The Remedies Compared: Which Door, and When

Question two: does an appeal lie?

If yes, section 48A is out, because it applies only where no appeal lies. This single question disposes of most problems that look complicated.

Question three: how many days have passed, and from what?

• Appeal: sixty days from communication, and section 39 applies sections 5 and 12 of the Limitation Act, so delay may be condoned for sufficient cause and the time for obtaining a copy is excluded.
• Review: sixty days from the date of the order. No condonation provision.
• Revision: no limit.

Question four: what is actually wrong with the order?

• The committee did not consider something on the record: review, section 44.
• The findings or the punishment are wrong: appeal.
• The disposal was illegal or improper and no appeal lies: revision, section 48A.
• Nothing is wrong with the order, but a State Bar Council is working inconsistently or inefficiently: not a remedy against an order at all, but directions under section 48B.

Two standing warnings

An appeal is not a stay. Section 40(1): an appeal under section 37 or section 38 shall not operate as a stay. A stay must be applied for, and is granted for sufficient cause on terms. Before the appeal time expires, section 40(2) lets the committee whose order it is grant the stay.

An appeal can make things worse. Sections 37(2) and 38 both allow the punishment to be varied, and both were used to enhance it: the Bar Council of India in Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, from two years' suspension to removal, and the Supreme Court in Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, from three years' suspension to removal. Both provisos require a hearing first.

A worked example

A State disciplinary committee, by an order dated 2 February and communicated on 18 February, suspends Rahul for two years. Six questions.

(a) Rahul says the committee never looked at the receipt he filed.

Review, section 44, by the same committee, within sixty days of 2 February, that is by 3 April. The application must set out the grounds under the rules. It is a good ground: a document on the record that was not considered. But any review order the State committee makes has no effect until the Bar Council of India approves it, by the proviso to section 44.

(b) Rahul says the punishment is too harsh.

That is not a review ground on Shambhu Ram Yadav, where a review resting on factors already on the record and already considered was held to be on non-existent grounds. His remedy is the appeal under section 37, within sixty days of 18 February, that is by 19 April.

(c) Rahul files the appeal on 30 April.

Late by eleven days, but not necessarily out. 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.

(d) Rahul wants to keep practising while the appeal is heard.

He must apply for a stay. Section 40(1): the appeal is not a stay, and the Bar Council of India's disciplinary committee may grant one for sufficient cause on terms. Had he applied before 19 April, section 40(2) would have allowed the State committee to stay its own order.

(e) The complainant wants the punishment increased.

He is a person aggrieved and may appeal under section 37. Even on Rahul's own appeal the punishment can be enhanced under section 37(2), but the proviso requires Rahul a reasonable opportunity of being heard first.

(f) The Bar Council of India dismisses the appeal. What now?

Section 38, an appeal as of right to the Supreme Court, within sixty days of communication. But on Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, the Court will not as a general rule disturb concurrent findings of fact of the two committees unless they rest on no evidence or on mere conjectures and unwarranted inferences. The punishment, by contrast, is fully open.

Change the facts. Suppose instead the order was not a punishment at all, but a disposal by the State Bar Council's enrolment committee, and the Act gives no appeal against it. Then section 48A: the Bar Council of India may at any time call for the record and satisfy itself as to the legality or propriety of the disposal, giving a hearing under section 48A(2) to anyone prejudicially affected.

What beginners get wrong

Choosing revision when an appeal lies. Section 48A is excluded then.

Counting review time from communication. It runs from the date of the order.

Forgetting the Bar Council of India's approval for a State committee's review.

Treating the appeal as a stay.

Assuming an appeal can only help.

Using section 48AA for a disciplinary order. It excludes the disciplinary committee.

Trying to use section 48B against an order. It is administrative.

Quick revision

• Four questions: whose order; does an appeal lie; how many days from what; and what is wrong with it.
• Section 37: from a State committee's section 35 order, to the Bar Council of India, 60 days from communication, by any person aggrieved or the Advocate-General.
• Section 38: from the Bar Council of India's committee, to the Supreme Court, as of right, 60 days from communication, by any person aggrieved, the Attorney-General or the Advocate-General.
• Section 44: the same committee, 60 days from the date of the order, on a real ground; a State committee's review needs Bar Council of India approval.
• Section 48A: the Bar Council of India, at any time, only where no appeal lies, on legality or propriety, with a hearing under 48A(2).
• Section 48AA: the Bar Council of India and its committees other than the disciplinary committee, 60 days.
• Section 39: sections 5 and 12 of the Limitation Act apply to appeals under 37 and 38.
• Section 40: an appeal is not a stay; 40(2) allows a stay by the deciding committee before the appeal time expires.
• Punishment can be enhanced on appeal, after a hearing: Shambhu Ram Yadav, Harish Chandra Tiwari.

Test yourself

1. An advocate wants to challenge a State disciplinary committee's suspension. Can he ask the Bar Council of India to revise it under section 48A? No. Section 48A applies only to a proceeding from which no appeal lies, and an appeal against a section 35 order lies to the Bar Council of India under section 37.

2. From what dates do the periods for appeal and for review run? An appeal under section 37 or section 38 runs from the date the order was communicated to the appellant. A review under section 44 runs from the date of the order itself.

3. Which remedy has no time limit? Revision under section 48A. The Bar Council of India may call for the record at any time.

4. What must an advocate do to avoid serving a suspension while his appeal is pending? Apply for a stay. Section 40(1) provides that an appeal does not operate as a stay, and the appellate body may direct one for sufficient cause on terms. If he applies before the time for appealing expires, section 40(2) allows the committee whose order it is to grant the stay.

5. On what ground will a review fail even though it is filed in time? Where the factors relied on were already on the record and had been considered when the original order was passed. Shambhu Ram Yadav holds such a review to be on non-existent grounds and not an exercise of the power at all.

6. A complainant thinks a punishment too light. What are his options? He is a person aggrieved and may appeal under section 37 against a State committee's order, and under section 38 against the Bar Council of India's. Both provisions allow the punishment to be varied, including enhanced, subject to the advocate being given a reasonable opportunity of being heard.