Remedies IV: Revision Under Section 48A, Review Under Section 48AA, and Directions Under Section 48B

Section 48AA: review by the Bar Council of India

Section 48AA: "The Bar Council of India or any of its committees, other than its disciplinary committee, may of its own motion or otherwise review any order, within sixty days of the date of that order, passed by it under this Act."

This is the section students most often misuse, and the trap is in five words.

"Other than its disciplinary committee." Section 48AA does not apply to the disciplinary committee of the Bar Council of India. That committee's power to review its own orders is section 44, and section 44 is the section under which the review in Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, was made and set aside.

So the two review powers divide neatly:

The other elements mirror section 44: of its own motion or otherwise, within sixty days of the date of that order, and orders passed by it under this Act. Note "under this Act", which is wider than section 44's "under this Chapter".

Section 48AA was inserted by the amending Act of 1973.

Section 48B: directions

Section 48B(1): "For the proper and efficient discharge of the functions of a State Bar Council or any committee thereof, the Bar Council of India may, in the exercise of its powers of general supervision and control, give such directions to the State Bar Council or any committee thereof as may appear to it to be necessary, and the State Bar Council or the committee shall comply with such directions."

Three features.

It is not a free-standing power. It operates "in the exercise of its powers of general supervision and control", that is the function in section 7(1)(g). Section 48B is the instrument, section 7(1)(g) is the source.

Its purpose is limited to the proper and efficient discharge of functions. It is administrative.

Compliance is mandatory: "shall comply with such directions."

What section 48B cannot do. It cannot be used to interfere with a judicial order of a disciplinary committee. That committee acts judicially, its proceedings are deemed judicial proceedings by section 42(2), and the route to correct its order is an appeal under section 37 or a revision under section 48A where no appeal lies. Directing a disciplinary committee how to decide a case would not be supervision of the discharge of functions; it would be deciding the case.

Where it is used. For uniformity of practice among State Bar Councils. In Bar Council of India v. Bonnie Foi Law College, decided 10 February 2023, the Constitution Bench pointed to section 48B as the power by which the Bar Council of India could ensure uniformity and fairness of the procedure followed by each of the State Bar Councils in relation to the bar examination, and it relied on section 7(1)(g) among the provisions supporting the Bar Council's authority.

Why the Act needs all three

A student asked to explain the scheme can put it in one paragraph.

Appeals correct a decided case at the instance of a party, but only where an appeal is given and only in time.

Review lets the deciding body correct itself, but only on a real ground and only within sixty days.

Section 48A catches what neither reaches: a disposal from which no appeal lies, at any time, on legality or propriety.

Section 48AA does for the Bar Council of India's non-disciplinary decisions what section 44 does for disciplinary ones.

Section 48B is not about a decided case at all: it is prospective and administrative, keeping twenty-odd State Bar Councils working to one standard.

A worked example

Four situations reach the Bar Council of India in one month.

One. A State disciplinary committee has suspended an advocate for one year. He wants it undone.

Not section 48A. An appeal lies under section 37, so revision is excluded by the words of section 48A itself. Not section 48B, which is administrative and cannot touch a judicial order. His route is the appeal, within sixty days of communication, and possibly a review under section 44 within sixty days of the order.

Two. A State Bar Council's enrolment committee has disposed of a proceeding in a way that looks irregular, and no appeal is provided against it.

Section 48A applies. The Bar Council of India may at any time call for the record, satisfy itself as to the legality or propriety of the disposal, and pass such orders as it thinks fit, after giving a hearing to anyone prejudicially affected, under section 48A(2).

Three. The Bar Council of India's own legal education committee made an order two weeks ago which it now thinks was made on a mistaken view of a rule.

Section 48AA. The Council or any of its committees other than its disciplinary committee may review an order within sixty days of the date of that order, of its own motion or otherwise.

Four. Several State Bar Councils are following different procedures for the same step, and applicants are being treated inconsistently.

Section 48B. The Bar Council of India may, in exercise of its general supervision and control under section 7(1)(g), give such directions as appear necessary for the proper and efficient discharge of those Councils' functions, and they shall comply. That is exactly the use the Supreme Court pointed to in Bonnie Foi.

Change one fact in situation three. Suppose the order was made by the Bar Council of India's disciplinary committee. Section 48AA does not apply, because it excludes that committee. The power is section 44.

What beginners get wrong

Section 48A is not a general appeal. It applies only where no appeal lies.

Section 48A has no time limit, unlike everything else in this chapter.

Section 48A belongs to the Council, not to its disciplinary committee.

Section 48AA excludes the disciplinary committee. Its review power is section 44.

Section 48B is administrative and cannot correct a judicial order.

Section 48B is not a source of power in itself; it operates in exercise of the general supervision and control in section 7(1)(g).

Compliance with a section 48B direction is mandatory.

Quick revision

• Section 48A, revision: the Bar Council of India may, at any time, call for the record of any proceeding under the Act disposed of by a State Bar Council or a committee thereof and from which no appeal lies, to satisfy itself as to the legality or propriety of the disposal, and pass such orders as it thinks fit. Section 48A(2): no order prejudicially affecting a person without a reasonable opportunity of being heard.
• Section 48AA, review: the Bar Council of India or any of its committees, other than its disciplinary committee, may, of its own motion or otherwise, review any order passed by it under this Act within sixty days of the date of that order.
• The disciplinary committee's review power is section 44, and for a State committee that review needs the Bar Council of India's approval.
• Section 48B, directions: for the proper and efficient discharge of a State Bar Council's or its committee's functions, the Bar Council of India may, in the exercise of its powers of general supervision and control under section 7(1)(g), give such directions as appear necessary, and the Council or committee shall comply.
• Section 48B is administrative and cannot be used to interfere with a judicial order of a disciplinary committee.
• Bonnie Foi points to section 48B as the means of ensuring uniformity and fairness of procedure among the State Bar Councils.
• Sections 48A and 48AA were both inserted by the amending Act of 1973.

Test yourself

1. What is the essential condition for the exercise of the power in section 48A? That the proceeding, disposed of by a State Bar Council or a committee of it, is one from which no appeal lies. Where an appeal is available, revision under section 48A is excluded.

2. On what grounds may the Bar Council of India revise, and within what time? On the legality or propriety of the disposal, and at any time. Section 48A contains no period of limitation, unlike sections 37, 38 and 44, which each prescribe sixty days.

3. Which body's orders does section 48AA not cover? Those of the disciplinary committee of the Bar Council of India. The section applies to the Bar Council of India or any of its committees "other than its disciplinary committee", whose power to review its own orders is section 44.

4. Must a State Bar Council comply with a direction under section 48B? Yes. The section provides that the State Bar Council or the committee shall comply with such directions.

5. Can section 48B be used to set aside a suspension ordered by a State disciplinary committee? No. Section 48B is a power of administrative supervision, exercisable for the proper and efficient discharge of functions. A disciplinary committee acts judicially, its proceedings being deemed judicial proceedings under section 42(2), and its order is corrected by an appeal under section 37 or, where no appeal lies, by revision under section 48A.

6. Where does the power in section 48B come from? It operates in the exercise of the Bar Council of India's powers of general supervision and control over State Bar Councils, which is the function conferred by section 7(1)(g). Section 48B is the instrument rather than the source, and the Supreme Court in Bonnie Foi pointed to it as the means of securing uniformity and fairness of procedure among the State Bar Councils.