Remedies II: Appeal to the Supreme Court Under Section 38

Who.

• Any person aggrieved, which again includes both the advocate and the complainant;
• the Attorney-General of India, who is the officer noticed in proceedings before the national committee by section 36(3);
• the Advocate-General of the State concerned, who was the officer noticed below.

The words naming the two law officers were inserted by the amending Act of 1973, as was the power to vary the punishment and its proviso.

Time, limitation and stay

Sixty days from the date on which the order is communicated to him. As under section 37, time runs from communication.

Section 39 applies sections 5 and 12 of the Limitation Act 1963 to appeals under section 38 as it does to appeals under section 37, so delay may be condoned for sufficient cause and the time requisite for obtaining a copy is excluded.

Section 40(1) applies too: an appeal under section 38 does not operate as a stay, and the Supreme Court may direct a stay for sufficient cause on such terms as it deems fit. Section 40(2) lets the disciplinary committee of the Bar Council of India grant a stay where the application is made before the time for appealing expires.

Both sections are worked in chapter [Remedies I: Appeal to the Bar Council of India Under Section 37].

What the Supreme Court does with the appeal

The power is as wide as the Bar Council of India's. "Such order... as it deems fit", including an order varying the punishment, subject to the same proviso requiring a reasonable opportunity of being heard before any variation that prejudicially affects the person.

The decided cases show all three outcomes.

Enhancement. In Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, the disciplinary committee of the Bar Council of India had suspended for three years an advocate who withdrew Rs 8,118 of compensation belonging to an old, helpless, poor illiterate client and neither paid it over nor told him. On the advocate's own appeal the Supreme Court enhanced the punishment to removal of his name from the roll, having first told him to show cause why it should not be enhanced, as the proviso requires.

Reduction. In Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, the Court reduced a suspension from three years to one, taking a lenient view because the advocate was an inexperienced junior and the incidents dated from 1971, while strongly deprecating the conduct.

Substitution of a lighter order. In Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338, the Court substituted a reprimand for the suspension imposed on an advocate who had retained Rs 1,500 of his client's money in his own hands for a considerable period.

Restoration of a set-aside order. In Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, the Court set aside a review by which the Bar Council of India had reduced removal from the roll to a reprimand, and restored the removal.

The restraint on findings of fact

Chandra Shekhar Soni states the rule: in an appeal under section 38 the Court would not, as a general rule, interfere with the concurrent finding of fact given by the disciplinary committee of the Bar Council of India and of the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and unwarranted inferences.

Note the two exceptions in that sentence, because a problem question will turn on them: no evidence, and mere conjectures and unwarranted inferences. And note the premise: concurrent findings, that is where both committees agreed. Where they did not, the reason for restraint is weaker.

The restraint applies to findings of fact. It does not apply to the punishment, which the Court reviews freely, as the four cases above show.

Section 38 and the limits of the Court's other powers

There is a proposition that belongs here and is developed fully in chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142].

Under section 38 the Supreme Court may suspend an advocate or strike him off, because the section gives it the appellate power to vary the punishment. What it may not do is exercise that disciplinary power outside section 38, for instance while punishing an advocate for contempt.

In Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, a Constitution Bench held that the Court cannot, under Article 129 read with Article 142, debar an advocate from practice as a punishment 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.

So the same Court can end the same advocate's practice on a section 38 appeal and cannot do it in a contempt proceeding. The difference is the source of the power.

A worked example

The disciplinary committee of the Bar Council of India, on an appeal under section 37, suspends Anjali for two years. The order is dated 10 January and communicated to her on 2 February.

Can she appeal, and to whom? Yes, to the Supreme Court under section 38, as of right. She needs no special leave.

By when? Sixty days from 2 February.

She files on the seventieth day. 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.

Is the suspension running meanwhile? Yes. Section 40(1): the appeal does not operate as a stay. She must apply, and the Supreme Court may grant a stay for sufficient cause. Had she applied before the sixty days expired, section 40(2) would have let the Bar Council of India's committee stay its own order.

