soon as may be inform all other State Bar Councils, stating the name, address and qualifications of the person and the grounds of refusal. That is what makes section 27 work.

The proviso to section 26(1) deals with a different problem: where a person has got his name on the roll by misrepresentation as to an essential fact, or by fraud or undue influence, the Bar Council of India may, on a reference or otherwise, remove the name after giving him an opportunity of being heard. Note who does it: the Bar Council of India, not the State Bar Council.

Step three: the roll, sections 17 to 21

Section 17 requires every State Bar Council to prepare and maintain a roll of advocates, in which are entered the names and addresses of all persons who were advocates on the roll of any High Court under the Indian Bar Councils Act 1926 immediately before the appointed day and who have elected to be enrolled with that Council, and all other persons admitted as advocates on its roll after the appointed day.

The roll has two parts: senior advocates and other advocates. That is the statutory home of the distinction chapter [Designation as Senior Advocate: Section 16, and Indira Jaising] deals with.

A person may be enrolled on only one State roll, which is why section 18 exists.

Section 18: transfer. An advocate on the roll of one State Bar Council may apply to the Bar Council of India for transfer to the roll of another State Bar Council. On transfer his name is removed from the first roll and entered on the second, and, importantly, his seniority is preserved: he retains the same seniority as he had on the roll from which he transferred.

Section 19: every State Bar Council shall send copies of its roll to the Bar Council of India, and shall inform it of every alteration.

Section 20 was a special provision for advocates of the Supreme Court practising before the appointed day, who could within the prescribed time express an intention to be entered on a particular State roll.

Section 21: disputes regarding seniority. Where a dispute arises as to the seniority of any person, it shall be referred for decision to the State Bar Council concerned. Where the dispute is between advocates on different rolls, it goes to the Bar Council of India.

Step four: the certificate, section 22

Section 22(1): there shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll maintained by it.

Section 22(2): every person whose name is so entered shall notify any change in the place of his permanent residence to the State Bar Council within ninety days.

The certificate is the document an advocate produces to show he is entitled to practise, and its loss is why the loss of the right to practise is spoken of as the loss of a sanad, which is the older word for it.

The other two sections: 26A and 27

Section 26A: power to remove names from roll. A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.

That is the whole section, and its narrowness is the point. It is an administrative housekeeping power. It is not a power to remove a name for misconduct: only a disciplinary committee can do that, under section 35(3)(d). An answer that cites section 26A as a disciplinary power is wrong.

Section 27: a refusal binds every other Bar Council. Where a State Bar Council has refused an application, no other State Bar Council shall entertain an application from that person, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India.

Two consents, both in writing, both prior. This closes off the obvious evasion of applying in the next State, and it is why section 26(4) requires the refusing Council to circulate the refusal.

Section 28 is the rule-making power for this Chapter, under which a State Bar Council makes rules on the time within which and the form in which an application is made, the conditions under section 24(1)(e), and the instalments in which the enrolment fee may be paid.

A worked example

Sneha graduates in Nagpur and intends to practise in Mumbai.

1. Section 25. She applies in the prescribed form to the Bar Council of Maharashtra and Goa, because that is where she proposes to practise.
2. Section 26(1). The Council refers her application to its enrolment committee.
3. Verification throws up a conviction. The committee proposes to refuse. Under section 26(2) it must refer the application to the Bar Council of India for opinion with a statement of grounds, and under section 26(3) must then dispose of it in conformity with that opinion. It cannot simply reject her.
4. The Bar Council of India opines that the conviction is spent, the two-year period under the proviso to section 24A having elapsed, and that she should be enrolled. The committee must enrol her.
5. Section 17. Her name is entered on the roll of the Bar Council of Maharashtra and Goa, in the part for advocates other than senior advocates.
6. Section 22(1). She is issued a certificate of enrolment.
7. Section 19. A copy of the roll and the alteration go to the Bar Council of India.

Two years later she marries and moves to Bengaluru. Under section 18 she applies to the Bar Council of India for transfer to the roll of the Bar Council of Karnataka, and on transfer she keeps the seniority she had in Maharashtra. She also notifies the change in her permanent residence under section 22(2) within ninety days.

Change one fact. Suppose the Bar Council of Maharashtra and Goa had refused her, the Bar Council of India agreeing. Sneha then applies to the Bar Council of Karnataka. Under section 27 that Council cannot even entertain the application unless it has the previous written consent of both the Bar Council of Maharashtra and Goa and the Bar Council of India.

What beginners get wrong

The State Bar Council does not decide the application. Its enrolment committee does, under section 26(1).

A refusal is never a State Bar Council's own decision. Sections 26(2) and (3) send every proposed refusal to the Bar Council of India, whose opinion binds.

Section 26A is not a disciplinary provision. It covers death and a request by the advocate himself. Removal for misconduct is section 35(3)(d).

The certificate is not the enrolment. Entry on the roll is. The certificate under section 22 evidences it.

Quick revision

• Section 25: application in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.
• Section 26(1): referred to the enrolment committee, which disposes of it. Proviso: the Bar Council of India may remove a name obtained by misrepresentation, fraud or undue influence, after a hearing.
• Section 26(2) and (3): a proposed refusal must be referred to the Bar Council of India with grounds, and disposed of in conformity with its opinion.
• Section 26(4): a refusal is circulated to all other State Bar Councils.
• Section 27: no other State Bar Council may entertain the application without the previous written consent of the refusing Council and of the Bar Council of India.
• Section 17: the roll, in two parts, senior advocates and other advocates. Section 18: transfer through the Bar Council of India, seniority preserved. Section 19: copies to the Bar Council of India. Section 21: seniority disputes.
• Section 22: certificate of enrolment; change of permanent residence notified within ninety days.
• Section 26A: removal of the name of an advocate who is dead or who requests it. Not a disciplinary power.

Test yourself

1. To which State Bar Council does an applicant apply, and on what test? To the State Bar Council within whose jurisdiction he proposes to practise, under section 25. The test is intention to practise, not residence or the place of study.

2. Can a State Bar Council refuse an application on its own? No. Under section 26(2) a proposed refusal must be referred to the Bar Council of India for opinion, with a statement of the grounds, and under section 26(3) the enrolment committee must dispose of the application in conformity with that opinion.

3. An applicant refused in one State applies in another. What is the position? Section 27 bars the second State Bar Council from entertaining the application except with the previous consent in writing of both the Council that refused and the Bar Council of India. Section 26(4) requires the refusal to be circulated so that the second Council knows of it.

4. What happens to seniority when an advocate transfers under section 18? It is preserved. The advocate retains on the new roll the same seniority he held on the roll from which his name was transferred.

5. Under what circumstances may a State Bar Council remove a name under section 26A? Only where the advocate is dead, or where a request to that effect has been received from him. Removal for misconduct is not within section 26A; it is an order under section 35(3)(d) of a disciplinary committee.

6. Who may remove a name obtained by fraud, and after what procedure? The Bar Council of India, under the proviso to section 26(1), whether on a reference or otherwise, after giving the person concerned an opportunity of being heard.

Second, section 7 gives wide functions. Section 7(1)(g) gives the Bar Council of India general supervision and control over the State Bar Councils; section 7(1)(l) lets it perform all other functions conferred by or under the Act; and section 7(1)(m) lets it do all other things necessary for discharging those functions. The Court described those powers as wide and extensive as conferred by the legislature.

Third, section 24(1) itself is subject to rules. Section 24(1) opens "subject to the provisions of this Act, and the rules made thereunder". So the Bar Council of India has the statutory power of prescribing rules subject to which a person may be treated as qualified to be admitted as an advocate.

Fourth, and decisively, section 49(1)(ag). That clause, dealing with the general power of the Bar Council of India to make rules, specifically covers the class or category of persons entitled to be enrolled as advocates. The Court held that in the face of that clause the provision for an examination for enrolment of advocates by the Bar Council of India can hardly be doubted.

What the Court left open, and what it added

Whether the examination is held before or after enrolment was left to the Bar Council of India. The Court said there are consequences either way, especially for the interregnum, and that it was appropriate to leave the niceties of both situations to the Bar Council.

It clarified an important limit. Setting aside V. Sudeer is in no manner an imprimatur to mandating the requirement of pre-enrolment training. So the decision authorises an examination; it does not revive compulsory pre-enrolment training.

It made the judgment prospective, so as not to disturb what had prevailed in the meantime.

It made four practical observations, each of which is examinable because each has since produced action.

• The All India Bar Examination is scheduled twice a year and that schedule should be strictly followed, otherwise law graduates are left idling.
• A candidate should not lose the chance to sit merely because a University declares its results late.
• The validity of a result obtained in a bar examination should be limited by time, and the Bar Council of India can use its power to give directions under section 48B to ensure uniformity and fairness among the State Bar Councils.
• An enrolled advocate who takes non-legal employment for a substantial length of time, the Court suggested five years, could by rule be deemed a new enrolee and required to take the examination again.

And it flagged the fees. The Court noted that different State Bar Councils were charging different enrolment fees, said this needed the attention of the Bar Council of India, and said the fee should not become oppressive at the threshold of young students joining the Bar. That observation is the bridge to the next chapter, where the Supreme Court decided the point in 2024.

Enrolment and the right to practise are two different things

This is the idea the chapter exists to plant, and it recurs in Module III and Module IV.

Enrolment puts your name on the roll under section 17 and makes you an advocate within section 2(1)(a).

The right to practise under section 30 is what lets you appear. Between the two the Bar Council of India has interposed a condition, and Bonnie Foi holds it may.

The same gap appears again in Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041, where the Supreme Court held that the right to practise and the right of audience before a particular court are not the same thing, and that a court may refuse audience to an advocate convicted of contempt until he purges it. Module IV works that case, where contempt by an advocate is dealt with.

A worked example

Kabir's LL.B. result is declared in May 2026. He wants to appear in the City Civil Court in Mumbai in July.

1. He applies under section 25 to the Bar Council of Maharashtra and Goa and is enrolled. He is now an advocate within section 2(1)(a).
2. Under the Bar Council of India's rules he must pass the All India Bar Examination to obtain a certificate of practice.
3. Until he does, his position is the one Bonnie Foi describes: he is on the roll, but the Bar Council has validly made the ability to practise conditional on the examination.
4. He sits and passes the examination at the next of the two sittings held that year. He receives the certificate of practice and can appear.

Where the authority comes from, if he is asked. Not from section 24, which does not mention an examination. From section 49(1)(ag) read with section 7(1)(g), (l) and (m) and with the opening words of section 24(1), as held in Bonnie Foi.

Change one fact. Kabir passes the examination, then joins a technology company as a product manager for six years and returns to practice. On the Court's suggestion in Bonnie Foi, the Bar Council of India could by rule treat him as a new enrolee required to sit the examination again. Note carefully that this was a suggestion the Court accepted in principle and left to the Bar Council; it is not itself a rule of law, and an answer should say so.

What beginners get wrong

Bonnie Foi did not revive pre-enrolment training. The Court said in terms that setting aside V. Sudeer is no imprimatur to mandating it.

The Court did not decide whether the examination must be before or after enrolment. It left that to the Bar Council of India.

V. Sudeer was not distinguished, it was held not to be good law. An answer that treats V. Sudeer as still governing is wrong after 10 February 2023.

The examination is not in the Act. It is a rule made under the Act, and the whole case was about whether the Act permits such a rule.

Quick revision

• The All India Bar Examination is a creature of the Bar Council of India's rules, not of section 24.
• V. Sudeer v. Bar Council of India (1999) had struck down pre-enrolment training and examination as beyond the Bar Council's power. It is no longer good law.
• Bar Council of India v. Bonnie Foi Law College, 10 February 2023, a Constitution Bench of five judges, upheld the examination.
• The reasoning: the powers of the State Bar Councils and of the Bar Council of India are not pari materia; section 7(1)(g), (l) and (m) give wide functions; section 24(1) is expressly subject to rules made under the Act; and section 49(1)(ag) covers the class or category of persons entitled to be enrolled.
• The Court left it to the Bar Council of India whether the examination is pre-enrolment or post-enrolment, made the judgment prospective, and clarified that pre-enrolment training is not thereby mandated.
• Observations: examination twice a year, results should not bar a candidate, validity of a result should be time-limited, section 48B directions can bring uniformity, and long non-legal employment could by rule require a re-examination.
• It also flagged that differing enrolment fees needed the Bar Council of India's attention, which is where chapter [What Enrolment Costs: Section 24(1)(f) and Gaurav Kumar] begins.

Test yourself

1. Section 24 does not mention any examination. Where does the power to require one come from? From section 49(1)(ag), which empowers the Bar Council of India to make rules on the class or category of persons entitled to be enrolled as advocates, read with the opening words of section 24(1) making it subject to rules made under the Act, and with the wide functions in section 7(1)(g), (l) and (m). That was the holding in Bonnie Foi.

2. What did V. Sudeer decide, and what is its position now? It held that the Bar Council of India could not require pre-enrolment training and an examination, because the Act did not confer that power. In Bonnie Foi a Constitution Bench held it would not be good law.

3. Why did the Constitution Bench say the 1973 amendment did not settle the question? Because the powers of the State Bar Councils and of the Bar Council of India are not pari materia. The amendment removed the State Bar Councils' power; it did not deal with the powers of the Bar Council of India, and so could not take away a power the Bar Council of India already had.

4. Did Bonnie Foi decide whether the examination must be held before or after enrolment? No. It expressly left that to the Bar Council of India, noting that either course has consequences, especially for the interregnum.

5. Does Bonnie Foi permit compulsory pre-enrolment training? No. The Court clarified that setting aside V. Sudeer is in no manner an imprimatur to mandating the requirement of pre-enrolment training.

6. Distinguish enrolment from the right to practise. Enrolment is entry on a State roll under section 17, which makes a person an advocate within section 2(1)(a). The right to practise is conferred by section 30, and the Bar Council may validly attach conditions to it, such as passing the All India Bar Examination.

The Court also said that section 24(1)(f) cannot be defeated either directly or indirectly under the garb of different nomenclatures. That sentence is the operative one for a problem question, because the practice was not to charge a large "enrolment fee" but to charge a small one and add a long list of other heads.

Why the two constitutional articles

A student should be able to say why a fee is a constitutional question at all, and the answer is in the two articles.

Article 14 guarantees equality before the law and the equal protection of the laws. A statute fixes one fee for the whole country; State Bar Councils charging widely differing amounts produce unequal conditions of entry to a single national profession for no reason connected with any object of the Act.

Article 19(1)(g) guarantees the right to practise any profession or to carry on any occupation, trade or business, subject to reasonable restrictions under Article 19(6). A charge levied without authority of law at the threshold of the profession is not a reasonable restriction, because it is not a restriction imposed by law at all.

Two things the case did not do

It did not raise the fee. The Court said no case was made out for it to exercise its power under Article 142 to implement the Bar Council of India's draft enrolment rules in their current form. Changing the figure is for Parliament, by amending section 24(1)(f).

It did not order refunds. Because the State Bar Councils had been levying these amounts for a considerable time and using them for their day-to-day functioning, the Court declared the judgment prospective. A person enrolled before 30 July 2024 has no claim to a refund.

Where a Bar Council's money comes from instead

A fair question a student may be asked is how the councils are meant to run on Rs 600 per enrolment.

The Act provides for it in several places, and the answer is that the enrolment fee was never intended to be the main source. Section 46A provides for financial assistance by the Bar Council of India to a State Bar Council which needs funds to perform its functions. Section 7(1)(l) and (m) and the rules allow other receipts. And the Advocates Welfare Fund Act 2001 creates a separate fund; its section 15 requires a State Bar Council to pay to that Fund annually an amount equal to twenty per cent of the enrolment fee received under section 24(1)(f), which shows Parliament treating the section 24(1)(f) figure as the fixed base on which other contributions are calculated rather than as a fee the councils may set.

A worked example

Meera is enrolling with a State Bar Council in 2026. The Council's notice asks for the following before her certificate will be issued.

Which of these may lawfully be demanded as a pre-condition to enrolment?

The first two, because they are the figures section 24(1)(f) prescribes. The third, because the clause expressly mentions stamp duty chargeable under the Indian Stamp Act 1899.

The last three may not. Gaurav Kumar holds that neither the State Bar Councils nor the Bar Council of India may demand fees other than the stipulated enrolment fee and stamp duty as a pre-condition to enrolment, and that section 24(1)(f) cannot be defeated indirectly under the garb of different nomenclatures. Calling a charge a library fee does not take it outside the section.

Change one fact. Meera enrolled in 2021 and paid all six heads. Can she recover the excess? No. The judgment was given prospective effect and the Court declared that State Bar Councils are not required to refund excess fees collected before its date.

And a limit worth noting. The holding is about what may be demanded as a pre-condition to enrolment. It does not follow that every payment an advocate ever makes to a Bar Council is unlawful; what the case forbids is making enrolment itself conditional on paying more than the section allows.

What beginners get wrong

The figure is not Rs 600. It is Rs 600 to the State Bar Council and Rs 150 to the Bar Council of India, and the concessional figures for Scheduled Caste and Scheduled Tribe applicants are Rs 100 and Rs 25.

The case did not strike down section 24(1)(f). It enforced it.

The Court did not fix a new fee. It declined to use Article 142 to bring the Bar Council of India's draft rules into force.

Stamp duty is not part of the enrolment fee, but it is expressly permitted by the clause, so it may be required.

Quick revision

• Section 24(1)(f): Rs 600 to the State Bar Council, Rs 150 by bank draft to the Bar Council of India, plus stamp duty if chargeable. For Scheduled Caste and Scheduled Tribe applicants with the prescribed certificate, Rs 100 and Rs 25. Figures substituted with effect from 26 December 1993.
• Bonnie Foi (2023) flagged the problem: fees differ between States and must not be oppressive at the threshold.
• Gaurav Kumar v. Union of India, 2024 INSC 558, 30 July 2024: State Bar Councils cannot charge beyond section 24(1)(f); no fee other than the stipulated fee and stamp duty may be demanded as a pre-condition to enrolment; the excess violates Articles 14 and 19(1)(g); the decision is prospective, with no refunds of amounts collected earlier.
• Section 24(1)(f) cannot be defeated directly or indirectly under the garb of different nomenclatures.
• The Court declined to use Article 142 to bring the Bar Council of India's draft enrolment rules into force.
• Section 46A lets the Bar Council of India give financial assistance to a State Bar Council, and section 15 of the Advocates Welfare Fund Act 2001 requires a State Bar Council to pay the Fund an amount equal to twenty per cent of the enrolment fee received under section 24(1)(f).

Test yourself

1. State the fee prescribed by section 24(1)(f) and the concession. Six hundred rupees to the State Bar Council and one hundred and fifty rupees to the Bar Council of India, by bank draft, together with stamp duty if chargeable. For a member of the Scheduled Castes or Scheduled Tribes producing the prescribed certificate, one hundred rupees and twenty-five rupees.

2. What did Gaurav Kumar decide about charges levied under other names? That section 24(1)(f) cannot be defeated either directly or indirectly under the garb of different nomenclatures, so a State Bar Council cannot demand library, welfare, verification or similar charges as a pre-condition to enrolment.

3. Which constitutional provisions were violated, and why? Article 14, because a single statutory fee charged at widely differing rates produces unequal conditions of entry to one national profession, and Article 19(1)(g), because a charge levied without authority of law at the threshold of the profession is not a restriction imposed by law and so cannot be a reasonable restriction under Article 19(6).

4. Can an advocate enrolled in 2019 recover the excess fees she paid? No. The Court declared the judgment prospective in effect and held that State Bar Councils are not required to refund excess enrolment fees collected before the date of the judgment.

5. Did the Supreme Court raise the enrolment fee to a realistic figure? No. It said no case was made out to exercise its power under Article 142 to implement the Bar Council of India's draft enrolment rules in their current form. Altering the figure is a matter for Parliament.

6. How is the section 24(1)(f) figure used elsewhere in the law? Section 15 of the Advocates Welfare Fund Act 2001 requires a State Bar Council to pay to the Fund each year an amount equal to twenty per cent of the enrolment fee it receives under section 24(1)(f), which treats that figure as a fixed statutory base.

This is a definition that preserves history. It names five categories, of which only the first is live. It exists so that where another statute uses the phrase "legal practitioner", the Advocates Act supplies a meaning that covers people admitted under the older laws as well as advocates.

Note the difference in shape between this definition and section 2(1)(a). "Advocate" is defined by a register. "Legal practitioner" is defined by a list of categories. That is what tells you the second is the older idea.

Pleader, mukhtar, vakil and revenue agent

These four are the categories the Act absorbed, and a student should be able to say what each was.

A vakil was a legal practitioner admitted to practise in a High Court, under the older provincial statutes, typically holding an Indian law degree. The word is Persian in origin and means a representative or agent.

A pleader was a legal practitioner entitled to plead, that is to argue, in the subordinate courts, admitted under the Legal Practitioners Act 1879. Pleaders were graded, and their right of audience was limited by grade and by court.

A mukhtar was a practitioner entitled to act in the subordinate criminal courts, that is to do the procedural steps, without the same right to plead. The distinction between acting and pleading is worth learning here because it recurs: acting means filing, taking steps and conducting the case on the record; pleading means addressing the court.

A revenue agent was a person entitled to appear before revenue authorities in revenue matters, again under the older law.

None of these can be created any more. Sections 24(2) and 24(3) let those who were already vakils, pleaders and mukhtars in 1961 come across onto a State roll as advocates. Nobody has been admitted as a pleader or mukhtar since, and the words survive in section 2(1)(i), in section 58B(3), and in other statutes that were never re-drafted.

Roll

Section 2(1)(k): "roll" means a roll of advocates prepared and maintained under this Act.

Short, but the key that turns all the others. Chapter [The Procedure of Enrolment: Application, Disposal, Certificate and the Roll] deals with how a name gets on it and how it is arranged.

Distinctions

A worked example

Four people are in a courtroom in Mumbai.

Aarti is enrolled with the Bar Council of Maharashtra and Goa and appears for the plaintiff. She is an advocate within section 2(1)(a) and a legal practitioner within section 2(1)(i), and she is entitled to practise under sections 29, 30 and 33.

Bhavesh teaches jurisprudence at a law college and is watching. He is a lawyer in ordinary speech and neither an advocate nor a legal practitioner, because his name is on no roll. If he were to argue the case he would be practising without entitlement and would be liable under section 45.

Chandan is the in-house legal manager of the defendant company. He drafted the reply and instructed counsel. He is not on a roll. He may advise his employer, but he cannot appear, and rule 49 of the Bar Council of India Rules is what would stop him being on a roll and salaried at the same time; that is rules 47 to 52 on other employment, which Module II takes up.

Dinesh was enrolled as a pleader in 1958 and came across onto the State roll under section 24(3) in 1962. He is today simply an advocate. He is not a pleader with special rights and not a lesser class of practitioner. That is exactly what the Act was passed to achieve.

Change one fact. Suppose Bhavesh is asked by the judge to assist the court on a point of law and the court permits him to address it. Section 32 allows a court to permit any person, not enrolled as an advocate, to appear in a particular case. He is still not an advocate; he has a permission for that case only.

What it does NOT mean

"Advocate" does not mean a good or senior lawyer. It is a formal status conferred by entry on a roll.

"Legal practitioner" is not a wider live category than advocate. Four of its five limbs are closed.

"Lawyer" is not a rank below advocate. It is not a legal term at all.

The abolition of the older categories did not disqualify the people in them. Sections 24(2) and 24(3) carried them across, which is why chapter [Salient Features of the Advocates Act 1961: The Act as a Whole] treats Chapter VII of the Act as a real part of the scheme rather than as dead wood.

Quick revision

• Section 2(1)(a): advocate means an advocate entered in any roll under the Act.
• Section 2(1)(i): legal practitioner means an advocate or vakil of any High Court, a pleader, mukhtar or revenue agent.
• Section 2(1)(k): roll means a roll of advocates prepared and maintained under the Act.
• Section 29: advocates are the only recognised class entitled to practise law. Section 33: nobody may practise unless enrolled. Section 45: practising without entitlement, imprisonment up to six months.
• Lawyer is not defined in the Act and is not a legal category.
• Vakil: practised in a High Court. Pleader: pleaded in subordinate courts under the Legal Practitioners Act 1879. Mukhtar: acted in subordinate criminal courts. Revenue agent: appeared before revenue authorities. All four are closed categories.
• Acting means conducting the case on the record; pleading means arguing it.
• Section 32 lets a court permit a non-advocate to appear in a particular case.

Test yourself

1. Define "advocate" and say what the definition turns on. Section 2(1)(a): an advocate is an advocate entered in any roll under the provisions of the Act. It turns entirely on entry on the roll, not on qualification, ability or experience.

2. Is "lawyer" defined in the Advocates Act? No. It is an ordinary English word and not a legal category. It covers advocates but also law teachers, in-house counsel and others who are not on any roll.

3. Distinguish a vakil from a mukhtar. A vakil was a legal practitioner entitled to practise in a High Court under the older provincial statutes. A mukhtar was entitled to act, that is to take the procedural steps, in the subordinate criminal courts, without the same right to plead.

4. Can a person be admitted as a pleader today? No. The Advocates Act created one class of practitioner, the advocate. Sections 24(2) and 24(3) let existing vakils, pleaders and mukhtars be admitted as advocates; no new admission to those categories is possible.

5. Which sections close the profession, and what is the penalty for practising outside it? Section 29 makes advocates the only recognised class entitled to practise, and section 33 provides that no person shall be entitled to practise unless enrolled. Section 45 punishes a person who practises when not entitled with imprisonment which may extend to six months.

6. A retired professor of law wishes to argue a single matter in which he has a special interest. Is there any route? Yes, section 32, under which a court, authority or person may permit any person not enrolled as an advocate to appear in a particular case. It is a permission for that case only and does not make him an advocate.

What survives in Mumbai, which is where our reader is

This matters to an MU student in a way it does not to a student anywhere else.

The Bombay Incorporated Law Society still conducts a solicitors' examination, and practitioners in Mumbai still describe themselves as solicitors. That is a professional qualification and a description, not a separate statutory class of practitioner. A Mumbai solicitor is, under the Advocates Act, an advocate, enrolled on the roll of the Bar Council of Maharashtra and Goa like everybody else, and subject to exactly the same rules of conduct in Module II and the same discipline in Module III.

So the honest statement is this. In law there is no such thing as a solicitor in India today. In practice the word is used in Mumbai and Kolkata for an advocate who holds that additional qualification and does that kind of work. A student who says the two professions are separate in India is wrong; a student who says the word has vanished is also wrong.

Barrister

A barrister is a person called to the Bar by one of the Inns of Court in England. It is an English qualification and it has never been an Indian one.

Under section 24(1)(c) a barrister qualified for admission as an advocate in India if he was called to the Bar on or before 31 December 1976. After that date the route closed, and a barrister today must qualify like anybody else or come in through the recognition of a foreign qualification by the Bar Council of India under the same clause.

The word therefore appears in India as a description of somebody's history, usually of a generation now gone, and not as a status the Act confers.

Why India abolished the split

The reasoning is worth having, because it is a natural essay question.

Cost. A divided profession means the client pays two sets of professionals.

Access. A client who must reach counsel through a solicitor cannot reach counsel at all if he cannot afford the solicitor.

Uniformity. India had not one split but several, differing by province and by court, so a practitioner's rights depended on where he happened to be admitted. The Advocates Act was passed on the recommendation of the All India Bar Committee to produce one Bar for the whole country, and a divided profession cannot be unified without collapsing the divisions.

The counter-argument should be given too, because a good answer is not one-sided. A divided profession produces specialists in advocacy who see many cases and few clients, and it puts an independent professional between the client and the advocate, which has its own value. That is why the Advocate-on-Record system survives in the Supreme Court, and it is dealt with in chapter [Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae].

A worked example

Four descriptions appear on four letterheads in Mumbai.

"Ms A, Advocate, High Court". Accurate. She is on the roll of the Bar Council of Maharashtra and Goa.

"Mr B, Solicitor". Accurate as a description of a qualification, if he has passed the Bombay Incorporated Law Society's examination and is on the roll. He is, in law, an advocate. He is subject to rule 36 of the Bar Council of India Rules like everybody else, so what the letterhead may say beyond his name is limited, as Module II explains when it reaches rule 36 and the rule against advertising.

"Mr C, Barrister-at-Law (Lincoln's Inn), Advocate". Accurate if he was called and is enrolled. But the description tells a client about an English qualification, and whether it may appear on a sign-board or a letterhead is governed by rule 36, not by whether it is true.

"Ms D, Attorney". Not accurate as a statutory description. There is no class of attorneys under the Advocates Act; section 31 was omitted in 1976. If she qualified through the articled clerk's route preserved by section 24(1)(c) and is on the roll, she is an advocate.

The point of the example. Every one of these people, whatever the letterhead says, is subject to the same Act, the same rules of conduct, the same disciplinary committees and the same punishments. That is what "one class of advocates" in section 29 means in practice.

What beginners get wrong

India does not have a divided profession. Section 29 makes advocates the only recognised class.

Section 31 is not live law. It was omitted in 1976. This chapter mentions it precisely so that a reader who finds the number in an old book knows what happened to it.

A solicitor in India is not the English solicitor. The word describes a qualification and a kind of work, and the person holding it is an advocate.

Madras is not in section 24(1)(c). The clause names the High Court at Bombay or Calcutta.

Being a barrister does not by itself entitle anyone to practise in India. Only enrolment does, under sections 24, 29 and 33.

Quick revision

• The English profession is divided: solicitors deal with the client and act, barristers are briefed and plead. India abolished the division; section 29 recognises one class, the advocate.
• Attorney: a practitioner of the original side of the High Courts at Bombay, Calcutta and Madras, admitted after articles and an examination. Section 31, the special provision for attorneys, was OMITTED in 1976 and is printed in the Act as ""Repealed."".
• Two live traces: section 24(1)(c), which keeps the articled clerk's examination of the High Court at Bombay or Calcutta as a qualifying route, and section 58AG, special provisions in relation to articled clerks.
• Barrister: called to the Bar by an English Inn of Court. Qualified for Indian enrolment under section 24(1)(c) if called on or before 31 December 1976.
• In Mumbai and Kolkata the word solicitor is still used for an advocate holding the Law Society's qualification. It is a description, not a separate statutory class.
• Reasons for unification: cost, access, and uniformity across the country. The counter-argument is specialisation and an independent professional between client and advocate, which survives in the Advocate-on-Record.

Test yourself

1. What was an attorney under the older law, and what is the position of section 31 today? An attorney was a practitioner of the original side of the High Courts at Bombay, Calcutta and Madras, admitted after service under articles and an examination set by the High Court, whose function was to act rather than to plead. Section 31, the special provision for attorneys, was omitted by the amending Act of 1976 and no longer exists.

2. Does India have solicitors? Not as a separate class of legal practitioner. The Advocates Act recognises only advocates. The word is used in Mumbai and Kolkata to describe an advocate who holds the Law Society's solicitors' qualification and does that kind of work.

3. Until when could a barrister qualify for enrolment in India on that footing? Section 24(1)(c) preserves the route for a barrister called to the Bar on or before 31 December 1976.

4. Give two reasons for a unified profession and one against. For: it removes the cost of paying two sets of professionals, and it removes the barrier between a client and the advocate who will argue his case, which is a question of access. It also makes uniform rights of audience across India possible. Against: a divided profession produces specialists in advocacy and puts an independent professional between client and counsel.

5. Which two High Courts are named in section 24(1)(c) in connection with the articled clerk's examination? Bombay and Calcutta. Madras is not named.

6. A person is called to the Bar in London in 2020 and returns to India. May he appear in an Indian court? Not on that qualification alone. The barrister route in section 24(1)(c) closed on 31 December 1976. He must be enrolled under section 24, which for a foreign qualification requires recognition by the Bar Council of India, and section 33 bars practice by anyone not enrolled.

Section 17(2) completes the scheme: the roll has two parts, the first containing the names of senior advocates and the second the names of other advocates.

Junior counsel, which is not a legal category

"Junior counsel" is not defined in the Act and is not a class. It is used in two loose senses and a good answer separates them.

