The Two Bar Councils Compared, and Who Answers to Whom

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).