CLINICAL COURSE-III 2020

FACULTY OF LAW, JAMIA MILLIA ISLAMIA

THE ADVOCATES ACT, 1961

CLINICAL COURSE-III

Submitted By-

Yasir Ahmad

20166136

B.A.LL.B(Hons.) (9th Semester )(Self-finance)

Submitted To: Office of Dean, Faculty of Law, Jamia Millia Islamia.

Date of Submission: 21.11.2020

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CONTENTS

ABSTRACT............................................................................................................................................ 3
INTRODUCTION................................................................................................................................... 4
LAW IN ANCIENT INDIA .................................................................................................................... 4
INCEPTION OF LEGAL PROFESSION:- .............................................................................................. 5
ADVENT OF THE CONSTITUTION :- ................................................................................................ 6
ERA OF THE ADVOCATES ACT :- .................................................................................................... 8
PERIOD OF ABERRATION :- ............................................................................................................... 8
JUDICIAL PRONOUNCEMENTS AND THE LAW :-......................................................................... 10
LAW COMMISSION’S INITIATIVE:- .............................................................................................. 11
LOSS OF COURT’S WORKING DAYS:- ............................................................................................ 12
PRE- ENROLMENT TRAINING OF ADVOCATES ........................................................................... 14
PROSPECTS OF FOREIGN LAW FIRMS AND LAWYERS IN INDIA :- .......................................... 14
NEED FOR DEFINING MISCONDUCT :- .......................................................................................... 18
RELEVANCE OF FRAMEWORK OF REGULATION OF LEGAL PROFESSION IN THE UNITED
KINGDOM :- ....................................................................................................................................... 19
NEED FOR REVIEWING REGULATORY MECHANISM :- .............................................................. 22
THE BAR COUNCIL OF INDIA RULES ............................................................................................. 25
SUPREME COURT’S JUDGEMENTS ................................................................................................ 32
STRIKE AND REPREHENSIBLE ACT :- ........................................................................................... 32
DENOUNCING THE CONTEMPTUOUS ACT :- ................................................................................ 38
PROPRIETORY OF PERFORMANCE OF PUBLIC FUNCTIONS :- .................................................. 42
ADVOCACY LURKING IN THE SHADOWS :- ................................................................................. 44
LEGAL EDUCATION IN INDIA :- ...................................................................................................... 44
ANALYSIS OF THE ACT .................................................................................................................... 49
ANALYSIS OF THE RESPONSES RECEIVED BY LAW COMMISSION:- ...................................... 49
CONCLUSION ..................................................................................................................................... 52
BIOLIOGRAPHY ................................................................................................................................. 53

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ABSTRACT

This paper discusses about Legal Profession, how it plays the important role in administration of
justice. It talks about the legal practitioners, their position in Ancient India and how they
contributed for the country in the best possible way with high morals. Morals play the most
important role for becoming a lawyer successful. It also discusses the ethics of lawyers, what are
their duties towards court, client, opponents and colleagues. Advocates Act, 1961 provides for
Bar Council Rules for the proper conduct of the Advocates and they are bind by these duties. In
case they do not follow, then there is remedy in the form of punishment which has been
discussed with the help of case laws.

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INTRODUCTION

The Legal Profession plays an important role in the administration of Justice. The Lawyers are
considered to be the center of the administration of justice. Lawyers are the one who are related
to the parties, they listen to the party and collect all the relevant legal materials relating to the
case and argue the case in court, thus helping the Judge to arrive at the correct and fair judgment.
Without the assistance of the lawyers it would be a superhuman task for the Judge to come at the
satisfactory judgment. Justice P.N. Sapru1 has stated that, ‘justification for the existence to the
counsel is that each side to the controversy should be in a position to present its case before an
impartial tribunal in the best and most effective manner possible.’

LAW IN ANCIENT INDIA

In ancient India it was a mandate that King should decide the cases according to law. The law
which was there earlier included many facets and spectrums which included the injunctions or
mandates given in Shastras, smritis, customs, rajdarma, rule of conduct, modes of livelihood,
regulation that governs the society, elementary backdrop of labor law, sense of morality, doctrine
of proportionality, etc. The laws, to some extent, inherently included morality from within and
imposition from higher authorities. It is said that maintenance of Rule of Law in modern society
is sine qua non for the survival of democracy. With the passage of time the law has undergone
many changes required according to the change in the society. Long back, De Tocqueville stated
that-: “The profession of law is the only aristrocratic element which can be amalgamated without
violence with the natural elements of democracy, and which can be advantageously and
permanently combined with them”. As far this profession has gained the nobility, no one on this
earth can contradict that the lawyers are responsible in the growth of law and make the courts as
protector and guarantor of the indefensible rights of the citizens. The lawyers thus have an
obligation to see that the rule of law is maintained and all its objectives are secured. The
objectives thus include prevention of growth of deviant behavior in civilized society, detection of
corrupt and corruptible behavioral pattern, valuation of extent of deviance and deviancy, etc. One
of the Advocates in the earlier times who appeared as Amicus Curiae on his own was none other
than Vibhishan who pleaded before his brother, King Ravana, as regards the concept of

1
The Art of Advocacy, edited by Chief Justice Dr. B. Malik, p 325

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proportionality which has gained ground in modern jurisprudence in almost every field.
Vibhishan counseled his brother that the messenger is not to be killed and it is the duty of the
King to know the difference between right and the wrong. Before stating so the younger brother
had asked for the forgiveness and stated the law as “O mighty King of all demons! Forgive me!
Discard your rage. Be pleased! Hearken to this counsel of mine. O knower of right and wrong, O
king of all kings! One does not kill messengers, for messengers are under another’s orders.” And
again he solicited.” “Without doubt this monkey is a deadly foe (and) has done incalculable
harm. Do not kill messengers, rather, weigh the (the nature of the) messenger’s (offence).
Multiple punishments exist for various offences. Wise men profess thus. These shlokas were
referred by the Deepak Misra in his speech delivered at High Court Bar Association, Jabalpur
with the purpose to show that there were certain persons in our myths and puranas who
advocated the cause of justice. They were not only the lawyers and advocates but the better
upholders of law.

INCEPTION OF LEGAL PROFESSION:-

The dawn of Legal Profession in our country could be seen in the Indian High Courts Act, 1861
(commonly known as the Charter Act) which authorised establishment of the High Courts under
the Letters Patent and those Letters Patent empowered the High Courts to make rules for
enrolment of Advocates and attorneys who were also known as solicitors. In the early days three
Acts, namely, the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920
(17 of 1920) and the Indian Bar Councils Act, 1926 (38 of 1926) relating to legal Practitioners
were enacted. The importance of legal profession in the Judicial Administration while
dispensing justice with the aid of those who could effectively present the case of a litigant, was
designed to usher in bringing the rule of law. The legal profession was acknowledged as the
noble profession as it catered to, and contributed to lay the firm foundations of a system that
dispenses fair and impartial justice. The desire of common man to receive justice was taken care
of by making provisions for the presentation of a case and its redressal through persons in whom
trust was reposed.