In the first sense it is simply the opposite of senior: any advocate who is not a designated senior advocate. On that usage an advocate of thirty years' standing who has never been designated is a junior.

In the second sense it describes a role in a particular case: the advocate who appears with a senior in the same matter, prepares the brief, does the research and drafting and takes the notes. On that usage even a designated senior can be junior to a more senior colleague in a given case, though that is unusual.

Because a designated senior advocate is restricted by the Bar Council rules from drafting and from appearing alone, the second sense is not merely a courtesy: a senior needs a junior in order to be able to appear at all.

Advocate-on-Record

The Advocate-on-Record is an advocate entitled to act for a party in the Supreme Court, that is to file the petition, to be on the record, to receive notices and to be answerable to the Court for the conduct of the case.

Three things a student must be able to say.

It is a creature of the Supreme Court Rules, not of the Advocates Act. The Act does not use the phrase. The Supreme Court makes rules regulating practice and procedure and provides for a class of advocates entitled to act, who must pass an examination conducted by the Court, have undergone training with an Advocate-on-Record, and maintain a registered office within a prescribed distance of the Court along with a registered clerk.

Only an Advocate-on-Record can file in the Supreme Court. Any advocate may argue, if instructed, but only an Advocate-on-Record may put the matter on the record. This is the surviving trace in India of the acting-and-pleading division that chapter [Solicitor, Barrister, Attorney: The English Words, and What Survives of Them in India] describes.

It does not offend section 30. Section 30 gives every advocate the right to practise in all courts including the Supreme Court, but the Supreme Court's power to regulate its own practice and procedure by rules is what supports the requirement.

Amicus curiae

Amicus curiae is Latin for friend of the court. It means a person, usually an advocate, whom the court itself appoints to assist it, and the essential feature is that he does not represent a party.

Courts appoint an amicus in three familiar situations.

Where a party is unrepresented, most often an accused who has no lawyer, so that the court is not deciding against a person who cannot be heard. This overlaps with the right to legal aid, which Module II deals with under rule 46.

Where the point is difficult and the court wants argument on a view of the law that neither party is putting.

In public interest matters, where the court needs somebody to marshal material and present a balanced picture.

The consequence a student is asked about is the duty. An advocate for a party owes that party the duties in Module II. An amicus owes his duty to the court, and must put the material fairly, including material that does not help the side he is arguing for. He is not the party's lawyer and cannot take instructions from the party as if he were.

Distinctions

A worked example

A civil appeal reaches the Supreme Court from the Bombay High Court.

Ms Rao, a designated senior advocate, will argue it. She cannot file it, cannot sign the vakalatnama and cannot draft the petition, because of the restrictions prescribed under section 16(3).

Mr Iyer, an Advocate-on-Record, files the special leave petition, is on the record, receives the notices and is answerable to the Court for the conduct of the case.

Ms Fernandes, an advocate of four years' standing, appears with Ms Rao, prepares the brief and the list of dates and takes the note of the argument. She is junior counsel in the second sense described above. She is also, in the first sense, an advocate who has not been designated.

The respondent has not entered appearance and has no lawyer. The Court appoints Mr Deshpande as amicus curiae to place the respondent's likely case and the relevant material before it. He is not the respondent's advocate, he cannot take instructions from the respondent, and his duty is to the Court.

Who addresses the Court first, if the Attorney-General intervenes? Section 23 answers it, and chapter [Privileges of a Lawyer] works the whole order. The Attorney-General has pre-audience over all other advocates, then the Solicitor-General, then the Additional Solicitor-General, then the second Additional Solicitor-General, then an Advocate-General of a State, and then senior advocates over other advocates, inter se by seniority.

What beginners get wrong

Designation is not promotion and brings no extra right of audience. It is a distinction under section 16(2) which carries restrictions under section 16(3).

A senior advocate cannot appear alone or file. That is a consequence of the rules made under section 16(3).

Junior counsel is not a statutory class.

An amicus curiae is not a free lawyer for a party. He assists the court. Where a person needs a lawyer at the State's cost, the machinery is the Legal Services Authorities Act 1987.

The Advocate-on-Record is not a senior or a junior. It is a different axis altogether: it is about who may act, not about rank.

Quick revision

• Section 16(1): two classes of advocates, senior advocates and other advocates. Section 17(2): the roll has two corresponding parts.
• Section 16(2): designation by the Supreme Court or a High Court, with the advocate's consent, on the ground of ability, standing at the Bar or special knowledge or experience in law, as a distinction.
• Section 16(3): senior advocates are subject to restrictions on their practice prescribed by the Bar Council of India; they may not file, draft or appear alone.
• Junior counsel is not defined: either any non-designated advocate, or the advocate appearing with a senior in a case.
• Advocate-on-Record: a creature of the Supreme Court Rules, the only advocate who may act, that is file and be on the record, in the Supreme Court.
• Amicus curiae, friend of the court: appointed by the court, owes his duty to the court, does not represent a party.
• Section 23 fixes the order of pre-audience: Attorney-General, Solicitor-General, Additional Solicitor-General, second Additional Solicitor-General, Advocates-General inter se by seniority, then senior advocates over other advocates.

Test yourself

1. Who may designate a senior advocate, and is the advocate's consent needed? The Supreme Court or a High Court, under section 16(2), and yes, the advocate's consent is required.

2. On what grounds may an advocate be designated? By virtue of his ability, standing at the Bar, or special knowledge or experience in law, if the Court is of opinion that he is deserving of that distinction.

3. Does designation give a senior advocate any additional right of practice? No. Section 16(3) works the other way: it subjects senior advocates in the matter of their practice to restrictions prescribed by the Bar Council of India in the interests of the legal profession, including that they may not file, draft pleadings or appear without another advocate.

4. What is an Advocate-on-Record and where does the office come from? An advocate entitled to act, that is to file and be on the record, for a party in the Supreme Court. The office comes from the Supreme Court Rules, not from the Advocates Act, and requires an examination and training prescribed by the Court.

5. To whom does an amicus curiae owe his duty? To the court that appointed him. He does not represent a party and cannot take instructions as a party's advocate would.

6. State the order of pre-audience under section 23. The Attorney-General of India, then the Solicitor-General, then the Additional Solicitor-General, then the second Additional Solicitor-General, then the Advocate-General of a State, with Advocates-General inter se by seniority, and thereafter senior advocates over other advocates, with each group inter se by seniority.

Courage

The willingness to present the client's case fully, whoever is displeased by it: the judge, the government, the newspapers, or the advocate's own community.

This is not bravado, and the distinction is examinable. Courage is not rudeness to the court. Rule 1 of the Bar Council rules requires an advocate to conduct himself with dignity and self-respect and says he shall not be servile, and in the same breath says that where there is proper ground for serious complaint against a judicial officer it is his right and duty to submit the grievance to the proper authorities. Both halves are in one rule, and the balance between them is what courage means professionally.

Where courage tips into contempt is Module IV. In Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275, an advocate's conduct towards a court was held contumacious and the Court held that an apology is not a weapon of defence to purge a guilty conscience and must be sincere and offered at the earliest opportunity.

Industry

Hard work, and specifically preparation. Reading the brief, reading the papers behind the brief, finding the law rather than remembering it, and being ready before the hearing rather than during it.

This is the lamp most closely tied to competence, and it is the one whose absence is most often invisible to the client. It is also the lamp behind the rule that an advocate shall not, after accepting a brief, be absent, and behind the reasoning in N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, where seeking adjournments to protract the cross-examination of a witness who was present was held capable of amounting to professional misconduct.

Wit

The lamp students find strangest, because in modern English "wit" suggests jokes.

Parry did not mean jokes. He meant quickness of mind: the ability to see the point at once, to answer a question from the Bench without losing the thread, to notice the flaw in the other side's argument while it is being made. It also carries the older sense of good sense, as in the phrase "to keep one's wits".

A secondary and genuine sense is relief. A courtroom is a tense place, and an advocate who can lighten a moment without disrespect to the court makes the work possible. But the line is the same as with courage: humour at the expense of the court, or of a witness, is not wit but a breach of rules 1 and 2.

Eloquence

The power to be understood and to persuade.

The examinable point is that eloquence is not ornament. Parry's own contrast is between eloquence and fluency: a fluent speaker produces words easily, an eloquent one produces the right words. In court the test is simple: at the end of the sentence, does the judge know what is being asked and why the law allows it.

Eloquence in writing matters as much as in speech, and more today than in 1923, because most of what an advocate produces is written: the plaint, the written statement, the affidavit, the synopsis, the written submission.

Judgment

The ability to decide what to do: which point to take and which to drop, whether to cross-examine at all, whether to advise a settlement, whether the case should be filed.

This is the lamp that distinguishes an experienced advocate from a well-prepared beginner, because it cannot be got from books. It is also the lamp that most directly serves the client, since the commonest professional failure is not losing an argument but taking a bad point at the cost of a good one.

Judgment includes judgment about oneself: knowing when a matter is beyond one's competence and saying so. That connects to rule 11 and its limits, which Module II takes up.

Fellowship

The relationship among advocates, who are opponents in a case and colleagues in a profession.

Fellowship is what makes it possible for two advocates to fight a case hard in the morning and consent to an adjournment for each other in the afternoon. It is the quality behind rules 34 and 35 on the duty to the opponent, and behind the whole of the duty to colleagues in rules 36 to 39.

Its institutional expression is the Bar Association and the Bar Council, and its practical expression is the convention that an advocate does not take a technical advantage of an opponent's mistake where no client's interest requires it.

The eighth lamp: tact

Later writers add an eighth, tact: dealing with people, whether the judge, the opponent, the witness or the client, in a way that gets the work done without needless friction.

The example usually given is cross-examination. A witness handled roughly closes up; a witness handled with tact answers. Tact is therefore not softness but effectiveness.

Say in an answer that this is an addition. MU's syllabus prints seven and names them. An answer that lists eight without saying which is Parry's and which is later is inaccurate.

A worked example

Aditya, two years at the Bar, is defending a tenant in an eviction suit. Four things happen on one day.

He has found a Supreme Court judgment that is against his client and that the other side has missed. Honesty requires him to bring it to the court's attention and then to argue why it is distinguishable. Concealing it would be a breach of the duty to the court, and if it were later discovered his case and his standing would both be gone. Judgment tells him how to present it: not apologetically, but with the distinction ready.

The judge makes a remark suggesting the tenant is a habitual defaulter, before the evidence is in. Courage requires him to say, respectfully, that no such finding is on the record and to ask that the matter be decided on the evidence. Rule 1 gives him both the right to say it and the manner in which to say it.

The landlord's advocate asks for a short adjournment because his mother is ill. Fellowship, and rule 35, mean he consents unless his client is genuinely prejudiced. He tells his client why.

The tenant asks him to say the rent was paid, which it was not. Every lamp points the same way and so does the law. He refuses. Rule 4 requires him to use his best efforts to restrain and prevent his client from resorting to unfair practices, and on the authority of Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, procuring false material is grave professional misconduct.

Change one fact. Suppose Aditya complies with the client and leads false evidence. He has not merely fallen short of a Victorian ideal. He has broken rule 4, and he is exposed to a proceeding under section 35 of the Advocates Act and, if it was done in the face of the court, to criminal contempt under section 2(c) of the Contempt of Courts Act 1971 as well. That is the point of teaching this topic beside the rules rather than instead of them.

What beginners get wrong

These are not statutory duties and breaching a lamp is not misconduct. Misconduct is breach of the Act or of the Bar Council rules. An advocate who is dull rather than eloquent commits no offence.

"Wit" does not mean humour in the modern sense. It means quickness of mind and good sense.

"Eloquence" does not mean flowery language. It means saying the right thing so that it is understood.

There are seven on MU's syllabus. Tact is an addition by later writers and should be identified as such.

The lamps are not a substitute for the rules. They describe character; the rules impose obligations. An answer that gives only the lamps when asked about an advocate's duties has answered the wrong question.

Quick revision

• Source: Edward Abbott Parry, The Seven Lamps of Advocacy (1923). Not law, not in the Act, not in the Bar Council rules.
• The seven, in MU's order: Honesty, Courage, Industry, Wit, Eloquence, Judgment, Fellowship.
• Honesty: not misleading the court, the client or the opponent. Carried in law by rules 1 to 10 and 25 to 32.
• Courage: presenting the case whoever is displeased. Rule 1 gives both the duty not to be servile and the right and duty to complain properly about a judicial officer.
• Industry: preparation. Its absence appears in the adjournment cases.
• Wit: quickness of mind, not jokes.
• Eloquence: being understood and persuading, not ornament.
• Judgment: choosing which points to take, and knowing one's own limits.
• Fellowship: opponents in a case, colleagues in a profession. Carried by rules 34 to 39.
• The eighth lamp, tact, is a later addition and should be identified as one.

Test yourself

1. Who enumerated the seven lamps, and in what work? Edward Abbott Parry, an English county court judge, in The Seven Lamps of Advocacy, published in 1923.

2. Is breach of a lamp professional misconduct? No. The lamps are qualities of character, not legal duties. Professional misconduct is breach of the Advocates Act or of the Bar Council of India Rules, punishable under section 35.

3. What does "wit" mean in this list? Quickness of mind and good sense, the ability to see the point and to answer at once, rather than humour in the modern sense.

4. Distinguish courage from discourtesy to the court. Courage is presenting the client's case fully whoever is displeased by it. Rule 1 of the Bar Council rules requires an advocate to conduct himself with dignity and self-respect and not to be servile, while also requiring a respectful attitude towards the court; a grievance against a judicial officer is to be taken to the proper authorities, not made in the courtroom.

5. How many lamps does MU's syllabus print, and what is the eighth? Seven. Tact is added by later writers and should be identified as an addition rather than presented as one of Parry's seven.

6. Why is a topic with no statutory basis on a syllabus about the Advocates Act? Because the rules of professional conduct are almost all negative and can only catch bad conduct. They assume a person who already wishes to behave properly, and the lamps describe that person, which is why they are taught beside the rules rather than instead of them.

Facts. Writ Petition (C) No. 454 of 2015 challenged the manner in which advocates were designated under section 16, contending that the existing practice of discussion followed by a secret ballot of the Full Court was opaque and arbitrary.

Held. The Court laid down guidelines for itself and for all High Courts.

The Permanent Committee. All matters relating to designation are to be dealt with by a Permanent Committee known as the Committee for Designation of Senior Advocates, headed by the Chief Justice, with the two senior-most judges of the Court concerned and the Attorney General, or the Advocate General in a High Court. Those four nominate a fifth member from the Bar. The Committee has a permanent Secretariat.

The point-based format, set out in paragraph 73.7 of the judgment, out of one hundred:

The Full Court. All names cleared by the Permanent Committee go to the Full Court, and voting by secret ballot is not normally to be resorted to except when unavoidable.

That is the judgment MU names, and a student must be able to state the Committee and the four criteria with their marks.

Indira Jaising-2: the order of 12 May 2023

Applications were filed to modify the point system. The order of 12 May 2023 was made by Sanjay Kishan Kaul, Ahsanuddin Amanullah and Aravind Kumar JJ.

The Court said its remit was only to fine-tune the criteria, not to reopen the 2017 judgment. What it changed:

Publications fell from fifteen points to five. The Court held fifteen too high, because most practising advocates find little time for academic writing and publications are not a reflection of advocacy skill. It widened the criterion to include teaching assignments and guest courses at law schools rather than abolishing it.

The ten points released were added to the second criterion, which rose from forty to fifty. The Court also clarified that judgments and not mere orders are to be considered, since judgments deal with contested legal issues, and that what counts is the advocate's actual role in the matter and not the number of appearances.

Years of practice. Following an earlier order of 4 May 2022, one mark is given for each year between ten and twenty, rather than a flat ten for the whole band, so that an applicant of nineteen years is not treated the same as one of eleven.

The interview kept its twenty-five points, but the number of interviews was restricted to what the Permanent Committee found feasible.

Secret ballot. The Court held that the elaborate Committee exercise would serve no purpose if the ultimate decision were taken by secret ballot.

Other directions. Candidates may file five of their best synopses; a concession on the number of appearances is to be given to advocates practising before specialised tribunals; diversity, particularly gender and first-generation lawyers, is to be considered; the exercise is to be carried out at least once a year; and the Full Court's power of suo motu designation of exceptional and eminent advocates is not taken away.

Jitender @ Kalla: the position as it now stands

Jitender @ Kalla v. State (Govt.) of NCT of Delhi, 2025 INSC 667, was decided on 13 May 2025 by Abhay S. Oka, Ujjal Bhuyan and S.V.N. Bhatti JJ.

Held, and this is the sentence that matters: the Court directed that the directions contained in paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2, that is the point-based format, shall not be implemented.

In its place the High Courts were directed to frame Rules within four months, keeping in view these guidelines:

• The decision to confer designation is that of the Full Court of the High Court or of the Supreme Court.
• Applications found eligible by the Permanent Secretariat go before the Full House. An endeavour is made to reach consensus; failing consensus, the decision is by a democratic method of voting, and whether a secret ballot is used in a given case is left to the High Court.
• The minimum qualification of ten years' practice fixed by Indira Jaising-1 needs no reconsideration.
• Advocates may continue to apply, the application being treated as consent; and the Full Court may also confer designation without an application in a deserving case.
• Under the scheme of section 16(2) there is no scope for individual judges to recommend a candidate.
• At least one designation exercise every calendar year.

Two transitional points complete it. Processes already initiated under the two Indira Jaising decisions continue to be governed by them, but no new process is to be initiated and no new application considered until a proper regime of Rules is framed. And the Permanent Secretariat proposed in Indira Jaising-1 continues, because collecting the data matters.

How to answer a question on this topic

MU's syllabus names the 2017 case, so the 2017 guidelines must be stated. But an answer that stops there states a system the Supreme Court has directed shall not be implemented.

The safe structure is a three-step story.

1. Section 16 gives a bare discretion with no procedure, which produced opacity and inconsistency.
2. Indira Jaising-1 (2017) structured it: Permanent Committee, point-based format out of a hundred, secret ballot to be exceptional. Indira Jaising-2 (2023) fine-tuned it: publications fifteen to five, judgments forty to fifty, one mark per year in the ten to twenty band, interview retained, secret ballot criticised.
3. Jitender @ Kalla (2025) directed that paragraph 73.7 as amended shall not be implemented, and required the High Courts to frame Rules, with the Full Court deciding, consensus preferred, ten years' practice retained, and at least one exercise a year.

That answer is complete, current, and shows exactly why the marks are where they are.

A worked example

Vandana has practised for sixteen years, mostly before the National Company Law Tribunal. She has two published articles, has taught a guest course at a law school, and appears in the Bombay High Court less often than a general practitioner would.

Under Indira Jaising-1 (2017) she scores ten of twenty for years of practice, since sixteen years falls in the flat ten to twenty band. Her tribunal practice produces few reported High Court judgments, so she does badly on the forty-point criterion. Her two articles help her on the fifteen-point publications head.

Under Indira Jaising-2 (2023) she does better. Years of practice gives her one mark per year, so six of the twenty rather than a flat ten in that band. Publications now carry only five points, but the criterion covers her guest course as well as her articles. The second criterion is now worth fifty, and the Court directed that advocates practising before specialised tribunals, and the National Company Law Tribunal is named in the judgment, are to be given a concession on the number of appearances, and that the role played rather than the number of appearances is what counts.

Under Jitender @ Kalla (2025) none of that arithmetic is done, because the point-based format is not to be implemented. Her application goes to the Full Court of the High Court under whatever Rules that Court has framed, an endeavour is made at consensus, and failing consensus the Full Court votes. Her sixteen years clears the ten-year minimum, which Indira Jaising-1 fixed and which the 2025 Bench expressly left standing.

And a practical consequence. If her High Court has not yet framed Rules, no new application can be considered, because the 2025 judgment directs that new processes shall not be initiated until a proper regime of Rules is framed.

What beginners get wrong

The 2025 judgment did not abolish designation. It abolished the point system and returned the decision to the Full Court under Rules.

It did not overrule Indira Jaising-1 wholesale. It expressly kept the ten-year minimum, kept the Permanent Secretariat, and left processes already initiated to be governed by the earlier decisions.

The 2023 order was not an appeal or a review. The Court said its remit was to fine-tune, not to reopen the 2017 judgment.

There is a wrong document in circulation. A separate order in the same writ petition dated 2 January 2017 decides an application to recall and contains none of the guidelines. The judgment is of 12 October 2017.

Designation is not a promotion. Section 16(3) restricts practice; chapter [Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae] sets those restrictions out.

Quick revision

• Section 16(2): designation by the Supreme Court or a High Court, with consent, on ability, standing at the Bar or special knowledge or experience in law. No procedure in the Act.
• Indira Jaising-1, (2017) 9 SCC 766, 12 October 2017, Ranjan Gogoi J: Permanent Committee for Designation of Senior Advocates, headed by the Chief Justice with the two senior-most judges and the Attorney General or Advocate General, plus a fifth member from the Bar; a permanent Secretariat; a point-based format of 20 for years of practice, 40 for judgments, pro bono work and domain expertise, 15 for publications and 25 for interview; secret ballot to be exceptional.
• Indira Jaising-2, 12 May 2023: publications 15 to 5, widened to include teaching; judgments 40 to 50; one mark per year between ten and twenty; interview kept at 25 but interviews restricted; five best synopses; concession for specialised tribunal practice; diversity; at least once a year; suo motu power preserved.
• Jitender @ Kalla, 2025 INSC 667, 13 May 2025: paragraph 73.7 as amended shall NOT be implemented; High Courts to frame Rules in four months; Full Court decides; consensus first, then democratic voting, secret ballot left to the High Court; ten years' practice retained; application optional, designation possible dehors an application; no individual judge may recommend under section 16(2); one exercise every calendar year; pending processes continue under the old decisions but no new process until Rules are framed.

Test yourself

1. State the composition of the Permanent Committee laid down in 2017. The Chief Justice of the Court concerned as its head, the two senior-most judges of that Court, and the Attorney General for India or, in a High Court, the Advocate General of the State. Those four members nominate a fifth member from the Bar. The Committee has a permanent Secretariat.

2. Give the point-based format as laid down in 2017 and as it stood after 2023. In 2017: twenty points for years of practice, forty for judgments, pro bono work and domain expertise, fifteen for publications and twenty-five for the interview. After 2023: twenty for years of practice but at one mark per year in the ten to twenty band, fifty for judgments and domain expertise, five for publications, widened to include teaching, and twenty-five for the interview.

3. What did the Supreme Court direct in May 2025 about that format? That the directions in paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2 shall not be implemented, and that the High Courts should frame Rules within four months in accordance with the guidelines it set out.

4. Under the 2025 guidelines, who decides and how? The Full Court of the High Court or of the Supreme Court. Eligible applications go before the Full House, an endeavour is made to arrive at consensus, and failing consensus the decision is by a democratic method of voting, with the use of a secret ballot in a given case left to the High Court.

5. Was the ten-year minimum disturbed in 2025? No. The Court said in terms that the minimum qualification of ten years of practice fixed by Indira Jaising-1 needs no reconsideration.

6. May an advocate be designated without applying? Yes. The 2025 judgment provides that the practice of applying may continue, the application being treated as consent, and that additionally the Full Court may consider and confer designation dehors an application in a deserving case.

7. What is the position of an application made today in a High Court that has not yet framed Rules? It cannot be considered. The 2025 judgment directs that processes already initiated under the Indira Jaising decisions continue under them, but that no new process shall be initiated and no new application considered unless there is a proper regime of Rules framed by the High Court.

Functions: section 7

Section 7(1) lists the functions. They fall into five groups, and grouping them is the way to remember them. Note before starting that clause (a) of section 7(1) was omitted by the amending Act of 1973 with effect from 31 January 1974, so the live list begins at clause (b).

Standards of the profession.

• (b) to lay down standards of professional conduct and etiquette for advocates. This is the hinge of the whole subject. Everything in Module II is made under this clause, read with the rule-making power in section 49(1)(c).
• (c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council. Everything in Module III's procedure is made under this clause with section 49(1)(f).

Protecting advocates.

• (d) to safeguard the rights, privileges and interests of advocates.
• (e) to promote and support law reform.
• (ia) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest.

Legal education, which is where most of the Bar Council's public activity lies.

• (h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils.
• (i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate, and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give.
• (ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate.

Clause (i) is the clause that stands behind section 24(1)(c). A law degree qualifies only if it is from a University the Bar Council of India has recognised, and the power to inspect is how that recognition is policed.

Supervision and dispute resolution.

• (f) to deal with and dispose of any matter arising under this Act which may be referred to it by a State Bar Council.
• (g) to exercise general supervision and control over State Bar Councils.

Clause (g) is short and is the source of a great deal. It supports section 48B, the power to give directions, and it was one of the provisions the Constitution Bench relied on in Bar Council of India v. Bonnie Foi Law College, decided 10 February 2023, when holding that the Bar Council of India has power to prescribe the All India Bar Examination.

Money, elections and the residue.

• (ib) to organise legal aid to the poor in the prescribed manner.
• (j) to manage and invest the funds of the Bar Council.
• (k) to provide for the election of its members.
• (l) to perform all other functions conferred on it by or under this Act.
• (m) to do all other things necessary for discharging the aforesaid functions.

Clauses (l) and (m) are the residuary clauses, and they were the other limbs the Court relied on in Bonnie Foi. Section 7(2) lets the Bar Council of India constitute funds for welfare schemes for indigent or disabled advocates, for legal aid, and for establishing law libraries; section 7(3) lets it receive grants, donations, gifts or benefactions for those purposes.

Section 7A lets the Bar Council of India become a member of international legal bodies such as the International Bar Association or the International Legal Aid Association, contribute subscriptions, and authorise expenditure on its representatives at international conferences.

Committees: sections 9, 9A and 10

A Bar Council works through committees, and a student must know which committee does what.

Section 10(2): the Bar Council of India shall constitute two standing committees:

• an executive committee of nine members elected by the Council from amongst its members;
• a legal education committee of ten members, of whom five are elected by the Council from amongst its members and five are co-opted persons who are not members of the Council.

The co-option in the legal education committee is deliberate: it brings academics onto the body that decides what a law degree must contain.

Section 9 requires a Bar Council to constitute one or more disciplinary committees, each of three persons, of whom two are elected by the Council from amongst its members and the third is co-opted by the Council from advocates who possess the qualifications in the proviso to section 3(2) and who are not members of the Council. The senior-most advocate among the members is the Chairman. Those committees are Module III's subject.

Section 9A lets a Bar Council constitute one or more legal aid committees of not more than nine and not fewer than five members.

Section 10(3) lets a Bar Council constitute such other committees as it thinks necessary.

Section 10A deals with meetings: the Bar Council of India meets at New Delhi or elsewhere for reasons recorded in writing, committees other than disciplinary committees meet at the headquarters, and disciplinary committees meet at such times and places and observe such procedure as may be prescribed.

Section 10B is the disqualification: an elected member is deemed to have vacated his office if the Council declares him to have been absent without sufficient excuse from three consecutive meetings, or if his name is removed from the roll of advocates for any cause, or if he is otherwise disqualified under a rule of the Bar Council of India.

Staff, accounts and rules: sections 11, 12, 15, 49 and 49A

Section 11: every Bar Council shall appoint a secretary and may appoint an accountant and other staff. The secretary of a Bar Council must possess the prescribed qualifications.

Section 12: every Bar Council shall cause to be maintained books of account and other books in the prescribed form, shall appoint auditors, and shall send a copy of the audited accounts and the auditors' report to the Central Government, which shall be published in the Gazette. A State Bar Council also sends its audited accounts to the Bar Council of India.

That section is worth noticing in a subject that has an accountancy module. The Bar Council's own accounts are audited and published, and the same statute that requires the institution to keep books requires the individual advocate to do so through rules 25 to 32.

Section 15 is the general rule-making power of a Bar Council for carrying out the purposes of Chapter II, covering election of members, manner of election of the Chairman and Vice-Chairman, the filling of casual vacancies, the powers and duties of the Chairman and Vice-Chairman, the constitution of funds, and the summoning and holding of meetings.

Section 49 is the general power of the Bar Council of India to make rules, and three of its clauses matter to this subject above all others:

• section 49(1)(c), rules prescribing the standards of professional conduct and etiquette to be observed by advocates, which is the source of the whole of Module II;
• section 49(1)(f), rules prescribing the procedure to be followed by the disciplinary committees, which is the source of Module III's procedure; and
• section 49(1)(ag), rules on the class or category of persons entitled to be enrolled as advocates, which is the clause the Constitution Bench relied on decisively in Bonnie Foi.

Section 49A gives the Central Government power to make rules for carrying out the purposes of Chapter III and Chapter IV of the Act, and provides that such rules may repeal or amend rules made by a Bar Council.

A worked example

A new private University in Maharashtra announces a three-year LL.B. and admits students. Two years later the students discover that the Bar Council of India has not recognised the course.

What has gone wrong, and under which provisions.

1. Section 24(1)(c) requires a degree obtained after a three-year course from a University in India recognised for the purposes of this Act by the Bar Council of India.
2. Section 7(1)(i) is the function under which the Bar Council of India recognises Universities and visits or inspects them, or causes the State Bar Councils to do so under its directions.
3. Section 6(1)(gg) is the corresponding function of the State Bar Council: to visit and inspect Universities in accordance with directions given under section 7(1)(i).
4. Without recognition the degree does not satisfy section 24(1)(c), so the graduates cannot be enrolled, and section 33 means they cannot practise.

What the students can do. The matter is one arising under the Act, so a State Bar Council may refer it to the Bar Council of India under section 7(1)(f), and the Bar Council of India may act under its general supervision and control in section 7(1)(g) and give directions under section 48B.

Change one fact. Suppose the University is recognised but a State Bar Council refuses to enrol its graduates on some other ground. Section 26(2) requires that proposed refusal to go to the Bar Council of India for opinion, and section 26(3) makes that opinion binding.

What beginners get wrong

Advocates do not elect the Bar Council of India. Election is indirect: advocates elect the State Bar Council, which elects one of its members to the national body.

The Attorney-General and the Solicitor-General are members, ex officio. They are not merely invited.

The legal education committee is not made only of Council members. Five of its ten are co-opted from outside.

Section 7 lists functions, not powers of punishment. The Bar Council of India's disciplinary jurisdiction comes from sections 36, 36B and 37, and it is exercised by its disciplinary committee, not by the Council.

Recognition of a University is not automatic and is not a matter for the University Grants Commission alone. Section 7(1)(i) makes it the Bar Council of India's function for the purposes of this Act.

Quick revision

• Section 4: the Bar Council of India consists of the Attorney-General and the Solicitor-General ex officio and one member elected by each State Bar Council from amongst its members. Section 4(1A): a candidate needs the ten-year qualification in the proviso to section 3(2). Section 4(2): Chairman and Vice-Chairman elected by the Council.
• Section 5: every Bar Council is a body corporate with perpetual succession and a common seal, able to sue and be sued.
• Section 7(1) functions, grouped: standards of conduct (b) and disciplinary procedure (c); safeguarding advocates (d), law reform (e), seminars and journals (ia); legal education (h), recognition and inspection of Universities (i), reciprocal recognition of foreign qualifications (ic); references from State Bar Councils (f) and general supervision and control over State Bar Councils (g); legal aid (ib), funds (j), elections (k), and the residuary (l) and (m).
• Section 7A: membership of international legal bodies.
• Section 10(2): executive committee of nine; legal education committee of ten, five elected and five co-opted from outside. Section 9: disciplinary committees of three, two elected and one co-opted, chaired by the senior-most advocate. Section 9A: legal aid committees of five to nine.
• Section 10B: a member vacates office on absence from three consecutive meetings without sufficient excuse, or on removal of his name from the roll.
• Section 12: books of account, audit, and publication of the audited accounts in the Gazette.
• Section 49(1)(c) is the source of Module II; section 49(1)(f) of Module III's procedure; section 49(1)(ag) of the All India Bar Examination.

Test yourself

1. Who are the members of the Bar Council of India? The Attorney-General of India and the Solicitor-General of India, both ex officio, and one member elected by each State Bar Council from amongst its own members, under section 4(1).

