Selected Opinions of the Disciplinary Committees of the Bar Councils

What a student should take from it. Three things.

It heard the advocate on punishment separately. That is the proviso to section 37(2) in action: no variation prejudicially affecting a person without a reasonable opportunity of being heard.

It treated fifty years at the Bar as aggravating. "It was not expected of him." Long standing is not automatically mitigation.

It reasoned to the punishment, saying why no lesser order would do, rather than simply announcing one.

Opinion two: the same committee, on review, explaining a light one

From the same committee, on review, as reproduced in the same judgment. It reduced the punishment to a reprimand, saying:

"the petitioner has simply given a reply to the query put by his client regarding the conduct of the judge and as such it remained a fact that it was not a offer on the side of the delinquent advocate to bribe a judge. This vital point which touches the root of the controversy seems to have been ignored at the time of the passing the impugned order."

"The petitioner is an old man of 80 years. He had joined the profession in the year 1951 and during such a long innings of his profession, it was for the first time that he conducted himself in such an irresponsible manner although he had no intention to bribe."

"The Committee does not approve the writing of such a letter on the part of the lawyer to his client but keeping in view the age and past clean record of the petitioner in the legal profession the Committee is of the view that it would not be appropriate to remove the advocate permanently from the roll of advocates... the Committee is of the considered view that ends of justice would be met in case the petitioner is reprimanded for the omission he had committed. He is warned by the Committee that he should not encourage such activities in life and he should be careful while corresponding with his client."

What a student should take from it. This is a disciplinary committee's reasoning that was held to be wrong, which makes it more instructive than one that was upheld.

The Supreme Court's answer: "The original order has been reviewed on non-existent grounds. All the factors taken into consideration in the impugned order were already on record and were considered by the Committee when it passed the order dated 31st July, 1999. The power of review has not been exercised by applying well settled principles governing the exercise of such power."

So the flaw was not that the reasons were bad reasons. It was that they were the same reasons already weighed. Age, long standing and a clean record had all been before the committee when it ordered removal. Re-weighing them is not review. That analysis is chapter [Remedies III: Review Under Section 44, and Why a State Council's Review Needs Approval].

Opinion three: a committee taking a lenient view, and being upheld

From the disciplinary committee of the Bar Council of India in Chandra Shekhar Soni, as reproduced in the judgment. Declining to reduce a three-year suspension for an advocate who had taken Rs 300 to procure a false medical report, it said:

"It is true that the appellant was a mere junior at the bar and not much experienced when the incident is said to have taken place. The temptation for money at that stage is of course very great but at the same time it is to be realised by the appellant that he belongs to a noble profession, which has very high traditions and those traditions are not to be sullied by malpractices of this nature."

And the State Bar Council's own reasoning, also reproduced: that "such practices adopted by the members of the bar bring the whole legal profession into disrepute", on which footing it directed the three-year suspension.

The Supreme Court's answer. It agreed that in a case like this the punishment has to be deterrent, and that there had been a complete lack of candour in that the advocate had procured false evidence to save himself; but it held three years rather severe for a junior, noting that the lapse was perhaps due to the struggle for existence, and reduced it to one year.

What a student should take from it. The committees and the Court agreed on the finding and differed only on the punishment, which is the usual pattern. And the Court's disagreement was reasoned from the same facts the committee had, which is what an appeal may do and a review may not.

Opinion four: a committee declining to enquire at all

From the disciplinary committee of the Bar Council of India, order dated 27 February 1999, as recorded in Noratanmal Chouraria v. M.R. Murli, AIR 2004 SC 2440.

A landlord complained that his tenant, an advocate, had hit him on the back outside a court hall, threatened to kill him with rowdy elements, and kicked him on the knee in a court room telling him not to give evidence. The committee refused to enquire, noting that no criminal proceeding had been initiated, that no charge-sheet had been filed on the FIR lodged, that the complainant had produced no document showing any follow-up, that on that footing the incidents were prima facie not reliable, and, importantly, that the respondent appeared in the litigation not as an advocate but as a litigant in person.

The Supreme Court dismissed the appeal, so this is an opinion that was upheld.

What a student should take from it. A disciplinary committee is not obliged to enquire into every allegation, and the reasons that justified refusing here were the absence of any corroboration the complainant could have produced, and the fact that the conduct complained of was not conduct as an advocate at all.

Three propositions the opinions establish together

Read as a set, the four opinions above give a student more than four stories.

Punishment must be reasoned. Each committee said why the order it made was the right one. A bare order is vulnerable on appeal.

The advocate is heard separately on punishment where it is to be enhanced. The Bar Council of India did that expressly in Shambhu Ram Yadav.

