Remedies III: Review Under Section 44, and Why a State Council's Review Needs Approval

The procedure: Part VII Chapter II of the Bar Council of India Rules

The Act gives the power; the rules give the procedure, in Part VII Chapter II, made under section 49(1)(f).

• Rule 1: an application for review under section 44 shall be in the form the rule prescribes.
• Rule 2: every such application shall be accompanied by the documents the rule lists.
• Rule 3: every such application shall set out the grounds on which the review is sought.
• Rule 4: if a disciplinary committee does not summarily reject the application, it proceeds to a hearing.
• Rule 5: after that hearing the committee decides.
• Rule 6: the decision of the disciplinary committee of the Bar Council of India in the matter.
• Rule 7: in proceedings under the Chapter, the position is as the rule provides unless the committee directs otherwise.

Two things follow. An application must state its grounds, so a review is not a second argument on the merits at large. And a committee may summarily reject an application that discloses no ground, which is the filter that keeps review from becoming a rehearing.

What review is for, and what it is not

This is where the leading case does its work.

Review is not an appeal. An appeal goes to a different, higher body and reopens the matter. A review goes back to the same body and exists to correct something that body got wrong in a way that can be identified: an error apparent on the record, a fact it overlooked, a document it never saw.

Review is not a second opinion on the same material. If the committee has considered a factor and reached a view, disagreeing with itself later is not the exercise of a power of review. That is precisely what the Supreme Court held.

Shambhu Ram Yadav v. Hanuman Das Khatry

Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, (2001) 6 SCC 1, decided 26 July 2001 by K.T. Thomas and Y.K. Sabharwal JJ, judgment by Sabharwal J.

Facts, in the sequence that matters here. An advocate wrote to his client that the presiding judge accepted bribes and asked for Rs 10,000 to have the suit decided in his favour. The letter was admitted.

1. The State Bar Council held it misconduct under section 35 and suspended him for two years from 15 June 1997.
2. On his 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, noting that he had served as an advocate for fifty years, that it was not expected of him to indulge in the practice of corrupting the judiciary or offering a bribe to a judge, that he had admittedly demanded Rs 10,000, and that no lesser punishment than permanent debarment was possible. Costs of Rs 5,000 were imposed.
3. The same committee then reviewed its own order and reduced the punishment to a reprimand, giving three reasons: that the advocate had merely replied to a query by his client about the judge's conduct so that there was no offer to bribe; that he was eighty years old, had joined the profession in 1951, and had conducted himself irresponsibly for the first time in a long innings; and that, while the Committee did not approve of the writing of such a letter, his age and past clean record made permanent removal inappropriate, so that a reprimand and a warning would meet the ends of justice.

Held. The Supreme Court set the review aside and restored the removal. "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. It is evident that the reasons and facts on the basis whereof the order was reviewed had all been taken into consideration by the earlier Committee."

The rule that comes out of it, and it is the answer to any question on section 44: a review must rest on something the committee did not have or did not consider. Where every factor relied on was already on the record and had been considered, there is nothing to review, and an order purporting to do so is not an exercise of the power at all.

Note also the setting. The judgment opens by saying that the legal profession is not a trade or business but a noble profession, that its credibility depends on the conduct of its members, and that there is a heavy responsibility on those in whom the Act vests the duty to take disciplinary action. The review in that case was set aside because it fell short of that responsibility.

Review compared with the other remedies

A worked example

A State disciplinary committee suspends Vivek for one year by an order dated 5 June, communicated on 20 June.

Vivek asks the same committee to look again, saying it overlooked a bank statement he had filed which shows the payment was made.

That is a review under section 44. It must be applied for within sixty days of 5 June, the date of the order, and not from communication. Under the rules the application must set out the grounds, and the committee may summarily reject it if there are none.

The ground is good, because a document on the record that the committee never considered is exactly what review is for.