2. Are members of the Bar Council of India elected directly by advocates? No. Advocates elect their State Bar Council under section 3(2), and each State Bar Council elects one of its members to the Bar Council of India. The election to the national body is indirect.

3. Which function of the Bar Council of India is the source of the rules on professional conduct? Section 7(1)(b), to lay down standards of professional conduct and etiquette for advocates, exercised through the rule-making power in section 49(1)(c).

4. State the composition of the legal education committee and why it is unusual. Ten members under section 10(2)(b), of whom five are elected by the Council from amongst its members and five are co-opted persons who are not members of the Council. The co-option brings people from outside the Council, typically academics, onto the body that sets the standards of legal education.

5. When does an elected member of a Bar Council vacate office? Under section 10B, if the Council declares him to have been absent without sufficient excuse from three consecutive meetings, or if his name is for any cause removed from the roll of advocates, or if he is otherwise disqualified under a rule made by the Bar Council of India.

6. Which provisions did the Constitution Bench rely on in Bonnie Foi to uphold the All India Bar Examination? Section 7(1)(g), general supervision and control over State Bar Councils, together with the residuary clauses (l) and (m), the opening words of section 24(1) making it subject to rules made under the Act, and decisively section 49(1)(ag), which covers the class or category of persons entitled to be enrolled as advocates.

7. Does the Bar Council of India itself punish an advocate for misconduct? No. Its disciplinary committee does, constituted under section 9, exercising the jurisdiction in sections 36, 36B and 37. The Council as a body has functions under section 7, not a punitive jurisdiction.

Section 3(4): an advocate is disqualified from voting, and from being chosen as and being a member, unless he possesses the qualifications or satisfies the conditions prescribed by the Bar Council of India; and an electoral roll is prepared and revised from time to time by each State Bar Council.

Section 5 makes it a body corporate, as chapter [The Bar Council of India: Constitution, Powers and Functions] sets out.

Functions: section 6

Section 6(1) lists them, and the first three are the ones that define what a State Bar Council is.

• (a) to admit persons as advocates on its roll.
• (b) to prepare and maintain such roll.
• (c) to entertain and determine cases of misconduct against advocates on its roll.

Those three are the reason the State Bar Council, and not the Bar Council of India, is the body an ordinary advocate deals with. Enrolment starts there under section 25, the roll is kept there under section 17, and a complaint of misconduct starts there under section 35.

The rest:

• (d) to safeguard the rights, privileges and interests of advocates on its roll.
• (dd) to promote the growth of Bar Associations for the effective implementation of the welfare schemes in section 6(2)(a) and section 7(2)(a).
• (e) to promote and support law reform.
• (ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest.
• (eee) to organise legal aid to the poor in the prescribed manner.
• (f) to manage and invest the funds of the Bar Council.
• (g) to provide for the election of its members.
• (gg) to visit and inspect Universities in accordance with the directions given under section 7(1)(i).
• (h) to perform all other functions conferred on it by or under this Act.
• (i) to do all other things necessary for discharging the aforesaid functions.

Section 6(2) lets a State Bar Council constitute one or more funds for giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates, for giving legal aid or advice, and for establishing law libraries. Section 6(3) lets it receive grants, donations, gifts or benefactions for those purposes.

Clause (gg) is worth noticing: the inspection of law colleges is done in practice by the State Bar Council, but only in accordance with the directions given by the Bar Council of India under section 7(1)(i). The State Bar Council is the hands; the standard is national.

Term and the special committee: sections 8 and 8A

Section 8: the term of office of an elected member of a State Bar Council is five years from the date of publication of the result of his election. A proviso lets the Bar Council of India, by order and for reasons recorded in writing, extend that term by not more than six months where the State Bar Council has failed to provide for the election of its members before expiry.

Section 8A answers the question a student is most likely to be asked about this pair: what happens if the election still does not happen.

Where a State Bar Council fails to provide for the election before the expiry of the five years or the extended term, the Bar Council of India shall, on and from the day immediately following the expiry, constitute a Special Committee consisting of:

• (i) the ex officio member of the State Bar Council referred to in section 3(2)(a), as Chairman, and where there is more than one ex officio member, the senior-most among them; and
• (ii) two members nominated by the Bar Council of India from amongst advocates on the electoral roll of that State Bar Council.

The Special Committee exercises the powers of the State Bar Council until a new Council is constituted, and its duty is to hold the election. This is live and practical law: State Bar Councils have run under special committees for long periods, and an advocate dealing with such a body is dealing with a statutory substitute rather than an elected Council.

Committees, staff, accounts, vacancies

Section 9 requires disciplinary committees, which Module III deals with.

Section 9A allows legal aid committees of five to nine members.

Section 10(1): a State Bar Council shall constitute two standing committees:

• an executive committee of five members elected by the Council from amongst its members;
• an enrolment committee of three members elected by the Council from amongst its members.

Note the difference from the national body: the Bar Council of India's executive committee has nine, and it has a legal education committee of ten in place of an enrolment committee. That is the right way to remember both, because the State Bar Council enrols and the Bar Council of India sets educational standards.

Sections 10A, 10B, 11, 12 and 15 apply to both kinds of Council and are set out in chapter [The Bar Council of India: Constitution, Powers and Functions]. In short: meetings and procedure; vacation of office on absence from three consecutive meetings or removal from the roll; secretary and staff; books of account and audit; and the rule-making power.

Section 13: no act done by a Bar Council or a committee is invalid merely by reason of any vacancy in the body or any defect in the constitution of it.

Section 14: an election to a Bar Council shall not be questioned on the ground that the electoral roll was invalid, or that the result was declared after the prescribed time, provided the whole of the electorate had a reasonable opportunity of voting.

Those two are curative provisions, and their purpose is to stop the entire work of a Bar Council being unpicked because of a procedural irregularity.

Section 46A: the Bar Council of India may give financial assistance to any State Bar Council which needs funds to perform its functions. That is the answer to how a State Bar Council with a small membership survives on the fee in section 24(1)(f).

A worked example

The elected members of a State Bar Council were declared elected on 1 September 2020. No fresh election is held.

What happens, section by section.

1. Section 8. Their five-year term expired on 1 September 2025.
2. The proviso to section 8. Because the Council failed to provide for an election before expiry, the Bar Council of India may, by order recording reasons, extend the term by up to six months, that is to 1 March 2026.
3. Section 8A. If no election is provided for before the extended term expires, the Bar Council of India shall constitute a Special Committee on and from 2 March 2026. Its Chairman is the ex officio member under section 3(2)(a), the Advocate-General, and its other two members are advocates on the electoral roll nominated by the Bar Council of India.

Meanwhile, what happens to work in progress? An enrolment application filed in February 2026 is dealt with by the Special Committee exercising the Council's powers. A disciplinary complaint continues before the disciplinary committee, and section 36A ensures that where a disciplinary committee ceases to exercise jurisdiction and is succeeded by another, the successor may continue the proceedings from the stage at which its predecessor left them.

And a trap. A candidate refused enrolment during this period cannot argue that everything done was a nullity because the Council was not properly constituted. Section 13 provides that no act of a Bar Council or a committee is invalid merely by reason of a vacancy or a defect in constitution.

What beginners get wrong

The State Bar Council does not enrol; its enrolment committee does, under section 26(1).

The number of elected members is not fixed at twenty-five. It is fifteen, twenty or twenty-five according to the size of the electorate under section 3(2)(b).

The ex officio member is the Advocate-General, except in the special cases named in the section, and for Delhi it is the Additional Solicitor-General.

A special committee under section 8A is not a punishment. It is a statutory substitute that keeps the Council's work going and whose duty is to hold the election.

Inspection of law colleges is not the State Bar Council's own standard. Section 6(1)(gg) makes it a function to be exercised in accordance with directions given by the Bar Council of India under section 7(1)(i).

Quick revision

• Section 3(1)(ccc): the Bar Council of Maharashtra and Goa, covering Maharashtra, Goa, Dadra and Nagar Haveli, and Daman and Diu.
• Section 3(2)(a): ex officio member, the Advocate-General of the State; for Delhi, the Additional Solicitor-General.
• Section 3(2)(b): fifteen, twenty or twenty-five elected members according to an electorate of up to five thousand, up to ten thousand, or above ten thousand, elected by proportional representation with the single transferable vote. Proviso: as nearly as possible one-half must have been advocates for at least ten years.
• Section 6(1): the first three functions are to admit advocates on its roll, to prepare and maintain the roll, and to entertain and determine cases of misconduct against advocates on its roll.
• Section 6(1)(gg): visit and inspect Universities in accordance with directions under section 7(1)(i).
• Section 8: term five years; the Bar Council of India may extend by up to six months for reasons recorded.
• Section 8A: on failure to elect, the Bar Council of India shall constitute a Special Committee: the ex officio member as Chairman and two members nominated by the Bar Council of India.
• Section 10(1): executive committee of five, enrolment committee of three.
• Sections 13 and 14: acts are not invalid merely for a vacancy or defect in constitution, and an election is not to be questioned where the whole electorate had a reasonable opportunity of voting.
• Section 46A: the Bar Council of India may give financial assistance to a State Bar Council.

Test yourself

1. Which State Bar Council covers a student who will practise in Mumbai, and under which clause? The Bar Council of Maharashtra and Goa, under section 3(1)(ccc), which covers Maharashtra and Goa and the Union territories of Dadra and Nagar Haveli and Daman and Diu.

2. How many elected members does a State Bar Council have? Fifteen where the electorate does not exceed five thousand, twenty where it exceeds five thousand but not ten thousand, and twenty-five where it exceeds ten thousand, under section 3(2)(b).

3. What does the proviso to section 3(2) require, and why? That as nearly as possible one-half of the elected members shall be persons who have been advocates on a State roll for at least ten years. It guarantees experience on the Council without shutting younger advocates out of it.

4. State the first three functions of a State Bar Council. To admit persons as advocates on its roll, to prepare and maintain that roll, and to entertain and determine cases of misconduct against advocates on its roll, under section 6(1)(a), (b) and (c).

5. What happens if a State Bar Council fails to hold elections before its term expires? Under the proviso to section 8 the Bar Council of India may extend the term by up to six months for reasons recorded in writing. If the failure continues, section 8A requires the Bar Council of India to constitute a Special Committee, chaired by the ex officio member of the Council, with two members nominated by the Bar Council of India from advocates on the electoral roll.

6. Can the decisions of a Bar Council be challenged because a seat on it was vacant? No. Section 13 provides that no act done by a Bar Council or any of its committees is invalid merely by reason of any vacancy in the body or any defect in its constitution.

7. Compare the standing committees of a State Bar Council with those of the Bar Council of India. A State Bar Council constitutes an executive committee of five and an enrolment committee of three, under section 10(1). The Bar Council of India constitutes an executive committee of nine and a legal education committee of ten, five elected and five co-opted, under section 10(2).

The three supervisory provisions

MU's topic asks for powers, and the powers that make the Bar Council of India the senior body are three, spread across the Act. Taking them together in one place is what makes Module III's remedies intelligible when they arrive.

Section 7(1)(g): general supervision and control over State Bar Councils. This is the source clause. It is a function rather than a procedure, and it is what the Constitution Bench relied on in Bar Council of India v. Bonnie Foi Law College, decided 10 February 2023, among the provisions supporting the power to prescribe the All India Bar Examination.

Section 48A: power of revision. The Bar Council of India may, at any time, call for the record of any proceeding under the Act which has been disposed of by a State Bar Council or a committee thereof, and from which no appeal lies, for the purpose of satisfying itself as to the legality or propriety of the disposal, and may pass such orders as it thinks fit. Section 48A(2) requires a hearing before any order that prejudicially affects a person.

The words "from which no appeal lies" are the whole point. Section 48A fills the gap left by the appeal provisions; it is not an alternative to them.

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

Notice how section 48B is drafted: it does not create a new power, it works "in the exercise of" the general supervision in section 7(1)(g), and it makes compliance mandatory. In Bonnie Foi the Supreme Court pointed to section 48B as the instrument by which the Bar Council of India could ensure uniformity and fairness of procedure among the State Bar Councils.

Where the State Bar Council is NOT subordinate

An answer that says the State Bar Council is simply subordinate is too crude, and there are three places where it is not.

Enrolment is the State Bar Council's own function. The Bar Council of India does not enrol anybody. Its role in an enrolment is limited: an opinion on a proposed refusal under section 26(2) and (3), a consent under section 27, a direction on transfer under section 18, and a power to remove a name obtained by fraud under the proviso to section 26(1).

The disciplinary committee is not the Council. When a complaint is decided, it is decided by a disciplinary committee constituted under section 9, which acts judicially. Neither Council can direct the outcome, and the Bar Council of India's route into it is by appeal under section 37, withdrawal under section 36(2), or the automatic transfer under section 36B, not by a direction under section 48B.

Section 48A does not reach an appealable order. Where an appeal lies under section 37, revision is excluded by the words of section 48A itself.

A worked example

Two State Bar Councils are following different practices. One requires a fresh medical certificate from every applicant; the other does not. A candidate complains that this is arbitrary.

Which provisions apply, and in what order.

1. The requirement is a condition under section 24(1)(e), which lets a State Bar Council's rules add conditions, and rules are made under section 28 and section 15.
2. Rules made by a State Bar Council require the approval of the Bar Council of India, which is the first control.
3. If a practice not embodied in an approved rule is being followed, the Bar Council of India may act under section 7(1)(g) and issue a direction under section 48B, with which the State Bar Council shall comply.
4. If the candidate's own application has been refused, the refusal must already have gone to the Bar Council of India for opinion under section 26(2) and been disposed of in conformity with it under section 26(3).

Where section 48A would come in instead. Suppose the State Bar Council passed an order in some other proceeding under the Act, not an enrolment refusal and not a disciplinary order, from which no appeal lies. The Bar Council of India may then call for the record at any time under section 48A, satisfy itself as to the legality or propriety of the disposal, and pass such orders as it thinks fit, after hearing anyone prejudicially affected.

And a trap. Suppose instead the State disciplinary committee has suspended an advocate. The Bar Council of India cannot use section 48A, because an appeal lies under section 37. It cannot use section 48B either, because that is a power of administrative supervision and not a power to interfere with a judicial order. The route is the appeal under section 37, which Module III deals with.

What beginners get wrong

The Bar Council of India does not enrol advocates. Only a State Bar Council does.

"General supervision and control" is not a power to decide a case. Section 48B is administrative.

Section 48A is not a general appeal. It applies only where no appeal lies.

Members of the Bar Council of India are not elected by advocates directly.

A State Bar Council's rules are not its own last word. They require the approval of the Bar Council of India.

Quick revision

• Test for telling the functions apart: a function about a particular advocate is the State Bar Council's; a function about the profession is the Bar Council of India's.
• Only the State Bar Council enrols (section 6(1)(a)), keeps the roll (section 6(1)(b)) and hears a complaint first (section 6(1)(c)).
• Only the Bar Council of India lays down standards of conduct (section 7(1)(b)), the disciplinary procedure (section 7(1)(c)), recognises Universities and foreign qualifications (sections 7(1)(i) and (ic)), and supervises the State Bar Councils (section 7(1)(g)).
• Section 48A, revision: at any time, over a proceeding disposed of by a State Bar Council or its committee from which no appeal lies, on the ground of legality or propriety, after a hearing.
• Section 48B, directions: in exercise of general supervision and control, for the proper and efficient discharge of a State Bar Council's functions, and the State Bar Council shall comply.
• Terms differ: State Bar Council elected members, five years; Bar Council of India members, two years or the duration of the State seat.
• Committees differ: five and three in a State Bar Council; nine and ten in the Bar Council of India.

Test yourself

1. Give a single test for deciding whether a function belongs to a State Bar Council or to the Bar Council of India. Ask whether the function operates on a particular advocate or on the profession as a whole. Admitting, keeping the roll and hearing complaints operate on the individual and belong to the State Bar Council. Standards of conduct, disciplinary procedure, legal education and supervision operate on the profession and belong to the Bar Council of India.

2. What is the essential limit on the power of revision in section 48A? It applies only to a proceeding disposed of by a State Bar Council or a committee of it from which no appeal lies. Where an appeal is available under section 37, revision is excluded.

3. What must a State Bar Council do when it receives a direction under section 48B? Comply with it. Section 48B provides in terms that the State Bar Council or the committee shall comply with such directions.

4. Compare the terms of office of members of the two Councils. An elected member of a State Bar Council holds office for five years from the publication of the result, extendable by the Bar Council of India by up to six months under the proviso to section 8. A member of the Bar Council of India elected by a State Bar Council holds office for two years if he is an ex officio member of that Council, or otherwise for so long as he holds his State Bar Council seat, under section 4(3).

5. A State disciplinary committee suspends an advocate. May the Bar Council of India correct it under section 48A or section 48B? No to both. Section 48A is excluded because an appeal lies under section 37, and section 48B is a power of administrative supervision, not a power to interfere with the judicial order of a disciplinary committee. The remedy is the appeal under section 37.

6. In what limited ways does the Bar Council of India take part in an enrolment? By giving a binding opinion on a proposed refusal under section 26(2) and (3), by consenting with the refusing Council to a fresh application in another State under section 27, by directing a transfer under section 18, and by removing a name obtained by misrepresentation, fraud or undue influence under the proviso to section 26(1).

The lesson beyond this section, and it is one of the standing rules of this whole book: check commencement, not merely enactment. An Act on the statute book is not necessarily law in force.

What the right actually covers

"Entitled as of right" means the advocate does not ask for permission. He does not need the leave of the court, a local enrolment, or a sponsoring local advocate.

"Throughout the territories to which this Act extends" means the whole of India, section 1(2).

The three limbs are wider than "courts". Limb (ii) covers any tribunal or person legally authorised to take evidence, which brings in the whole machinery of tribunals, commissions and enquiries. Limb (iii) covers any other authority or person before whom such advocate is by or under any law entitled to practise, and that limb is important precisely because it is conditional: before some authorities a special statute restricts or excludes representation by advocates, and limb (iii) respects that.

The two limits

Section 32: the court may let a non-advocate appear in a particular case.

Three points. It begins "notwithstanding anything contained in this Chapter", so it overrides sections 29, 30 and 33. It is available to any court, authority or person. And it is confined to a particular case: it is a permission, not a licence, and it creates no status.

Section 32 is what allows a party to appear in person through a relative in a small matter, a next friend to be heard, or a person with a special interest to assist. It does not make the person an advocate, and it does not entitle him to appear in the next case.

Section 33: nobody else may practise.

Section 33 is the mirror of section 29. Its opening words matter: "Except as otherwise provided in this Act or in any other law for the time being in force." The Act's own exception is section 32. The exception in another law is the reason a chartered accountant may appear before certain tax authorities, and a party may appear in person: those are permissions given by other statutes.

The sanction is section 45: a person who practises in any court or before any authority when he is not entitled to do so is punishable with imprisonment which may extend to six months.

Section 34: the High Court's own rules

Section 34(1): the High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate to it.

This is the provision that reconciles the statutory right in section 30 with a court's control of its own proceedings, and it is not a small qualification. It is the source of rules about dress, about appearance, and, in the case that matters most here, about audience after a contempt.

In Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041, the Supreme Court upheld a rule made by a High Court refusing audience to an advocate found guilty of contempt until he purged the contempt. The Court held that the right to practise and the right of audience before a particular court are not the same thing, that a court has power to regulate who may appear before it, and that purging is by conduct showing genuine remorse and not by the mere expiry of a sentence. That case is worked fully in Module IV, where contempt by an advocate is dealt with.

Section 34(1A) requires the High Court to make rules for fixing and regulating, by taxation or otherwise, the fees payable as costs by a party in respect of his adversary's advocate's fees, in the High Court and in the courts subordinate to it.

Section 34(2) lets the High Court at Calcutta make rules for the Intermediate and Final examinations for articled clerks referred to in section 58AG.

A worked example

Farhan is enrolled with the Bar Council of Maharashtra and Goa. Four questions arise in one week.

He is briefed in a matter before the Calcutta High Court. He may appear. Section 30 entitles him as of right to practise throughout India in all courts, and since 15 June 2011 that provision is in force. He does not need to enrol in West Bengal, and section 17(4) would in any case forbid him from being on two rolls.

He is briefed before a debt recovery tribunal. He may appear, under limb (ii) of section 30, because a tribunal legally authorised to take evidence is expressly covered.

He is asked to appear before a departmental authority whose governing statute says a delinquent employee may be represented only by a fellow employee. He may not appear. Limb (iii) of section 30 covers an authority before whom an advocate is by or under any law entitled to practise, and here the law says otherwise. This is exactly why limb (iii) is drafted conditionally and limbs (i) and (ii) are not.

His client's brother, who is not an advocate, wants to argue a small matter himself. Section 32 allows the court to permit a person not enrolled as an advocate to appear in a particular case. It is for the court to decide, and the permission does not extend to any other matter.

Change one fact. Suppose the brother, having been permitted once, starts appearing regularly for a fee in other matters. He is now practising, he is not enrolled, and he is liable under section 45 to imprisonment which may extend to six months. Section 32 gave him a permission in one case and nothing more.

What beginners get wrong

Section 30 is not the source of the whole right. It is the right of an enrolled advocate; the closure of the profession is sections 29 and 33.

Section 30 was not in force from 1961. It came into force on 15 June 2011.

Section 32 does not create a class of permitted representatives. It is per case.

The right in section 30 is not absolute. It is "subject to the provisions of this Act", so it yields to a suspension under section 35(3)(c), to the restrictions on senior advocates under section 16(3), and to High Court rules under section 34(1).

A right to practise is not a right of audience in every court on every occasion. Pravin C. Shah is the authority for the distinction.

Quick revision

• Section 29: only one class of persons is entitled to practise the profession of law, namely advocates.
• Section 30: every advocate on a State roll is entitled as of right to practise throughout India, (i) in all courts including the Supreme Court, (ii) before any tribunal or person legally authorised to take evidence, and (iii) before any other authority or person before whom he is by or under any law entitled to practise.
• Section 30 came into force on 15 June 2011, by S.O. 1349(E) dated 9 June 2011, fifty years after the Act.
• Section 32: any court, authority or person may permit a non-advocate to appear in a particular case, notwithstanding the rest of Chapter IV.
• Section 33: nobody may practise unless enrolled, except as otherwise provided in this Act or in any other law.
• Section 45: practising without entitlement, imprisonment up to six months.
• Section 34(1): the High Court may make rules laying down the conditions subject to which an advocate is permitted to practise in it and in the courts subordinate to it. Section 34(1A): rules for taxing the adversary's advocate's fees as costs.
• Section 31 is omitted with effect from 1 January 1977.

Test yourself

1. State the three limbs of the right in section 30. In all courts including the Supreme Court; before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom the advocate is by or under any law for the time being in force entitled to practise.

2. When did section 30 come into force, and why does the date matter? On 15 June 2011, by notification S.O. 1349(E) dated 9 June 2011. It matters because until then an advocate's right to appear outside his own State did not rest on a statutory right at all, which is why older books describe the right to practise throughout India as notional.

3. What is the scope of a permission under section 32? It permits a person not enrolled as an advocate to appear before the court, authority or person granting it in a particular case only. It confers no status and does not extend to any other matter.

4. A statute provides that before a particular authority a party may be represented only by a serving employee. Can an advocate insist on appearing under section 30? No. Limb (iii) of section 30 covers only an authority before whom the advocate is by or under any law entitled to practise. Where the governing law excludes representation by advocates, the limb does not apply.

5. How is a statutory right to practise reconciled with a court's control over who appears before it? By section 34(1), which lets the High Court make rules laying down the conditions subject to which an advocate is permitted to practise in it and in its subordinate courts. In Pravin C. Shah v. K.A. Mohd. Ali the Supreme Court upheld such a rule refusing audience to an advocate convicted of contempt until he purged it, holding that the right to practise and the right of audience are not the same thing.

6. What is the penalty for practising without being entitled to do so? Under section 45, imprisonment for a term which may extend to six months.

The second question: may advocates strike?

Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, (2003) 2 SCC 45, was decided on 17 December 2002 by a Constitution Bench headed by the Chief Justice with Doraiswamy Raju, S.N. Variava and D.M. Dharmadhikari JJ, the judgment being delivered by S.N. Variava J.

Facts. The petition raised the legality of strikes and boycotts called by Bar Associations and Bar Councils, and asked what a court should do when lawyers abstain from work in answer to such a call.

Held. The Court's conclusions were unusually specific, and because they are specific they are what an examiner is looking for.

Lawyers have no right to go on strike or to give a call for boycott, not even a token strike.

Protest may take other forms. The Court listed them: press statements, television interviews, carrying banners or placards outside court premises, wearing black or white or any colour arm bands, peaceful protest marches outside and away from court premises, dharnas or relay fasts.

A lawyer holding a vakalat cannot stay away. Lawyers holding vakalatnamas on behalf of their clients cannot fail to attend court in pursuance of a call for strike or boycott, and all lawyers must boldly refuse to abide by any call for strike or boycott.

No lawyer who refuses may be punished for refusing. No adverse consequence may be visited on him by the Association or the Council, and no threat or coercion of any nature, including that of expulsion, may be held out.

A Bar body may not even meet to consider a strike. No Bar Council or Bar Association may permit the calling of a meeting for the purpose of considering a call for strike or boycott, and a requisition for such a meeting must be ignored.

The single narrow exception. Only in the rarest of rare cases, where the dignity, integrity and independence of the Bar or of the Bench is at stake, may courts turn a blind eye to a protest abstention of not more than one day. It is for the court to decide whether the issue involves dignity, integrity or independence, and in such a case the President of the Bar must first consult the Chief Justice or the District Judge, whose decision is final and must be abided by.

Courts must not adjourn. Courts are under no obligation to adjourn matters because lawyers are on strike. It is the duty of every court to go on with the matters on its board even in the absence of lawyers, because courts must not be privy to strikes or calls for boycott.

Why the Court reached that result

The reasoning is worth being able to state, because a question often asks for justification rather than for the rule.

The client is the person who suffers. An advocate holding a vakalatnama has undertaken to conduct a case. A strike does not inconvenience the government or the court; it postpones a decision on a person's liberty, land or maintenance.

A strike is not an exercise of the right to practise. The right in section 30 is a right to appear. There is no correlative right to refuse to appear in a matter already accepted; rule 12 of the Bar Council of India Rules forbids an advocate to withdraw from an engagement once accepted without sufficient cause and reasonable notice, and Module II deals with rules 11 and 12 on accepting and withdrawing from a brief.

Other means of protest exist, and the Court listed them rather than merely saying so.

The court's own duty is independent of the Bar. If the court adjourns because the Bar has struck, the strike has succeeded in stopping the administration of justice, which is the very thing the Bar exists to serve.

The consequences for an individual advocate

Abstaining can be professional misconduct. Because an advocate who holds a vakalatnama and stays away in answer to a strike call is breaching his duty to the client and to the court, the conduct is capable of attracting section 35. Module III deals with how such conduct is treated.

Refusing to strike cannot be. Harish Uppal expressly holds that no adverse consequence, threat or coercion, including expulsion, may be visited on a lawyer who refuses to abide by a strike call. So a Bar Association that expels a member for appearing during a strike is acting contrary to a binding decision of the Supreme Court.

A worked example

The Bar Association at a District Court resolves to abstain from work for three days to protest against the transfer of a judge. Nikhil holds vakalatnamas in two matters listed on the second day, one of them an application for interim maintenance by a woman with no income.

What Harish Uppal requires of him.

He must attend. He holds vakalatnamas, and lawyers holding vakalatnamas cannot fail to attend in pursuance of a call for strike or boycott. He must boldly refuse to abide by the call.

Is the exception available? No, on two independent grounds. The protest is against a transfer, which is not a matter going to the dignity, integrity or independence of the Bar or the Bench; and the abstention is for three days, whereas the exception extends to not more than one day. Even if the subject had qualified, the President of the Bar would have had to consult the District Judge first, and that consultation's outcome would have been final.

What the court should do on the second day. Take up both matters. Courts are under no obligation to adjourn because lawyers are on strike, and it is the duty of the court to go on with the matters on its board even in the absence of lawyers.

What happens to Nikhil afterwards. If the Association expels him or threatens him for having appeared, that is precisely what Harish Uppal forbids: no threat or coercion of any nature, including expulsion, may be held out to a lawyer who refuses to abide by a strike call.

Change one fact. Suppose Nikhil holds no vakalatnama in any listed matter and simply does not come to court that day. He is not in breach of a duty to a client. But the Association's resolution was itself impermissible, since no Bar Association may even permit a meeting to be called to consider a strike, and a requisition for such a meeting must be ignored.

What beginners get wrong

The right to practise is not a fundamental right, although the profession is protected by Article 19(1)(g).

The exception is not a right to strike for one day. It applies only in the rarest of rare cases where dignity, integrity or independence is at stake, only for not more than one day, only where the court so regards the issue, and only after the President of the Bar has consulted the Chief Justice or District Judge, whose decision is final.

Harish Uppal did not ban protest. It listed the permitted forms.

A court may not adjourn out of sympathy with a strike. Its duty is to proceed.

There are two Harish Uppal cases. The one on strikes is of 17 December 2002; a case of 27 November 1972 with a similar name concerns a court martial and is a different matter altogether.

Quick revision

• The right to practise is statutory, conferred by section 30 and removable under section 35(3). The profession is protected by Article 19(1)(g), subject to reasonable restrictions under Article 19(6), which expressly saves laws on professional or technical qualifications.
• Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, decided 17 December 2002, Constitution Bench, S.N. Variava J.
• No right to strike or to give a call for boycott, not even a token strike.
• Permitted: press statements, television interviews, banners or placards outside court premises, arm bands, peaceful marches away from court premises, dharnas, relay fasts.
• A lawyer holding a vakalat must attend, and all lawyers must boldly refuse a strike call. No adverse consequence, threat or coercion, including expulsion, may be visited on one who refuses.
• No Bar Council or Bar Association may permit a meeting to consider a strike; a requisition must be ignored.
• Exception: rarest of rare cases where the dignity, integrity or independence of the Bar or Bench is at stake, abstention of not more than one day, the court decides whether the issue qualifies, and the President of the Bar must first consult the Chief Justice or District Judge, whose decision is final.
• Courts are under no obligation to adjourn and must go on with matters on the board even in the absence of lawyers.

Test yourself

1. Is the right to practise law a fundamental right? No. It is a statutory right conferred by section 30 of the Advocates Act and removable by a disciplinary committee under section 35(3). The profession of law is protected by Article 19(1)(g), subject to the reasonable restrictions permitted by Article 19(6), which expressly saves laws prescribing professional or technical qualifications.

2. State the rule in Harish Uppal on strikes. Lawyers have no right to go on strike or to give a call for boycott, not even a token strike; lawyers holding vakalatnamas cannot fail to attend court in pursuance of such a call; and all lawyers must boldly refuse to abide by one.

3. What forms of protest did the Court hold permissible? Press statements, television interviews, carrying banners or placards outside court premises, wearing arm bands, peaceful protest marches outside and away from court premises, dharnas and relay fasts.

4. State the single exception and its four conditions. Only in the rarest of rare cases where the dignity, integrity and independence of the Bar or the Bench is at stake; abstention for not more than one day; the court decides whether the issue involves dignity, integrity or independence; and the President of the Bar must first consult the Chief Justice or the District Judge, whose decision is final and must be abided by.

5. May a Bar Association expel a member who appears during a strike? No. The Court held that no adverse consequence may be visited on such a lawyer by the Association or the Council, and no threat or coercion of any nature, including that of expulsion, may be held out.

6. Should a court adjourn its board because the Bar is on strike? No. Courts are under no obligation to adjourn matters because lawyers are on strike; it is the duty of all courts to go on with the matters on their boards even in the absence of lawyers, because courts must not be privy to strikes or calls for boycott.

The protection of the monopoly: sections 45 and 45A

A privilege can consist in others being kept out, and here two sections do that.

Section 45 punishes a person who practises in any court or before any authority or person when he is not entitled to do so, with imprisonment which may extend to six months.

Section 45A empowers courts and certain officers to frame and publish lists of touts and to exclude them from court precincts. It is dealt with in chapter [Touts, and the Monopoly of the Bar: Section 45A], and it is worth knowing that it is the newest section in the Act, inserted in 2023 and in force from 30 September 2024.