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Roscoe Pound, an eminent jurist states that “historically, there are three ideas involved in a
profession: organization, learning, and a spirit of public service.” 2 While considering these
elements essential, he states that the idea of gaining a livelihood through profession is nothing
more than an incidental element. However, amongst the three elements, the most important with
regards to a profession is the spirit of public service. The ethical compunctions of the
professionals are similarly exemplified in aEuropean Union Directive in which “liberal
professions” were described as “those practised on the basis of relevant professional
qualifications in a personal, responsible and professionally independent capacity by those
providing intellectual and conceptual services in the interest of the client and the
public”3(emphasis added).

In this background, the founding fathers of our Constitution while adopting a federal
governmental system, entrusted a duty on the judiciary to strike a balance between the
functioning of the other organs of the Government while protecting the life and liberty of the
citizens. With the avowed objective of conforming to the rule of law and dispensation of justice
as contained in it, the elements of a perfect system of constituting courts on different tiers
together with the system of advocates in the legal profession, who have been conferred with right
to practice under the Constitution which now stands embedded in the Advocates Act, 1961
(hereinafter referred to as the Advocates Act).

ADVENT OF THE CONSTITUTION :-

Our judicial system is enshrined in the Constitution with powers to dispense justice, including
their constitution and jurisdictions, and with powers to make their own rules. The Supreme Court
has been described as a court of record and conferred with all powers including the powers to
punish for its contempt under article 129 of the Constitution. The power to frame rules, subject
to the provisions of any law made by Parliament and with the approval of the President, has been
conferred on the Supreme Court under article 145 of the Constitution. Sub-clause (a) of clause

2
Roscoe Pound, “What is a Profession - The Rise of the Legal Profession in Antiquity”, 19 Notre Dame L. Rev. 203
(1944), at p. 204.
3
Directive 2005/36/EC of the European Parliament and of the Council on the Recognition of Professional
Qualifications (7 September 2005).

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(1) of article 145 specifically empowers the Supreme Court to frame rules regarding the persons
who can practice before it.

There exists a distinction in the conferment of powers on the High Courts. While conferring the
powers on the High Courts, rules as to the persons practicing before the Court have not been
provided for under the Constitution as compared to the Supreme Court referred to hereinabove.
The power to enact a law pertaining to the right to practice before a High Court has been retained
under Entry 78 of List I of the VIIth Schedule to the Constitution, with Parliament itself.
However, the High Court, being a court of record and has been conferred with powers to punish
for its contempt under article 215 of the Constitution. This article has significance as it confers
the power in relation to the proceedings of criminal contempt that extends to awarding a sentence
of punishment in the event of a breach by an advocate vis-à-vis his professional misconduct in
the Court. The power, however, to frame a law on contempt and to make provisions for the same
are available with Parliamentand the State Legislatures under Entry 14 of List III of Schedule
VII to the Constitution.

The expression ‘administration of justice’ also occur in Entry 11-A of List III (Concurrent List).
Whenever, it comes to taking a broad view of the terminology aforesaid, the same can also
include within its fold the role of advocates in the administration of justice. Entry 13 of List III,
empowers Parliament as well as the State Legislatures to frame rules regarding procedure. Order
3 Rule 1 of the Code of Civil Procedure, 1908 and section 303 of the Code of Criminal
Procedure, 1973 make exhaustive provisions for representation of litigants through recognised
agents and pleaders. Thus, the statute has given a legal status to the participation of an advocate
in judicial proceedings. Separate sets of rules govern engagement of advocates as empaneled
lawyers on behalf of the Central Government and State Governments as well as their
undertakings and such other bodies that are within their control. Thus, the presence of advocates
as part of the justice delivery system is ingrained in our laws. With this in view Entry 26 in List
III of Schedule VII was incorporated in the Constitution, empowering Parliament and the State
Legislatures to frame laws with regard to the legal profession as well.

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ERA OF THE ADVOCATES ACT :-
With the passage of time, it was felt that the Judicial Administration should be changed
according to the needs of the time. The First Law Commission examined and made a Report on
Reforms of Judicial Administration. The All India Bar Committee also examined the matter and
made its recommendations in 1953. To implement the recommendations of All India Bar
Committee after taking into account the Law Commission’s recommendations made in its
Fourteenth Report in so far as they relate to the Bar and to legal education, the Advocates Act
was enacted.

The Advocates Act amalgamates, codifies and consolidates the law relating to the regulation of
practice by advocates and the system of the legal profession. This regulatory law with the
various bodies constituted under it, including the Bar Council of India and the State Bar
Councils, has been controlling the legal profession for more than half a century with many
amendments in the past.

The effectiveness of our judicial system and growing legal awareness amongst the masses, has
seen a corresponding growth in the enrolment of advocates throughout the country compared to
that existed in the pre-independence era. The legal profession has now become one of the most
sought after professions and not as a secondary profession by any means. The nature of
litigation in our multi-dimensional legal system with a variety of laws and redressal mechanisms
has brought forward the participation of advocates in every field of socioeconomic growth and
development. The advocates have nowbecome an indispensable part of our judicial system at all
levels, including courts, tribunals, quasi-judicial authorities and administrative authorities as
well.

PERIOD OF ABERRATION :-
The opening of new vistas in the legal profession has brought with it the inherent problems of
deficiency in professionalism, ethical decline and lack of devotion. The interrivalry between
professionalism and competition with a materialistic approach in a growing society affected by
social, political and economic changes has led to the legal profession acquiring a mantle that it
did not possess long before. The fraternity of advocates had in the past actively been
participating on all social fronts but this dimension has now become multi-faceted. This holistic

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form of participation in all walks of life, therefore, demands more responsibility and obligations
requiring observance of moral and ethical values for preserving the basic ethos of this legal
profession.

In recent years, the role of advocates, particularly in the dispensation of justice through courts of
law, has come under sharp criticism and is being viewed as an eyesore by the public. A news
item published in the Indian Express dated 09 March 2011, titled ‘Laws for Lawyers’, spoke of
the crumbling regulatory structure after having witnessed a decline in the conduct of advocates;
and lawyers that was unprofessional and inconvenienced by a variety of instances. More
particularly, it referred to lawyers resorting to strikes and boycotts to the detriment of the
litigants. The news item refers to the Sri Krishna Commission’s Interim Report that has brought
out the kind of violent incident that took place in the Madras High Court. It also quoted
regulations adopted abroad, particularly in the United Kingdom by passing of the Legal Services
Act, 2007with an express purpose to set up an independent Board to examine allegations of
lawyers’ misconduct. It also refers to the systems prevalent in other democracies i.e., in the
United States of America. The item concludes that the time had come to reform the Bar
Councils in India and to revisit the laws regulating the professional conduct of advocates.

Several unpleasant incidents in the past, some of them occasional in nature, and most of them
organized, have led to a severe criticism by the society and the members of the legal profession
by reason of their behaviour and misconduct are now being looked upon with distrust. The
advocates’ conduct in courts, behaviour with litigants and their unprofessional conduct,
including the act of going on frequent strikes as a measure of protest for irrelevant issues has
reached to terrifying proportions. This has resulted in the loss of opportunity to litigants to get
their grievances redressed, coupled with the introduction of greater violence, both in courts and
outside, in various forms. This has even forced working advocates to absent themselves from
work, a fact that has come in the notice of the courts through its judicial pronouncements. In
spite of repeated pronouncements of the Supreme Court and the High Courts declaring strikes
and boycotts to be illegal, the same has continued unabated, coupled with violence and instances
of misconduct. This issue has been addressed in certain instances with severe punishments,
including debarment of lawyers from even practicing in courts.

