Punishment for Misconduct: The Four Orders Under Section 35(3)

(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.