Indemnity: section 48

Section 48: "No suit or other legal proceeding shall lie against any Bar Council or any committee thereof or a member of a Bar Council or any committee thereof for any act in good faith done or intended to be done in pursuance of the provisions of this Act or of any rules made thereunder."

Read it carefully, because it is regularly mis-stated. This is not a privilege of advocates generally. It protects Bar Councils, their committees and their members when acting in good faith under the Act. So a member of a disciplinary committee cannot be sued for an order made in good faith. An ordinary advocate gets nothing from section 48.

The privileges that come from other laws

Professional communications

This is the privilege students think of first, and it is not in the Advocates Act. It is in the law of evidence.

Section 132(1) of the Bharatiya Sakshya Adhiniyam 2023 provides that no advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service.

Four things a student must be able to say.

It belongs to the client. The section operates "unless with his client's express consent". The advocate cannot waive it and the client can.

It has exceptions. The section itself excepts a communication made in furtherance of any illegal purpose, and any fact observed by the advocate in the course of his service showing that a crime or fraud has been committed since the commencement of his service. The Adhiniyam's own illustration is of a client who tells his advocate that he has committed forgery and wishes to be defended.

It survives the engagement. The words are "at any time".

It is not the same as the ethical duty. The ethical duty of confidence is in rule 17 of the Bar Council of India Rules and binds the advocate towards his client; the evidentiary privilege binds the court, by making the advocate not compellable. Module II separates them properly.

Freedom of speech in court, and its limits

An advocate must be able to say things in court that would be actionable elsewhere, or he could not put his client's case. That protection comes from the general law rather than from the Advocates Act, and it is not unlimited.

Its limits are Module IV. Words spoken in court can be criminal contempt under section 2(c) of the Contempt of Courts Act 1971, as in Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275, and they can be professional misconduct under section 35 of the Advocates Act at the same time. Module IV deals with the overlap.

Exemption from arrest, and appearance

Advocates are ordinarily allowed by courts to move about the precincts and to appear without formality, and there are protections in the general law relating to persons attending court. These are matters of practice and of other statutes rather than of the Advocates Act, and an answer should say so rather than attribute them to a section that does not exist.

What is NOT a privilege

This is where marks are gained, because the list of things students wrongly call privileges is short and predictable.

A lien on the client's papers is not a privilege. There is none. In R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, the Supreme Court held that litigation files are not "goods" within section 171 of the Contract Act and that an advocate has no lien over them for unpaid fees. He must return the file.

A right to strike is not a privilege. Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, holds that lawyers have no right to strike or to give a call for boycott, not even a token strike.

Immunity from discipline is not a privilege. Section 35 applies to every advocate.

Immunity from contempt is not a privilege. An advocate has no protection a citizen does not have; if anything the Court's expectations are higher, as In Re: Sanjiv Datta, (1995) 3 SCC 619, records.

Designation as a senior advocate is not a privilege. Section 16(3) subjects senior advocates to restrictions on their practice.

A worked example

Sunita is an advocate of eleven years' standing. Five things happen in one matter.

The Advocate-General appears in the same matter and both wish to address the court. Under section 23(4) the Advocate-General has pre-audience over all other advocates, subject only to the law officers of the Union named in sub-sections (1) to (3A). He goes first.

Her client tells her he forged the signature on the receipt. She may not disclose it. Section 132(1) of the Bharatiya Sakshya Adhiniyam 2023 stops her, unless the client expressly consents. But she also cannot use it: leading evidence she knows to be false would breach rule 4 of the Bar Council rules and, on the authority of Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, procuring false material is grave professional misconduct.

Her client asks her to help him fabricate a second receipt. The privilege does not attach. Section 132 excepts a communication made in furtherance of any illegal purpose.

Her fees are unpaid and the client asks for his file back. She must return it. R.D. Saxena holds there is no lien over the client's litigation papers.

A disciplinary committee later dismisses a complaint against her, and the complainant sues its members. Section 48 bars the suit: no legal proceeding lies against a Bar Council, its committee or a member for an act done in good faith in pursuance of the Act or the rules.

Quick revision

• A privilege is an advantage the law gives because of the office, and here it exists for the client or for the administration of justice.
• Section 23, pre-audience, in order: Attorney-General, Solicitor-General, Additional Solicitor-General, second Additional Solicitor-General, Advocate-General of a State (inter se by seniority), then senior advocates over other advocates, each group inter se by seniority.
• Section 30: the right to practise throughout India, in force from 15 June 2011.
• Sections 45 and 45A protect the monopoly; section 45 punishes unauthorised practice with imprisonment up to six months.
• Section 48, indemnity: protects Bar Councils, their committees and their members for acts done in good faith under the Act. It is not a protection for advocates generally.
• Section 132(1), Bharatiya Sakshya Adhiniyam 2023: professional communications privilege. It belongs to the client, lasts at any time, and does not cover a communication in furtherance of an illegal purpose or a fact showing a crime or fraud committed since the service began.
• NOT privileges: a lien on the client's papers (R.D. Saxena), a right to strike (Harish Uppal), immunity from discipline or from contempt, and designation as a senior advocate, which brings restrictions under section 16(3).

Test yourself

1. State the order of pre-audience under section 23. The Attorney-General of India, then the Solicitor-General, then the Additional Solicitor-General, then the second Additional Solicitor-General, then the Advocate-General of a State with Advocates-General inter se by seniority, and thereafter senior advocates over other advocates, each group inter se by seniority.

2. Whom does section 48 protect? A Bar Council, any committee of it, and a member of a Bar Council or of any such committee, against any suit or other legal proceeding for an act done or intended to be done in good faith in pursuance of the Act or the rules made under it. It does not protect advocates generally.

3. Whose privilege is the privilege attaching to professional communications, and what is its statutory source now? The client's. Section 132(1) of the Bharatiya Sakshya Adhiniyam 2023 provides that no advocate shall at any time be permitted, unless with his client's express consent, to disclose such a communication. The advocate cannot waive it; the client can.

4. Give two situations in which that privilege does not apply. Where the communication was made in furtherance of an illegal purpose, and where the fact was observed by the advocate in the course of his service and shows that a crime or fraud has been committed since the commencement of his service.

5. Does an advocate have a lien over his client's papers for unpaid fees? No. In R.D. Saxena v. Balram Prasad Sharma the Supreme Court held that litigation files are not goods within section 171 of the Contract Act, that keeping them does not amount to goods bailed, and that there is therefore no lien.

6. Is designation as a senior advocate a privilege? Not in the sense of an additional right. Section 16(2) calls it a distinction, and section 16(3) subjects senior advocates in the matter of their practice to restrictions prescribed by the Bar Council of India, so it operates as a limit on what the advocate may personally do.

Who a tout is: section 45A(7)(d)

The definition has two limbs and a person is a tout if he falls in either.

Limb (i), the remuneration limb. A person who procures, in consideration of any remuneration moving from any legal practitioner, the employment of the legal practitioner in any legal business; or who proposes to any legal practitioner, or to any person interested in any legal business, to procure, in consideration of remuneration moving from either of them, the employment of the legal practitioner in such business.

Note that the proposal is enough. A person who offers to bring clients for a cut is a tout even if no client ever arrives.

Limb (ii), the frequenting limb. A person who, for the purposes of such procurement, frequents the precincts of Civil or Criminal Courts or of revenue-offices, or railway stations, landing stages, lodging places or other places of public resort.

The list is worth remembering because it tells you what the section is actually about: the person waiting outside the court, at the station, or at the lodging house where litigants from the districts stay.

Section 45A(7) also defines "Judge" as the presiding judicial officer in every Civil and Criminal Court, whatever his title; "subordinate Court" as all courts subordinate to the High Court, including Courts of Small Causes; and "revenue-office" as including all courts other than Civil Courts trying suits relating to landholders and their tenants or agents.

Who may make the list: section 45A(1)

Every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer not being below the rank of a Collector of a district, each as regards their or his own Court and the Courts subordinate to it, may frame and publish lists of persons proved to their satisfaction, by evidence of general repute or otherwise, habitually to act as touts, and may alter and amend such lists from time to time.

Two words carry weight. "Habitually": a single instance is not enough. "Evidence of general repute or otherwise": the section allows reputation to be evidence, which is unusual and is why the safeguards in sub-sections (2) and (3) matter.

The Explanation makes it concrete: a resolution declaring a person to be or not to be a tout, passed by a majority of the members present at a meeting specially convened for the purpose of an association of persons entitled to practise as legal practitioners in that court or revenue-office, shall be evidence of the general repute of that person.

So a Bar Association can, by a resolution at a specially convened meeting, supply evidence of general repute. Note the safeguards inside the Explanation: it must be a specially convened meeting, a majority of those present, and the resolution can go either way, declaring a person to be or not to be a tout.

The safeguards

Section 45A(2): "No person's name shall be included in any such list until he shall have had an opportunity of showing cause against such inclusion."

That is a plain requirement of natural justice on the face of the section, and it is the first thing to say about any question on this topic.

Section 45A(3) provides the machinery for an inquiry. The authority may send to a subordinate Court the names of persons alleged or suspected to be touts and order it to hold an inquiry. The subordinate Court holds the inquiry, gives each person an opportunity of showing cause as provided in sub-section (2), and reports the name of each person proved to its satisfaction to be a tout. The authority may then include the name in its list.

The proviso to sub-section (3) adds a second hearing: the authority shall hear any such person who, before his name has been included, appears before it and desires to be heard.

So a person may be heard twice: once before the subordinate Court in the inquiry, and again before the listing authority if he asks.

The consequences

Section 45A(4): a copy of every such list shall be kept hung up in every Court to which it relates. Publicity is part of the sanction.

Section 45A(5): the Court or Judge may, by general or special order, exclude from the precincts of the Court any person whose name is included in any such list.

Section 45A(6): any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Note carefully that the offence in sub-section (6) is acting as a tout while listed. Being listed is not itself an offence; it is a status that carries exclusion under sub-section (5) and that turns subsequent touting into a punishable act.

Distinctions

A worked example

Outside a District Court, Ramesh meets litigants arriving from the villages, tells them which advocate to engage, and takes a share of the fee from the advocate.

Is he a tout? Yes, on both limbs of section 45A(7)(d). He procures the employment of legal practitioners in consideration of remuneration moving from them, and he frequents the precincts of a court for that purpose.

Can he be dealt with under section 45? No. He does not practise. Section 45 catches the unqualified person who appears; Ramesh does not appear.

How is he listed?

1. The District Judge may frame and publish a list under section 45A(1), being satisfied by evidence of general repute or otherwise that Ramesh habitually acts as a tout.
2. The local Bar Association passes a resolution at a specially convened meeting, by a majority of those present, declaring him a tout. By the Explanation that resolution is evidence of his general repute. It is evidence and not proof, and it does not dispense with the hearing.
3. Under section 45A(2) Ramesh must be given an opportunity of showing cause before his name goes on the list.
4. The District Judge may instead order a subordinate Court to hold an inquiry under section 45A(3), which hears Ramesh and reports.
5. Under the proviso to sub-section (3), if Ramesh appears before the District Judge before inclusion and desires to be heard, the District Judge shall hear him.

After listing. The list is hung up in every court to which it relates, under sub-section (4). The Court may exclude him from the precincts by general or special order under sub-section (5). If he acts as a tout again while listed, he is punishable under sub-section (6) with imprisonment up to three months or a fine up to five hundred rupees or both.

And the advocate? The advocate who paid Ramesh is in a worse position than Ramesh. He has breached rule 36, which forbids soliciting work directly or indirectly, including by touts, and he is liable to a proceeding for professional misconduct under section 35, in which the punishments run up to removal from the roll.

What beginners get wrong

Section 45A does not punish being a tout. It punishes acting as a tout while listed. The list, and the hearing before it, come first.

A Bar Association resolution does not make anyone a tout. It is evidence of general repute under the Explanation, and the opportunity to show cause under sub-section (2) still applies.

The fine is five hundred rupees. It is a small figure and it is the figure the section prints.

The Legal Practitioners Act 1879 is gone. Its last three sections were repealed by section 50(6) on the day section 45A came into force.

The advocate is not outside this. Rule 36 and section 35 catch him, and the punishment there is far heavier than sub-section (6).

Quick revision

• Section 45A was inserted by the Advocates (Amendment) Act 2023, Act 33 of 2023, section 2, with effect from 30 September 2024. On the same day section 50(6) repealed sections 1, 3 and 36 of the Legal Practitioners Act 1879, ending that Act.
• Tout, section 45A(7)(d): (i) procures, or proposes to procure, the employment of a legal practitioner in consideration of remuneration from either side; (ii) frequents the precincts of civil or criminal courts or revenue-offices, railway stations, landing stages, lodging places or other places of public resort for that purpose.
• Who may list, section 45A(1): every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer not below the rank of a Collector, for their own and subordinate courts, on proof that the person habitually acts as a tout, by evidence of general repute or otherwise.
• Explanation: a resolution of an association of legal practitioners, at a specially convened meeting, by a majority of those present, declaring a person to be or not to be a tout, is evidence of general repute.
• Safeguards: section 45A(2), an opportunity of showing cause before inclusion; section 45A(3), an inquiry by a subordinate Court which hears the person and reports; proviso, the authority shall hear anyone who appears before inclusion and desires to be heard.
• Consequences: (4) the list is hung up in every court concerned; (5) the Court may exclude a listed person from the precincts; (6) acting as a tout while listed is punishable with imprisonment up to three months, fine up to five hundred rupees, or both.
• Section 45: practising without entitlement, imprisonment up to six months. Different offence, different person.
• The advocate who uses a tout breaches rule 36 and is liable under section 35.

Test yourself

1. Define a tout under section 45A. A person who procures, in consideration of remuneration moving from a legal practitioner, the employment of that practitioner in any legal business, or who proposes to a practitioner or to a person interested in legal business to procure such employment for remuneration from either of them; or who, for the purpose of such procurement, frequents the precincts of civil or criminal courts or revenue-offices, or railway stations, landing stages, lodging places or other places of public resort.

2. Who may frame and publish a list of touts? Every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer not below the rank of a Collector of a district, each as regards his own Court and the courts subordinate to it.

3. What evidential value does a Bar Association resolution have? By the Explanation to section 45A(1), a resolution declaring a person to be or not to be a tout, passed by a majority of the members present at a specially convened meeting of an association of persons entitled to practise in that court or revenue-office, is evidence of the general repute of that person. It is evidence, not proof, and the opportunity to show cause still applies.

4. What must happen before a name is put on the list? The person must have had an opportunity of showing cause against the inclusion, under section 45A(2). Where an inquiry is ordered under section 45A(3), the subordinate Court gives that opportunity and reports; and by the proviso the listing authority must hear any person who appears before it before inclusion and desires to be heard.

5. What is punishable under section 45A(6), and with what? Acting as a tout while one's name is included in a list. Imprisonment which may extend to three months, or fine which may extend to five hundred rupees, or both.

6. What happened to the Legal Practitioners Act 1879? Most of it was repealed in stages by section 50 of the Advocates Act, but sections 1, 3 and 36 survived. Section 3 of the Advocates (Amendment) Act 2023 inserted section 50(6), by which those three sections stood repealed on the date section 45A came into force, that is 30 September 2024. The Act is now wholly repealed.

7. Distinguish section 45 from section 45A. Section 45 punishes a person who practises in a court or before an authority when not entitled to do so, with imprisonment up to six months. Section 45A deals with a person who does not practise but who procures work for legal practitioners for remuneration, and punishes him only if he acts as a tout while his name is on a published list, with imprisonment up to three months or a fine up to five hundred rupees or both.

Sections 1 and 2: extent and definitions

Section 1(1): the Act is the Advocates Act 1961. Section 1(2): it extends to the whole of India. Section 1(3): it comes into force on such date as the Central Government appoints, and different dates may be appointed for different provisions.

That last clause is not a formality. It is why section 30 was not in force for fifty years, and it is why an answer about any provision of this Act should be ready to distinguish enactment from commencement.

Section 2 defines the terms, of which "advocate" in section 2(1)(a), "appointed day" in section 2(1)(b), which means the day on which the provision in question comes into force, "Bar Council" in section 2(1)(d), "legal practitioner" in section 2(1)(i) and "roll" in section 2(1)(k) are the ones the book uses.

Section 47: reciprocity

Section 47(1): where any country, specified by the Central Government by notification in the Official Gazette, prevents citizens of India from practising the profession of law in that country or subjects them to unfair discrimination there, no subject of that country shall be entitled to practise the profession of law in India.

Section 47(2): subject to that, the Bar Council of India may prescribe the conditions subject to which foreign qualifications in law obtained by persons other than citizens of India shall be recognised for admission as an advocate.

Read section 47 with the proviso to section 24(1)(a), which allows a national of another country to be enrolled if duly qualified Indian citizens are permitted to practise there, and with section 7(1)(ic), the function of recognising foreign qualifications on a reciprocal basis. The three together are the Act's whole treatment of foreign lawyers, and the principle running through them is reciprocity.

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 shall be construed as references to an advocate enrolled under this Act."

A small section doing necessary work. Hundreds of statutes passed before 1961 speak of an advocate enrolled by a High Court. Section 51 translates every one of them into the new scheme without amending them individually.

Section 52: the saving for the Supreme Court

"Nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under article 145 of the Constitution (a) for laying down the conditions subject to which a senior advocate shall be entitled to practise in that Court; (b) for determining the persons who shall be entitled to act or plead in that Court."

This is a more important section than its position suggests, and it answers a question raised in chapter [Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae].

Clause (b) is the constitutional footing of the Advocate-on-Record. Section 30 gives every advocate a right to practise in all courts including the Supreme Court; section 52 preserves the Supreme Court's power under Article 145 to determine who may act or plead in it. That is how a rule confining the right to act to Advocates-on-Record stands with section 30.

Clause (a) does the same for the conditions on a senior advocate's practice in the Supreme Court, alongside the Bar Council of India's power under section 16(3).

Chapter VII: the transitional provisions, sections 53 to 60

Chapter VII exists because in 1961 there was an existing profession that had to be carried across without anybody losing a livelihood or a case having to stop. No student enrolling today comes in under it, but it is live text and it is examinable as part of the Act's scheme.

Section 58AF is omitted, and the Act's arrangement of sections does not say so. The body of the Act prints it as "58AF. Special provisions in relation to Jammu and Kashmir, omitted by the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020, vide notification No. S.O. 1123(E), dated 18-3-2020", together with the Ladakh order, S.O. 3774(E) of 23 October 2020. The arrangement of sections still prints its title unmarked, where sections 31 and 46 are printed "Repealed.". The reason is that 31 and 46 were killed by amending Acts while 58AF was omitted by an adaptation order, and the arrangement was never re-typeset for it. There is no section 58AF in force.

The Schedule

Section 50(5)(b) provides that the enactments specified in the Schedule stand repealed to the extent mentioned there. The Schedule repeals:

Section 50 itself, and the way it repealed the Legal Practitioners Act 1879 in stages, is dealt with in chapter [Touts, and the Monopoly of the Bar: Section 45A], which is also where the completion of that repeal on 30 September 2024 is recorded.

A worked example

A question asks: "The Advocates Act 1961 made the legal profession self-governing. Discuss." Here is the shape of an answer that uses this chapter.

State the position before the Act. Six categories of practitioner under at least four statutes, admitted by different bodies, with rights of audience that varied by court and province, and disciplinary control lying substantially with the High Courts under the Indian Bar Councils Act 1926.

Identify the three changes that made the profession self-governing.

1. Section 29 created one class, so there is one profession to govern.
2. Sections 3, 4, 6 and 7 created elected Bar Councils and gave them the functions of admitting, keeping the roll, and determining cases of misconduct. Section 56 dissolved the old Bar Councils.
3. Sections 35 to 44 placed the disciplinary jurisdiction in the disciplinary committees of those Councils.

State the qualifications honestly, because an answer that claims complete autonomy is wrong.

• Section 16(2) leaves the designation of senior advocates with the courts, not the Bar Councils.
• Section 52 preserves the Supreme Court's power under Article 145 over who may act or plead before it.
• Section 34(1) leaves the High Courts free to lay down conditions subject to which an advocate may practise before them.
• Section 38 gives a statutory appeal to the Supreme Court from the Bar Council of India's disciplinary committee.
• Section 49A and section 60 give the Central Government rule-making powers, and section 49A's rules may repeal or amend a Bar Council's rules.

Conclude with the case that fixes the boundary. In Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, a Constitution Bench held that the Supreme Court cannot itself suspend an advocate's licence while punishing him for contempt, because the disciplinary jurisdiction is conferred by the Advocates Act on the Bar Councils and Article 142 does not permit the Court to take over the role of statutory bodies and perform their functions. That is the clearest judicial statement of how far the Act's grant of self-government goes, and chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142] works it fully.

Quick revision

• Seven salient features: a unified Bar (section 29); autonomous elected Bar Councils (sections 3, 4, 6, 7); a common qualification (section 24); a single roll with a national right to practise (sections 17(4) and 30); discipline by the profession with an appeal to the Supreme Court (sections 35, 42, 37, 38); standards made by the Bar Council of India (sections 7(1)(b), 49(1)(c)); and legal education under its supervision (sections 7(1)(h) and (i)).
• Section 1(3): different dates may be appointed for different provisions. That is why section 30 waited until 15 June 2011.
• Section 47, reciprocity: where a notified country prevents Indians from practising or discriminates against them, no subject of that country may practise in India; and the Bar Council of India may prescribe conditions for recognising foreign qualifications.
• Section 51: references in older enactments to an advocate enrolled by a High Court are read as references to an advocate enrolled under this Act.
• Section 52: nothing affects the Supreme Court's power under Article 145 to lay down conditions for senior advocates' practice in it, or to determine who may act or plead in it. This is the footing of the Advocate-on-Record.
• Chapter VII, sections 53 to 60, is transitional: first elections (53), two-year first term (54), existing pleaders, mukhtars and revenue agents keep their rights (55), old Bar Councils dissolved (56), interim rules (57), transitional enrolment and certificates (58), regional and personal savings (58A to 58AE, 58AG), pending discipline (58B), removal of difficulties (59), and Central Government rules pending a Council's own (60).
• Section 58AF is OMITTED by the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order 2020, S.O. 1123(E) of 18 March 2020, although the arrangement of sections does not mark it.
• The Schedule repeals the Legal Practitioners (Women) Act 1923 and the Legal Practitioners (Fees) Act 1926 wholly, and section 53 of the States Reorganisation Act 1956 and section 31 of the Bombay Reorganisation Act 1960.

Test yourself

1. State five salient features of the Advocates Act 1961. A single unified class of practitioners called advocates under section 29; autonomous Bar Councils elected by advocates under sections 3 and 4 with the functions in sections 6 and 7; a common qualification for enrolment under section 24; a single roll with a right to practise throughout India under sections 17(4) and 30; and disciplinary control vested in the disciplinary committees of the Bar Councils under sections 35 to 44, with a statutory appeal to the Supreme Court under section 38.

2. What is the principle of section 47, and which two other provisions carry it? Reciprocity. Where a country notified by the Central Government prevents Indian citizens from practising law there or subjects them to unfair discrimination, no subject of that country may practise in India. The same principle appears in the proviso to section 24(1)(a) and in section 7(1)(ic).

3. What does section 51 do? It provides that on and from the appointed day, references in any enactment to an advocate enrolled by a High Court, in any form of words, are to be construed as references to an advocate enrolled under this Act, so that older statutes need not be individually amended.

4. How does the Advocate-on-Record system stand with section 30? Section 52 provides that nothing in the Act affects the power of the Supreme Court to make rules under Article 145 of the Constitution for determining the persons entitled to act or plead in that Court. A rule confining the right to act to Advocates-on-Record is made under that preserved power.

5. What is the position of section 58AF? It is omitted, by the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order 2020, notification S.O. 1123(E) dated 18 March 2020, and the Ladakh order S.O. 3774(E) of 23 October 2020. The arrangement of sections still prints its title without a marker, because it was omitted by an adaptation order rather than by an amending Act, but there is no such section in force.

6. Name four ways in which the profession's self-government under the Act is qualified. Designation of senior advocates is by the courts under section 16(2); the Supreme Court's power over who may act or plead before it is preserved by section 52; High Courts may lay down conditions of practice under section 34(1); and there is a statutory appeal to the Supreme Court under section 38, alongside the Central Government's rule-making powers in sections 49A and 60.

7. What did the Supreme Court hold in Supreme Court Bar Association v. Union of India about the limits of its own power? That it cannot, while punishing an advocate for contempt, suspend his licence to practise under Article 129 read with Article 142, because the disciplinary jurisdiction over advocates is conferred by the Advocates Act on the Bar Councils, and it is not permissible for the Court to take over the role of statutory bodies and perform their functions.

Morality is wider than all of them and is not the test. This is where students go wrong, and the distinction is examinable in both directions.

• Something immoral may not be misconduct. Conduct in a purely private capacity may not attract section 35, as Module III shows from the decided cases on misconduct outside professional work.
• Something moral may still be misconduct. Rule 11 obliges an advocate to accept a brief even where he believes the client is guilty, and rule 15 requires him to defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. A lawyer who refused briefs he found distasteful would be acting on his conscience and breaking a rule.

The Preamble, which is where the Bar Council states the meaning

MU asks for the meaning, and the Bar Council supplies one in the Preamble to Part VI Chapter II. It is short and worth having in the words used.

"An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned."

Four things in it decide questions.

"An officer of the Court." The advocate is not simply the client's agent. He has a standing duty to the court which can override what the client wants, and every rule in Section I flows from it.

"What may be lawful and moral... may still be improper for an advocate." The Bar Council says in terms that its standard is higher than the general law and different from morality. That sentence answers the "why is this law" question directly.

"Fearlessly uphold the interests of his client." The duty to the court does not make the advocate a second prosecutor. Rule 15 repeats the word "fearlessly".

"Shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned." The list of rules is not exhaustive. This is the sentence that makes the open-ended words of section 35, "professional or other misconduct", workable: an advocate cannot defend himself by showing that no numbered rule covers what he did.

The scope of the power, and its one limit

Section 49(1)(c) has a proviso, and the Chapter's own heading refers to it: rules made under this clause shall not come into force until they are approved by the Chief Justice of India. The Chapter's heading says the rules are made under section 49(1)(c) read with the Proviso thereto, which records that the approval was given.

That proviso is the answer to a question about how far the profession really governs itself. The standards by which advocates are judged were written by the Bar Council but could not take effect without the Chief Justice's approval.

The wider limit on the same power is the case in chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142], from the other direction: in Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, a Constitution Bench held that the Supreme Court cannot itself exercise the disciplinary jurisdiction the Act confers on the Bar Councils.

Why the profession has ethics at all

An examiner may ask for justification rather than for content, and there are four reasons worth stating.

The client cannot judge the work. A client cannot tell whether an argument was well made, whether the file was read, or whether a limitation point was missed until it is too late. Ordinary market discipline does not operate.

The advocate holds the client's money and papers. That is a position of trust, and trust requires rules about accounts, which is why the accounts rules sit inside the duty to the client and are dealt with in Module IV.

The court relies on what the advocate says. A judge cannot verify every proposition of law put to him. The system works only because advocates may be relied on, which is why the duty to the court is Section I and comes before the duty to the client.

The public interest in the administration of justice. In In Re: Sanjiv Datta, (1995) 3 SCC 619, the Supreme Court set out the standards the profession is expected to maintain and the consequences of their decline, and it is that public dimension, rather than the interest of any client, which justifies a profession policing its own members.

A worked example

Aditi is briefed for a defendant. Four questions arise, and each is answered by locating it on the chain.

The client asks her to telephone the judge, whom he knows socially, to explain the case informally. Rule 3 forbids private communications with a judge relating to a pending case. That rule was made under section 49(1)(c), so it is a rule, and breaching it is misconduct under section 35. This is not a matter of taste.

The client asks her to drop the case because he now admits he is in the wrong. She may withdraw, but rule 12 requires sufficient cause, reasonable and sufficient notice, and a refund of the part of the fee not earned.

She personally believes the client's case is unattractive. Rule 15 requires her fearlessly to uphold her client's interests by all fair and honourable means, and to defend a person accused of a crime regardless of her personal opinion as to guilt. Her private morality is not the test.

She does something the numbered rules do not mention. The Preamble answers it: the specific mention of these canons is not a denial of others equally imperative though not specifically mentioned, and section 35 speaks of professional or other misconduct. She cannot rely on the absence of a numbered rule.

What beginners get wrong

Professional ethics is not advice. It is delegated legislation, breach of which is punishable.

The Advocates Act does not contain the duties. They are rules made under it.

Ethics is not morality. The Preamble says the standard is higher in one direction and different in another.

The rules are not exhaustive. The Preamble and the words "or other misconduct" in section 35 both say so.

Etiquette is not trivial. Rule 36 on advertising is a rule of etiquette and it is one of the most heavily enforced rules in the Chapter.

Quick revision

• The chain: section 7(1)(b), the function, to section 49(1)(c), the power to make rules, to Part VI Chapter II of the Bar Council of India Rules, to section 35, misconduct.
• The Chapter is headed "Standards of Professional Conduct and Etiquette" and states that it is made under section 49(1)(c) read with the Proviso thereto; the proviso requires the approval of the Chief Justice of India.
• Preamble, four load-bearing ideas: the advocate is an officer of the Court; what is lawful and moral for others may still be improper for an advocate; he shall fearlessly uphold his client's interests; and the rules are canons adopted as general guides whose specific mention is not a denial of others equally imperative.
• Ethics binds members of a profession and is enforced by its own machinery; etiquette is the part concerning manner and form; morality is neither the test nor the limit.
• Section 35 covers "professional or other misconduct", which is what makes the non-exhaustive list workable.
• The disciplinary jurisdiction belongs to the Bar Councils, not to the courts: Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.

Test yourself

1. Trace the source of an advocate's duty not to advertise. Section 7(1)(b) makes laying down standards of professional conduct and etiquette a function of the Bar Council of India; section 49(1)(c) gives it power to make rules prescribing those standards; rule 36 of Part VI Chapter II is such a rule; and breach of it is professional misconduct punishable under section 35.

2. What limit does the Act place on the Bar Council's power to make these rules? The proviso to section 49(1)(c): rules made under that clause do not come into force until they are approved by the Chief Justice of India. The Chapter's own heading records that it is made under section 49(1)(c) read with that proviso.

3. Distinguish professional ethics from morality, with an example each way. Ethics binds advocates as members of a profession and is enforced under section 35; morality binds everyone and is not the test. Conduct in a purely private capacity may be immoral without being professional misconduct. Conversely, rule 15 requires an advocate to defend an accused regardless of his personal opinion as to guilt, so refusing on grounds of conscience would be moral for him and a breach of the rules.

4. Are the Bar Council's rules an exhaustive statement of an advocate's duties? No. The Preamble states that the rules are canons of conduct and etiquette adopted as general guides and that their specific mention is not to be construed as a denial of others equally imperative though not specifically mentioned; and section 35 speaks of professional or other misconduct.

5. Why does the Preamble call the advocate an officer of the Court? Because his duties are not owed to the client alone. As an officer of the Court he owes the court a duty of candour and assistance which can override the client's wishes, and the whole of Section I of the Chapter, rules 1 to 10, flows from that position.

6. Give two reasons why a profession needs enforceable ethical rules. Because the client is not able to judge the quality or honesty of the work until it is too late, and because the court relies on the advocate's word for propositions it cannot independently verify, so the administration of justice depends on the profession being trustworthy.

Section IV-A carries no heading in the print. It appears in the text as "Section IV-A" with a footnote and then runs straight into rule 40. It is about the welfare fund and not about colleagues, despite following Section IV.

Section II is by far the largest. Twenty-three of the fifty-two rules concern the client, which reflects where the disciplinary cases actually come from, as Module III shows.

The renumbering of 1984, which is why old notes misquote

The print carries a footnote against Section IV-A: "Section 4A: Revised rules came into effect from 1-4-1984 (Rules 47 to 54 re-numbered as 45 to 52)."