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JUDICIAL PRONOUNCEMENTS AND THE LAW :-
The full bench judgment of the Jharkhand High Court in the case of K K Jha “Kamal” &Anr. v.
Pankaj Kumar &Anr 4 , the full bench judgment of the Allahabad High Court in the case of
Sadhna Upadhyay v. State of U.P.5, and the recent judgment of the Apex Court in the case of
Mahipal Singh Rana v. State of UP 6 , are pointers in relation to professional misconduct of
lawyers that ultimately resulted in a direction by the Supreme Court asking the Law Commission
of India to go into all relevant aspects relating to regulation of legal profession in consultation
with all concerned at an early date. It also requested Parliament to consider enactment of the law
that would effectively empower the authorities for such effective regulation.

The Courts have been making observations and commenting on the effective application and
working of the provisions of the Advocates Act, particularly in respect of regulation of
disciplinary proceedings against advocates. In Mahipal Singh Rana7, the appellant therein was
found guilty of criminal contempt for intimidating and threatening a Civil Judge (Sr. Division),
by the High Court of Judicature at Allahabad. He was awarded a sentence of a short term
imprisonment along with fine and was also restrained from entering the court premises, and was
debarred from appearing and practicing in the District Court of Etah, in U.P. He preferred an
appeal before the Supreme Court and the Courtconsidering that an important legal issue was
involved, referred it to a larger bench.

The Supreme Court upheld the judgment and order of the High Court observing that superior
courts have supervisory powers to regulate the right of an advocate to appear in court, and even
in the absence of any rule framed under section 34(1) of the Advocates Act, the Court can
restrain an advocate from appearing for a specific period of time. The Court further observed
that it was undesirable for a convicted person to perform important public functions in view of
section 24A of the Advocates Act and that there was an urgent need to amend the provisions so
that the bar applicable at the entry level could be extended to a situation post enrolment where
the delinquent advocate had already been enrolled by the Bar Council concerned. Further, due to
failure of the State Bar Council to take action against the appellant therein, the Court exercised

4
AIR 2007 Jhar 67
5
2009 (4) ADJ 434
6
AIR 2016 SC 3302
7
Ibid.

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its suomotu powers under section 38 of the Advocates Act and suspended the licence of the
appellant for a period of 5 years.

Being dismayed with the unsatisfactory regulatory mechanism governing the advocates, the
Supreme Court expressed its anguish observing that there was an urgent need to review the
provisions of the Advocates Act, particularly dealing with the regulatory mechanism for the legal
profession and other identical issues in consultation with all concerned. And, thus the matter has
been referred to the Law Commission of India asking to go into all relevant aspects relating to
regulation of the legal profession and submit its report.

LAW COMMISSION’S INITIATIVE:-

The Commission invited suggestions from all stakeholders by putting on its website a notice
dated 22nd July, 2016, as to how the system could be improved. The attention of the Bar
Council of India was drawn to the said notice by writing a letter on 3rd August, 2016. The
Registrar General of all High Courts were addressed a similar email on 4th August, 2016.
Simultaneously, an email was sent to all the State Bar Councils, Supreme Court Bar Association
and Supreme Court Advocates on Record Association. On the same day, the Chairman
addressed a letter to the Chief Justices of all the High Courts, requesting them to use their good
offices to give wide publicity to the endeavour of the Commission amongst the various
associations of Advocates’ (in whatever name they exist), with a request to send their response
directly to the Commission by email at the earliest.

In pursuance of the aforesaid, the Bar Council of India, the highest body in the hierarchy under
the Advocates Act, appointed an Advisory Committee headed by Mr. Justice Shivraj Patil,
former Judge, Supreme Court of India. The BCI made comprehensive recommendations on
various issues relating to the Advocates Act and also submitted a draft Bill for consideration of
the Commission. The Bar Council of India was of the view that in addition to the regulatory
mechanism, other inter-related issues, i.e., constitution of the BCI and the State Bar Councils are
also required to be revisited. The BCI made some suggestions in this regard.In response to the
request of the Commission, several stakeholderslike Bar Associations, individual advocates and
judicial officers have sent their valuable suggestions.

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The Law Commission, while reviewing the Advocates Act, felt that the conduct of the advocates,
directly as well indirectly affects the functioning of the courts, and thereby contributes to the
pendency of cases. The Commission felt that some provisions would be necessary to regulate
the conduct of advocates in the court, which affects the functioning of the court as well as the
expectations of the aggrieved, alike. Keeping this in view, all the High Courts through the Chief
Justices were requested to send data on loss of working days by call of strikes in their respective
jurisdictions, during the last five years. The Commission was astonished on going through the
responses received pursuant to its request, as it was found that the strikes by the advocates were
rampant throughout the length and breadth of the country with little variation in degree.

LOSS OF COURT’S WORKING DAYS:-

Every High Court, on its administrative side, takes a decision fixing the minimum number of
working days for subordinate courts which varies from State to State.

In the State of Uttarakhand, the information sent by the High Court for the years 2012-2016
shows that in Dehradun District, the Advocates were on strike for 455 days during 2012-2016
(on an average, 91 days per year). In Haridwar District, 515 days (103 days a year) were wasted
on account of strike.

In the case of the State of Rajasthan, the High Court of Judicature at Jodhpur saw 142 days of
strike during 2012-2016, while the figure stood at 30 for the Jaipur Bench. In Ajmer District
courts, strikes remained for 118 days in the year 2014 alone, while in Jhalawar, 146 days were
lost in 2012 on account of strike.

The case of Uttar Pradesh appears to be the worst. The figures of strike for the years 2011-2016
in the subordinate courts are alarmingly high. In the State of Uttar Pradesh, the District courts
have to work for 265 days in a year. The period of strike in five years period in worst affected
districts has been as - Muzaffarnagar (791 days), Faizabad (689 days), Sultanpur (594 days),
Varanasi (547 days), Chandauli (529 days), Ambedkar Nagar (511 days), Saharanpur (506 days)
and Jaunpur (510 days). The average number of days of strike in eight worst affected districts
comes to 115 days a year. Thus, it is evident that the courts referred to hereinabove could work
on an average for 150 days only in a year.

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In this regard, the situation in subordinate courts in Tamil Nadu had by no means, been better.
The High Court of Tamil Nadu has reported that there are 220 working days in a year for the
courts in the State. During the period 2011-2016, districts like Kancheepuram, 687 days (137.4
days per year); Kanyakumari, 585 days (117 days per year); Madurai, 577 days (115.4 days per
year); Cuddalore, 461 days (92.2 days per year); and Sivagangai, 408 days (81.6 days per year),
were the most affected by strike called by advocates.

As per the responses received from the High Courts of Madhya Pradesh and Odisha, the picture
does not emerge to be satisfactory.