She argues that the committees wrongly believed a witness. The Court will be slow. On Chandra Shekhar Soni it will not as a general rule interfere with concurrent findings of fact unless they rest on no evidence or on conjecture.

She argues the punishment is excessive. That is open. The Court reviews punishment freely, and has reduced (Chandra Shekhar Soni), substituted a reprimand (Prahlad Saran Gupta), and enhanced (Harish Chandra Tiwari).

The complainant cross-appeals asking for removal. The Court may enhance, but by the proviso not without giving Anjali a reasonable opportunity of being heard on that question.

Change one fact. Suppose that instead of a disciplinary order there had been a contempt proceeding in the Supreme Court, and the Court wished to suspend her practice as part of the punishment for contempt. It could not: Supreme Court Bar Association v. Union of India.

What beginners get wrong

No special leave is needed. Section 38 is an appeal as of right.

It lies only from the Bar Council of India's committee, not directly from a State committee.

The Attorney-General and the Advocate-General are named appellants.

Time runs from communication.

The appeal is not a stay.

Findings of fact are not reopened lightly, but the punishment is fully open.

The Court's power here does not extend to a contempt proceeding, which is the SCBA line.

Quick revision

• Section 38: appeal to the Supreme Court from an order of the disciplinary committee of the Bar Council of India under section 36 or section 37, by any person aggrieved, the Attorney-General of India, or the Advocate-General of the State concerned, within sixty days of communication.
• It is an appeal as of right: no special leave under Article 136 and no certificate.
• The Court may pass such order as it deems fit including varying the punishment; proviso, not so as to prejudicially affect the person without a reasonable opportunity of being heard.
• Section 39 applies sections 5 and 12 of the Limitation Act; section 40 governs stay, and an appeal is not a stay.
• Outcomes in the decided cases: enhanced to removal (Harish Chandra Tiwari); reduced three years to one (Chandra Shekhar Soni); reprimand substituted for suspension (Prahlad Saran Gupta); a review set aside and removal restored (Shambhu Ram Yadav).
• Restraint on facts, from Chandra Shekhar Soni: no interference with concurrent findings unless based on no evidence or on mere conjectures and unwarranted inferences.
• Limit elsewhere: the Court may end a practice under section 38 but not while punishing contempt (Supreme Court Bar Association v. Union of India).

Test yourself

1. From what orders does an appeal lie to the Supreme Court under section 38? From an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37, that is in its original jurisdiction, in a withdrawn or transferred proceeding, or in appeal from a State committee.

2. Is special leave required? No. Section 38 confers a statutory right of appeal, so no special leave under Article 136 and no certificate is needed. That is unusual and it is the counterweight to taking the disciplinary jurisdiction away from the High Courts and giving it to elected Bar Councils.

3. Besides the person aggrieved, who may appeal? The Attorney-General of India and the Advocate-General of the State concerned, both added by the amending Act of 1973.

4. When will the Supreme Court interfere with findings of fact? Only where the concurrent finding of the two disciplinary committees is based on no evidence, or proceeds on mere conjectures and unwarranted inferences. Otherwise, on Chandra Shekhar Soni, it will not as a general rule interfere.

5. Give one case each where the Court enhanced, reduced and substituted a punishment. Enhanced: Harish Chandra Tiwari v. Baiju, three years' suspension to removal from the roll. Reduced: Chandra Shekhar Soni v. Bar Council of Rajasthan, three years to one. Substituted: Prahlad Saran Gupta v. Bar Council of India, a reprimand for a suspension.

6. The Supreme Court can strike an advocate off on a section 38 appeal. Why can it not do so when punishing him for contempt? Because the power under section 38 is the appellate power the Advocates Act itself confers, whereas the disciplinary jurisdiction generally is conferred on the Bar Councils. In Supreme Court Bar Association v. Union of India a Constitution Bench held that Article 129 read with Article 142 does not permit the Court to take over the role of those statutory bodies and perform their functions.