So the rules now numbered 45 to 52 were, before 1 April 1984, numbered 47 to 54. That is why a book or a website written from an older source will cite, for example, rule 47 for the duty to render legal aid when the current number for that duty is rule 46, or rule 49 for something now numbered differently.

Always cite the current number, and if a source gives a number in the forties or fifties that does not match the current text, suspect the renumbering rather than your own memory.

How MU's six duties map onto the Sections

MU's topic 2.2 lists six duties. The Bar Council has seven Sections and they are not the same six, and an honest answer says so. This table is the reconciliation the rest of Module II follows.

Two of MU's six headings are MU's own groupings. That is not a criticism of the syllabus; it is how most textbooks arrange the material. But a student should know that if a question asks for "the duty to the profession" there is no numbered Section of that name, and should answer by naming the rules that carry it.

The rules are not the only source

Three other things bear on conduct and are dealt with elsewhere in this book, so that a student does not look for them in Chapter II and conclude they do not exist.

Part VI Chapter III deals with conditions for the right to practise, and Part VII with disciplinary proceedings and review, which is the procedure taught in Module III.

The Advocates Act itself contains duties in substance: section 35 creates the offence, and sections 16(3), 30 and 33 shape what an advocate may do.

The court's own rules under section 34(1) can add conditions of practice, as Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041, shows.

A worked example

A problem says: an advocate accepted a brief for the plaintiff, then agreed to appear for the defendant in the same suit for a higher fee, took an interest in the property in dispute, and put his photograph in a newspaper report about the case.

The map turns that into four citations without any further reasoning.

• Appearing for the other side after being engaged: rule 33, Section II, duty to the client. Confirmed in Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, where the Supreme Court held that accepting the brief of the other side while retained by one party is clearly contrary to rule 33.
• Taking an interest in the property in dispute: rules 22 and 22A, Section II.
• Acting where he is pecuniarily interested: rule 9, Section I, because the duty engaged is to the court.
• The photograph: rule 36, Section IV, which forbids producing his photographs to be published in connection with cases in which he has been engaged.

Note what the map did. It told you that the property point and the changing-sides point are duties to the client, while the pecuniary-interest point is a duty to the court, which is why they are in different Sections although they look alike.

What beginners get wrong

There are 52 rules, not 49 or 54. Section VII ends at rule 52.

Rule 46 is the legal aid rule. Not 46A, and not rule 47.

Section IV-A is about the welfare fund, not about colleagues.

"Duty to the profession" is not a Section heading. Neither is "duty to public, state and society".

Chapter II is not the whole of the Bar Council of India Rules. Parts V to IX run to over a hundred pages, and the disciplinary procedure is in Part VII.

Quick revision

• Part VI Chapter II, "Standards of Professional Conduct and Etiquette", made under section 49(1)(c) read with its proviso.
• Section I, duty to the court, rules 1 to 10.
• Section II, duty to the client, rules 11 to 33, including client accounts, rules 25 to 32.
• Section III, duty to opponent, rules 34 and 35.
• Section IV, duty to colleagues, rules 36 to 39; rule 36 is the advertising rule with its Schedule for websites.
• Section IV-A, the Advocates Welfare Fund, rules 40 to 44B.
• Section V, duty in imparting training, rule 45.
• Section VI, duty to render legal aid, rule 46.
• Section VII, restriction on other employments, rules 47 to 52.
• Rules 47 to 54 were renumbered 45 to 52 with effect from 1 April 1984. Older sources cite numbers that no longer exist.
• MU's "duty to the profession" and "duty to public, state and society" are not Bar Council headings.

Test yourself

1. Which rules make up the duty to the court, and which the duty to the client? Rules 1 to 10, in Section I, are the duty to the court. Rules 11 to 33, in Section II, are the duty to the client.

2. Where is the rule against advertising, and in which Section? Rule 36, in Section IV, the duty to colleagues. It carries a Schedule added in 2008 setting out what an advocate's website may contain.

3. What happened to the numbering of the rules in 1984? Revised rules came into effect from 1 April 1984, by which rules 47 to 54 were renumbered as 45 to 52. Sources written before that date cite numbers that do not correspond to the present text.

4. MU lists a "duty to the profession". Where is it in the Bar Council rules? There is no Section of that name. The duty is carried by Section VII, rules 47 to 52 on other employment, Section V, rule 45 on training, and Section IV-A, rules 40 to 44B on the Advocates Welfare Fund.

5. Which Section deals with the Advocates Welfare Fund, and why is its position misleading? Section IV-A, rules 40 to 44B. It follows Section IV on the duty to colleagues and carries no heading of its own in the print, so it is easily read as part of that duty when its subject is the welfare fund.

6. An advocate acts in a matter in which he is himself a creditor of the bankrupt. Which rule, and which duty? Rule 9, in Section I, so it is a breach of the duty to the court rather than to the client. The rule's own illustration is that an advocate should not act in a bankruptcy petition when he is himself a creditor of the bankrupt.

The second sentence is absolute and needs no proof of any improper purpose. A private communication about a pending case is forbidden even if what is said is true and harmless.

The first sentence is the rule behind the gravest cases in Module III. In Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, an advocate wrote to his client that the judge accepted bribes and asked for ten thousand rupees to get the suit decided in the client's favour, and his name was ordered to be struck off the roll. In Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, the Supreme Court said there is a long line of decisions laying down that offering or giving a bribe, or taking money from a client for the purpose of giving a bribe, amounts to grave professional misconduct.

Rule 4: restraining the client, and refusing him

"An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocate himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgement in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court."

This is the longest and most important rule in the Section, and it contains four separate obligations.

• Restrain and prevent the client from sharp or unfair practices.
• Refuse to represent a client who persists. Note that this is mandatory: "shall refuse".
• Not a mere mouth-piece. The advocate exercises his own judgement.
• Restrained language in three named places: correspondence, pleadings and oral argument.

Rule 4 is the answer to the commonest question a first-year student asks, which is what to do when the client instructs something improper.

Rule 5: dress

"An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable."

The prescribed dress is prescribed by the Bar Council of India's rules in another Chapter and by the rules of the court concerned. Rule 5 is the hook that makes wearing it a matter of professional conduct.

Rule 6: relations on the Bench

"An advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law."

The list has twenty relations and it is worth reading once carefully, because the rule is absolute for anyone on it and does not apply to anyone off it. An explanation adds that for the purposes of this rule, court means a court, Bench or Tribunal in which the named relation of the advocate is a Judge, Member or Presiding Officer.

Two points. It bites on the relationship, not on the case: there is no exception for a matter in which the relation takes no part. And it uses the four verbs "enter appearance, act, plead or practise in any way", so it is not confined to arguing.

Rule 7: bands and gown outside court

"An advocate shall not wear bands or gown in public places other than in courts except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe."

A rule of etiquette, and its point is that court dress is not a badge to be worn in the street.

Rule 8: appearing for a body he helps run

"An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is a member of the Executive Committee of such organisation or institution or society or corporation."

"Executive Committee", by whatever name called, includes any committee or body of persons which for the time being is vested with the general management of the affairs of the body.

The proviso is important and is often missed: the rule does not apply to such a member appearing as amicus curiae, or without a fee on behalf of a Bar Council, Incorporated Law Society or Bar Association.

Rule 9: pecuniary interest

"An Advocate should not act or plead in any matter in which he is himself pecuniarily interested."

The rule carries two illustrations of its own: he should not act in a bankruptcy petition when he is himself a creditor of the bankrupt, and he should not accept a brief from a company of which he is a Director.

Note that rule 9 is in Section I and is therefore a duty to the court, while the closely related rules 22 and 22A about buying the property in dispute are in Section II and are duties to the client. The difference is that a pecuniarily interested advocate misleads the court about the disinterestedness of the person addressing it.

Rule 10: surety

"An Advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings."

Short and absolute. An advocate who stands surety for his own client puts himself in a position where his personal financial interest turns on the outcome, and where the court is relying on his certificate about a matter in which he is not independent.

The rules and the law of contempt

Rules 1 to 4 overlap with the law of contempt, which is Module IV, and the relationship should be stated once.

They are different jurisdictions. A breach of rules 1 to 4 is dealt with by a disciplinary committee under section 35. A contempt is dealt with by the court under the Contempt of Courts Act 1971 and Articles 129 and 215.

One act can be both. An outburst in court can be criminal contempt under section 2(c) and professional misconduct under section 35, and neither proceeding excludes the other.

But one body cannot do the other's job. In Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, a Constitution Bench held that the Supreme Court, while punishing an advocate for contempt, cannot suspend his licence to practise, because that disciplinary jurisdiction is conferred by the Advocates Act on the Bar Councils.

A worked example

Meera appears for a landlord before a Rent Court. Six things happen.

Her client asks her to meet the presiding officer at a wedding and mention the case. Forbidden by rule 3, second sentence, absolutely. She must also, under rule 4, use her best efforts to restrain him.

The client says he will approach the officer himself if she will not. Under rule 4 she must refuse to represent a client who persists in such improper conduct. The word in the rule is "shall".

She discovers the presiding officer is her husband's brother. That is brother-in-law, which is on the rule 6 list. She may not enter appearance, act, plead or practise in any way before that court, and it makes no difference that she had already been briefed.

Her junior drafts a pleading calling the tenant a habitual fraud with no material to support it. Rule 4 requires restrained language in pleadings and the avoidance of scurrilous attacks. Meera is not a mouth-piece and must exercise her own judgement.

The court needs a surety for an interim order and the client asks Meera to stand. Rule 10 forbids it, and forbids her certifying the soundness of a surety as well.

The presiding officer makes a remark that Meera thinks shows real bias. Rule 1 gives her the right and the duty to submit the grievance to the proper authorities. It does not entitle her to say it in open court, where rule 2 and the law of criminal contempt apply.

What beginners get wrong

Rule 1 is not only about respect. It forbids servility and makes a proper complaint a right and a duty.

Rule 3's second sentence is absolute. No improper purpose need be shown.

Rule 4 is mandatory when the client persists. The advocate shall refuse to represent him.

Rule 6 has no exception for the merits. It turns on the relationship alone, and its list is closed.

Rule 8 has a proviso. Amicus curiae, or appearing without a fee for a Bar Council, Incorporated Law Society or Bar Association, is outside it.

Rule 9 is a duty to the court, not to the client, which is why it sits in Section I.

Quick revision

• Rule 1: dignity and self-respect, not servile; a proper complaint against a judicial officer is a right and duty, to the proper authorities.
• Rule 2: a respectful attitude, because the dignity of judicial office is essential for the survival of a free community.
• Rule 3: no influence by illegal or improper means; private communications with a judge about a pending case are forbidden.
• Rule 4: restrain and prevent the client; shall refuse to represent one who persists; not a mere mouth-piece; restrained language in correspondence, pleadings and argument.
• Rule 5: prescribed dress, presentable appearance.
• Rule 6: no appearance where a member of the court is one of twenty listed relations, including brother-in-law and first cousin; the four verbs are enter appearance, act, plead or practise in any way.
• Rule 7: no bands or gown in public places outside court, except as prescribed.
• Rule 8: no appearing for or against a body of whose Executive Committee he is a member; proviso: amicus curiae, or without a fee for a Bar Council, Incorporated Law Society or Bar Association.
• Rule 9: no acting or pleading where pecuniarily interested; illustrations, creditor of the bankrupt, Director of the company.
• Rule 10: no standing as surety and no certifying a surety's soundness.

Test yourself

1. State rule 4 and the four obligations in it. An advocate shall use his best efforts to restrain and prevent his client from sharp or unfair practices; shall refuse to represent a client who persists in such conduct; shall not consider himself a mere mouth-piece of the client; and shall use restrained language in correspondence, pleadings and argument, avoiding scurrilous attacks and intemperate language.

2. May an advocate ever complain about a judge? Yes. Rule 1 provides that whenever there is proper ground for serious complaint against a judicial officer, it is his right and duty to submit the grievance to the proper authorities. What rule 2 and the law of contempt forbid is making the attack in court rather than through the proper channel.

3. An advocate's first cousin is one of three members of a Tribunal. May he appear if his cousin does not sit on the case? No. Rule 6 bars him from entering appearance, acting, pleading or practising in any way before a court, Tribunal or Authority if the sole or any member is related to him as, among others, a first cousin. The bar turns on the relationship and not on who hears the matter.

4. What is the proviso to rule 8? That the rule does not apply to a member of the Executive Committee appearing as amicus curiae, or appearing without a fee on behalf of a Bar Council, an Incorporated Law Society or a Bar Association.

5. Why is the rule against a pecuniary interest a duty to the court rather than to the client? Because it is in Section I, and because the vice is that the court is being addressed by somebody it takes to be independent when he is not. Rule 9's own illustrations are acting in a bankruptcy petition while a creditor of the bankrupt, and accepting a brief from a company of which he is a Director.

6. Can a single outburst in court be both contempt and professional misconduct? Yes. The two are separate jurisdictions: contempt lies with the court under the Contempt of Courts Act 1971 and Articles 129 and 215, and misconduct with the disciplinary committee under section 35. But Supreme Court Bar Association v. Union of India holds that the court cannot itself suspend the advocate's licence while punishing the contempt.

Why the principle exists. Because a person nobody will represent cannot be tried fairly. If advocates could pick clients, the least popular defendant, who most needs representation, would get none. The principle protects the system rather than the advocate.

Rule 12: withdrawal

"An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned."

Three conditions and a consequence, and all four are examinable.

• "Ordinarily", so withdrawal is the exception.
• "Sufficient cause." A reason, and one a disciplinary committee would accept. Non-payment of fees may be sufficient cause; a better brief elsewhere is not.
• "Reasonable and sufficient notice." Time enough for the client to instruct somebody else. Withdrawing on the morning of a hearing is not notice.
• "Refund such part of the fee as has not been earned." Mandatory, not discretionary.

Rule 12 is also what makes a strike a professional problem. In Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, the Supreme Court held that lawyers holding vakalatnamas cannot fail to attend court in pursuance of a call for strike or boycott. An advocate who stays away has, in substance, withdrawn without cause or notice.

Rule 13: the advocate as a witness

"An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client's interests."

Two limbs, and note that they are worded differently.

Before accepting: he should not accept where he has reason to believe he will be a witness. That is straightforward.

After accepting: the test is narrower and is qualified twice. It applies where he is a witness on a material question of fact, and he should retire only if he can do so without jeopardising his client's interests.

The reason for the second qualification is practical. A client whose advocate withdraws in the middle of a trial may be left without representation at the worst moment, and the rule prefers the client's interest to the tidiness of the position. The vice the rule addresses is that a person cannot both give evidence and test evidence: the advocate would be asking the court to believe him while arguing about his own credibility.

Rule 14: full and frank disclosure

"An advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgement in either engaging him or continuing the engagement."

Three points.

The duty is continuing, not a formality at the outset. It applies "at the commencement... and during the continuance".

The test is the client's judgement, not the advocate's assessment of whether the connection matters. If the fact is likely to affect the client's decision to engage or continue, it must be disclosed.

The remedy is disclosure, not necessarily refusal. Rule 14 lets the client decide with full information. Contrast rule 6, which is an absolute bar and admits of no consent.

Rule 15: fearless defence

"It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence."

This is the rule that answers the question every law student is asked at a family gathering: how can you defend somebody you think is guilty.

The rule gives the answer. "His loyalty is to the law which requires that no man should be convicted without adequate evidence." The advocate is not asserting the client's innocence. He is testing whether the State has proved its case, which is a different thing, and which somebody must do if the guarantee means anything.

Note the two limits inside the rule. "By all fair and honourable means." Fearlessness does not license fabricating evidence or misleading the court, and rule 4 of Section I says the same. "Without regard to any unpleasant consequences to himself." This is the courage of chapter [The Seven Lamps of Advocacy] in a rule.

Rule 16: the prosecutor's separate duty

"An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided."

Rule 16 is the most important rule in Section II for understanding what this whole subject is about, because it is the one place where the rules say plainly that an advocate's job is not to win.

A public prosecutor does not represent a client with an interest in conviction. He represents the State, whose interest is that the guilty are convicted and the innocent are not. So the rule imposes two duties: to conduct the prosecution so that it does not lead to the conviction of the innocent, and scrupulously to avoid suppressing material capable of establishing innocence.

That second duty is an obligation to disclose material that damages his own case, and no other advocate in the system has it.

Distinctions

A worked example

Rohit practises in the Sessions Court at Mumbai. Five things happen in one week.

A man accused of a violent offence, whom the newspapers have already convicted, asks Rohit to defend him at Rohit's usual fee. Rule 11 binds him to accept. Unpopularity is not a special circumstance, and rule 15 requires him to defend regardless of his personal opinion as to guilt.

Rohit realises he witnessed part of the incident from a shop across the road. Rule 13, first limb: he has reason to believe he will be a witness, so he should not accept the brief. This is a genuine special circumstance under rule 11.

In a different matter, Rohit's brother is a partner of the opposing party's firm. Rule 14 requires full and frank disclosure to his client at the commencement and during the engagement, because that connection is likely to affect the client's judgement about engaging him. Disclosure, not automatic refusal: the client may still choose him.

Three weeks into that matter the client stops paying and abuses Rohit's clerk. He may withdraw under rule 12 if that is sufficient cause, but only on reasonable and sufficient notice, and he must refund the part of the fee not earned.

Rohit is also a Special Public Prosecutor in a third matter, and the investigating officer hands him a statement that supports the accused's alibi. Rule 16 requires him scrupulously to avoid suppressing material capable of establishing the innocence of the accused. He must bring it out, even though it damages the prosecution.

Change one fact. Suppose in the first matter the Bar Association resolves that no member shall appear for that accused. Rohit is still bound by rule 11, and Harish Uppal holds that lawyers must boldly refuse to abide by a call for boycott and that no adverse consequence, threat or coercion, including expulsion, may be visited on a lawyer who refuses.

What beginners get wrong

Rule 11 is not absolute, but the exception is narrow and does not include dislike of the client or the case.

A high fee is not an escape from rule 11. The fee must be consistent with the advocate's standing and the nature of the case.

Rule 12 is not satisfied by cause alone. Notice and the refund of the unearned fee are separate requirements.

Rule 13's second limb is qualified. After accepting, he retires only if he can do so without jeopardising the client.

Rule 14 requires disclosure, not withdrawal. It is rule 6 that is an absolute bar.

Rule 16 applies to the prosecutor only, and it is the one rule that requires an advocate to produce material against his own case.

Quick revision

• Rule 11, the cab-rank principle: bound to accept any brief in courts where he proposes to practise, at a fee consistent with his standing and the nature of the case; special circumstances may justify refusal.
• Rule 12, withdrawal: not ordinarily, needs sufficient cause, reasonable and sufficient notice, and a refund of the unearned fee.
• Rule 13, witness: should not accept where he has reason to believe he will be a witness; after accepting, retires only if he is a witness on a material question of fact and can retire without jeopardising his client's interests.
• Rule 14, disclosure: full and frank, at the commencement and during the engagement, of any connection or interest likely to affect the client's judgement.
• Rule 15, fearless defence: uphold the client's interests by all fair and honourable means, defend an accused regardless of personal opinion as to guilt, because loyalty is to the law which requires that no man be convicted without adequate evidence.
• Rule 16, the prosecutor: conduct the prosecution so that it does not lead to conviction of the innocent, and scrupulously avoid suppressing material capable of establishing innocence.

Test yourself

1. State the cab-rank principle and its exception. Rule 11: an advocate is bound to accept any brief in the courts or tribunals before which he proposes to practise, at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal of a particular brief.

2. Give two matters that would be special circumstances and two that would not. Would be: that he has reason to believe he will be a witness, or that he has already acted for the other side in the matter. Would not be: that the client is unpopular, or that the advocate believes the client is guilty, which rule 15 expressly makes irrelevant.

3. What three things must an advocate do before withdrawing from a case? Have sufficient cause, give reasonable and sufficient notice to the client, and on withdrawal refund such part of the fee as has not been earned.

4. An advocate discovers mid-trial that he is a witness on a material question of fact. What does rule 13 require? That he should not continue to appear as an advocate, but only if he can retire without jeopardising his client's interests. The qualification exists because a client left without representation in the middle of a trial may be worse off than one whose advocate is also a witness.

5. How does rule 15 answer the question of defending a person the advocate believes is guilty? It requires him to defend regardless of his personal opinion as to guilt, on the footing that his loyalty is to the law, which requires that no man should be convicted without adequate evidence. He tests the prosecution's proof rather than asserting innocence, and he must do so by all fair and honourable means.

6. What duty does rule 16 place on a prosecutor that no other advocate has? To conduct the prosecution so that it does not lead to the conviction of the innocent, and scrupulously to avoid suppressing material capable of establishing the innocence of the accused, which means producing material that damages his own case.

"At any time" means the obligation survives the end of the engagement and the death of the client.

Rule 24: the general rule against abusing confidence

"An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client."

Rule 24 is the widest rule in Section II, and it is the one that catches conduct no numbered rule anticipated. Where a fact pattern is plainly an abuse of trust but does not fit rules 17 to 23, rule 24 is the answer, and the Preamble supports it by saying that the specific mention of these canons is not a denial of others equally imperative.

Rule 33: changing sides

"An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party."

Read the width of it. The bar is triggered by advising, drawing pleadings, or acting, at any time, and it stops him acting, appearing or pleading for the opposite party.

This is the rule behind the leading case. In Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, the advocate accepted the brief of the accused after having appeared for the complainant in the same criminal case. The State Bar Council had treated that as merely unprofessional rather than as professional misconduct, and both the Bar Council of India and the Supreme Court rejected that distinction: the act was clearly contrary to rule 33, it is not in accordance with professional etiquette for an advocate retained by one party to accept the brief of the other, and it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts.

The reason is confidence. Once a person has told an advocate his case, that advocate can never be safely on the other side, whatever he intends, because he cannot un-know what he was told.

Rules 18, 19 and 23: three narrower conflicts

Rule 18: "An advocate shall not, at any time, be a party to fomenting of litigation." To foment is to stir up. The rule forbids an advocate manufacturing disputes, and it connects to rule 36 and the rule against soliciting, and to the tout provisions in section 45A of the Advocates Act.

Rule 19: "An advocate shall not act on the instructions of any person other than his client or his authorised agent." Short and practical. It stops the advocate taking direction from whoever is paying, from a relative, or from a company officer who is not authorised. Where somebody else pays the fee, the client is still the client.

Rule 23: "An advocate shall not adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an advocate." So if the advocate owes the client money for something unconnected with the case, he may not set his fee off against it. The two relationships are kept apart, which protects the client from having the professional relationship used as leverage in a private dispute.

Rules 21, 22 and 22A: no interest in the subject matter

These three protect the same idea from three directions: an advocate must not acquire an interest in what the litigation is about.

Rule 21 forbids him to buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. The rule expressly does not apply to stock, shares and debentures of government securities, to instruments negotiable by law or custom, or to a mercantile document of title to goods.

Rule 22 forbids him, directly or indirectly, in his own or any other name, for his own benefit or another's, to bid for or purchase any property sold in execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. It does not prevent him bidding for or purchasing for his client any property the client may himself legally bid for, provided the advocate is expressly authorised in writing.

Rule 22A goes wider than execution sales: he shall not directly or indirectly bid in a court auction, or acquire by sale, gift, exchange or any other mode of transfer, in his own or any other name, for his own or another's benefit, any property which is the subject matter of any suit, appeal or other proceeding in which he is in any way professionally engaged. Rule 22A came into force with effect from 24 September 1998.

The principle behind all three is illustrated by P.D. Gupta v. Ram Murti, AIR 1998 SC 283, where an advocate purchased property from a client which was the subject matter of a dispute in which he was acting and then sold it at a profit. The Supreme Court held that an advocate must not purchase property that is the subject of litigation in which he is engaged, because it sets his own interest against his client's and against the administration of justice.

Rule 20 and the contingent fee

Rule 20 forbids an advocate to stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof. It belongs with these conflict rules because a contingent fee gives the advocate a stake in the outcome, but it is treated with the fee rules in chapter [Duty to the Client III: Fees, and What an Advocate May Not Charge].

A worked example

Sameer advises Mr Khan about a boundary dispute in January, drafts a legal notice, and is then not instructed further. In June the neighbour, Mrs Pinto, asks Sameer to appear for her in the suit that has since been filed about the same boundary.

May he? No. Rule 33 bars him: he advised in connection with the matter and drew the notice, so he shall not act, appear or plead for the opposite party. It makes no difference that he was never formally on record for Mr Khan, that months have passed, or that he believes he remembers nothing useful.

May Mr Khan consent? Chandra Shekhar Soni says it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts. So consent is not impossible, but it must be express, from all concerned, and after full disclosure. In practice an advocate in Sameer's position declines.

During the suit Mrs Pinto tells Sameer she forged the survey plan. He may not disclose it: rule 17 and section 132(1) of the Bharatiya Sakshya Adhiniyam. But he may not use it either, and rule 4 of Section I requires him to restrain her and to refuse to act if she persists.

She asks him to help her prepare a fresh plan. The privilege does not attach at all. Section 132 excepts a communication made in furtherance of any illegal purpose.

The disputed strip is auctioned in execution and Sameer wants to bid. Rule 22A forbids him bidding in a court auction, or acquiring by sale, gift, exchange or any other transfer, property which is the subject matter of a proceeding in which he is professionally engaged. P.D. Gupta v. Ram Murti is the authority.

Mrs Pinto's brother, who is paying the fees, instructs Sameer to abandon a defence. Rule 19: he shall not act on the instructions of any person other than his client or her authorised agent. Paying is not instructing.

What beginners get wrong

Rule 17 does not create the privilege. It makes breach of the evidence law a professional offence. The privilege is section 132 of the Bharatiya Sakshya Adhiniyam 2023, formerly section 126 of the Evidence Act, and the rule still cites the old provision.

The privilege is the client's. The advocate cannot waive it; the client can.

Rule 33 does not need a formal engagement. Advising, or drawing pleadings, is enough.

Rule 22 has a written-authority exception, but only for buying for the client.

Rule 22A is wider than rule 22: any mode of transfer, and any property that is the subject matter of the proceeding, not only property sold in execution.

"Confidence" in rule 24 is wider than "confidential communication". It covers the whole trust reposed in the advocate.

Quick revision

• Rule 17: no breach, directly or indirectly, of the obligations imposed by what the rule calls section 126 of the Indian Evidence Act, now section 132 of the Bharatiya Sakshya Adhiniyam 2023.
• Section 132(1): no advocate is permitted at any time, unless with the client's express consent, to disclose a communication made in the course and for the purpose of his service, the contents of a document so acquainted, or advice given. Exceptions: a communication in furtherance of an illegal purpose, and a fact showing a crime or fraud committed since the service began.
• Rule 24: no abusing or taking advantage of the confidence reposed by the client. The widest rule in the Section.
• Rule 33: having advised, drawn pleadings or acted for a party at any time, he shall not act, appear or plead for the opposite party. Chandra Shekhar Soni: contrary to rule 33, and unprofessional except by express consent of all concerned after full disclosure.
• Rule 18: no fomenting of litigation. Rule 19: instructions only from the client or his authorised agent. Rule 23: no adjusting his fee against a personal liability to the client arising outside the employment.
• Rule 21: no share or interest in an actionable claim; government securities, negotiable instruments and mercantile documents of title excepted.
• Rule 22: no bidding for or purchasing property sold in execution in a matter he was engaged in; may buy for the client if expressly authorised in writing.
• Rule 22A, from 24 September 1998: no bidding in a court auction or acquiring by any mode of transfer property that is the subject matter of a proceeding he is engaged in. P.D. Gupta v. Ram Murti.

Test yourself

1. Distinguish the ethical duty of confidence from the evidentiary privilege. The ethical duty is rule 17, binds the advocate, and is enforced by a disciplinary committee under section 35. The privilege is section 132 of the Bharatiya Sakshya Adhiniyam 2023, binds the court by making the advocate not compellable, and belongs to the client, who alone can waive it.

2. Rule 17 cites section 126 of the Indian Evidence Act. Is that still the law? The obligation is, but the provision is not. The Evidence Act 1872 has been replaced by the Bharatiya Sakshya Adhiniyam 2023, and the professional communications provision is now section 132. The Bar Council rule has not been re-typeset.

3. What triggers the bar in rule 33? Having at any time advised in connection with the institution of a suit, appeal or other matter, or drawn pleadings, or acted for a party. Any of the three bars him from acting, appearing or pleading for the opposite party.

4. Can a client consent to his advocate appearing for the other side? Chandra Shekhar Soni holds that it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts, so consent is not conceptually impossible but it must be express, from everybody concerned, and fully informed.

5. Distinguish rule 22 from rule 22A. Rule 22 forbids bidding for or purchasing property sold in execution of a decree or order in a matter in which the advocate was professionally engaged, with an exception for purchasing for the client under express written authority. Rule 22A is wider: it forbids bidding in a court auction or acquiring by sale, gift, exchange or any other mode of transfer any property which is the subject matter of a proceeding in which he is engaged.

6. An advocate's client tells him he intends to forge a document tomorrow. Is the communication privileged? No. Section 132 excepts a communication made in furtherance of any illegal purpose, and the exception applies whether or not the advocate's attention was directed to it. Rule 4 of Section I additionally requires him to restrain the client and to refuse to represent him if he persists.

Rule 38: not less than the taxed fee

"An advocate shall not accept a fee less than the fee taxable under rules when the client is able to pay the same."

This is the rule students least expect, because it is a floor rather than a ceiling. Its two elements:

"Taxable under rules." Costs in litigation include the successful party's advocate's fee, and it is fixed by rules of court. Section 34(1A) of the Advocates Act requires the High Court to make rules fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate in the High Court and in the courts subordinate to it.

"When the client is able to pay the same." The rule does not stop an advocate acting free or cheaply for a client who cannot pay. Rule 46 positively encourages it: free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.

Why a floor? Because undercutting is competition for work, and rule 38 sits in Section IV with rule 36 on advertising for that reason. A profession in which advocates competed on price would solicit rather than serve, and the client would choose on cost rather than on fitness.

Rules 11 and 12 on the fee

Two rules already met carry fee obligations.

Rule 11 requires acceptance at "a fee consistent with his standing at the Bar and the nature of the case". That is an objective standard and it stops an advocate escaping the cab-rank principle by quoting an impossible figure.

Rule 12 requires that on withdrawal he "shall refund such part of the fee as has not been earned." Mandatory.

The lien: there is none

This is the most important practical thing in the chapter and the answer is the opposite of what most students assume.

R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, decided 22 August 2000 by K.T. Thomas J.

Facts. The appellant was legal adviser to the Madhya Pradesh State Co-operative Bank and conducted its cases. On 17 July 1993 the Bank terminated the retainership and asked for its files back. Instead of returning them he sent a consolidated bill for Rs 97,100 and said the files would be returned only when his dues were settled. The Bank denied liability, the dispute was unresolved, and the files never left his hands although the cases were pending. The Bar Council of India debarred him for eighteen months, fined him Rs 1,000 and directed the return of the files, without deciding whether a lien existed.

Held. An advocate has no lien over the litigation papers entrusted to him by his client for his unpaid fees. Files containing copies of records cannot be equated with the goods referred to in section 171 of the Contract Act; an advocate keeping files does not amount to goods bailed, because there is neither a delivery of goods nor a contract that they be returned or disposed of on the accomplishment of a purpose; and "goods" in section 171 bears the meaning it has in the Sale of Goods Act.

Why it matters. The client's file is not security. It contains the client's case, and withholding it can lose him the litigation, which is exactly the harm the profession exists to prevent. The advocate's remedy for his fee is to sue for it like anybody else.

What follows in practice. Return the file, then pursue the fee separately. Refusing to return it is not leverage; it is a step towards a disciplinary proceeding, as it was for the appellant in that case.

What an unpaid advocate may actually do

A student should be able to say what the position is, not merely what it is not.

• Withdraw, under rule 12, if non-payment is sufficient cause, on reasonable and sufficient notice, refunding the part of the fee not earned.
• Sue for the fee as a debt.
• Appropriate money already in hand. Rule 28 allows the advocate, after the termination of the proceeding, to appropriate towards the settled fee any sum remaining unexpended out of money paid to him for expenses, and rule 29 allows a deduction where the fee was left unsettled. Those are accounts rules and belong to Module IV.
• What he may not do: keep the file, adjust the fee against an unrelated personal liability under rule 23, or take a share of the proceeds under rule 20.