The Commission noted that the strike by advocates or their abstinence from the court were
hardly for any justifiable reasons. It could not find any convincing reasons for which the
advocates resorted to strike or boycott of work in the courts. The reasons for strike call or
abstinence from work varied from local, national to international issues, having no relevance to
the working of the courts. To mention a few, bomb blast in Pakistan school, amendments to Sri
Lanka’s Constitution, interstate river water disputes, attack on / murder of advocate, earthquake
in Nepal, to condole the death of their near relatives, to show solidarity to advocates of other
State Bar Associations, moral support to movements by social activists, heavy rains, or on some
religious occasions such as shraadh, Agrasen Jayanti, etc. or even for kavisammelan.

The Commission is of the view that unless there are compelling circumstances and the approval
for a symbolic strike of one day is obtained from the Bar Council concerned, the advocates shall
not resort to strike or abstention from the court work.

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PRE- ENROLMENT TRAINING OF ADVOCATES

Another problem that requires to be highlighted is that without undergoing any training or facing
subordinate courts, fresh graduates start appearing before the superior courts. Counsel engaged
by litigants do not appear in the court, rather send raw hands to deal with the matters. While
dealing with such a situation, the Supreme Court in Sanjay Kumar v. State of Bihar8, deprecated
such practice by observing that an “arji”, “farji” half-baked lawyer under the label of “proxy
counsel”, without any acquaintance with or authorisation from the litigant use, abuse or misuse
the process of the court under the false impression that he has a right to waste public time.

In an unprecedented step, the Supreme Court in In re: Rameshwar Prasad Goyal 9 , held that
conduct of Shri Goyal, AOR, lending his signature for petty amount without appearing in court
had been reprehensible and not worth pardoning, and he was censured. The court also put him on
probation for a year.

In view of above, the Law Commission recommends a specific clause in section 7(1) of the
Advocates Act to provide for the rule making power of the Bar Council of India for preenrolment
training and apprenticeship before the induction of a person as an advocate.

PROSPECTS OF FOREIGN LAW FIRMS AND LAWYERS IN INDIA :-

In recent years, fast transformation has been experienced in every field, whether it is social or
economic. With the opening of new vistas, the world is increasingly shrinking. Countries are
becoming more and more inter-dependent. The opening of the economy to other countries and
widening of the international trade and commerce has brought the dire necessity of reviewing
various municipal laws relating to “ease of doing business” and other relevant laws which also
includes the Advocates Act. The increase in the quantum of import and export, formation of new
companies and concerns with import of technology and invitation to multi-national companies to
establish their subsidiary companies in India and have their commercial establishment here,
necessitated the beginning of international arbitration. In arbitration matters, very often foreign
lawyers appear on behalf of companies and their establishments in India from time to time.

8
(2014) 9 SCC 203.
9
AIR 2014 SC 850.

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At times, the issue of allowing foreign firms and lawyers in India and having vice-a-versa
arrangement for advocates practicing law in India in other counties has been raised in different
forums. In this context, sections 17, 29 and 47 of the Advocates Act require a passionate
examination. In terms of section 17, a person desirous of taking up the profession of advocacy is
required to be enrolled on the rolls of the advocates maintained by the State Bar Council.
Section 29 visualises that only the advocates registered under the Advocates Act are considered
to be the recognised class of persons entitled to practice law. Section 47 relates to reciprocity
whereunder thenationals of any other country may also be admitted as an advocate on the State
roll, if citizens of India duly qualified are permitted to practice law in such other country.

In the matters of allowing foreign lawyers and law firms to practice law in India, the basic
objections raised at different forums over the time is that the law graduates from India are
allowed to practice the profession of law in U.K., USA, Australia and other countries subject to
following their cumbersome procedure which is very costly also. Further, there are many
restrictions like qualifying tests, prior experience, work permit etc. which is not contemplated
under the Advocates Act in respect of foreign lawyers who intend to practice in India.
Therefore, issue of allowing entry of foreign law firms and lawyers without any reciprocal
arrangements similar to that of arrangements prevailing in those foreign countries should not be
entertained.

An examination of the issue in its correct perspective of allowing the foreign law firms carrying
on its business in India requires consideration as to how this necessity has arisen. From the past
practices, it can be seen that the foreign law firms are carrying on consultancy/support services in
the field of protection and management of business and industrial proprietary rights, and carrying
out market survey and market research. They also protect their intellectual property rights. The
foreign lawyers usually visit India for giving advices on their own system of law. The foreign
law firms do also come with the objective of taking part in negotiations, for settling documents
and conducting arbitrations in India.

International arbitration is growing in India and in almost all countries across the world. India is
a signatory to theGeneral Agreement on Trade in Services (GATS), which has opened up the
gates for many international business establishments based in different parts of the world to

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come and set up their own respective business in India. The large number of Indian companies
even reaching out to foreign destination by mergers, acquisitions or direct investment. There
may be several transactions in which an Indian company or a person of Indian origin may enter
into transaction with a foreign company and the laws applicable to such transaction are the laws
of the said foreign country. In this context, seeking legal advice on the manner in which the
foreign law would be applied to said transaction from a foreign lawyer cannot be considered as
inappropriate.

Besides the on-going discussions, the issue of foreign law firms establishing their place of
business in India (liaison office) and related issues have been raised in certain High Courts. The
High Court of Madras in A.K. Balaji v. Government of India10has observed, as under:

“(i) Foreign law firms or foreign lawyers cannot practice the profession of law in India either on
the litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act, 1961
and the Bar Council of India Rules.

(ii) However, there is no bar either in the Act or the Rules for the foreign law firms or foreign
lawyers to visit India for a temporary period on a fly in and fly out basis, for the purpose of
giving legal advice to their clients in India regarding foreign law or their own system of law and
on diverse international legal issues.

(iii) Moreover, having regard to the aim and object of the International Commercial Arbitration
introduced in the Arbitration and Conciliation Act, 1996, foreign lawyerscannot be debarred to
come to India and conduct arbitration proceedings in respect of disputes arising out of a contract
relating to international commercial arbitration.

(iv) The B.P.O. Companies providing wide range of customised and integrated services and
functions to its customers like word-processing, secretarial support, transcription services, proof-
reading services, travel desk support services, etc. do not come within the purview of the
Advocates Act, 1961 or the Bar Council of India Rules. However, in the event of any complaint
made against these B.P.O. Companies violating the provisions of the Act, the Bar Council of
India may take appropriate action against such erring companies.”.

10
WP No.5614 of 2010 decided on 21.02.2012.

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In Lawyers Collective v. Bar Council of India &Ors. 11, the High Court of Bombay quashed the
permission granted by the Reserve Bank of India to foreign law firms to establish their place of
business in India (liaison office) under section 29 of the Foreign Exchange Regulation Act, 1973.
On the issue as to whether these foreign law firms could carry on their liaison activities in India
only on being enrolled as advocates under the Advocates Act, the Court held that the expression
“to practice the profession of law” in section 29 of the Advocates Act is wide enough to cover
the persons practising in litigious matters as well as persons practising in non-litigious matters.
Therefore, to practice in non-litigious matters in India, the foreign lawyer and law firms were
bound to follow the provisions contained in the Advocates Act.

