Remedies I: Appeal to the Bar Council of India Under Section 37

Section 39: late appeals can be saved

Section 39: "The provisions of sections 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply to appeals under section 37 and section 38."

This short section is worth real marks because it is easy to state and often forgotten.

Section 5 of the Limitation Act allows an appeal to be admitted after the prescribed period where the appellant satisfies the court that he had sufficient cause for not preferring it in time. So a late appeal under section 37 or section 38 is not automatically dead; delay may be condoned on sufficient cause.

Section 12 of the Limitation Act provides for the exclusion of time in computing the period: the day from which the period is to be reckoned, and the time requisite for obtaining a copy of the order appealed from.

Both apply "so far as may be", and both apply to appeals under section 37 and section 38 alike.

Section 40: an appeal does not stay the order

This is the provision that decides what happens to the advocate while his appeal is pending, and the answer surprises students.

Section 40(1): "An appeal, made under section 37 or section 38, shall not operate as a stay of the order appealed against, but the disciplinary committee of the Bar Council of India, or the Supreme Court, as the case may be, may, for sufficient cause, direct the stay of such order on such terms and conditions as it may deem fit."

So a suspension bites from the date it takes effect, and filing an appeal does nothing by itself. The advocate must apply for a stay, and the appellate body may grant it for sufficient cause on such terms as it thinks fit.

Section 40(2) fills a gap that would otherwise be serious: "Where an application is made for stay of the order before the expiration of the time allowed for appealing therefrom under section 37 or section 38, the disciplinary committee of the State Bar Council, or the disciplinary committee of the Bar Council of India, as the case may be, may, for sufficient cause, direct the stay of such order on such terms and conditions as it may deem fit."

That is a stay by the committee whose own order it is, available where the application is made before the time for appealing has expired. It exists because in the days between the order and the filing of the appeal there is no appellate body seised of anything, and without sub-section (2) an advocate would be unable to obtain a stay in that window.

Section 40(2) was inserted by the amending Act of 1973.

The width of the appellate power, and its limit

"May pass such order... as it deems fit", expressly including an order varying the punishment. So the Bar Council of India may:

• dismiss the appeal;
• allow it and set the order aside;
• reduce the punishment; or
• enhance it.

Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, is the illustration of the last. The State Bar Council had suspended the advocate for two years for writing to his client that the judge accepted bribes and asking for Rs 10,000. On his own appeal the disciplinary committee of the Bar Council of India, on 31 July 1999, enhanced the punishment and directed that his name be struck off the roll, observing that he had served as an advocate for fifty years and that such conduct was not expected of him.

The proviso is the safeguard. No order of the State committee may be varied so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard. So enhancement requires notice and a hearing on that question. It is the same principle the Supreme Court applied in Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, where before enhancing the punishment it told the appellant to show cause why it should not be enhanced.

What the appellate committee is doing

An appeal under section 37 is a rehearing on the record, not a judicial review. The committee can look at the findings as well as the punishment, which is why the power is expressed as "such order as it deems fit".

Contrast the position on a further appeal to the Supreme Court, where Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, records that in an appeal under section 38 the Court will not as a general rule interfere with concurrent findings of fact of the two disciplinary committees unless the finding rests on no evidence or proceeds on mere conjectures and unwarranted inferences. That restraint exists because by then two bodies have found the facts; it does not apply to the first appeal, where only one has.

A worked example

A State disciplinary committee suspends Ramesh for six months by an order dated 4 May, communicated to him on 19 May. The complainant thinks the punishment far too light.

Who can appeal? Ramesh, as a person aggrieved. The complainant, also a person aggrieved. And the Advocate-General of the State in his own right.

By when? Sixty days from communication to him. For Ramesh that runs from 19 May. If the complainant was told on 26 May, his sixty days run from then.

Ramesh files on the sixty-fifth day. Not necessarily fatal. Section 39 applies section 5 of the Limitation Act, so the delay may be condoned on sufficient cause; and section 12 excludes the time requisite for obtaining a copy of the order.