A worked example

Neha is retained by a builder for a fee of Rs 1,50,000, of which Rs 50,000 is paid in advance and Rs 20,000 is sent separately for court fees and stamp expenses.

The builder proposes instead that Neha take ten per cent of whatever the suit recovers. She must refuse. Rule 20 forbids stipulating for a fee contingent on the results, and equally forbids agreeing to share the proceeds.

The builder says another advocate will do it for a third of the taxed fee. Neha may not match it if the client is able to pay. Rule 38 forbids accepting a fee less than the fee taxable under the rules where the client is able to pay it, and the taxed figure comes from rules the High Court makes under section 34(1A).

The relationship breaks down after six months and Neha withdraws. Under rule 12 she needs sufficient cause, must give reasonable and sufficient notice, and must refund the part of the fee not earned. Of the Rs 50,000, if half the work was done, half is unearned and goes back.

The builder demands his files. Rs 80,000 of the fee is unpaid. She must return them. R.D. Saxena holds there is no lien over the client's litigation papers, because they are not goods bailed within section 171 of the Contract Act. Her remedy is to sue.

Of the Rs 20,000 for expenses, Rs 12,000 was spent. Under rule 28, after the termination of the proceeding she may appropriate the unexpended Rs 8,000 towards the settled fee due to her. Note the condition: after the termination, and towards a settled fee.

The builder separately owes Neha Rs 30,000 for a flat deposit unconnected with the case, and suggests setting it off. Rule 23 forbids adjusting the fee against a personal liability that does not arise in the course of her employment as an advocate.

What beginners get wrong

There is no lien on the client's papers. R.D. Saxena is unambiguous.

Rule 38 is a floor, not a ceiling. It forbids charging less than the taxed fee where the client can pay.

Rule 38 does not forbid free work. Its condition is "when the client is able to pay", and rule 46 encourages free assistance to the indigent.

Rule 20 forbids two things. A fee contingent on the result, and an agreement to share the proceeds.

Refunding on withdrawal is mandatory, not a matter of grace.

Rules 28 and 29 are not a lien. They allow appropriation from money already lawfully in hand for expenses, after the proceeding ends.

Quick revision

• Rule 20: no fee contingent on the results of litigation and no agreement to share the proceeds. Reasons: independence, conflict on settlement, fomenting litigation, and an interest in the subject matter.
• Rule 38: no fee less than the fee taxable under rules where the client is able to pay. The taxed fee comes from High Court rules under section 34(1A).
• Rule 11: a fee consistent with his standing at the Bar and the nature of the case. Rule 12: on withdrawal, refund the unearned part.
• Rule 23: no adjusting the fee against a personal liability to the client arising outside the employment.
• NO LIEN: R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264. Litigation files are not goods within section 171 of the Contract Act, keeping them is not goods bailed, and "goods" bears its Sale of Goods Act meaning.
• The unpaid advocate may withdraw under rule 12, sue for the fee, and appropriate unexpended expense money after the proceeding ends under rules 28 and 29. He may not keep the file.

Test yourself

1. What does rule 20 forbid, and give two reasons for it. It forbids stipulating for a fee contingent on the results of litigation and agreeing to share the proceeds. Because it gives the advocate a personal financial stake in the outcome, which is inconsistent with his position as an officer of the court, and because it puts him in conflict with his client over whether to accept a settlement.

2. Rule 38 is unusual. Why? Because it fixes a floor rather than a ceiling: an advocate shall not accept a fee less than the fee taxable under the rules when the client is able to pay it. It prevents competition on price, which would turn the profession into a trade soliciting work.

3. Does rule 38 stop an advocate acting free of charge? No. It applies only where the client is able to pay the taxed fee. Rule 46 positively describes free legal assistance to the indigent and oppressed as one of the highest obligations an advocate owes to society.

4. Does an advocate have a lien on his client's files for unpaid fees? No. In R.D. Saxena v. Balram Prasad Sharma the Supreme Court held that litigation papers are not goods within section 171 of the Contract Act, that an advocate keeping files does not amount to goods bailed since there is neither delivery of goods nor a contract for their return on accomplishment of a purpose, and that "goods" there bears its Sale of Goods Act meaning.

5. What may an unpaid advocate lawfully do? Withdraw under rule 12 if non-payment is sufficient cause, on reasonable and sufficient notice, refunding the unearned fee; sue for the fee as a debt; and, after the proceeding terminates, appropriate under rule 28 any sum remaining unexpended out of money sent for expenses towards the settled fee, or deduct under rule 29 where the fee was left unsettled.

6. Where does the "taxed fee" in rule 38 come from? From rules made by the High Court under section 34(1A) of the Advocates Act, which requires it to make rules fixing and regulating by taxation or otherwise the fees payable as costs by a party in respect of the fees of his adversary's advocate, in the High Court and in the courts subordinate to it.

Rule 35: keeping legitimate promises

"An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court."

The important half of the rule is its tail. The promise binds professionally even though it is not in writing and not enforceable under the rules of court.

"Legitimate." The promise must itself be proper. A promise to conceal a document, or not to take a point the client is entitled to take without instructions, is not legitimate and rule 35 does not require it to be kept. Rule 4 of Section I would forbid making it in the first place.

"Do his best to carry out." The obligation is on the advocate's own conduct. If the client refuses to honour something the advocate promised within his authority, the advocate must do his best, which in practice means pressing the client and, if necessary, considering withdrawal under rule 12.

Why the rule matters practically. Litigation runs on undertakings that nobody writes down: an extension of time, an agreed adjournment, an assurance that a document will be produced. If those could not be relied on, every one of them would have to be applied for, and the courts would stop. This is fellowship, one of the seven lamps in chapter [The Seven Lamps of Advocacy], reduced to an enforceable rule.

What rule 35 does NOT do

It does not make the promise enforceable by the court. The rule says so on its face: the promise binds the advocate professionally even though not enforceable under the rules of the Court.

So the remedy for a broken promise is a complaint of professional misconduct under section 35 of the Advocates Act, not an application to enforce a contract. That distinction is the point of the rule and it is a good short question.

A worked example

Farida acts for a supplier suing a builder. The builder is represented by Mr Iyer.

Farida's client says the builder is reasonable and asks her to call him directly and settle. She may not. Rule 34 forbids communicating or negotiating upon the subject matter of controversy with a party represented by an advocate except through that advocate. She must deal with Mr Iyer.

She meets the builder at a function and he raises the case. She should not engage on the subject matter. The rule bars communication "in any way" and does not turn on who began the conversation.

Mr Iyer asks for two weeks to file the written statement, and Farida agrees on the telephone. That is a legitimate promise. Rule 35 requires her to do her best to carry it out even though it is not in writing and not enforceable under the rules of court. If her client later insists that she oppose the extension, she must do her best to honour her word, and if the client presses, rule 12 and withdrawal are in view.

Mr Iyer then withdraws and the builder appears in person. Rule 34 no longer applies, because the builder is not now represented by an advocate. Farida may deal with him directly, but her duties under Section I remain: she may not mislead him, and she is dealing with somebody who has no adviser.

Farida promises Mr Iyer that she will not press for costs if the written statement comes in on time. Legitimate, and rule 35 binds her, subject to her instructions. If she had no authority to give up costs, the answer is that she should not have promised, not that she may break it lightly.

What beginners get wrong

Rule 34 is not confined to negotiation. "Communicate or negotiate" are two verbs.

Rule 34 does not apply to an unrepresented party, though the general duties of honesty do.

The bar is on the subject matter, not on all contact.

Rule 35 works precisely where the promise is unenforceable. That is its whole point.

Rule 35 is not confined to written promises. It says so expressly.

A broken promise is a disciplinary matter, not a matter the court will enforce as a contract.

Quick revision

• Section III has two rules, 34 and 35. That is the whole of the duty to the opponent.
• Rule 34: no communicating or negotiating, in any way, upon the subject matter of controversy, with a party represented by an advocate, except through that advocate.
• Rule 34 does not apply where the other side is unrepresented.
• Rule 35: do his best to carry out all legitimate promises made to the opposite party, even though not reduced to writing and not enforceable under the rules of the Court.
• "Legitimate" limits rule 35: an improper promise is not protected, and rule 4 forbids making one.
• The remedy for breach is a disciplinary proceeding under section 35 of the Advocates Act, not enforcement by the court.

Test yourself

1. State rule 34 and say what it does not cover. An advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate. It does not cover communication with a party who is not represented, and it does not cover conversation on subjects other than the subject matter of the controversy.

2. Give two reasons for rule 34. Because a lay party dealing directly with the opponent's advocate is at a serious disadvantage and may concede what his own advocate would never allow, and because it undermines the other advocate's relationship with his client and puts any settlement beyond his advice.

3. Does rule 35 apply to an oral promise? Yes. The rule expressly binds the advocate to do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing and not enforceable under the rules of court.

4. What is the effect of the word "legitimate" in rule 35? It limits the obligation to proper promises. A promise to suppress a document or to give away a client's right without instructions is not legitimate, and rule 4 of Section I would forbid making it at all.

5. An advocate breaks a promise to his opponent about an adjournment. What is the remedy? A complaint of professional misconduct under section 35 of the Advocates Act. Rule 35 expressly contemplates promises not enforceable under the rules of court, so the remedy is disciplinary rather than an application to enforce the promise.

6. Why is Section III so short? Because most of what governs relations between opposing advocates sits elsewhere: candour to the court is Section I, taking the other side's brief is rule 33 in Section II, and appearing where another advocate holds a vakalatnama is rule 39 in Section IV. What remains as a duty to the opponent as such is communication and keeping one's word.

The leading case on soliciting is Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242, where advocates practising in the criminal courts stationed themselves at the entrance to the Magistrates' Courts, watched for litigants arriving, and rushed at them in a scrimmage to snatch briefs.

The 2008 proviso and the Schedule

"That this Rule will not stand in the way of advocates furnishing website information as prescribed in the Schedule under intimation to and as approved by the Bar Council of India. Any additional other input in the particulars than approved by the Bar Council of India will be deemed to be violation of Rule 36 and such advocates are liable to be proceeded with misconduct under Section 35 of the Advocates Act, 1961."

This was added by Resolution No. 50/2008 dated 24 March 2008, and it is the single most practically important change to this Chapter in a student's lifetime.

Three conditions, all of which must be met.

1. The information must be as prescribed in the Schedule.
2. It must be under intimation to the Bar Council of India.
3. It must be as approved by the Bar Council of India.

And the sanction is spelt out in the proviso itself. Any additional other input beyond what the Bar Council has approved is deemed to be a violation of rule 36, and the advocate is liable to be proceeded against for misconduct under section 35. So the proviso is permissive and self-policing at the same time.

The Schedule permits:

1. Name
2. Address, telephone numbers, e-mail id
3. (a) Enrolment number; (b) date of enrolment; (c) name of the State Bar Council where originally enrolled; (d) name of the State Bar Council on whose roll the name currently stands; (e) name of the Bar Association of which the advocate is a member
4. Professional and academic qualifications
5. Areas of practice, for example civil, criminal, and so on

Read item 5 against part three of rule 36. The rule says the sign-board, name-plate or stationery must not indicate that he specialises in any particular type of work. The Schedule allows a website to state areas of practice. The distinction is between stating what work one does and claiming to be a specialist in it, and it is exactly the sort of line a problem question tests.

Rule 37: lending one's name

"An advocate shall not permit his professional services or his name to be used in aid of, or to make possible, the unauthorised practice of law by any law agency."

The mischief is an unqualified agency doing legal work under the cover of an advocate's name. It joins section 33, which bars practice by anyone not enrolled, and section 45, which punishes it with imprisonment up to six months. Rule 37 catches the advocate who makes it possible.

Rule 38: the fee floor

"An advocate shall not accept a fee less than the fee taxable under rules when the client is able to pay the same."

Taught with the fee rules in chapter [Duty to the Client III: Fees, and What an Advocate May Not Charge]. It sits in Section IV because undercutting is competition with colleagues.

Rule 39: appearing where another advocate is already engaged

"An advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the Court."

The rule sets out a procedure, and a student should be able to state both branches.

Branch one, with consent. The new advocate produces the consent of the advocate already on record and enters appearance.

Branch two, without consent. He applies to the Court, states the reasons why the consent could not be produced, and appears only after obtaining the permission of the Court.

Why the rule exists. A client is free to change advocates; the rule does not stop him. What it stops is a change happening behind the back of the advocate on record, who may have fees outstanding, may hold the papers, and is answerable to the court for the conduct of the case. The second branch means the client is never trapped: if the first advocate unreasonably refuses consent, the court decides.

Note the interaction with the lien question. Since R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, holds that an advocate has no lien over the client's papers, the outgoing advocate cannot hold the file hostage while consent is negotiated. Rule 39 governs the appearance; R.D. Saxena governs the file.

A worked example

Ashish has been practising for eight years and wants to build his practice. Six proposals.

A hoarding near the District Court reading "Ashish Rao, Expert in Cheque Bounce Cases". Two breaches of rule 36: it is advertising, and it indicates that he specialises in a particular type of work.

A brass name-plate outside his office giving his name and "Advocate". Permitted. The rule requires only that the sign-board or name-plate be of a reasonable size.

Adding "Former Member, Bar Council of Maharashtra and Goa" to that plate. Forbidden. Rule 36 says the sign-board, name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association.

A website giving his name, address, e-mail, enrolment number and date, the State Bar Council on whose roll he stands, his Bar Association, his degrees, and "Areas of practice: civil, criminal". Permitted, if it is under intimation to and as approved by the Bar Council of India. Every item is in the Schedule.

Adding to that website a page of client testimonials and a list of his biggest wins. Forbidden. That is additional other input beyond what the Bar Council has approved, which the proviso deems a violation of rule 36 and makes him liable to be proceeded against under section 35.

Paying a court clerk to send litigants to him. Rule 36 names touts among the forbidden means, and the clerk is a tout within section 45A(7)(d) of the Advocates Act. Ashish faces a disciplinary proceeding; the clerk faces listing and exclusion.

A client arrives whose case is already conducted by another advocate who has filed a vakalatnama. Rule 39: Ashish needs that advocate's consent; failing which he must apply to the Court, state why the consent could not be produced, and appear only with the Court's permission.

What beginners get wrong

Rule 36 does not ban a name-plate. It requires a reasonable size and limits what may appear on it.

Claiming a specialisation is forbidden on a sign-board, name-plate or stationery, even though it is true.

The website proviso is not a general permission to have a website. It is permission to publish the Schedule's items, on intimation to and with the approval of the Bar Council of India.

Going beyond the Schedule is deemed a violation. The proviso says so, and names section 35.

Rule 39 does not prevent a client changing advocates. It requires consent or the court's permission.

Rule 38 is a floor, not a ceiling.

Quick revision

• Rule 36: no soliciting work or advertising, directly or indirectly, by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments, or producing photographs for publication in connection with his cases.
• Sign-board or name-plate: reasonable size; must not indicate that he is or has been President or Member of a Bar Council or Association, that he was associated with any person, organisation, cause or matter, that he specialises, or that he was a Judge or Advocate General.
• Proviso added by Resolution No. 50/2008 dated 24 March 2008: a website is permitted with the information prescribed in the Schedule, under intimation to and as approved by the Bar Council of India. Anything more is deemed a violation of rule 36 and attracts section 35.
• Schedule: name; address, telephone, e-mail; enrolment number, date of enrolment, State Bar Council originally enrolled with, State Bar Council currently on, Bar Association; professional and academic qualifications; areas of practice.
• Rule 37: no permitting his services or name to be used in aid of the unauthorised practice of law by any law agency.
• Rule 38: no fee less than the taxed fee where the client can pay.
• Rule 39: no entering appearance where a vakalat or memo of appearance is already filed, except with that advocate's consent; failing consent, apply to the Court with reasons and appear only with its permission.
• Dabholkar is the leading case on soliciting; section 45A of the Act is the other end of the touting problem.

Test yourself

1. List the means of soliciting or advertising that rule 36 names. Circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments, and producing his photographs to be published in connection with cases in which he has been engaged or concerned.

2. What may an advocate's name-plate not say? That he is or has been President or Member of a Bar Council or of any Association; that he has been associated with any person or organisation, or with any particular cause or matter; that he specialises in any particular type of work; or that he has been a Judge or an Advocate General.

3. On what three conditions may an advocate keep a website? That the information is as prescribed in the Schedule to rule 36, that it is furnished under intimation to the Bar Council of India, and that it is as approved by the Bar Council of India.

4. What happens if a website carries more than the Schedule allows? The proviso provides that any additional other input beyond what the Bar Council of India has approved is deemed to be a violation of rule 36, and the advocate is liable to be proceeded against for misconduct under section 35 of the Advocates Act.

5. State the procedure in rule 39 where consent cannot be obtained. The advocate must apply to the Court stating the reasons why the consent of the advocate already on record could not be produced, and may appear only after obtaining the permission of the Court.

6. A website states "Areas of practice: civil, criminal". A name-plate states "Specialist in civil matters". Are both lawful? The website entry is within item 5 of the Schedule and is lawful if intimated to and approved by the Bar Council of India. The name-plate is not: rule 36 provides that a sign-board, name-plate or stationery shall not indicate that the advocate specialises in any particular type of work.

Rule 49: full-time salaried employment

"An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment."

This is the most heavily litigated rule in the Section, and it is the one a student is most likely to be asked about, because it decides the position of every in-house lawyer and law officer in the country.

Three obligations in one sentence. He shall not be a full-time salaried employee while he continues to practise; on taking up such employment he shall intimate the fact to the Bar Council on whose roll his name appears; and he shall thereupon cease to practise so long as the employment continues.

Note that the rule does not remove his name from the roll. He remains an advocate; he ceases to practise.

The Bar Council's own resolutions, printed with the rule, sharpen it further.

By Resolution No. 156/2001, recording that the Supreme Court had struck down appearance by Law Officers in court even on behalf of their employers, the Bar Council resolved that the judgment operates in the case of all Law Officers; that even where they had been allowed to appear for their employers, all such Law Officers shall not be allowed to appear as advocates; that State Bar Councils should ensure that Law Officers allowed to practise on behalf of their employers cease to practise; and that those who obtained enrolment after joining service by reason of the enabling provision cannot practise even on behalf of their employers.

A further note records the Bar Council's view that if the officer is a whole time employee drawing regular salary he will not be entitled to be enrolled, and that if the terms of employment show he is not in full time employment he can be enrolled.

So the working test is whether the employment is full-time, and the consequence of full-time employment is that the person does not practise, whatever his employer wants and whether or not he would only appear for the employer.

Rule 50: an inherited business

"An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof."

The consistent line through rules 47, 48 and 50 is management. Holding an interest is tolerated; running the business is not.

Rule 51: work that is permitted

"An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal."

Rule 51 is worth learning as a list because it is a positive rule in a Section of prohibitions, and because it is often the answer to a problem question. Note its two express limits: the last group is subject to the rules against advertising and full-time employment, so a teaching engagement that becomes a full-time salaried post falls back into rule 49, and a broadcasting engagement used to publicise the advocate's practice falls into rule 36.

Rule 52: part-time employment with consent

"Nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council of India from time to time."

Three conditions: the prior consent of the State Bar Council; the Council's opinion that the employment does not conflict with his professional work; and its opinion that it is not inconsistent with the dignity of the profession. And the whole rule is subject to directives of the Bar Council of India.

Section V: rule 45, training

"It is improper for an advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 1961."

A senior may not charge a junior for training him. The rule exists because the alternative is a profession that can be entered only by those who can pay to enter it, and because a person paying for training is a customer rather than a pupil.

Section IV-A: rules 40 to 44B, the Advocates Welfare Fund

Section IV-A carries no heading of its own in the print and follows Section IV, which is why it is easily mistaken for part of the duty to colleagues. Its subject is money for advocates in need.

• Rule 40: every advocate on the rolls of a State Bar Council shall pay the prescribed annual sum.
• Rule 41: the sums collected by the State Bar Council are dealt with as the rule provides.
• Rule 42: consequences of failing to pay within the prescribed time.
• Rule 43: the position of an advocate convicted of an offence mentioned in the rule.
• Rule 44: an appeal lies to the Bar Council of India at the instance of a person aggrieved.
• Rules 44A and 44B: the Bar Council of India Advocates Welfare Committee, and the utilisation of the funds received.

The Section is followed in the print by a Scheme for Financial Assistance to State Bar Councils, with its own numbered clauses.

Note also the statutory layer. The Advocates Welfare Fund Act 2001 creates a separate fund, and its section 15 requires a State Bar Council to pay to that Fund each year an amount equal to twenty per cent of the enrolment fee received under section 24(1)(f) of the Advocates Act.

A worked example

Vikram is enrolled and practises in the City Civil Court. Six proposals over two years.

He is offered a non-executive directorship of a private company with a sitting fee. Permitted by rule 48, provided none of his duties is of an executive character. But under rule 9 he may not thereafter accept a brief from that company.

The company then offers to make him Managing Director. Forbidden outright by rule 48: an advocate shall not be a Managing Director or a Secretary of any company.

He is offered a full-time salaried post as legal manager, on terms that he may still appear for the company in court. Rule 49 applies. He must intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise so long as the employment continues. The Bar Council's Resolution No. 156/2001 is explicit that Law Officers shall not be allowed to appear as advocates, even on behalf of their employers.

He inherits a share in the family textile business. Rule 50 lets him continue to hold it, but he may not personally participate in the management.

He is asked to teach a weekly evening class at a law college for an honorarium. Rule 51 permits lecturing and teaching, subject to the rules against advertising and full-time employment. If the college later makes it a full-time salaried post, rule 49 takes over.

A junior asks to train under him and offers to pay for the privilege. Rule 45 makes it improper to demand or accept fees or any premium as consideration for imparting training in law to enable a person to qualify for enrolment.

Change one fact. Suppose Vikram wants a genuinely part-time consultancy. Rule 52 allows it, but only with the prior consent of the State Bar Council, and only if in that Council's opinion the employment neither conflicts with his professional work nor is inconsistent with the dignity of the profession.

What beginners get wrong

There is no Section headed "duty to the profession".

Rule 47 does not forbid every business interest. It forbids personally engaging, and permits a sleeping partnership subject to the State Bar Council's opinion.

Rule 48 turns on executive character. Managing Director and Secretary are forbidden by name.

Rule 49 does not strike the name off the roll. The advocate ceases to practise while the employment lasts, and must intimate it.

Rule 51 is not unqualified. Broadcasting, journalism, lecturing and teaching are subject to the rules against advertising and full-time employment.

Rule 52 needs consent in advance, not afterwards.

Section IV-A is the welfare fund, not a continuation of the duty to colleagues.

Quick revision

• MU's "duty to the profession" has no Section of its own; it is Section VII (47 to 52), Section V (45) and Section IV-A (40 to 44B).
• Rule 47: no personally engaging in business; sleeping partner allowed if the State Bar Council thinks the business not inconsistent with the dignity of the profession.
• Rule 48: Director or Chairman allowed if no duties of an executive character; Managing Director or Secretary forbidden.
• Rule 49: no full-time salaried employment while practising; must intimate the Bar Council and thereupon cease to practise. Resolution No. 156/2001: Law Officers may not appear as advocates even for their employers; a whole-time employee drawing regular salary is not entitled to be enrolled.
• Rule 50: an inherited or survived family business may be continued and a share held, but no personal participation in management.
• Rule 51: permitted work includes reviewing Parliamentary Bills, editing legal text books at a salary, press-vetting, coaching pupils, setting and examining question papers, and, subject to the rules against advertising and full-time employment, broadcasting, journalism, lecturing and teaching, legal and non-legal.
• Rule 52: part-time employment with the prior consent of the State Bar Council, if it neither conflicts with professional work nor is inconsistent with the dignity of the profession, subject to Bar Council of India directives.
• Rule 45: improper to demand or accept fees or any premium for imparting training for enrolment.
• Section IV-A, rules 40 to 44B: the Advocates Welfare Fund, the annual sum, default, conviction, appeal to the Bar Council of India, and the Advocates Welfare Committee. Statutory layer: section 15 of the Advocates Welfare Fund Act 2001, twenty per cent of the enrolment fee.

Test yourself

1. Is there a Section of the Bar Council rules headed "duty to the profession"? No. MU's heading is a textbook grouping. The duty is carried by Section VII on restrictions on other employment, rules 47 to 52, Section V on training, rule 45, and Section IV-A on the Advocates Welfare Fund, rules 40 to 44B.

2. May an advocate be a company director? Yes, as Director or Chairman of the Board with or without an ordinary sitting fee, provided none of his duties is of an executive character. He may not be a Managing Director or a Secretary. Rule 9 separately stops him accepting a brief from that company.

3. What must an advocate do on taking full-time salaried employment? Under rule 49 he must intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in that employment.

4. May a Law Officer appear in court for his own employer? No. The Bar Council of India's Resolution No. 156/2001, recorded with rule 49, states that all such Law Officers shall not be allowed to appear as advocates, that State Bar Councils should ensure those permitted to do so cease to practise, and that those enrolled after joining service by reason of the enabling provision cannot practise even on behalf of their employers.

5. Name four things rule 51 expressly permits. Reviewing Parliamentary Bills for remuneration, editing legal text books at a salary, doing press-vetting for newspapers, and coaching pupils for legal examinations. It also permits setting and examining question papers, and, subject to the rules against advertising and full-time employment, broadcasting, journalism, lecturing and teaching.

6. On what conditions may an advocate take part-time employment? Under rule 52, after obtaining the consent of the State Bar Council, and provided that in that Council's opinion the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession, subject to any directives of the Bar Council of India.

7. May a senior charge a junior for training him? No. Rule 45 makes it improper for an advocate to demand or accept fees or any premium as consideration for imparting training in law to enable a person to qualify for enrolment under the Advocates Act.

The duty is positive, not merely negative. He must so conduct the prosecution that it does not lead to a wrongful conviction, and he must scrupulously avoid suppressing material capable of establishing innocence. That is an obligation to produce evidence that damages his own case.

A prosecutor is therefore not "counsel for the victim". He must be fair to the accused, and he cannot take instructions from a complainant as if the complainant were his client; rule 19 confines him to the instructions of his client or its authorised agent.

The advocate as an officer of the court

The phrase is defined in chapter [What This Subject Is, and Why a Lawyer's Conduct Is Regulated by an Act of Parliament] and carries a public duty here.

The court cannot check everything. A judge takes on trust that the authority cited exists and says what it is said to say, that the document produced is genuine, and that the instructions given are the client's. If advocates were unreliable, the system would have to verify everything and would stop.

So the public interest in honest advocacy is not an ideal, it is structural. It is why misleading the court is treated more severely than a comparable dishonesty elsewhere, as Module III shows when it reaches misconduct towards the court, and it is why In Re: Sanjiv Datta, (1995) 3 SCC 619, contains the Supreme Court's statement of the standards the profession is expected to maintain and of the consequences of a decline in them.

The duty not to obstruct the administration of justice

Two things a student can point to concretely.

Strikes. In Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, the Supreme Court held that lawyers have no right to strike or to give a call for boycott, not even a token strike, that lawyers holding vakalatnamas cannot fail to attend, and that all lawyers must boldly refuse to abide by such a call. The reason is precisely a duty to the public: the person harmed by a strike is the litigant, not the State.

Fomenting litigation. Rule 18 forbids an advocate being a party to fomenting litigation at any time. Manufacturing disputes wastes the courts' time and the public's money, and it is the vice behind the touting provisions in section 45A of the Advocates Act as well.

What this duty does NOT mean

Three limits, because a student asked to write on "duty to society" tends to write an essay and lose marks.

It does not override the duty to the client. Rule 15 requires the advocate fearlessly to uphold his client's interests and to defend an accused regardless of his personal opinion as to guilt. An advocate who threw a case because he thought society would be better served would be committing serious misconduct.

It does not make the advocate a judge of the merits. The cab-rank principle in rule 11 exists so that unpopular parties are represented, which is itself a service to society.

It is not a general licence to act in the public interest. Where an advocate believes his client's conduct is improper, his remedies are the ones the rules give: restrain the client under rule 4, refuse to act if he persists, and withdraw under rule 12. Not disclosing the client's confidence, which rule 17 and section 132 of the Bharatiya Sakshya Adhiniyam 2023 forbid.

A worked example

Deepa is a Special Public Prosecutor in a trial arising from a factory fire. Five things happen.

The investigating officer gives her a statement from a witness saying the accused manager was not on the premises that day. Rule 16 requires her scrupulously to avoid suppressing material capable of establishing the innocence of the accused. She must bring it out.

The complainant's family instructs her to press for the maximum sentence and to withhold the statement. She may not take instructions from them at all: her client is the State, and rule 19 confines her to the instructions of her client or its authorised agent.

She is asked to give a press interview about the strength of the case. Rule 36 forbids interviews not warranted by personal relations and furnishing or inspiring newspaper comments, and a prosecutor commenting on a pending trial risks prejudicing it, which is criminal contempt under section 2(c) of the Contempt of Courts Act 1971.

The local Bar Association calls a one-day strike over an unrelated grievance and the trial is listed that day. Harish Uppal requires her to attend, and requires all lawyers boldly to refuse to abide by the call. The exception is confined to the rarest of rare cases where the dignity, integrity or independence of the Bar or Bench is at stake, and even then needs the President of the Bar to consult the Chief Justice or District Judge.

One of the accused is unrepresented and cannot afford a lawyer. That is where rule 46 and the legal aid machinery come in, and it is the subject of chapter [Duty to Render Legal Aid: Rule 46, Article 39A and the Legal Services Authorities Act]. Deepa's own duty under rule 16 is unaffected: she must still conduct the prosecution so that it does not lead to the conviction of the innocent.

Quick revision

• There is no Bar Council Section headed "duty to public, state and society". The sources are the Preamble, rule 16, rule 46, and the advocate's position as an officer of the court.
• Preamble: the advocate is an officer of the Court, a privileged member of the community, and a gentleman. The monopoly conferred by sections 29 and 33 is what makes the outward duty real.
• Rule 16: a prosecutor shall so conduct the prosecution that it does not lead to conviction of the innocent, and shall scrupulously avoid suppressing material capable of establishing innocence. A duty owed to the accused, who is not his client.
• Rule 19 confines an advocate to the instructions of his client or his authorised agent, so a prosecutor cannot be directed by a complainant.
• Legal aid is a statutory function: section 6(1)(eee) for a State Bar Council, section 7(1)(ib) for the Bar Council of India, and section 9A for legal aid committees of five to nine members.
• Rule 18: no fomenting litigation. Harish Uppal: no strikes, because the person harmed is the litigant.
• Limits: the duty does not override rule 15, does not make the advocate a judge of his client's merits, and does not licence disclosing a client's confidence.

Test yourself

1. Which Section of the Bar Council rules deals with the duty to the public? None. The heading is MU's grouping. The duty is drawn from the Preamble, rule 16, rule 46, the advocate's position as an officer of the court, and the legal aid functions in sections 6(1)(eee), 7(1)(ib) and 9A of the Advocates Act.

2. Why is a prosecutor's duty different from that of any other advocate? Because his client is the State, whose interest is not conviction but that the guilty are convicted and the innocent are not. Rule 16 accordingly requires him so to conduct the prosecution that it does not lead to the conviction of the innocent, and scrupulously to avoid suppressing material capable of establishing innocence.

3. What does the Preamble's phrase "a privileged member of the community" import? That the profession's monopoly, conferred by sections 29 and 33 and protected by sections 45 and 45A, is a privilege granted by the State, and that a privilege carries duties owed outward to the public that granted it.

4. Give two concrete instances of the duty not to obstruct the administration of justice. The rule against strikes in Ex-Capt. Harish Uppal v. Union of India, because the person harmed by an abstention is the litigant; and rule 18, which forbids an advocate at any time being a party to fomenting litigation.

5. May an advocate act against his client's instructions because he believes society would be better served? No. Rule 15 requires him fearlessly to uphold his client's interests and to defend an accused regardless of his personal opinion as to guilt. His remedies where the client acts improperly are to restrain him under rule 4, refuse to act if he persists, and withdraw under rule 12 with notice and a refund.