The judgment referred to hereinabove was challenged before the Supreme Court inBarCouncil of
India v. A K Balaji &Ors. 12 , wherein the Supreme Court granted leave and maintained the
interim order passed on 4 July 2012, which reads as under:

“In the meanwhile, it is clarified that Reserve Bank of India shall not grant any permission to the
foreign law firms to open liaison offices in India under section 29 of the Foreign Exchange
Regulation Act, 1973. It is also clarified that the expression “to practice the profession of law”
under section 29 of the Advocates Act, 1961 covers the persons practicing litigious matters as
well as nonlitigious matters other than contemplated in para 63(ii) of the impugned order and,
therefore, to practice in non-litigious matters in India the foreign law firms, by whatever name
called or described, shall be bound to follow the provisions contained in the Advocates Act,
1961.”

In view of the developments that have taken place, if the foreign law firms are not allowed to
take part in negotiations, settling up documents and arbitrations in India, it may have a counter-
productive effect on the policy of the government to make India a hub of International
Arbitration. In this regard, it may be stated that many arbitrations with Indian Judges and
Lawyers as Arbitrators are held outside India, where both foreign and Indian Law Firms advise
their clients. If foreign law firms are denied entry to deal with arbitrations in India, then India
may lose many of the arbitrations to Singapore, Paris and London. It may be contrary to the
declared policy of the government and against the national interest. With this in view and
11
WP No.1526 of 1995 decided on 16.12.2009.
12
Civil Appeal No.7875-7879 of 2015.

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judgement of the High Courts, the Law Commission considers it necessary to have enabling
provisions in the Advocates Act which will enable the Bar Council of India to frame rules to
recognise and register foreign law firms and lawyers in India, as and when a decision is taken in
this regard, particularly in view of the reciprocity provisions.

NEED FOR DEFINING MISCONDUCT :-

The question of creating a conducive environment for the effective regulation of the profession
requires a statutory framework. This statute provides for the regulator’s powers in many subtle
ways. The specificity of the words employed in the statute is one such subtle way in which
powers and duties are framed. Neither the Advocates Act nor the Bar Council of India Rules,
defines professional misconduct. However, the Apex Court has elucidated on the concept of
“misconduct”.

Misconduct means a wrongful action and not mere error of judgment. A transgression of some
well-established and definite rule of action, where no discretion is left. It is a forbidden act,
carelessness, an unlawful behaviour or neglect by which the right of a party has been affected
e.g. allegation of disproportionate asset; misappropriation; and criminal breach of trust; not
working diligently; an action which is detrimental to the prestige of the institution and acting
beyond authority. It may be synonymous to an improper behaviour or mismanagement. It is
detrimental to public interest. Misconduct is to be construed and understood with reference to the
subject matter and context wherein the term occurs taking into consideration the scope and object
of the statute involved.13

Professional misconduct refers to disgraceful or dishonourable conduct, not befitting to the

professionconcerned. Legal profession is not a trade or business. Therefore, it must remain a
de-contaminated profession. Advocates have a duty to uphold the integrity of the profession and
to discourage corruption so that justice may be secured by the citizenry in a legal manner. 14A
lawyer must strictly adhere to the norms of profession which make him worthy as an officer of

13
Black’s Law Dictionary, Sixth Edition; P Ramanatha Aiyar’s Law Lexicon, Reprint Edition 1987 at page 821;
N.G.Dastane v. Shrikant S. Shivde AIR 2001 SC 2028, Baldev Singh Gandhi v. State of Punjab AIR 2002 SC 1124;
General Manager, Appellate Authority, Bank of India v. Mohd. Nizamuddin AIR 2006 SC 3290; Ravi Yashwant
Bhoirv. Distt. Collector, Raigarh AIR 2012 SC 1339; and Vijay Singh v. State of U.P AIR 2012 SC 2840.
14
Shambhu Ram Yadav v. Hanuman Das Khattry, AIR 2001 SC 2509

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court. 15 Dignity of the judiciary is to be maintained, failing which the institution itself will
collapse. 16 Indulging in practices of corrupting the judiciary or offering bribe to the Judge 17;
retaining money deposited with the advocate for the decree holder even after execution
proceedings 18 ; scandalizing the Judges 19 ; constant abstention from the conducting of cases;
misappropriation of the amount paid 20 ; attesting forged affidavit 21; failure to attend trial after
accepting the brief22; taking money from client in the name of the Judge 23 ; gross negligence
involving moral turpitude 24 ; indecent crossexamination25; breach of trust26 ; conducting fraud
and forgery27 by the advocates, have been held to be serious misconduct by the Supreme Court.

In light of the above decisions, the Law Commission considered and provided the definition of
“Professional Misconduct” in the Amendment Bill recommended by it.

RELEVANCE OF FRAMEWORK OF REGULATION OF LEGAL PROFESSION IN

THE UNITED KINGDOM :-
After undertaking a review of the regulatory framework of legal profession in 2002, 28 based on
the report titled “Competition and Regulation in the Legal Services Market”,29 the Department
of Constitutional Affairs (UK Government) concluded that the regulatory framework for legal
services in England and Wales was out-dated, inflexible, over-complex and insufficiently

15
NoratanmalChouraria v. M R Murli &Anr., AIR 2004 SC 2440
16
In Re : Vinay Chandra Mishra, AIR 1995 SC 2348.
17
Shanbhu Ram Yadav Supra.
18
Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338.
19
Dr. D C Saxena v. Chief Justice of India, AIR 1996 SC 2481.
20
D S Dalal v. State Bank of India, AIR 1993 SC 1608; and J S Jadhav v. Mustafa Haji Mohamed Yusuf, AIR 1993
SC 1535.
21
M Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28.
22
S J Chaudhary v. State, AIR 1984 SC 618. 61
23
Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012. 62
24
In the matter of P an Advocate, AIR 1963 SC 1313; and V P Kumaravelu v. the Bar Council of India, AIR1997
SC 1014.
25
Shiv NarainJafa v. The Hon’ Judges of the High Court, Allahabad, AIR 1953 SC 368.
26
BapuraoPakhiddey v. Suman Dondey, AIR 1999 SC 916.
27
LC Goyal v. Nawal Kishore, (1997) 11 SCC 258; and Devender Bhai Shanker Mehta v. Ramesh Chandra
VithalDassSeth, AIR 1992 SC 1388; See also: Dr. Elbe Peter, MDS, LL.B, DCR, Professional misconduct of
lawyers in India.
28
In the Public Interest?, A Consultation following the Office of Fair Trading's report on Competition in
Professions, A Lord Chancellor’s Department Consultation paper, July 2002.
29
A report following the consultation "In the public interest?", July 2003. Available at
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/consult/general/oftreptc onc.htm (Last Accessed
3rd November, 2016).

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accountable or transparent.30As a result, Sir David Clementi was appointed on 24th July 2003, to
conduct a Review of the Regulatory Framework for Legal Services in England and Wales with
the terms of reference being:

“To consider what regulatory framework would best promote competition, innovation and the
public and consumer interest in an efficient, effective and independent legal sector.