Does the suspension stop while the appeal is pending? No. Section 40(1): an appeal shall not operate as a stay. Ramesh must apply for a stay, and the disciplinary committee of the Bar Council of India may grant it for sufficient cause on terms.

What if he wants a stay before he has even filed? Section 40(2): if he applies before the sixty days expire, the State disciplinary committee, whose order it is, may itself stay it for sufficient cause.

On the complainant's appeal, can the punishment be increased? Yes, and even on Ramesh's own appeal: section 37(2) expressly includes an order varying the punishment, and Shambhu Ram Yadav is the instance. But the proviso requires that Ramesh be given a reasonable opportunity of being heard before any variation that prejudicially affects him.

Where does it go next? To the Supreme Court under section 38, which is chapter [Remedies II: Appeal to the Supreme Court Under Section 38].

What beginners get wrong

The appeal is not confined to the advocate. Any person aggrieved, and the Advocate-General, may appeal.

Sixty days run from communication, not from the order.

An appeal is not a stay. Section 40(1) says so in terms.

A stay before filing comes from the State committee, under section 40(2).

The punishment can be increased, including on the advocate's own appeal.

But not without a hearing, by the proviso to section 37(2).

Section 39 is not about the complaint. It saves a late appeal, by applying sections 5 and 12 of the Limitation Act.

Quick revision

• Section 37(1): any person aggrieved by an order of a State disciplinary committee under section 35, or the Advocate-General of the State, may appeal to the Bar Council of India within sixty days of communication of the order to him.
• Section 37(2): heard by the disciplinary committee of the Bar Council of India, which may pass such order as it deems fit, including varying the punishment. Proviso: no variation prejudicially affecting the person aggrieved without a reasonable opportunity of being heard.
• Section 39: sections 5 and 12 of the Limitation Act 1963 apply to appeals under sections 37 and 38, so delay may be condoned for sufficient cause and the time for obtaining a copy is excluded.
• Section 40(1): an appeal shall not operate as a stay; the Bar Council of India's committee or the Supreme Court may stay for sufficient cause on terms.
• Section 40(2), inserted 1973: where a stay is applied for before the time for appealing expires, the committee whose order it is may itself grant it for sufficient cause.
• Shambhu Ram Yadav: punishment enhanced on appeal from two years' suspension to removal from the roll.
• Chandra Shekhar Soni: on a section 38 appeal the Supreme Court will not as a general rule interfere with concurrent findings of fact unless based on no evidence or on conjecture.

Test yourself

1. Who may appeal under section 37, and in what time? Any person aggrieved by an order of a State disciplinary committee made under section 35, and the Advocate-General of the State, within sixty days of the date on which the order was communicated to him.

2. Does filing an appeal suspend the punishment? No. Section 40(1) provides that an appeal under section 37 or section 38 shall not operate as a stay of the order appealed against. The appellate body may direct a stay for sufficient cause on such terms as it deems fit.

3. How can an advocate obtain a stay before he has filed his appeal? Under section 40(2), by applying before the expiration of the time allowed for appealing. The disciplinary committee whose order it is may then, for sufficient cause, direct a stay on such terms and conditions as it deems fit.

4. An appeal is filed a week late. Is it necessarily out? No. Section 39 applies sections 5 and 12 of the Limitation Act 1963 so far as may be, so the delay may be condoned on sufficient cause and the time requisite for obtaining a copy of the order is excluded in computing the period.

5. Can the Bar Council of India increase the punishment on the advocate's own appeal? Yes. Section 37(2) empowers it to pass such order as it deems fit, including an order varying the punishment. In Shambhu Ram Yadav it enhanced a two-year suspension to removal from the roll. The proviso requires that the person aggrieved be given a reasonable opportunity of being heard before an order is varied so as prejudicially to affect him.

6. Why does the Supreme Court show more restraint on findings of fact than the Bar Council of India does? Because by the time a matter reaches the Supreme Court under section 38 two disciplinary committees have found the facts. Chandra Shekhar Soni records that the Court will not as a general rule interfere with such concurrent findings unless they are based on no evidence or proceed on mere conjectures and unwarranted inferences.