6. Can a complainant instruct the public prosecutor? No. Rule 19 provides that an advocate shall not act on the instructions of any person other than his client or his authorised agent, and the prosecutor's client is the State.

Article 22(1) guarantees to a person arrested the right to consult, and to be defended by, a legal practitioner of his choice. That is a fundamental right, but on its face it is a right to engage a lawyer, not a right to be given one.

Article 21 was read, in a line of cases, as including a right to free legal services where a person cannot afford one, so that a trial without representation is not a procedure established by law.

The four cases in that line are the ones a question on this topic expects, and all four are verified in this book's case bank.

Madhav Hayawadanrao Hoskot v. State of Maharashtra, AIR 1978 SC 1548, on the right of a prisoner to legal services for an appeal.

Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369, the undertrial prisoners case, in which the Court dealt with free legal services as part of a reasonable, fair and just procedure under Article 21.

Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991, holding that a trial can be vitiated where an accused was not provided with legal assistance and did not apply for it, because a poor and illiterate accused cannot be expected to ask.

Bar Council of India v. Union of India, AIR 2012 SC 3246, on the Bar Councils' own role in the scheme.

Suk Das is the one to be precise about, because it decides the point students get wrong: the duty does not depend on the accused asking. A person who does not know he has the right cannot exercise it, so the obligation is on the State and the court.

Layer three: the machinery that pays for it

Neither a professional rule nor a constitutional right delivers a lawyer to a courtroom. The Legal Services Authorities Act 1987 does.

Section 12 lists who is entitled, and the list should be learnt because it is short and is regularly asked. Every person who has to file or defend a case is entitled to legal services if that person is:

• (a) a member of a Scheduled Caste or Scheduled Tribe;
• (b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
• (c) a woman or a child;
• (d) a person with disability as defined in the disability legislation;
• (e) a person under circumstances of undeserved want, such as a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster;
• (f) an industrial workman;
• (g) a person in custody, including in a protective home, a juvenile home, or a psychiatric hospital or nursing home;
• (h) a person in receipt of annual income less than rupees nine thousand, or such higher amount as the State Government prescribes, for a case before a court other than the Supreme Court; and less than rupees twelve thousand, or such higher amount as the Central Government prescribes, for a case before the Supreme Court.

Two points about clause (h) that a careful answer makes. The figures in the Act are the floor, not the ceiling: the section expressly contemplates a higher amount prescribed by the appropriate Government, and the prescribed limits are today far above the printed figures. And the other seven clauses carry no income test at all: a woman, a child, a member of a Scheduled Caste or Scheduled Tribe, or a person in custody is entitled regardless of income.

Section 13 adds the two qualifications.

Section 13(1): persons who satisfy all or any of the criteria in section 12 are entitled to receive legal services, provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend.

Section 13(2): an affidavit by a person as to his income may be regarded as sufficient for eligibility, unless the concerned Authority has reason to disbelieve it.

So the two filters are a prima facie case and, for the income route, a simple affidavit.

The Bar Councils' own statutory role

The Advocates Act does not leave legal aid entirely to the legal services authorities.

• Section 6(1)(eee): it is a function of a State Bar Council to organise legal aid to the poor in the prescribed manner.
• Section 7(1)(ib): the same function for the Bar Council of India.
• Section 9A: a Bar Council may constitute one or more legal aid committees, each of not more than nine and not fewer than five members, whose qualifications, method of selection and term of office are as prescribed.
• Sections 6(2)(b) and 7(2)(b): a Bar Council may constitute funds for giving legal aid or advice.

So the profession's own bodies are part of the machinery, which is what closes the loop from rule 46 back to the Act.

A worked example

Sunita earns eleven thousand rupees a year as an agricultural labourer. Her husband has been arrested and she wants to defend a civil suit about her hut.

Is she entitled under section 12? Yes, on at least two independent grounds. She is a woman, clause (c), which carries no income test at all. And on income, clause (h) applies with the amount prescribed by the State Government, the Act's printed figure of nine thousand rupees being a floor which the Government may raise.

What must she show under section 13? That she has a prima facie case to prosecute or defend, of which the concerned Authority must be satisfied. For the income route, section 13(2) allows an affidavit as to her income to be treated as sufficient unless the Authority has reason to disbelieve it.

Her husband is in custody and has no lawyer at his trial. He is entitled under clause (g), being in custody. And on Suk Das, the fact that he has not applied does not answer the point: a poor and illiterate accused cannot be expected to ask, and a trial without legal assistance can be vitiated.

A lawyer is asked to appear for her and she cannot pay. Rule 46 describes free legal assistance to the indigent and oppressed, within the limits of the advocate's economic condition, as one of the highest obligations an advocate owes to society. Rule 38 does not stand in the way, because that rule applies only where the client is able to pay the taxed fee.

Change one fact. Suppose Sunita earns three lakh rupees a year and is not within any of clauses (a) to (g). She is not entitled under section 12 as a matter of right. Rule 46 still speaks to any one genuinely in need of a lawyer who cannot pay fully or adequately, but it binds the advocate professionally and gives Sunita nothing she can enforce.

What beginners get wrong

Rule 46 is not a right the client can enforce. It is a professional obligation on the advocate.

Article 39A is a Directive Principle. The enforceable right comes from Article 21, read with Article 22(1), in the line of cases from Hoskot to Suk Das.

Legal aid is not only for the poor. Seven of section 12's eight clauses carry no income test.

The income figures in section 12(h) are not current amounts. The section itself contemplates higher amounts prescribed by the State or Central Government.

Entitlement is not automatic. Section 13(1) requires the Authority to be satisfied of a prima facie case.

The accused need not ask. Suk Das is the authority.

An amicus curiae is not legal aid. He assists the court and does not represent the party, as chapter [Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae] explains.

Quick revision

• Three layers: rule 46, the professional obligation; Article 39A with Articles 21 and 22(1), the constitutional right; and the Legal Services Authorities Act 1987, the machinery.
• Rule 46: any one genuinely in need is entitled to legal assistance even though he cannot pay fully or adequately, and within the limits of an advocate's economic condition free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.
• Article 39A, inserted by the 42nd Amendment, 1976: the State shall secure that the legal system promotes justice on a basis of equal opportunity and shall provide free legal aid so that opportunities for securing justice are not denied by reason of economic or other disabilities.
• Article 22(1): an arrested person's right to consult and be defended by a legal practitioner of his choice. Article 21: read to include free legal services where the person cannot afford one.
• The four cases: Hoskot (1978), Hussainara Khatoon (1979), Suk Das (1986), and Bar Council of India v. Union of India (2012). Suk Das: the accused need not apply.
• Section 12: entitlement for SC or ST; a victim of trafficking or begar; a woman or child; a person with disability; a person in undeserved want; an industrial workman; a person in custody; and on income, below Rs 9,000 a year, or Rs 12,000 for the Supreme Court, or such higher amount as may be prescribed.
• Section 13(1): a prima facie case to prosecute or defend. Section 13(2): an affidavit as to income may suffice.
• Bar Councils: section 6(1)(eee), section 7(1)(ib), and section 9A legal aid committees of five to nine members.

Test yourself

1. State rule 46 and its two qualifications. Every advocate shall bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay fully or adequately, and that within the limits of an advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society. The qualifications are that the need be genuine and that the obligation operates within the limits of the advocate's own economic condition.

2. Is Article 39A directly enforceable? No. It is a Directive Principle in Part IV. The enforceable right to free legal services comes from Article 21, read with Article 22(1), as developed in Hoskot, Hussainara Khatoon and Suk Das.

3. Name four categories entitled under section 12 that carry no income test. A member of a Scheduled Caste or Scheduled Tribe; a woman or a child; a person in custody; and an industrial workman. Also a victim of trafficking or begar, a person with disability, and a person in circumstances of undeserved want.

4. What two conditions does section 13 add? That the concerned Authority is satisfied the person has a prima facie case to prosecute or to defend; and, for the income criterion, that an affidavit by the person as to his income may be regarded as sufficient unless the Authority has reason to disbelieve it.

5. Must an accused apply before he is given legal aid? No. Suk Das v. Union Territory of Arunachal Pradesh holds that a trial can be vitiated where the accused was not provided with legal assistance and did not apply for it, because a poor and illiterate accused cannot be expected to ask for what he does not know he has.

6. What role do the Bar Councils themselves have in legal aid? Organising legal aid to the poor in the prescribed manner is a function of a State Bar Council under section 6(1)(eee) and of the Bar Council of India under section 7(1)(ib); a Bar Council may constitute legal aid committees of between five and nine members under section 9A, and funds for giving legal aid or advice under sections 6(2)(b) and 7(2)(b).

Section 36(2), by contrast, is a withdrawal by the Bar Council of India's disciplinary committee to itself, and it is dealt with in chapter [Transfer of Proceedings from the State Bar Council to the Bar Council of India].

The Act does not define misconduct

This is the first thing to say in any answer on this topic, and most students leave it out.

Parliament created an offence, attached to it punishments running up to the end of a career, and then declined to say what it was. That is unusual and it is deliberate: a definition would have to be a list, and a list would be an invitation to do everything not on it.

The consequence is that the meaning is judge-made, and the courts have supplied three things: a test, a width, and a standard.

The test: what the profession would call disgraceful

The classical formulation is Darling J's, and the Supreme Court set it out in N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, recording that it was quoted in R.D. Saxena and had been approved by the Privy Council:

"If it is shown that an advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct."

Three features of that test are examinable.

The judges are his peers. The standard is what professional brethren of good repute and competency would say, not what the public would say and not what the advocate himself thinks.

"Disgraceful or dishonourable." A high bar. Discourtesy, inefficiency or an error of judgement is not enough; the conduct must be of a kind the profession would be ashamed of.

"In the pursuit of his profession... with regard to it." The classical test is aimed at professional conduct. That is where the Act goes further, as the next paragraph shows.

The width: "professional or otherwise"

Section 35(1) does not say "professional misconduct". It says "professional or other misconduct."

Those three extra words are the width of the section, and they were considered in N.G. Dastane, where the Court, quoting R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, said:

"Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression misconduct, professional or otherwise. The word misconduct is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct."

So the section reaches conduct that is not professional work at all. That is how Hikmat Ali Khan v. Ishwar Prasad Arya, AIR 1997 SC 864, is a misconduct case: the advocate assaulted his opponent with a knife in a court room and was convicted under section 307 of the penal law, and his name was ordered to be removed from the roll.

But the width is not unlimited, and chapter [Misconduct Outside Professional Work, and Conduct That Is Not Misconduct] is where the limit is worked out from the cases.

The standard: a profession, not a criminal court

Three points that follow from the disciplinary jurisdiction being what it is, and each is a good short question.

It is not a prosecution. The proceeding is an inquiry into fitness to remain in a profession. The punishments in section 35(3) are not sentences.

An acquittal does not end it. A criminal court applies proof beyond reasonable doubt to a statutory offence; a disciplinary committee asks whether the conduct was such as his professional brethren would call disgraceful. The two questions are different, so the same facts can produce an acquittal and a finding of misconduct.

But the proceeding is judicial in form. Section 42(2) provides that all proceedings before a disciplinary committee are deemed to be judicial proceedings within the meaning of sections 193 and 228 of the penal law, and that the committee is deemed to be a civil court for certain purposes. So evidence is taken, the advocate is heard, and the committee's powers are a civil court's, as chapter [The Disciplinary Committee of the State Bar Council: Organisation, Powers and Procedure] sets out.

Misconduct need not be dramatic

Students expect misconduct to mean theft or bribery. N.G. Dastane is worth knowing precisely because it is not.

Facts. A complaint was made against advocates who repeatedly sought adjournments so as to protract the cross-examination of a witness who was present in court.

Held. Seeking adjournments to postpone the examination of witnesses who are present in court, without making other arrangements for examining them, is a dereliction of the advocate's duty to the court and is capable of amounting to professional misconduct. The Court's reasoning is worth reading for its own sake: witnesses come because they have no other option, they are responsible citizens with work of their own, and they cannot be treated as less respectable people to be told to come again and again to suit the advocate's convenience.

So routine obstruction, done often enough and for the wrong reason, is misconduct. That is a more useful lesson for a student than any number of bribery cases.

A worked example

A litigant writes to the Bar Council of Maharashtra and Goa alleging that his advocate took Rs 40,000 for court fees, never paid it, and let the suit be dismissed for non-payment.

Step one, section 35(1). The Council reads the letter. Has it reason to believe the advocate has been guilty of professional or other misconduct? On that allegation, yes. It shall refer the case to its disciplinary committee. The word is mandatory.

Step two. The complainant then writes withdrawing the complaint, saying the money has been repaid. The proceeding does not automatically end. Section 35(1) lets the Council act "on receipt of a complaint or otherwise", so the jurisdiction did not depend on the complaint and does not fall with it.

Step three. The advocate is separately prosecuted and acquitted for want of proof beyond reasonable doubt. That does not conclude the disciplinary proceeding, which asks a different question by a different standard.

Step four, applying the test. Would his professional brethren of good repute and competency reasonably regard taking a client's money for court fees, not paying it, and letting the suit be dismissed as disgraceful or dishonourable? Plainly yes.

Change one fact. Suppose the money was paid but the advocate missed a hearing because he had double-booked himself, and the suit was dismissed for default. That is negligence, and the test is not met by every mistake: the conduct must be such as the profession would regard as disgraceful or dishonourable. Repetition, or an attempt to conceal it from the client, would change the answer.

What beginners get wrong

Section 35 does not define misconduct. Say so first.

The section is not confined to professional work. It says "professional or other misconduct".

A complaint is not necessary, and its withdrawal is not decisive.

An acquittal in a criminal court is not an answer to a disciplinary charge on the same facts.

Section 35(1A) does not send a case to the Bar Council of India. It moves it to another disciplinary committee of the same State Bar Council.

Negligence is not automatically misconduct. The test is what professional brethren of good repute and competency would reasonably regard as disgraceful or dishonourable.

Quick revision

• Section 35(1): on a complaint or otherwise, where a State Bar Council has reason to believe an advocate on its roll has been guilty of professional or other misconduct, it shall refer the case to its disciplinary committee.
• The words "if it does not summarily reject the complaint" were omitted from section 35(2) in 1973.
• Section 35(1A), inserted 1977: the State Bar Council may, of its own motion or on the application of any person interested, withdraw a proceeding from one of its disciplinary committees and direct the inquiry by another committee of the same Council.
• The Act does not define misconduct.
• The test, Darling J's, approved by the Privy Council and set out in N.G. Dastane: something done in the pursuit of his profession which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.
• The width: misconduct is a relative term, considered with reference to the subject matter and context, and literally means wrong or improper conduct; the section covers "professional or otherwise".
• The standard: not a prosecution, not concluded by an acquittal, but judicial in form by section 42(2).
• N.G. Dastane: seeking adjournments to postpone the examination of witnesses present in court is a dereliction of duty capable of amounting to misconduct.

Test yourself

1. Does the Advocates Act define professional misconduct? No. Section 35 creates the jurisdiction and uses the expression "professional or other misconduct" without defining it. The meaning has been supplied by the courts.

2. State the classical test. That if an advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct. It is Darling J's formulation, which the Privy Council approved and which the Supreme Court set out in N.G. Dastane v. Shrikant S. Shivde.

3. What is the effect of the words "or otherwise" in section 35(1)? They take the section beyond professional work, so that conduct in another capacity may be misconduct. Hikmat Ali Khan v. Ishwar Prasad Arya, where an advocate assaulted his opponent with a knife and was convicted under section 307, is an instance.

4. A complainant withdraws his complaint. Must the proceeding stop? No. Section 35(1) allows the State Bar Council to act on a complaint "or otherwise", so the jurisdiction does not depend on the complaint and does not fall with its withdrawal.

5. An advocate is acquitted in a criminal trial on the same facts. Is the disciplinary proceeding concluded? No. A criminal court decides a statutory offence on proof beyond reasonable doubt; a disciplinary committee asks whether the conduct would be regarded as disgraceful or dishonourable by his professional brethren. The questions and the standards differ.

6. Distinguish section 35(1A) from section 36(2). Section 35(1A) lets the State Bar Council move a proceeding from one of its own disciplinary committees to another committee of the same Council. Section 36(2) lets the disciplinary committee of the Bar Council of India withdraw a proceeding pending before a State Bar Council's committee for inquiry before itself.

7. Give an example of misconduct that involves no dishonesty at all. Repeatedly seeking adjournments to postpone the examination of witnesses who are present in court, without making other arrangements for examining them, which N.G. Dastane held to be a dereliction of the advocate's duty to the court.

Bar Council of Andhra Pradesh v. Kurapati Satyanarayana

Bar Council of Andhra Pradesh v. Kurapati Satyanarayana, AIR 2003 SC 175, (2003) 1 SCC 102, decided 15 November 2002 by V.N. Khare and Ashok Bhan JJ.

Facts. An advocate received money on his client's behalf and did not account for it or pay it over.

Held. Receiving a client's money and failing to account for it or return it is professional misconduct, and the disciplinary committee's finding to that effect was sustained.

Prahlad Saran Gupta v. Bar Council of India

Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338, (1997) 3 SCC 585, decided 26 February 1997 by S.C. Agrawal J.

Facts. An advocate acting for a decree-holder retained a sum of Rs 1,500 received on the client's behalf in his own hands for a considerable period, instead of paying it over or depositing it in court.

Held. Retaining the client's money in his own hands for so long, without justification, was conduct not befitting an advocate. The Court substituted a reprimand for the suspension that had been imposed.

Why this case matters more than its facts. It shows that a failure of account can be misconduct even where dishonesty is not established. The advocate did not steal; he held on to money that was not his. That is enough, and it is why the accounts rules in Module IV are rules and not advice.

Pattern two: the client's papers

R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, is worked in full in chapter [Duty to the Client III: Fees, and What an Advocate May Not Charge], and the holding is that an advocate has no lien over the client's litigation papers for unpaid fees, because files are not goods within section 171 of the Contract Act.

For this chapter the point is the disciplinary one. The Bar Council of India had debarred him for eighteen months and fined him Rs 1,000, and directed the return of the files, before the lien question ever reached the Supreme Court. Withholding a client's file is a disciplinary matter first and a question of the law of lien second.

Pattern three: changing sides

Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, (1983) 4 SCC 255, decided 20 July 1983 by A.P. Sen, E.S. Venkataramiah and R.B. Misra JJ.

Facts. Two charges. First, the advocate accepted the brief of the accused after having appeared for the complainant in the same criminal case. Second, he procured the complainant's brief in another case on a fee of Rs 300 on the representation that he would secure a favourable radiologist's report showing a fracture of the skull, and wrote the radiologist a letter saying "Your amount is lying with me... Please, do his work and it should be done positively in his favour", after which a second report recording a fracture was sent. His defence that the letter concerned a newspaper advertisement was disbelieved.

Held on the first charge. The State Bar Council had wrongly treated changing sides as merely unprofessional rather than as professional misconduct. Accepting the brief of the other side while retained by one party is clearly contrary to rule 33 of the Bar Council of India Rules; it is not in accordance with professional etiquette for an advocate retained by one party to accept the brief of the other; and it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts.

Held on punishment. In an appeal under section 38 the Court will not as a general rule interfere with concurrent findings of fact unless they rest on no evidence or on conjecture. But taking a lenient view because he was an inexperienced junior and the incidents were of 1971, the Court reduced the suspension from three years to one year.

Note the pairing. Chandra Shekhar Soni reduced a punishment; Harish Chandra Tiwari enhanced one. Both are section 38 appeals, and read together they show that the Supreme Court's function on such an appeal is to fix the punishment the misconduct deserves, in either direction.

Pattern four: taking an interest in the client's matter

P.D. Gupta v. Ram Murti, AIR 1998 SC 283, decided 8 July 1997 by S.C. Agrawal and D.P. Wadhwa JJ.

Facts. An advocate purchased property from a client which was the subject matter of a dispute in which he was acting, and then sold it at a profit.

Held. An advocate must not purchase property that is the subject of litigation in which he is engaged. Doing so is professional misconduct, because it sets his own interest against his client's and against the administration of justice.

The rules behind it are rule 22, on property sold in execution, and rule 22A, which is wider and covers acquisition by any mode of transfer of property that is the subject matter of a proceeding in which the advocate is engaged.

Pattern five: neglect that becomes deceit

V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281, (1979) 1 SCC 308, decided 4 October 1978 by V.R. Krishna Iyer, D.A. Desai and A.P. Sen JJ.

Facts. An advocate was entrusted by an old deaf client and his wife with two promissory notes for the filing of suits. He allowed the period of limitation to expire and then deceived the clients about what had happened.

Held. He was guilty of professional misconduct. On punishment the Court took a reformative view, reducing the period of suspension while making clear that the profession's standards are those of a trustee, that the relation between advocate and client is one of trust, and that the legal profession is a partner in the administration of justice rather than a trade.

Why the case is cited so often. Not for the neglect, which is common, but for the deceit, which converted a limitation mistake into misconduct, and for Krishna Iyer J's treatment of punishment as capable of being reformative.

The pattern behind the patterns

Every case above is a breach of trust, and stating it that way is what turns a list into an answer.

• Money received on the client's behalf is the client's money, not the advocate's, whatever the fee position: Tiwari, Kurapati Satyanarayana, Prahlad Saran Gupta.
• The file is the client's file: R.D. Saxena.
• The confidence is the client's confidence, so it cannot be carried to the other side: Chandra Shekhar Soni.
• The subject matter of the litigation is the client's, not something to trade in: P.D. Gupta.
• The client's reliance is the thing that makes deceit worse than error: V.C. Rangadurai.

A worked example

Kavita is instructed by an elderly widow to recover Rs 3,00,000 from a tenant. She receives Rs 40,000 for expenses and a fee of Rs 25,000. Four things happen.

The tenant pays Rs 1,00,000 into court and Kavita withdraws it in November. She does not tell her client and does not pay it over. By March the client discovers it.

That is the Harish Chandra Tiwari pattern exactly: money withdrawn on the client's behalf, not paid over, the client not told. Rules 26 and 27 required her to intimate the receipt to the client as early as possible and to record it. The gravity does not depend on the sum.

Kavita says she was entitled to keep it because her fee was unpaid. That is no answer. Rule 28 allows appropriation towards a settled fee only after the termination of the proceeding, and only out of money sent for expenses. Prahlad Saran Gupta shows that merely retaining a client's money without justification is misconduct even without dishonesty.

The client asks for her file. Kavita refuses until she is paid. R.D. Saxena: there is no lien over litigation papers, and the Bar Council of India in that very case debarred the advocate for eighteen months for it.

Kavita then accepts a brief from the tenant in a connected matter. Rule 33 and Chandra Shekhar Soni: having acted for one party she may not act, appear or plead for the opposite party, and it is unprofessional to represent conflicting interests except by express consent of all concerned after full disclosure.

What punishment? That is chapter [Punishment for Misconduct: The Four Orders Under Section 35(3)]. The range in these cases runs from a reprimand (Prahlad Saran Gupta) through one year (Chandra Shekhar Soni, reduced) and eighteen months (R.D. Saxena) to removal from the roll (Harish Chandra Tiwari, enhanced).

What beginners get wrong

The size of the sum is not the measure. Rs 8,118 produced removal from the roll.

Dishonesty need not be proved. Retaining money without justification was enough in Prahlad Saran Gupta.

Repayment after discovery does not cure it. It may affect punishment; it does not answer the charge.

There is no lien, so withholding the file is itself misconduct.

Changing sides is misconduct, not merely bad manners. Chandra Shekhar Soni corrected a State Bar Council that had drawn exactly that distinction.

An appeal under section 38 can increase the punishment.

Quick revision

• Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548: Rs 8,118 compensation withdrawn on 2 September 1987 for a poor illiterate client, not paid over, client not told. Bar Council of India suspended three years; the Supreme Court enhanced to removal from the roll.
• Bar Council of Andhra Pradesh v. Kurapati Satyanarayana, AIR 2003 SC 175: receiving a client's money and failing to account for it or return it is misconduct.
• Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338: Rs 1,500 retained for a considerable period without justification; conduct not befitting an advocate; reprimand substituted for suspension. Dishonesty need not be shown.
• R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264: no lien over the client's papers; the Bar Council of India had debarred him eighteen months and fined Rs 1,000.
• Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012: changing sides is clearly contrary to rule 33; unprofessional to represent conflicting interests except by express consent of all concerned after full disclosure; suspension reduced from three years to one for an inexperienced junior.
• P.D. Gupta v. Ram Murti, AIR 1998 SC 283: buying the property in dispute from a client and selling at a profit is misconduct.
• V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281: letting limitation expire on two promissory notes for an old deaf client and deceiving him about it; the relation is one of trust, and punishment may be reformative.

Test yourself

1. What did the Supreme Court do to the punishment in Harish Chandra Tiwari, and why? It enhanced it from three years' suspension to removal from the roll, holding that misappropriating the money of a poor and illiterate client is among the gravest professional misconducts and that the disciplinary committee had treated it too lightly.

2. Must dishonesty be proved before a failure to account is misconduct? No. In Prahlad Saran Gupta the advocate retained Rs 1,500 received on his client's behalf in his own hands for a considerable period without justification, and that alone was held to be conduct not befitting an advocate, a reprimand being substituted for the suspension.

3. On what footing did the Supreme Court hold that changing sides is misconduct? That accepting the brief of the other side while retained by one party is clearly contrary to rule 33 of the Bar Council of India Rules, that it is not in accordance with professional etiquette, and that it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts.

4. Why did the Court reduce the punishment in Chandra Shekhar Soni? Because the advocate was an inexperienced junior member of the Bar and the incidents dated from 1971. The Court strongly deprecated the conduct but reduced the suspension from three years to one year.

5. An advocate buys, at a profit, the property his client is litigating about. Which case and which rules? P.D. Gupta v. Ram Murti, with rule 22 on property sold in execution and rule 22A, which is wider and covers acquisition by any mode of transfer of property that is the subject matter of a proceeding in which the advocate is engaged.

6. What converted the advocate's neglect into misconduct in V.C. Rangadurai? The deceit. He allowed limitation to expire on two promissory notes entrusted to him by an old deaf client and his wife, and then deceived them about what had happened. The Court treated the relation as one of trust and the profession's standard as a trustee's.

Held. The Supreme Court set the review aside and restored the removal. The original order had been reviewed on non-existent grounds: every factor relied on in the review was already on the record and had been considered when the order of 31 July 1999 was passed, and the power of review had not been exercised by applying the well settled principles governing the exercise of such power.

The judgment opens with the passage worth quoting: the legal profession is not a trade or business but a noble profession, its members must not encourage dishonesty and corruption, the credibility and reputation of the profession depend on the manner in which its members conduct themselves, and there is a heavy responsibility on those in whom the Advocates Act vests the duty to take disciplinary action when that credibility comes under a cloud.

Note carefully what was misconduct. Not paying a bribe, and not any proof that money changed hands. Writing the letter was enough. The vice is holding out to a client that the outcome can be bought.

Chandra Shekhar Soni v. Bar Council of Rajasthan

Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, is worked in chapter [Misconduct Towards the Client: Money, Papers and Changing Sides] for its first charge. Its second charge belongs here.

Facts. The advocate procured a complainant's brief on a fee of Rs 300 on the representation that he would secure a favourable radiologist's report showing a fracture of the skull. He wrote to the radiologist: "I am sending the man to you with X-ray plate. Your amount is lying with me. I will come to Jalore in the evening and see you. Please, do his work and it should be done positively in his favour." A second report recording "evidence of fracture of the skull" followed the first, which had found nothing abnormal. His defence that the letter was about a newspaper advertisement was disbelieved, and the Court noted complete lack of candour in that he had procured false evidence to save himself.

Held. There is a long catena of decisions laying down that offering a bribe, giving a bribe, or taking money from the client for the purpose of giving a bribe, amounts to grave professional misconduct. The Court also invoked the Preamble to Chapter II and rule 4, which requires an advocate to use his best efforts to restrain and prevent his client from resorting to sharp and unfair practices.

Fabricating or procuring false material

Chandra Shekhar Soni is also the leading illustration of this, because the medical report was procured, not merely relied on.

The rules are rule 4 of Section I, which requires the advocate to restrain the client from unfair practices and forbids him to be a mere mouth-piece, and the general duty of candour. The aggravating feature the Court identified was that when the charge was made he produced false evidence in his defence, which is a second misconduct on top of the first.

Misleading the court

D.P. Chadha v. Triyugi Narain Mishra, AIR 2001 SC 457, (2001) 2 SCC 221, decided 5 December 2000 by R.C. Lahoti J.

Facts. An advocate was found to have been party to a course of conduct by which the court was misled in the conduct of proceedings.

Held. A lawyer must not hesitate in telling the court the correct position of law and must not be a party to misleading it. The judgment sets out at length the standard of candour an advocate owes the court and the consequences of falling below it.

This is the fullest modern statement of the duty of candour, and it is the case to cite where the facts are that the court was told something untrue rather than that a document was forged.

Abusing the process of the court

N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, is worked in chapter [What Professional Misconduct Is: Section 35 and the Words 'Or Otherwise'] and belongs here too.

Held. An advocate abusing the process of court is guilty of misconduct. Where witnesses are present in court for examination, the advocate has a duty to see that their examination is conducted. Seeking adjournments to postpone the examination of witnesses who are present, without making other arrangements to examine them, is a dereliction of the advocate's duty to the court.

The Court's reason is worth having: witnesses come because they have no other option, they are responsible citizens with their own work, and they cannot be treated as less respectable people to be told to come again and again to suit the advocate's convenience.

The standard the Court expects

In Re: Sanjiv Datta, (1995) 3 SCC 619, 1995 Cri LJ 2910, decided 19 April 1995 by P.B. Sawant and B.P. Jeevan Reddy JJ, contains the Supreme Court's statement of the standards the legal profession is expected to maintain and of the consequences of a decline in them, in the passage beginning with the observation that the legal profession is a solemn and serious occupation and a noble calling in which its members are expected to maintain a high standard of probity.

It is the passage most often quoted for the proposition that the profession is not a trade, and it is worth quoting once, accurately, rather than at second hand.

Where this category meets contempt

One act can be both misconduct under section 35 and criminal contempt under section 2(c) of the Contempt of Courts Act 1971, and the two are tried by different bodies under different Acts.

That overlap, and the limit the Supreme Court placed on its own powers in Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, are dealt with in chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142] and in Module IV.

A worked example

Prakash appears for a defendant in a money suit. Four things happen.

He tells his client that the judge is approachable and asks for Rs 50,000 to arrange matters. No money is paid and nothing is done.

That is Shambhu Ram Yadav on all fours. The misconduct is complete on the holding out, and the fact that no money passed is no defence. On that case the punishment ordered was removal from the roll.

He obtains a valuation report by paying the valuer to write a higher figure. That is Chandra Shekhar Soni's second charge: taking money from a client to give a bribe, and procuring false material. The Court there recorded a long catena of decisions holding this grave professional misconduct.

Confronted, he produces a witness to say the payment was for something else, and that account is disbelieved. That is the aggravation the Court identified in Chandra Shekhar Soni: a complete lack of candour, procuring false evidence to save himself.

Separately, he seeks four adjournments while the plaintiff's witnesses wait outside court. N.G. Dastane: abusing the process of court is misconduct, and seeking adjournments to postpone the examination of witnesses who are present is a dereliction of his duty to the court.

Change one fact. Suppose Prakash never suggested a bribe, but told the court a judgment said something it did not, because he had not read it. That is D.P. Chadha territory in principle, but carelessness is not the same as being a party to misleading the court; the question is whether his professional brethren would call it disgraceful or dishonourable. If he corrects it at once, plainly not. If he lets the court act on it, the answer changes.

What beginners get wrong

No money need change hands. Shambhu Ram Yadav turned on a letter.

Long standing is not mitigation. The Bar Council of India treated fifty years at the Bar as making the conduct worse, and the Supreme Court restored removal.

A client's instruction is no defence. Rule 4 requires the advocate to restrain the client and to refuse to act if he persists.