To recommend a framework which will be independent in representing the public and consumer
interest, comprehensive, accountable, consistent, flexible, transparent, and no more restrictive or
burdensome than is clearly justified.31

As a result of the Clementi Report and implementation of the recommendations made therein,
the Legal Services Act 2007 (hereinafter referred to as the Act, 2007) came into force which
liberalises and regulates the market for legalservices in England and Wales so as to encourage
more competition and to provide a new route for consumer complaints. Accordingly a Legal
Services Board, an independent statutory body, was established under the Act 2007 32, which is
responsible for overseeing legal regulators in England and Wales. It is independent of
government and the legal profession, and is the oversight regulator for eight separate bodies,
named as ‘Approved Regulator’’33 in the Act, 2007.

While the Act, 2007 also deals with other kinds of legal practitioners such as Legal Executives,
Licensed Conveyancers, Patent Attorneys, Trade Mark Attorneys, Law Costs Draftsmen as well
as Notaries. For the present purposes, the regulatory mechanisms for Solicitors and Barristers
have only been analysed. The enactment of the Act, 2007 has ushered in a new era of regulation
of legal profession in the United Kingdom which has recognised the short-comings of ‘self-
regulation’ and has shifted its focus towards the interests of consumers. Emphasising on the need
for independence of legal profession from outside influences (especially government) as well as
the call for a regulatory framework which was independent in representing the public and
consumer interest, a statutory oversight body (Legal Services Board – in short, LSB) has been

30
Ibid.
31
Sir David Clementi, “Review of The Regulatory Framework For Legal Services In England And Wales Final
Report”, (Clementi Report) Foreword, at p.1.
32
Section 2, Legal Services Act, 2007.
33
Section 20, Legal Services Act, 2007; Body designated as an approved regulator by Part I of Schedule 4 or Part 2
of the Schedule (or both).

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created for consistent oversight of Front-line regulators (who are responsible for regulation of
their own professionals). Being an Independent Statutory body, the provisions of the Act, 2007
have ensured that the Board comprises of a lay majority as a whole with the Chairman of the
Board also mandated to be a lay member. For the protection of Consumer interests,
anindependent arm of the LSB such as Consumer Panel has been established which acts as an
advisory body to the LSB so as to help them make decisions that are shaped around the needs of
users.With regard to the functioning of the front-line regulators for solicitors and barristers, it has
been made imperative that the representative and regulatory functions are separated and
distinguished. For the same purpose, the Law Society acts as a representative body for solicitors
whereas, the Solicitors Regulation Authority (in short, SRA) discharges the regulatory functions.
While acting as an independent regulatory arm of the Law society, the composition of the Board
of SRA is diluted wherein out of the 15 members, seven members are solicitors and remaining
eight are lay persons out of whom one is appointed as the Chairman. Such a setup is inclusive in
nature wherein through dilution in the composition of the board, specific problems in regard to
disciplinary action against lawyers by lawyers are avoided. The same principle has also been
applied with regard to the Solicitors Disciplinary Tribunal, whose composition includes both
solicitor members as well as persons who are neither solicitors nor barristers (lay members).
Similar set up also exists for the regulation of barristers wherein the Bar Council takes care of
the representative functions and Bar Standard Board along with Professional Conduct Committee
and Disciplinary Tribunals discharge the regulatory obligations as prescribed under the Act,
2007. Similar ratios of practicing barristers as well as lay members are ensured in Professional
Conduct Committee whereby a lay member majority is mandated. In regard to the composition
of the Disciplinary Tribunals for barristers, along with the presence of a barrister (having
experience of not less than seven years), the presence ofa Judge (as Chairman) and at least one
lay member is mandated.

It is important to note here that in India, the Ministry of Law and Justice, Department of Legal
Affairs floated a draft bill namely Legal Practitioners (Regulations and Maintenance of
Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Bill,
2010, which intended to establish a Legal Services Board on the lines of the Legal Services

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Board in UK suitable in the Indian situation. However, no further progress has been reported on
the draft Bill.

NEED FOR REVIEWING REGULATORY MECHANISM :-

There is a dire necessity of reviewing the regulatory mechanism of the Advocates Act, not only
in matters of discipline and misconduct of the advocates, but in other areas as well, keeping in
view the wide expanse of the legal profession being involved in almost all areas of life. The very
constitution of the Bar Councils and their functions also require the introduction of a few
provisions in order to consolidate the function of the bar councils in its internal matters as well.
The globalization of the legal profession has brought forth the issues of the participation of
foreign lawyers and foreign law firms in Indian legal system.

With the Bar Council of India creating the All India Bar Examination Rules, 2010; the
Certificate of Practice and Renewal Rules, 2014 (which now stands repealed), and the Certificate
and Place of Practice (Verification) Rules, 2015, it has become evident that this basic function
has not been performed adequately. While it is understandable that lawyers in India constitute an
improperly organised group, the inability of the Bar Councils to even keep a count on the
number of advocates practicing in the country is indicative of the need to expand the institutional
capacity of these authorities.

It may be pertinent to compare the composition of Governing Body of the Bar Council of India
with other institutions like Institute of Chartered Accountants of India(ICAI), Medical Council of
India (MCI), Council of Architects (CoA), etc. The position of the MCI is that there are 17
elected representatives of professionals, 53 elected from educational institutions, 34 Central
Government nominees, totaling to 104. The Council of Architects has 5 elected representatives
from professionals, 5 elected members from educational institutions, 1 Central Government
nominee and 35 State Government nominees. It also contains 5 other nominees, and 2 ex-officio
members (from the Central Government). Thus, they have total strength of 53.

So far as the Chartered Accountants Act, 1949 is concerned, it provides that in the Council of the
Institute, there would be not more than 32 persons elected by the members of the Institute and
not more than eight persons nominated by the Central Government.

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Recently, the Constitution of the Governing Council of the Indian Law Institute has been
changed vide decision dated 8 December 2016 and the number of members of the Governing
Council has been reduced to nearly half; and all members of the Governing Council will be
either nominated or ex-officio. There is not even a single elected person in the Council.

Thus, from the above it may be concluded that the composition of the body should be determined
on four parameters:

(1) The elected-to-nominated member ratio should be determined based on whether elected
representatives from the profession can be expected to function without excessive bias in favour
of their colleagues. There may be a majority of nominated members if there is a need to
accommodate and have representation of a wide variety of bodies, governmental or technical.
However, the ratio must at least be loaded with sufficient nominees where there are essential
questions of public interest that cannot be left to members of the profession itself.

(2) The professional-to-lay member ratio should be determined on similar criteria but with
greater emphasis towards client welfare and interaction with allied fields, and less emphasis on
representation of public bodies.

(3) The identity of the electors and nominators determines the extent of control exercised by
groups and bodies over a regulator. Nominations indicate direct control and elections indicate
diffused and indirect control. A good practice would be to split seats across different groups to
accommodate regional and technical knowledge-based diversity and split seats across bodies so
that each body has a say but does not exercise complete control. For this, it is necessary to
identify all groups that require representation in the regulatory body and all bodies that need to
be given a share of control over the body.

(4) Where a particular public office or department must be given representation in the regulatory
body, provision may be made to appoint them ex-officio. However, the body appointing the
office-holder may gain further say in the regulator’s decisions, depending on the independence of
that office.

