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

• (a) summoning and enforcing the attendance of any person and examining him on oath;
• (b) requiring discovery and production of any documents;
• (c) receiving evidence on affidavits;
• (d) requisitioning any public record or copies from any court or office;
• (e) issuing commissions for the examination of witnesses or documents;
• (f) any other matter which may be prescribed.

The proviso is examinable, and it is a real limit. No such committee has the right to require the attendance of:

• (a) any presiding officer of a court, except with the previous sanction of the High Court to which that court is subordinate;
• (b) any officer of a revenue court, except with the previous sanction of the State Government.

So a committee inquiring into what an advocate said to a judge cannot simply summon the judge.

Section 42(2): all proceedings before a disciplinary committee are deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, and every such committee is deemed to be a civil court for the purposes of the sections of the criminal procedure law named there.

The effect is that giving false evidence before the committee is punishable as it would be in a court, and that the committee has the protections a court has. This is what makes the inquiry judicial in character rather than administrative.

Section 42(3): to exercise those powers the committee may send any summons or other process, or any commission, to any civil court, which shall cause it to be served or issued and may enforce it as if it were a process for attendance or production before itself. So the committee borrows the civil court's enforcement machinery.

Section 42(4): the absence of the Chairman or a member on a date fixed for hearing does not invalidate the proceedings, and the committee may hold or continue them. Proviso: no final order of the nature referred to in section 35(3) may be made unless the Chairman and the other members are present. So an interlocutory hearing can go on short-handed; the punishment cannot.

Section 42(5) answers the deadlock. Where no final order under section 35(3) can be made for want of a majority opinion or otherwise, the case with the members' opinions is laid before the Chairman of the Bar Council concerned, or, if the Chairman of the Council is himself Chairman or a member of the disciplinary committee, before the Vice-Chairman; and after such hearing as he thinks fit he shall deliver his opinion, and the final order of the disciplinary committee shall follow that opinion.

Section 42A applies section 42, so far as may be, to the Bar Council of India and to the enrolment, election, legal aid and any other committee of a Bar Council.

Costs: section 43

Section 43: the disciplinary committee may make such order as to the costs of any proceeding before it as it deems fit, and such an order is executable as if it were an order:

• (a) of the Supreme Court, in the case of an order of the disciplinary committee of the Bar Council of India;
• (b) of the High Court, in the case of an order of the disciplinary committee of a State Bar Council.

That is a strong provision: an order for costs by a Bar Council committee is enforced as a decree of the High Court.

Procedure: Part VII Chapter I of the Bar Council of India Rules

The procedure is not in the Act. Section 7(1)(c) makes it a function of the Bar Council of India to lay down the procedure to be followed by its own disciplinary committee and by that of each State Bar Council, and section 49(1)(f) is the rule-making power. The rules are Part VII Chapter I, headed "Complaints against Advocates and Procedure to be followed by Disciplinary Committees of the State Bar Council and the Bar Council of India", and made under section 49(1)(f).

The stages a complaint passes through are these.

The complaint, rule 1. A complaint against an advocate shall be in the form of a petition duly signed and verified as required under the Code of Civil Procedure. It may be filed in English, in Hindi, or in a regional language that has been declared a State language; where it is in Hindi or a regional language, the State Bar Council shall translate it into English whenever the matter is sent to the Bar Council of India. Every complaint must be accompanied by the fees prescribed under section 49(h).

Defects and particulars, rule 1(2). The Secretary may require the complainant to pay the prescribed fee if unpaid, to remove defects, and to furnish particulars or copies.

Registration, rule 1(3). On being found in order the complaint is registered and placed before the Bar Council for such order as it may make.

Referral, rule 2. Before referring a complaint under section 35(1) to a disciplinary committee, the Bar Council may require an explanation, so that the reference is not made mechanically.

Allotment and notice, rules 3 to 5. After reference the matter goes to a disciplinary committee; the Chairman fixes the date, hour and place of hearing; and notices are issued as the rules provide.

Appearance, rule 6. The parties may appear in person or by an advocate.

Non-appearance, rule 7. The rule provides for what happens where a party does not appear.

The Attorney-General or Advocate-General, rule 8. The committee shall hear the Attorney-General or the Advocate-General, matching section 35(2) and 35(5).

Evidence, rule 9. Evidence given before the committee is dealt with as the rule provides, consistently with section 42.

Record, rule 10. Every committee shall make a record of its day to day proceedings.

The finding, rule 14. The finding of the majority of the members of the committee is the finding of the committee, which is what section 42(5) supplements where there is no majority.

A worked example: one complaint from petition to order

A client complains that his advocate took Rs 60,000 for a decree-holder's dues and never accounted for it.