Defending oneself dishonestly is a separate wrong. Producing false evidence at the inquiry aggravated the punishment in Chandra Shekhar Soni.

Misconduct towards the court is not confined to lying. Abusing the process, as in N.G. Dastane, is enough.

Quick revision

• Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509: a letter to the client saying the judge takes bribes and asking Rs 10,000 to get the suit decided in his favour. State Bar Council two years; Bar Council of India enhanced to removal on 31 July 1999; Bar Council of India then reviewed and reduced to a reprimand; the Supreme Court set the review aside and restored removal, the review having been made on non-existent grounds. Opening proposition: the legal profession is not a trade or business but a noble profession.
• Chandra Shekhar Soni, AIR 1983 SC 1012, second charge: Rs 300 taken on a promise to secure a favourable radiologist's report, and a letter procuring it. Offering, giving, or taking money from a client to give a bribe is grave professional misconduct, on a long catena of decisions. Aggravated by procuring false evidence in defence.
• D.P. Chadha v. Triyugi Narain Mishra, AIR 2001 SC 457: a lawyer must not hesitate to tell the court the correct position of law and must not be a party to misleading it.
• N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028: abusing the process of court is misconduct; adjournments to postpone witnesses present in court are a dereliction of duty.
• In Re: Sanjiv Datta, (1995) 3 SCC 619: the Supreme Court's statement of the standards the profession must maintain.
• One act can be both misconduct under section 35 and criminal contempt under section 2(c).

Test yourself

1. Was any bribe paid in Shambhu Ram Yadav? No. The advocate wrote to his client saying the judge accepted bribes and asking for Rs 10,000 to have the suit decided in his favour, and the money was never sent. The misconduct was complete on the writing of the letter.

2. What did the Supreme Court hold about the Bar Council of India's review in that case? That the original order had been reviewed on non-existent grounds, since every factor relied on in the review was already on the record and had been considered when the order of 31 July 1999 was passed, and that the power of review had not been exercised by applying the well settled principles governing it. The order removing his name was restored.

3. State the proposition on bribery from Chandra Shekhar Soni. That there is a long catena of decisions laying down that offering a bribe, giving a bribe, or taking money from the client for the purpose of giving a bribe amounts to grave professional misconduct.

4. How did the advocate's defence make his position worse in that case? He put forward a false plea that the incriminating letter concerned a newspaper advertisement and examined witnesses to support it. The Court recorded a complete lack of candour in that he had, in a frantic effort to save himself, procured false evidence.

5. Give an instance of misconduct towards the court involving no falsehood at all. Seeking repeated adjournments to postpone the examination of witnesses who are present in court, without making other arrangements to examine them, which N.G. Dastane held to be abusing the process of court and a dereliction of the advocate's duty to the court.

6. Why are punishments in this category heavier than for comparable conduct towards a client? Because the advocate is an officer of the court and the administration of justice depends on the court being able to rely on what advocates tell it. A judge cannot verify every authority, document or instruction, so misleading the court damages the system itself and not only one party.

The disciplinary committee of the Bar Council of India, on 27 February 1999, refused to enquire into the complaint. It noted that no criminal proceeding had been initiated, that no charge-sheet had been filed on the FIR, that the complainant had produced nothing showing any follow-up, and, decisively, that the respondent had been appearing in the rent control proceeding not as an advocate but as a party in person.

Held. The appeal under section 38 was dismissed and the refusal to enquire was upheld.

Compare it with Hikmat Ali Khan and the line becomes visible. Both involve violence in or around a court. In Hikmat Ali Khan there was a conviction and the advocate was acting as an advocate; in Noratanmal there was no conviction, no charge-sheet, no follow-up, and the man was in court as a litigant in his own case.

The definitions this chapter exists to supply

The value of Noratanmal is that it collects, in one place, what misconduct means. These are the sentences to carry into an exam.

"The term misconduct implies a wrongful intention, and not a mere error of judgment."

"Misconduct is not necessarily the same thing as conduct involving moral turpitude."

"The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."

And, from Black's Law Dictionary as the Court quoted it, misconduct is "a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour... but not negligence or carelessness."

Take the last four words seriously. Negligence or carelessness is not, without more, misconduct. That is the single most useful sentence in this chapter for a problem question.

Where negligence crosses the line

If carelessness alone is not misconduct, what turns it into misconduct? Two things, and both come from cases already worked.

Concealment. In V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281, the advocate allowed limitation to expire on two promissory notes entrusted by an old deaf client and his wife. Letting a limitation period lapse is negligence. Deceiving the clients about what had happened is what made it misconduct, and the Court treated the relation as one of trust.

Persistence, and a wrongful purpose. In N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, the advocate sought adjournments repeatedly, and on 4 December 1993 asked for one on the ground that he could not speak because of a throat infection and continuous cough, while the complainant found him arguing "forcefully and fluently" before another court in the same building. A single genuine indisposition is not misconduct; a pattern with a false reason is.

Section 24A is a different question

Students conflate the disqualification with the punishment, and the distinction is worth stating once more here because both involve convictions.

Section 24A is a bar to enrolment. It applies to a person applying, it operates automatically on conviction for an offence involving moral turpitude, and it ceases after two years from release. Chapter [Disqualification for Enrolment: Section 24A and the Two-Year Rule] deals with it.

Section 35 is a punishment of a person already on the roll, imposed after an inquiry by a disciplinary committee, and the punishment is whatever the committee orders.

So an advocate convicted after enrolment is not "disqualified" under section 24A. He is liable to a proceeding under section 35, which is what happened in Hikmat Ali Khan.

Conduct in a private capacity: how to reason about it

MU can set this as a problem, and a structured answer looks like this.

Step one. Say that section 35 covers "professional or other misconduct", so private conduct is not excluded merely because it is private.

Step two. Apply the test from chapter [What Professional Misconduct Is: Section 35 and the Words 'Or Otherwise']: would his professional brethren of good repute and competency reasonably regard it as disgraceful or dishonourable?

Step three. Apply Noratanmal: misconduct implies a wrongful intention and not a mere error of judgment; it is not the same as moral turpitude; it is a relative term to be construed with reference to the subject matter and context; and negligence or carelessness is not enough.

Step four. Look for the features that made Hikmat Ali Khan easy: a conviction, violence, a connection with court proceedings, and conduct as an advocate rather than as a party.

Step five. Note that the same facts may be contempt as well, which is Module IV, and that the two jurisdictions are separate.

A worked example

Four complaints reach a State Bar Council against advocates on its roll.

One. An advocate is convicted of criminal breach of trust in relation to a family property and sentenced to two years. Section 35 is engaged: "or other misconduct" covers it, there is a conviction, and dishonesty of that kind would be regarded by his professional brethren as disgraceful. Hikmat Ali Khan is the closest authority, and removal from the roll is in view.

Two. An advocate, defending himself as a party in his own tenancy dispute, loses his temper and pushes the landlord in the corridor. No FIR is pursued, no charge-sheet is filed. This is Noratanmal: the man was in court as a litigant in person, and the incidents were unsubstantiated. The disciplinary committee's refusal to enquire in that case was upheld.

Three. An advocate misses a limitation period because his diary was mis-entered, tells the client at once, and offers to bear the cost. On Noratanmal's definitions this is negligence or carelessness, which is expressly outside misconduct, and there is no wrongful intention. Not misconduct, though the client may have a civil remedy.

Four. The same advocate instead tells the client the suit is proceeding, and keeps saying so for a year. That is V.C. Rangadurai: the neglect is not the misconduct, the deceit is.

Change one fact in complaint two. Suppose the advocate had been appearing as an advocate for a client in that matter and assaulted the opposing party in the court room, and was convicted under section 307. That is Hikmat Ali Khan exactly, and the answer reverses.

What beginners get wrong

"Or otherwise" does not make everything misconduct. Noratanmal is the limit.

Negligence is not misconduct. The definition the Court adopted excludes negligence and carelessness in terms.

Misconduct is not the same as moral turpitude. Noratanmal says so expressly. Moral turpitude is the section 24A test for enrolment.

Acting as a party in person is not acting as an advocate, and that was decisive in Noratanmal.

A conviction is not needed, but its absence, with no charge-sheet and no follow-up, weighed heavily in Noratanmal.

Section 24A does not apply to an enrolled advocate. His conviction is dealt with under section 35.

Quick revision

• Section 35 covers "professional or other misconduct", so private conduct is not excluded merely for being private.
• Hikmat Ali Khan v. Ishwar Prasad Arya, AIR 1997 SC 864: assault with a knife in a court room on 18 May 1971, conviction under section 307 and section 25 of the Arms Act, three years' rigorous imprisonment; unworthy of remaining in the profession, so removal from the roll and not suspension.
• Noratanmal Chouraria v. M.R. Murli, AIR 2004 SC 2440: three alleged assaults on a landlord by a tenant who was appearing as a party in person; no criminal proceeding, no charge-sheet, no follow-up; the Bar Council of India's refusal to enquire was upheld.
• The definitions, from Noratanmal: misconduct implies a wrongful intention, and not a mere error of judgment; it is not necessarily the same as conduct involving moral turpitude; it is a relative term construed with reference to subject matter and context; and it is "improper or wrong behaviour... but not negligence or carelessness".
• Negligence becomes misconduct where there is concealment (V.C. Rangadurai) or a pattern with a false reason (N.G. Dastane, the throat infection and the advocate arguing "forcefully and fluently" elsewhere).
• Section 24A bars enrolment and turns on moral turpitude, ceasing after two years. Section 35 punishes an advocate already on the roll.

Test yourself

1. Does section 35 reach conduct outside professional work? Yes. It covers "professional or other misconduct". Hikmat Ali Khan v. Ishwar Prasad Arya, where an advocate assaulted his opponent with a knife in a court room and was convicted under section 307, resulted in removal from the roll.

2. State three propositions on the meaning of misconduct from Noratanmal. That misconduct implies a wrongful intention and not a mere error of judgment; that it is not necessarily the same thing as conduct involving moral turpitude; and that it is a relative term to be construed with reference to the subject matter and the context, having regard to the scope of the Act being construed.

3. Is negligence misconduct? Not by itself. The definition the Court adopted in Noratanmal describes misconduct as improper or wrong behaviour, wilful in character, "but not negligence or carelessness".

4. What was decisive in Noratanmal? That the respondent had been appearing in the rent control proceeding not as an advocate but as a party in person, together with the absence of any criminal proceeding, any charge-sheet on the FIR, or any follow-up by the complainant.

5. When does negligence become misconduct? Give two situations with authority. Where it is concealed from the client, as in V.C. Rangadurai, where the advocate let limitation expire on two promissory notes and then deceived the clients about it; and where it forms a pattern supported by a false reason, as in N.G. Dastane, where an adjournment was sought on the ground of a throat infection while the advocate was arguing forcefully and fluently before another court in the same building.

6. An enrolled advocate is convicted of an offence involving moral turpitude. Is he disqualified under section 24A? No. Section 24A governs admission to the roll and bars a person applying for enrolment. An advocate already on the roll is dealt with under section 35 as having been guilty of professional or other misconduct, and the disciplinary committee decides the punishment.

(b) Reprimand

The lightest punishment: a formal censure recorded against the advocate. It is not nominal, because section 41(1) requires a record of the punishment to be entered against his name in the State roll.

Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338, is the illustration: an advocate acting for a decree-holder retained Rs 1,500 received on the client's behalf for a considerable period, and the Supreme Court substituted a reprimand for the suspension that had been imposed.

(c) Suspension

"For such period as it may deem fit." There is no maximum in the Act and no minimum. The reported periods run from one year upwards.

Section 35(4) is the provision that gives suspension its bite: "Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India."

Read those last words. Not in the State whose roll he is on: in India. A suspension by the Bar Council of Maharashtra and Goa stops the advocate appearing anywhere in the country, which is the counterpart of the nationwide right to practise in section 30.

(d) Removal from the roll

The gravest order. The name is struck off the State roll, and by section 41(1) that is how it is recorded. Section 41(3) completes it: where an advocate is suspended or removed from practice, the certificate of enrolment granted under section 22 shall be recalled.

Removal is not expressed to be permanent in the Act, but its practical effect is the end of the practice, and the Supreme Court has used it for the gravest cases: Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, for misappropriating a poor client's compensation, and Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, for writing to a client that the judge took bribes and asking for Rs 10,000.

Section 41: what the order does to the record

Section 41(1): where an order reprimanding or suspending an advocate is made, a record of the punishment shall be entered against his name in the State roll; and where an order removing an advocate from practice is made, his name shall be struck off the State roll.

Section 41(3): where an advocate is suspended or removed, the certificate granted under section 22 shall be recalled.

So all three punishments leave a mark on the roll, and two of them take back the document that evidences the right to practise.

Proportionality: how the punishment is chosen

MU asks about punishment, and a good answer says how the committee and the Court decide, not merely what the options are. Four propositions, each with a case.

The gravity of the breach of trust, not the size of the sum. In Harish Chandra Tiwari the sum was Rs 8,118 and the client was described as an old, helpless, poor illiterate person. A three-year suspension was held too light and was enhanced to removal.

Standing at the Bar can aggravate rather than mitigate. In Shambhu Ram Yadav the Bar Council of India, in the order the Supreme Court restored, observed that the advocate had served as an advocate for fifty years and that it was not expected of him to indulge in corrupting the judiciary.

Inexperience can mitigate. In Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, the Court strongly deprecated the conduct but took a lenient view because the advocate was an inexperienced junior and the incidents were of 1971, reducing the suspension from three years to one year.

Punishment may be reformative. In V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281, the Court reduced the period of suspension while making clear that the profession's standards are those of a trustee, and treated the sentence as capable of reforming rather than only of punishing.

And the deterrent element is real. In Chandra Shekhar Soni the Court said that in a case of that kind the punishment has to be deterrent, before going on to reduce it on the particular facts.

The order can move in both directions on appeal

This belongs here because students assume an appeal can only help.

Section 37(2) lets the disciplinary committee of the Bar Council of India pass such order as it deems fit, including an order varying the punishment awarded by the State committee, subject to the proviso that no order shall be varied so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.

Section 38 contains the same power and the same proviso for the Supreme Court.

So the Bar Council of India enhanced the punishment in Shambhu Ram Yadav, and the Supreme Court enhanced it in Harish Chandra Tiwari after putting the appellant on notice to show cause. Chapters [Remedies I: Appeal to the Bar Council of India Under Section 37] and [Remedies II: Appeal to the Supreme Court Under Section 38] deal with the machinery.

A worked example

A disciplinary committee finds four charges proved against four different advocates. What order in each?

A. Retained a client's Rs 2,000 for eight months without justification, no dishonesty established, repaid on demand. On Prahlad Saran Gupta a reprimand is the fitting order, and by section 41(1) it is recorded against his name.

B. Accepted the brief of the opposite party after appearing for the complainant, and separately took Rs 300 to procure a false medical report, but is a junior of two years' standing and the events are old. Chandra Shekhar Soni is the model: grave misconduct, punishment deterrent in principle, but reduced on the facts to one year's suspension. During that year, by section 35(4), he is debarred from practising anywhere in India, and by section 41(3) his certificate under section 22 is recalled.

C. Withdrew Rs 8,000 of a poor illiterate client's compensation, did not tell him, and did not pay it over. Harish Chandra Tiwari: removal from the roll, his name struck off under section 41(1) and his certificate recalled under section 41(3).

D. The complaint is not made out on the evidence. If it began on a complaint, the order is dismissal under section 35(3)(a); if the Bar Council initiated it of its own motion, the order is that the proceedings be filed.

Who must be heard before any of these? The advocate and the Advocate-General, under section 35(2) and (3), the Advocate-General being entitled by section 35(5) to appear in person or through an advocate.

What beginners get wrong

There are four orders, not three. Dismissal or filing is one of them.

There is no maximum period of suspension. The Act says "for such period as it may deem fit".

Suspension is nationwide, by section 35(4), not confined to the State whose roll he is on.

A reprimand is recorded, by section 41(1). It is not a private word.

The certificate is recalled on suspension as well as removal, by section 41(3).

The Advocate-General must be noticed, and for Delhi that means the Additional Solicitor General.

An appeal can increase the punishment, subject to the right to be heard first.

Quick revision

• Section 35(2): fix a date and notice the advocate and the Advocate-General. Section 35(5): the Advocate-General may appear in person or through an advocate. Explanation: for Delhi, the Additional Solicitor General of India.
• Section 35(3), the four orders: (a) dismiss the complaint, or direct that the proceedings be filed where the Council initiated them; (b) reprimand; (c) suspend from practice for such period as it may deem fit; (d) remove the name from the State roll.
• Section 35(4): a suspended advocate is debarred from practising in any court or before any authority or person in India.
• Section 41(1): reprimand and suspension are recorded against his name; removal means the name is struck off. Section 41(3): on suspension or removal the section 22 certificate is recalled.
• Proportionality: gravity of the breach of trust, not the sum (Harish Chandra Tiwari, Rs 8,118, enhanced to removal); long standing can aggravate (Shambhu Ram Yadav, fifty years at the Bar); inexperience can mitigate (Chandra Shekhar Soni, three years reduced to one); punishment may be reformative (V.C. Rangadurai); and in a grave case the punishment has to be deterrent.
• Sections 37(2) and 38 allow the punishment to be varied, including enhanced, subject to a reasonable opportunity of being heard.

Test yourself

1. State the four orders under section 35(3). Dismiss the complaint, or where the proceedings were initiated at the instance of the State Bar Council direct that they be filed; reprimand the advocate; suspend him from practice for such period as it may deem fit; or remove his name from the State roll of advocates.

2. Who must be given an opportunity of being heard before an order is made? The advocate concerned and the Advocate-General of the State, under sections 35(2) and 35(3). By section 35(5) the Advocate-General may appear in person or through any advocate appearing on his behalf.

3. What is the geographical effect of a suspension? Section 35(4) provides that during the period of suspension the advocate is debarred from practising in any court or before any authority or person in India, not merely in the State on whose roll he is entered.

4. What happens to the roll and to the certificate of enrolment? Section 41(1) requires a record of a reprimand or suspension to be entered against the advocate's name, and requires the name to be struck off where an order of removal is made. Section 41(3) requires the certificate granted under section 22 to be recalled where an advocate is suspended or removed.

5. Give one case where standing at the Bar aggravated the punishment and one where inexperience mitigated it. In Shambhu Ram Yadav the Bar Council of India, in the order the Supreme Court restored, treated fifty years at the Bar as making it worse that the advocate should indulge in corrupting the judiciary. In Chandra Shekhar Soni the Supreme Court reduced a three-year suspension to one year because the advocate was an inexperienced junior and the incidents dated from 1971.

6. Can an appeal make an advocate's position worse? Yes. Sections 37(2) and 38 empower the appellate body to pass such order as it deems fit, including an order varying the punishment, subject to the proviso that no order may be varied so as prejudicially to affect the person aggrieved without giving him a reasonable opportunity of being heard. In Harish Chandra Tiwari the Supreme Court enhanced a three-year suspension to removal from the roll on the advocate's own appeal.

• (a) summoning and enforcing the attendance of any person and examining him on oath;
• (b) requiring discovery and production of any 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;
• (f) any other matter which may be prescribed.

The proviso is examinable, and it is a real limit. No such committee has the right to require the attendance of:

• (a) any presiding officer of a court, except with the previous sanction of the High Court to which that court is subordinate;
• (b) any officer of a revenue court, except with the previous sanction of the State Government.

So a committee inquiring into what an advocate said to a judge cannot simply summon the judge.

Section 42(2): all proceedings before a disciplinary committee are deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, and every such committee is deemed to be a civil court for the purposes of the sections of the criminal procedure law named there.

The effect is that giving false evidence before the committee is punishable as it would be in a court, and that the committee has the protections a court has. This is what makes the inquiry judicial in character rather than administrative.

Section 42(3): to exercise those powers the committee may send any summons or other process, or any commission, to any civil court, which shall cause it to be served or issued and may enforce it as if it were a process for attendance or production before itself. So the committee borrows the civil court's enforcement machinery.

Section 42(4): the absence of the Chairman or a member on a date fixed for hearing does not invalidate the proceedings, and the committee may hold or continue them. Proviso: no final order of the nature referred to in section 35(3) may be made unless the Chairman and the other members are present. So an interlocutory hearing can go on short-handed; the punishment cannot.

Section 42(5) answers the deadlock. Where no final order under section 35(3) can be made for want of a majority opinion or otherwise, the case with the members' opinions is laid before the Chairman of the Bar Council concerned, or, if the Chairman of the Council is himself Chairman or a member of the disciplinary committee, before the Vice-Chairman; and after such hearing as he thinks fit he shall deliver his opinion, and the final order of the disciplinary committee shall follow that opinion.

Section 42A applies section 42, so far as may be, to the Bar Council of India and to the enrolment, election, legal aid and any other committee of a Bar Council.

Costs: section 43

Section 43: the disciplinary committee may make such order as to the costs of any proceeding before it as it deems fit, and such an order is executable as if it were an order:

• (a) of the Supreme Court, in the case of an order of the disciplinary committee of the Bar Council of India;
• (b) of the High Court, in the case of an order of the disciplinary committee of a State Bar Council.

That is a strong provision: an order for costs by a Bar Council committee is enforced as a decree of the High Court.

Procedure: Part VII Chapter I of the Bar Council of India Rules

The procedure is not in the Act. Section 7(1)(c) makes it a function of the Bar Council of India to lay down the procedure to be followed by its own disciplinary committee and by that of each State Bar Council, and section 49(1)(f) is the rule-making power. The rules are Part VII Chapter I, headed "Complaints against Advocates and Procedure to be followed by Disciplinary Committees of the State Bar Council and the Bar Council of India", and made under section 49(1)(f).

The stages a complaint passes through are these.

The complaint, rule 1. A complaint against an advocate shall be in the form of a petition duly signed and verified as required under the Code of Civil Procedure. It may be filed in English, in Hindi, or in a regional language that has been declared a State language; where it is in Hindi or a regional language, the State Bar Council shall translate it into English whenever the matter is sent to the Bar Council of India. Every complaint must be accompanied by the fees prescribed under section 49(h).

Defects and particulars, rule 1(2). The Secretary may require the complainant to pay the prescribed fee if unpaid, to remove defects, and to furnish particulars or copies.

Registration, rule 1(3). On being found in order the complaint is registered and placed before the Bar Council for such order as it may make.

Referral, rule 2. Before referring a complaint under section 35(1) to a disciplinary committee, the Bar Council may require an explanation, so that the reference is not made mechanically.

Allotment and notice, rules 3 to 5. After reference the matter goes to a disciplinary committee; the Chairman fixes the date, hour and place of hearing; and notices are issued as the rules provide.

Appearance, rule 6. The parties may appear in person or by an advocate.

Non-appearance, rule 7. The rule provides for what happens where a party does not appear.

The Attorney-General or Advocate-General, rule 8. The committee shall hear the Attorney-General or the Advocate-General, matching section 35(2) and 35(5).

Evidence, rule 9. Evidence given before the committee is dealt with as the rule provides, consistently with section 42.

Record, rule 10. Every committee shall make a record of its day to day proceedings.

The finding, rule 14. The finding of the majority of the members of the committee is the finding of the committee, which is what section 42(5) supplements where there is no majority.

A worked example: one complaint from petition to order

A client complains that his advocate took Rs 60,000 for a decree-holder's dues and never accounted for it.

1. Rule 1. He files a petition, signed and verified as under the Code of Civil Procedure, with the prescribed fee. It is in Marathi, so the State Bar Council will translate it into English if the matter ever goes to the Bar Council of India.
2. Rule 1(2) and (3). The Secretary calls for a missing copy; the complaint is then registered and placed before the Council.
3. Rule 2. The Council calls for the advocate's explanation before deciding whether to refer.
4. Section 35(1). Having reason to believe, the Council shall refer the case to its disciplinary committee.
5. Section 9. That committee is three persons: two elected members of the Council and one co-opted advocate of at least ten years' standing who is not a member, chaired by the senior-most advocate among them.
6. Section 35(2) and rule 4. The Chairman fixes the date, and notice goes to the advocate and to the Advocate-General.
7. Section 42(1). The committee summons the bank official and requires discovery of the ledger; it takes some evidence on affidavit and issues a commission to examine a witness who cannot travel. Under section 42(3) it routes the summons through a civil court for enforcement.
8. The proviso to section 42(1). The complainant asks for the trial judge to be summoned. The committee cannot require his attendance without the previous sanction of the High Court.
9. Section 42(2). A witness lies on oath. The proceedings being deemed judicial proceedings within sections 193 and 228 of the penal law, that is punishable as it would be in court.
10. Rule 10. A day to day record is kept. Rule 14: the majority finding is the committee's finding.
11. Section 42(4). One member is absent on a hearing date; the committee may continue. But the final order cannot be made unless the Chairman and the other members are present.
12. Section 42(5). If the three cannot reach a majority on the final order, the case and their opinions go to the Chairman of the Bar Council, or the Vice-Chairman if the Chairman is on the committee, and his opinion decides.
13. Section 35(3). The committee makes one of the four orders. Section 43: it may order costs, executable as an order of the High Court.
14. Section 36B(1). All of this must be finished within one year of receipt of the complaint, failing which the proceeding stands transferred to the Bar Council of India. That is chapter [Transfer of Proceedings from the State Bar Council to the Bar Council of India].

What beginners get wrong

The committee is three, not five, and only two of them are members of the Council.

The Chairman is the senior-most advocate, not an appointee.

The Council does not decide the case. It refers; the committee decides.

The committee cannot summon a judge at will. The proviso to section 42(1) requires the previous sanction of the High Court, or of the State Government for a revenue court officer.

Absence of a member does not stop the hearing, but it does stop the final order.

A deadlock is broken by the Chairman of the Bar Council, not by a fresh committee.

The procedure is in the Rules, not the Act.

Quick revision

• Section 9(1): three persons, two elected from the Council's members, one co-opted advocate not a member with the ten-year qualification in the proviso to section 3(2); the senior-most advocate among them is Chairman. A Council may have one or more committees.
• Section 42(1): powers of a civil court as to summoning and examining on oath, discovery and production, evidence on affidavit, requisitioning public records, commissions, and anything prescribed. Proviso: no attendance of a presiding officer of a court without the High Court's previous sanction, or of a revenue court officer without the State Government's.
• Section 42(2): proceedings deemed judicial proceedings under sections 193 and 228 of the penal law; the committee deemed a civil court for the named purposes.
• Section 42(3): process and commissions may be sent to a civil court, which enforces them as its own.
• Section 42(4): absence of the Chairman or a member does not invalidate; proviso, no final order under section 35(3) without all present.
• Section 42(5): no majority, the case and opinions go to the Chairman of the Bar Council, or the Vice-Chairman, whose opinion the final order shall follow.
• Section 43: costs, executable as an order of the High Court for a State committee and of the Supreme Court for the Bar Council of India's.
• Procedure: Part VII Chapter I of the Bar Council of India Rules, under section 49(1)(f). Complaint by petition signed and verified as under the CPC, with fees; may be in English, Hindi or a State language, translated for the Bar Council of India; registered and placed before the Council; explanation may be called for before reference; day to day record; majority finding.

Test yourself

1. State the composition of a disciplinary committee and who chairs it. Three persons: two elected by the Bar Council from among its own members, and one co-opted from advocates who have the ten-year qualification in the proviso to section 3(2) and who are not members of the Council. The senior-most advocate among the members is the Chairman.

2. Which civil court powers does the committee have, and what is the limit? Summoning and enforcing attendance and examining on oath, requiring discovery and production of documents, receiving evidence on affidavit, requisitioning public records, issuing commissions, and any prescribed matter. The proviso to section 42(1) bars it from requiring the attendance of a presiding officer of a court without the previous sanction of the High Court to which that court is subordinate, or of an officer of a revenue court without the previous sanction of the State Government.

3. Can a hearing continue if a member is absent? Yes. Section 42(4) provides that the proceedings and any order are not invalid merely because the Chairman or a member was absent on a hearing date. But the proviso forbids the making of a final order of the nature referred to in section 35(3) unless the Chairman and the other members are present.

4. What happens if the three members cannot agree on the final order? Under section 42(5) the case, with their opinions, is laid before the Chairman of the Bar Council concerned, or before the Vice-Chairman if the Chairman is himself Chairman or a member of the disciplinary committee. After such hearing as he thinks fit he delivers his opinion, and the final order of the committee follows that opinion.

5. In what form must a complaint be made, and in what language? In the form of a petition duly signed and verified as required under the Code of Civil Procedure, accompanied by the prescribed fees. It may be in English, in Hindi, or in a regional language declared to be a State language, and where it is in Hindi or a regional language the State Bar Council must translate it into English whenever the matter is sent to the Bar Council of India.

6. How is an order for costs enforced? Under section 43, as if it were an order of the High Court where it is made by the disciplinary committee of a State Bar Council, and as if it were an order of the Supreme Court where it is made by the disciplinary committee of the Bar Council of India.

Head two: withdrawal of a pending State proceeding

Section 36(2): "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."

Four things to notice.

The body that withdraws is the disciplinary committee of the Bar Council of India, not the Council.

Three routes in: of its own motion; on a report by any State Bar Council; or on an application by any person interested. The last two were added by the amending Act of 1973, which widened a power originally exercisable only suo motu.

"Notwithstanding anything contained in this Chapter", so it overrides the ordinary allocation of jurisdiction in section 35.

It is discretionary, which is what distinguishes it from section 36B. Chapter [Transfer of Proceedings from the State Bar Council to the Bar Council of India] works both.

Head three: appeal

Section 37(2) provides that every appeal from a State disciplinary committee shall be 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, subject to the proviso that no order of the State committee shall be varied so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard. Chapter [Remedies I: Appeal to the Bar Council of India Under Section 37] deals with it.

What the committee may order

Section 36(3): in disposing of a case under section 36, the committee "shall observe, so far as may be, the procedure laid down in section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General of India."

So the same procedure applies, with one substitution: where a State committee notices the Advocate-General, the national committee notices the Attorney-General of India.

Section 36(4): in disposing of proceedings under section 36 the committee "may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of section 35", and where proceedings have been withdrawn for inquiry before it, the State Bar Council concerned shall give effect to any such order.

Two consequences. The four orders are the same four: dismiss or file, reprimand, suspend, remove. And the State Bar Council must give effect to the order, which is how a removal ordered nationally is recorded on the State roll under section 41.

Section 36A: a change of committee does not restart the case

Section 36A: "Whenever in respect of any proceedings under section 35 or section 36, a disciplinary committee of the State Bar Council or a disciplinary committee of the Bar Council of India ceases to exercise jurisdiction and is succeeded by another committee which has and exercises jurisdiction, the disciplinary committee of the State Bar Council or the disciplinary committee of the Bar Council of India, as the case may be, so succeeding may continue the proceedings from the stage at which the proceedings were so left by its predecessor committee."

Inserted by the amending Act of 1973. Its practical importance is large and its length is small.

Members of a Bar Council hold office for terms; committees are reconstituted; a disciplinary inquiry can take a long time. Without section 36A, a part-heard case would have to begin again every time a committee changed, and an advocate could hope to outlast his inquiry. Section 36A lets the successor continue from the stage at which the predecessor left off.

Note that it applies to proceedings under section 35 or section 36, so to both kinds of committee.

Where its orders go

An order of the disciplinary committee of the Bar Council of India is not the end.

• Section 38: an appeal lies to the Supreme Court within sixty days.
• Section 44: the committee may review its own order within sixty days, and the review of a State committee's order needs the Bar Council of India's approval. That is what Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, is about, where this very committee first enhanced a punishment to removal and then reviewed itself down to a reprimand, and the Supreme Court set the review aside.
• Section 43(a): an order for costs made by this committee is executable as if it were an order of the Supreme Court.

A worked example

A complaint is made to the Bar Council of Maharashtra and Goa against an advocate on its roll. Four turns.

Turn one. The State committee is hearing it. The Bar Council of India's disciplinary committee, on a report by the State Bar Council that the case raises a question of national importance, withdraws it for inquiry before itself under section 36(2).

Turn two. It follows the section 35 procedure by force of section 36(3), but the officer noticed is the Attorney-General of India and not the Advocate-General.