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The Commission is of the view that the nominated/coopted members would have a right to
participate in allproceedings and to vote therein except on the issue of removal of office-bearers
of the Councils.

Further, in relation to regulatory mechanism, it is necessary to address the mushrooming of bar

associations right from the Taluka level, up to the apex bodies also requires a regulatory
mechanism including their recognition and control by the bar council. This is obviously coupled
with special emphasis of not only controlling the advocates but the collective actions of bar
associations that has a local and even a nationwide implication on issues that are concerned with
proceedings of the court and with regard to the organization of lawyers entering into other fields
of activities. Towards this, the measures of punishments, the inclusion of other types of
misconducts and the disciplinary control with its effective mechanism, both reformatory and
deterrent, deserves to be introduced. This has become necessary as the present law is gradually
losing its effectiveness due to lack of appropriate empowerment. The standards of professional
ethics and behaviour, the training of lawyers and facets of continuing legal education are other
areas as well that require a passionate consideration.

It is with the aforesaid objective in view that the Law Commission called upon the Bar Council
of India to make available its suggestions in particular and upon having received the same, the
Commission has deliberated upon the suggestions that have been received from the stakeholders
throughout the country that the proposal to reform the Advocates Act has become imperative.

The Commission, therefore, recommends that comprehensive amendment should be brought

forth in theAdvocates Act, not only keeping in view the present requirements, but such other
requirements that may arise in future for the better management and regulation of the legal
profession.

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THE BAR COUNCIL OF INDIA RULES

The Advocates Act, 1961 empowers the Bar Council of India to frame certain rules. Section 49
(1) (c) of the Act grants general power to The Bar Council of India to make rules relating to the
standards of professional conduct and etiquette to be observed by advocates. The rules formed by
Bar Council of India is given in Chapter – II of Part IV of the Bar Council of India Rules tells the
duty of an Advocate to the Court, to the client, to opponent, to colleagues etc. Preamble of Part
IV, Chapter II reads and makes the following points clear.

1. An advocate shall, at all times, comport himself in a manner befitting his status as an officer of
the court, a privileged member of the community and a gentleman;

2. He should bear in mind that what may be lawful and moral for a person who is not a member
of Bar, or for a member of the Bar in his non- professional capacity may still be improper for an
Advocate;

3. Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly
uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned
both in letter and in spirit.

4. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general
guides; yet the specific mention there of shall not be construed as a denial of existence of other
equally imperative though not specifically mentioned. Section 1 (of chapter II of Part IV of the
Bar Council of India Rules) frames code of conduct and etiquette of Advocates and prescribes
certain duties of an Advocate of the Court.

Duty to the Court

1. An Advocate shall, during the presentation of his case and while otherwise acting before a
Court, conduct himself with dignity and self- respect. He shall not be servile and whenever there
is proper ground for serious complaint against a judicial officer, it shall be his rights and duties to
submit his grievance to proper authorities.

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2. An Advocate shall maintain towards the Courts a respectful attitude, bearing in mind that the
dignity of the judicial office is essential for the survival of free community.

3. An Advocate shall not influence the decision of a Court by any illegal or improper means.
Private communications with a Judge relating to a pending case are forbidden.

4. An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp
or unfair practices or from doing anything in relation to the Court, opposing counsel or parties
which the Advocates himself ought not to do. An Advocate shall refuse to represent the client
who persists in such improper conduct.

5. An Advocate shall appear in Court at all times only in the prescribed dates, and his appearance
shall always be presentable.

6. An Advocate shall not enter appearance, act, plead or practice in any way before a Court,
Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is
related to the Advocate as father, grandfather, son , grandson, uncle, brother, nephew, first
cousin, uncle, aunt, husband, wife, mother, daughter, sister, niece, father-in-law, mother-in-law,
son-in-law, brother-in-law, daughterin-law or sister-in-law.

7. An Advocate shall not wear band or gown in public places other than in Courts except on such
ceremonial occasions and at such places as the Bar Council of India or the Court may prescribe.
8. An Advocate shall not appear in or before any Court or Tribunal or any other authority for or
against an organization or an institution, society or corporation, if he is a member of the
Executive Committee of such organization or institution or society or corporation. Provided that
this rule shall not supply to such a member appearing as “amicus curiae” or without a fee on
behalf of a Bar Council, Incorporated Law Society or a Bar Association.

9. An Advocate should not act or plead in the any matter in which he himself is peculiarly
interested.

ILLUSTRATIONS-:

I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt.
II. He should not accept a brief from any company of which he is a Director.

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10. An Advocate shall not stand as a surety, or certify the soundness of the surety for his client
required for the purpose of any legal proceedings. Learned C.L. Anand has observed that the
advocates owe respect and courtesy to the Court for the following reason-:

• An Advocate is like a Judge, himself, an officer of the Court and an integral part of the judicial
machine. The legal profession consists of the Bar as well as the Bench and both have common
aims and ideals.

• In theory it is the King or Sovereign who presides in the Court of justice and judge is merely
the mouthpiece and representative of the Sovereign. Respect shown to the Court is, therefore,
respect shown to the sovereign whose representative the judge is

• Not only litigants and witnesses but the general public will get their inspiration from the
example of advocates. It is necessary for the administration of justice that Judges should have
esteem of the people. If judges are not respected it tends to impair public confidence in the
administration of justice.

• It is the good manners and advocates before anything else are gentleman of the Bar. • Even
from a purely practical standpoint, there is nothing to be gained but there is much to lose by
antagonizing the Court. Conflict with the Judge renders the trial disagreeable to all and has
generally an injurious effect on the interests of the client.

• The usual practice in modern times is to appoint Judges from among the members of even the
Bar and even where this rule is not strictly observed the Bench is fairly representative of the Bar.
• It is necessary for dignified and honourable administration of justice that the Court should be
regarded with respect to the suitors and people. Section II- Duty to the Client

11. An Advocate is bound to accept any brief in the Courts or Tribunals or before any other
authority in or before which he proposes to practice at a fee consistent with his standing at the
Bar and the nature of the case. Special circumstances may justify his refusal to accept a
particular brief.

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12. An Advocate shall not ordinarily withdraw from engagements, once accepted, without
sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his
withdrawal from a case, he shall refund such part of the fee as has not been earned.

13. An Advocate should not accept a brief or appear in a case in which he has reason to believe
that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness
on a material question of fact, he should not continue to appear as an Advocate if he can retire
without jeopardizing his client’s interests.

14. An Advocate shall, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosures to his client relating to his connection with the
parties and any interest in or about the controversy as are likely to affect his client’s judgment in
either engaging him or continuing the engagement.

15. It shall be the duty of an Advocate, fearlessly to uphold the interests of his client by all fair
and honourable means without regard to any unpleasant consequences to himself or any other.
He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of
the accused, bearing in mind that his loyalty is to the law which requires that no man should be
convicted without adequate evidence.

16. An Advocate appearing for the prosecution of a criminal trial shall so conduct the
prosecution that it does not lead to conviction of the innocent. The suppression of material
capable of establishing the innocence of the accused shall be scrupulously avoided.

17. An Advocate shall not, directly or indirectly, commit a breach of the obligations imposed by
Section 126 of Indian Evidence Act.