1. Rule 1. He files a petition, signed and verified as under the Code of Civil Procedure, with the prescribed fee. It is in Marathi, so the State Bar Council will translate it into English if the matter ever goes to the Bar Council of India.
2. Rule 1(2) and (3). The Secretary calls for a missing copy; the complaint is then registered and placed before the Council.
3. Rule 2. The Council calls for the advocate's explanation before deciding whether to refer.
4. Section 35(1). Having reason to believe, the Council shall refer the case to its disciplinary committee.
5. Section 9. That committee is three persons: two elected members of the Council and one co-opted advocate of at least ten years' standing who is not a member, chaired by the senior-most advocate among them.
6. Section 35(2) and rule 4. The Chairman fixes the date, and notice goes to the advocate and to the Advocate-General.
7. Section 42(1). The committee summons the bank official and requires discovery of the ledger; it takes some evidence on affidavit and issues a commission to examine a witness who cannot travel. Under section 42(3) it routes the summons through a civil court for enforcement.
8. The proviso to section 42(1). The complainant asks for the trial judge to be summoned. The committee cannot require his attendance without the previous sanction of the High Court.
9. Section 42(2). A witness lies on oath. The proceedings being deemed judicial proceedings within sections 193 and 228 of the penal law, that is punishable as it would be in court.
10. Rule 10. A day to day record is kept. Rule 14: the majority finding is the committee's finding.
11. Section 42(4). One member is absent on a hearing date; the committee may continue. But the final order cannot be made unless the Chairman and the other members are present.
12. Section 42(5). If the three cannot reach a majority on the final order, the case and their opinions go to the Chairman of the Bar Council, or the Vice-Chairman if the Chairman is on the committee, and his opinion decides.
13. Section 35(3). The committee makes one of the four orders. Section 43: it may order costs, executable as an order of the High Court.
14. Section 36B(1). All of this must be finished within one year of receipt of the complaint, failing which the proceeding stands transferred to the Bar Council of India. That is chapter [Transfer of Proceedings from the State Bar Council to the Bar Council of India].

What beginners get wrong

The committee is three, not five, and only two of them are members of the Council.

The Chairman is the senior-most advocate, not an appointee.

The Council does not decide the case. It refers; the committee decides.

The committee cannot summon a judge at will. The proviso to section 42(1) requires the previous sanction of the High Court, or of the State Government for a revenue court officer.

Absence of a member does not stop the hearing, but it does stop the final order.

A deadlock is broken by the Chairman of the Bar Council, not by a fresh committee.

The procedure is in the Rules, not the Act.

Quick revision

• Section 9(1): three persons, two elected from the Council's members, one co-opted advocate not a member with the ten-year qualification in the proviso to section 3(2); the senior-most advocate among them is Chairman. A Council may have one or more committees.
• Section 42(1): powers of a civil court as to summoning and examining on oath, discovery and production, evidence on affidavit, requisitioning public records, commissions, and anything prescribed. Proviso: no attendance of a presiding officer of a court without the High Court's previous sanction, or of a revenue court officer without the State Government's.
• Section 42(2): proceedings deemed judicial proceedings under sections 193 and 228 of the penal law; the committee deemed a civil court for the named purposes.
• Section 42(3): process and commissions may be sent to a civil court, which enforces them as its own.
• Section 42(4): absence of the Chairman or a member does not invalidate; proviso, no final order under section 35(3) without all present.
• Section 42(5): no majority, the case and opinions go to the Chairman of the Bar Council, or the Vice-Chairman, whose opinion the final order shall follow.
• Section 43: costs, executable as an order of the High Court for a State committee and of the Supreme Court for the Bar Council of India's.
• Procedure: Part VII Chapter I of the Bar Council of India Rules, under section 49(1)(f). Complaint by petition signed and verified as under the CPC, with fees; may be in English, Hindi or a State language, translated for the Bar Council of India; registered and placed before the Council; explanation may be called for before reference; day to day record; majority finding.

Test yourself

1. State the composition of a disciplinary committee and who chairs it. Three persons: two elected by the Bar Council from among its own members, and one co-opted from advocates who have the ten-year qualification in the proviso to section 3(2) and who are not members of the Council. The senior-most advocate among the members is the Chairman.

2. Which civil court powers does the committee have, and what is the limit? Summoning and enforcing attendance and examining on oath, requiring discovery and production of documents, receiving evidence on affidavit, requisitioning public records, issuing commissions, and any prescribed matter. The proviso to section 42(1) bars it from requiring the attendance of a presiding officer of a court without the previous sanction of the High Court to which that court is subordinate, or of an officer of a revenue court without the previous sanction of the State Government.

3. Can a hearing continue if a member is absent? Yes. Section 42(4) provides that the proceedings and any order are not invalid merely because the Chairman or a member was absent on a hearing date. But the proviso forbids the making of a final order of the nature referred to in section 35(3) unless the Chairman and the other members are present.

4. What happens if the three members cannot agree on the final order? Under section 42(5) the case, with their opinions, is laid before the Chairman of the Bar Council concerned, or before the Vice-Chairman if the Chairman is himself Chairman or a member of the disciplinary committee. After such hearing as he thinks fit he delivers his opinion, and the final order of the committee follows that opinion.

5. In what form must a complaint be made, and in what language? In the form of a petition duly signed and verified as required under the Code of Civil Procedure, accompanied by the prescribed fees. It may be in English, in Hindi, or in a regional language declared to be a State language, and where it is in Hindi or a regional language the State Bar Council must translate it into English whenever the matter is sent to the Bar Council of India.

6. How is an order for costs enforced? Under section 43, as if it were an order of the High Court where it is made by the disciplinary committee of a State Bar Council, and as if it were an order of the Supreme Court where it is made by the disciplinary committee of the Bar Council of India.