The committee reviews and reduces the punishment to a reprimand. That order has no effect yet. By the proviso to section 44 the review order of a State committee shall not have effect unless approved by the Bar Council of India.

Change the ground. Suppose instead Vivek says only that the punishment feels harsh given his twenty years at the Bar, a fact the committee expressly weighed in its order. On Shambhu Ram Yadav that is not a ground for review: every factor was already on the record and had been considered, and a review on such grounds is a review on non-existent grounds.

What should he do instead? Appeal under section 37 to the Bar Council of India, within sixty days of communication, that is from 20 June. And note the risk: on appeal the punishment can be enhanced, as it was in Shambhu Ram Yadav itself.

Change the body. If the order under review were the Bar Council of India's own, no approval would be needed, because the proviso is confined to a State committee's review. The check there is the appeal to the Supreme Court under section 38.

What beginners get wrong

The power belongs to the disciplinary committee, not to the Bar Council, despite MU's wording.

Sixty days run from the date of the order, unlike an appeal.

There was no time limit before 1974. The sixty days were inserted by the amending Act of 1973.

A State committee's review does not take effect on its own. It needs the Bar Council of India's approval.

Review is not a second appeal to the same body. It needs a ground.

"Of its own motion or otherwise" means the committee can act without any application.

Quick revision

• Section 44: the disciplinary committee of a Bar Council may, of its own motion or otherwise, review any order passed by it under Chapter V, within sixty days of the date of that order.
• The sixty days were inserted by the amending Act of 1973; before that the power was untimed.
• Proviso: a State committee's review order shall not have effect unless approved by the Bar Council of India.
• Procedure: Part VII Chapter II of the Bar Council of India Rules. The application must set out the grounds, and the committee may summarily reject it.
• Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509: the Bar Council of India enhanced a two-year suspension to removal on 31 July 1999, then reviewed itself down to a reprimand citing the advocate's age of eighty and long clean record. The Supreme Court set the review aside and restored the removal: the order had been reviewed on non-existent grounds, since all the factors were already on record and had been considered, and the power had not been exercised by applying the well settled principles governing it.
• Review is not an appeal: the same body, a limited ground, and for a State committee a further approval.

Test yourself

1. Who may review a disciplinary order, and in what time? The disciplinary committee of a Bar Council, of its own motion or otherwise, within sixty days of the date of that order. Note that the period runs from the date of the order and not from its communication.

2. MU's topic says "review by the State Bar Council of its own order". Is that accurate? Not quite. Section 44 gives the power to the disciplinary committee of a Bar Council, not to the Council itself. The Council's role appears in the proviso, under which a State committee's review order has no effect unless approved by the Bar Council of India.

3. What is the effect of the proviso to section 44? That an order of review made by the disciplinary committee of a State Bar Council does not operate at all until the Bar Council of India has approved it. The Bar Council of India's own committee needs no such approval.

4. On what ground may a review be granted? On something the committee did not have or did not consider, such as a document on the record it overlooked. Shambhu Ram Yadav holds that where every factor relied on was already on the record and had been considered when the original order was passed, the review is on non-existent grounds and is not an exercise of the power at all.

5. What did the Bar Council of India do, and what did the Supreme Court do about it, in Shambhu Ram Yadav? The Bar Council of India enhanced a two-year suspension to removal from the roll on 31 July 1999, and then reviewed its own order and reduced the punishment to a reprimand on the grounds of the advocate's age of eighty and his long clean record. The Supreme Court set the review aside and restored the removal, holding that the order had been reviewed on non-existent grounds and that the power of review had not been exercised by applying the well settled principles governing it.

6. Distinguish review from appeal in three respects. Review is by the same committee, appeal by a higher body. Review must be sought within sixty days of the date of the order, appeal within sixty days of its communication. Review needs a ground of the limited kind described above and, for a State committee, the approval of the Bar Council of India, whereas an appeal reopens the matter, including the punishment, before the appellate body.