The committee's discretion is real but reviewable. The Supreme Court upheld a refusal to enquire (Noratanmal), reduced a punishment (Chandra Shekhar Soni), and set aside a review (Shambhu Ram Yadav). What it did not do in any of them was substitute its own view of the facts where two committees had concurred.

A worked example

You are asked: "Discuss, with reference to the opinions of the disciplinary committees, the approach to punishment in cases of corruption."

A structured answer uses this chapter without inventing anything.

Open with the honest point. Disciplinary committee opinions are not reported as a series; they are read in the appellate judgments that reproduce them.

Give the Bar Council of India's reasoning in Shambhu Ram Yadav: fifty years at the Bar made it worse, the demand of Rs 10,000 was admitted, and nothing less than permanent debarment would do.

Give its reasoning on review: age eighty, joined in 1951, a first lapse, no intention to bribe, so a reprimand and a warning.

Give the Supreme Court's answer: reviewed on non-existent grounds, because every factor was already on the record and had been considered.

Contrast Chandra Shekhar Soni, where the committee's insistence on the profession's high traditions was accepted but three years was reduced to one for an inexperienced junior, the Court agreeing that in such a case the punishment has to be deterrent.

Conclude that the committees' approach is to fix punishment by reference to the gravity of the breach of trust and the advocate's standing, that standing may aggravate as easily as mitigate, and that the appellate check operates freely on punishment while leaving concurrent findings of fact alone.

What beginners get wrong

Looking for a series of reported opinions. There is none reachable.

Quoting a coaching site's summary as an opinion. The quotations here are the committees' own words as reproduced in judgments.

Thinking every complaint must be enquired into. Noratanmal is an upheld refusal.

Thinking long standing always mitigates. It aggravated in Shambhu Ram Yadav.

Confusing the committee's reasoning with the Court's. In Shambhu Ram Yadav the committee's review reasoning was expressly rejected.

Quick revision

• Disciplinary committee opinions are not published as law reports; they are read where appellate judgments reproduce them.
• Every order has three parts: charge, finding, choice of punishment. The appellate contest is usually about the third, since concurrent findings of fact are not lightly disturbed (Chandra Shekhar Soni).
• Shambhu Ram Yadav, committee order of 31 July 1999: fifty years at the Bar meant it "was not expected of him"; the demand of Rs 10,000 was admitted; no lesser punishment than permanent debarment.
• The same committee on review: age eighty, joined 1951, a first lapse, no intention to bribe, so a reprimand and a warning. Set aside: reviewed on non-existent grounds, all factors having been already on record and considered.
• Chandra Shekhar Soni: the committee held that a junior's inexperience did not excuse sullying the profession's high traditions; the State Bar Council said such practices bring the whole legal profession into disrepute; the Court agreed the punishment has to be deterrent but reduced three years to one.
• Noratanmal, committee order of 27 February 1999: refusal to enquire upheld, on no criminal proceeding, no charge-sheet, no follow-up, and because the respondent appeared as a litigant in person, not as an advocate.

Test yourself

1. Why can a student not simply look up disciplinary committee opinions? Because they are not law reports and are not published as a series. A disciplinary committee is not a court of record, and the accessible record of its reasoning is the reproduction of its order in the appellate judgment that reviews it.

2. What reasons did the Bar Council of India give for striking the advocate off in Shambhu Ram Yadav? That he had served as an advocate for fifty years and such conduct was not expected of him; that he had admittedly demanded Rs 10,000 from his client; and that this was enough to make him totally unfit to be a lawyer, so that no lesser punishment than permanent debarment could be imposed.

3. What reasons did it give on review, and why were they rejected? Age of eighty, joining the profession in 1951, a first lapse in a long innings, and no intention to bribe. They were rejected because every one of those factors was already on the record and had been considered when the order of 31 July 1999 was passed, so the review was on non-existent grounds and the power had not been exercised on well settled principles.

4. Give an instance of a disciplinary committee's refusal to enquire being upheld. Noratanmal Chouraria v. M.R. Murli, where the Bar Council of India refused to enquire into allegations of assault because no criminal proceeding had been initiated, no charge-sheet had been filed on the FIR, no follow-up was shown, and the respondent had appeared in the proceedings as a litigant in person and not as an advocate.

5. What is the usual division of labour between the committees and the Supreme Court? The committees find the facts and choose the punishment. The Supreme Court will not as a general rule disturb concurrent findings of fact unless based on no evidence or on mere conjectures and unwarranted inferences, but it reviews the punishment freely, as it did in reducing three years to one in Chandra Shekhar Soni.

6. What three parts does every disciplinary order have? The charge, framed from the complaint; the finding, whether the charge is proved and on what material; and the choice of punishment among the four orders in section 35(3), with the reasons for that choice.