The Disciplinary Committee of the Bar Council of India: Organisation, Powers and Procedure

Head two: withdrawal of a pending State proceeding

Section 36(2): "Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by any State Bar Council or on an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same."

Four things to notice.

The body that withdraws is the disciplinary committee of the Bar Council of India, not the Council.

Three routes in: of its own motion; on a report by any State Bar Council; or on an application by any person interested. The last two were added by the amending Act of 1973, which widened a power originally exercisable only suo motu.

"Notwithstanding anything contained in this Chapter", so it overrides the ordinary allocation of jurisdiction in section 35.

It is discretionary, which is what distinguishes it from section 36B. Chapter [Transfer of Proceedings from the State Bar Council to the Bar Council of India] works both.

Head three: appeal

Section 37(2) provides that every appeal from a State disciplinary committee shall be heard by the disciplinary committee of the Bar Council of India, which may pass such order as it deems fit, including an order varying the punishment, subject to the proviso that no order of the State committee shall be varied so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard. Chapter [Remedies I: Appeal to the Bar Council of India Under Section 37] deals with it.

What the committee may order

Section 36(3): in disposing of a case under section 36, the committee "shall observe, so far as may be, the procedure laid down in section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General of India."

So the same procedure applies, with one substitution: where a State committee notices the Advocate-General, the national committee notices the Attorney-General of India.

Section 36(4): in disposing of proceedings under section 36 the committee "may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of section 35", and where proceedings have been withdrawn for inquiry before it, the State Bar Council concerned shall give effect to any such order.

Two consequences. The four orders are the same four: dismiss or file, reprimand, suspend, remove. And the State Bar Council must give effect to the order, which is how a removal ordered nationally is recorded on the State roll under section 41.

Section 36A: a change of committee does not restart the case

Section 36A: "Whenever in respect of any proceedings under section 35 or section 36, a disciplinary committee of the State Bar Council or a disciplinary committee of the Bar Council of India ceases to exercise jurisdiction and is succeeded by another committee which has and exercises jurisdiction, the disciplinary committee of the State Bar Council or the disciplinary committee of the Bar Council of India, as the case may be, so succeeding may continue the proceedings from the stage at which the proceedings were so left by its predecessor committee."

Inserted by the amending Act of 1973. Its practical importance is large and its length is small.

Members of a Bar Council hold office for terms; committees are reconstituted; a disciplinary inquiry can take a long time. Without section 36A, a part-heard case would have to begin again every time a committee changed, and an advocate could hope to outlast his inquiry. Section 36A lets the successor continue from the stage at which the predecessor left off.

Note that it applies to proceedings under section 35 or section 36, so to both kinds of committee.

Where its orders go

An order of the disciplinary committee of the Bar Council of India is not the end.

• Section 38: an appeal lies to the Supreme Court within sixty days.
• Section 44: the committee may review its own order within sixty days, and the review of a State committee's order needs the Bar Council of India's approval. That is what Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, is about, where this very committee first enhanced a punishment to removal and then reviewed itself down to a reprimand, and the Supreme Court set the review aside.
• Section 43(a): an order for costs made by this committee is executable as if it were an order of the Supreme Court.

A worked example

A complaint is made to the Bar Council of Maharashtra and Goa against an advocate on its roll. Four turns.

Turn one. The State committee is hearing it. The Bar Council of India's disciplinary committee, on a report by the State Bar Council that the case raises a question of national importance, withdraws it for inquiry before itself under section 36(2).

Turn two. It follows the section 35 procedure by force of section 36(3), but the officer noticed is the Attorney-General of India and not the Advocate-General.

Turn three. Midway the Bar Council of India is reconstituted and a new disciplinary committee takes over. Under section 36A the successor may continue from the stage at which the predecessor left off. The evidence already recorded stands.

Turn four. It orders removal from the roll under section 36(4) read with section 35(3)(d). The Bar Council of Maharashtra and Goa shall give effect to that order, so the name is struck off the State roll under section 41(1) and the certificate is recalled under section 41(3). Costs ordered are executable as an order of the Supreme Court under section 43(a).

Change one fact. Suppose the advocate is on no State roll at all. Then no State Bar Council ever had jurisdiction, and the case begins in the Bar Council of India under section 36(1).

What beginners get wrong

Its composition is not different. Section 9 applies to every Bar Council.

Its powers are not different. Section 42A applies section 42 to it.

Section 36(1) is narrow. It covers only an advocate on no State roll.

Section 36(2) is exercised by the committee, not by the Council, and is available on its own motion, a State Bar Council's report, or an application by any person interested.

The officer noticed is the Attorney-General, by section 36(3).

Section 36A does not create jurisdiction. It preserves the stage a case has reached when a committee changes.

The Council must give effect to an order made on a withdrawn proceeding, by section 36(4).

Quick revision

• Composition: section 9, the same as a State committee. Powers: section 42, applied by section 42A, which also applies it to the enrolment, election, legal aid and other committees.
• Section 36(1), original jurisdiction: only over an advocate whose name is not entered on any State roll; complaint or otherwise, reason to believe, shall refer.
• Section 36(2), withdrawal: the disciplinary committee of the Bar Council of India may, of its own motion, on a report by any State Bar Council, or on an application by any person interested, withdraw a pending State proceeding for inquiry before itself and dispose of it. Discretionary, and it overrides the Chapter.
• Section 36(3): it follows the section 35 procedure, references to the Advocate-General being read as the Attorney-General of India.
• Section 36(4): it may make any order a State committee can make under section 35(3), and on a withdrawn proceeding the State Bar Council shall give effect to it.
• Section 36A: where a committee ceases to exercise jurisdiction and is succeeded, the successor may continue the proceedings from the stage at which the predecessor left them. Applies to proceedings under section 35 or 36.
• Onward: appeal to the Supreme Court under section 38; review under section 44; costs executable as an order of the Supreme Court under section 43(a).

Test yourself

1. Over whom does the Bar Council of India's disciplinary committee have original jurisdiction? Only over an advocate whose name is not entered on any State roll, under section 36(1). Advocates on a State roll are dealt with by that State Bar Council under section 35.

2. Who may set section 36(2) in motion? The disciplinary committee of the Bar Council of India of its own motion, any State Bar Council by a report, or any person interested by an application. The last two routes were added by the amending Act of 1973.

3. Which law officer is noticed in a proceeding before this committee? The Attorney-General of India. Section 36(3) requires the section 35 procedure to be followed with references to the Advocate-General construed as references to the Attorney-General.

4. What orders may it make, and who gives effect to them? Any order that a State disciplinary committee may make under section 35(3), that is dismissal or filing, reprimand, suspension or removal. Where the proceeding was withdrawn from a State committee, section 36(4) requires the State Bar Council concerned to give effect to the order.

5. A disciplinary committee is reconstituted while a case is part-heard. Must the case start again? No. Section 36A provides that where a committee ceases to exercise jurisdiction and is succeeded by another which has and exercises jurisdiction, the successor may continue the proceedings from the stage at which its predecessor left them.

6. How is an order for costs made by this committee enforced? Under section 43(a), as if it were an order of the Supreme Court.