18. An Advocate shall not at any time, be a party to fomenting of litigation.

19. An Advocate shall not act on the instructions of any person other than his client or his
authorized agent.

20. An Advocate shall not stipulate for a fee contingent on the results of litigation or agree to
share the proceeds thereof.

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21. An Advocate shall not buy or traffic in or stipulate for or agree to receive any share or
interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures
or governmental securities, or to any instruments which are, for the time being, by law or
custom, negotiable or to any mercantile document of title to goods.

22. An Advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in
any name, for his own benefit or for the benefit of any other person, any property sold in the
execution of a decree or order in any suit, appeal or other proceeding in which he has I any way
professionally engaged.

23. An Advocate shall not adjust fee payable to him by his clients against his own personal
liability to the client, which liability does not arise in the course of his employment as an
Advocate.

24. An Advocate shall not do anything whereby he abuses or takes advantages of the confidence
reposed in him by his client.

25. An Advocate should keep account of his clients money entrusted to him, and the accounts
should show the amounts received from the client or on his behalf, the expenses incurred for him
and the debits made on account of fees with respective dates and all other necessary particulars.
26. Where moneys are received from or on account of a client, the entries in the accounts should
contain a reference as to whether the amounts have been received for fees or expenses, and
during the course of the proceedings, no Advocate shall, except with the consent in writing of the
client concerned, be at liberty to divert any portion of expenses toward fees.

27. Where any amount is received or given to him on behalf of his client, the fact of such receipt
must be intimated to the client as early as possible.

28. After the termination of the proceeding, the Advocate shall be at liberty to appropriate
toward the settled fee due to him any sum remaining unexpended out of the normal paid or sent
to him for expenses, or any amount that has come into his hands in that proceedings.

29. Where the fees has been left unsettled, the Advocate shall be entitled to deduct, out of any
moneys of the client remaining in his hands, at the termination of the proceedings for which he

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has been engaged, the fee payable under the rules of the Court, in force for the time being, or by
then settled and the balance, if any, shall be refunded to the client.

30. A copy of the client’s account shall be furnished to him on demand provided the necessary
copying charge is paid.

31. An Advocate shall not enter into arrangements whereby funds in his hands are converted into
loans.

32. An Advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such clients. Explanations-: An Advocate shall not be
held guilty for the breach of this rule, if in the course a pending suit or proceeding, and without
any arrangement with the client in respect for the same, the Advocate feels compelled by reason
of the rule of the court to make the payment to the Court on account of the client for the progress
of the suit or proceeding.

33. An Advocate who has, at any time, advised in connection with the institution of the suit,
appeal or other matter or has drawn pleadings or acted for a party, shall not act, appear or plead
for the opposite party. Section III- Duty to Opponent

34. An Advocate shall not ion any way communicate or negotiate upon the subjectmatter of
controversy with any party represented by an Advocate except through that Advocate.

35. An Advocate shall do his best to carry out all legitimate promises made to the opposite party
even though not reduced to writing or enforceable under the rules of the Court. Section IV- Duty
of Colleagues

36. An Advocate shall not solicit work or advertise, either directly or indirectly, whether by
circulars, advertisements, touts, personal communications, interviews not warranted by personal
relations, furnishing or inspiring newspaper comments or producing his photograph to be
published in connection with cases in which he has been engaged or concerned.

37. An Advocate shall not permit his professional services or his name to be used in aid of, or to
make possible, the unauthorized practice of law by any agency.

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38. An Advocate shall not accept a fee less than the fee taxable under the rules when the client is
able to pay the same.

39. An Advocate shall not enter appearance in any case in which there is already a vakalat or
memo of appearance filed by an Advocate engaged for a party except with his consent; in case
such consent is not produced, he shall apply to Court stating reasons why the said consent should
not be produced and he shall appear only after obtaining the permission of the Court.

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SUPREME COURT’S JUDGEMENTS

STRIKE AND REPREHENSIBLE ACT :-

The prevailing situation in the courts are a real eyeopener and ironically it is one of the reasons
for pendency of about 2.5 crores cases in subordinate courts. The Supreme Court had
consistently been declaring that advocates do not have a right to call for strikes and held that the
lawyers’ strikes are illegal and that effective steps should be taken to stop the growing tendency.
In numerous cases beginning from Pandurang DattatrayaKhandekar v. Bar Council
ofMaharashtra, Bombay34; to Ex Capt. Harish Uppal v. Union of India35, it was held that the
advocates have no right to go on strike. The Courts are under no obligation to adjourn matters
because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters
on their boards even in the absence of lawyers. In other words, Court must not be privy to strikes
or calls for boycotts. It was held that if a lawyer, holding a vakalatnama of a client, abstains from
attending Court due to a strike call, he shall be personally liable to pay costs which shall be in
addition to damages which he might have to pay his client for loss suffered by him.

It is relevant to mention here that the Supreme Court, in Ex-Capt. Harish Uppal, 36 dealt
extensively with strikes by advocates. The Court held:

“… that lawyers have no right to go on strike or give a call for boycott, not even on a token
strike. The protest, if any is required, can only be by giving pressstatements, TV interviews,
carrying out of Court premises banners and/or placards, wearing black or white or any colour
arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or
relay fasts etc. …only in the rarest of rare cases where the dignity, integrity and independence of
the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention
from work for not more than one day…”

In spite of all these, the strikes have continued unabated. The dispensation of justice must not
stop for any reason. The strike by lawyers have lowered the image of the courts in the eyes of the
general public. The Supreme Court has held that right to speedy justice is included in article 21

34
AIR 1984 SC 110.
35
AIR 2003 SC 739.
36
Ibid.

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of the Constitution. In Hussainara Khatoon v. Home Secy., State of Bihar37; and in some other
cases, it was held that the litigant has a right to speedy justice. The lawyers’ strike, however,
result in denial of these rights to the citizens in the State.

Recently, the Supreme Court while disposing off the Criminal Appeal of Hussain &Anr. v.
Union of India38 deprecated the practice of boycotting the Court observing that:

“One other aspect pointed out is the obstruction of Court proceedings by uncalled for
strikes/abstaining of work by lawyers or frequent suspension of court work after condolence
references. In view of judgment of this Court in Ex. Captain Harish Uppal versus Union of India,
such suspension of work or strikes are clearly illegal and it is high time that the legal fraternity
realizes its duty to the society which is the foremost. Condolence references can be once in a
while periodically say once in two/three months and not frequently. Hardship faced by witnesses
if their evidence is not recorded on the day they are summoned or impact of delay on under trials
in custody on account of such avoidable interruptions of court proceedings is a matter of concern
for any responsiblebody of professionals and they must take appropriate steps. In any case, this
needs attention of all concerned authorities – the Central Government/State Governments/Bar
Councils/Bar Associations as well as the High Courts and ways and means ought to be found out
to tackle this menace. Consistent with the above judgment, the High Courts must monitor this
aspect strictly and take stringent measures as may be required in the interests of administration of
justice.”.

In Ramon Services Pvt. Ltd. v. Subhash Kapoor39, the apex Court observed that if any advocate
claims that his right to strike must be without any loss to him, but the loss must only be borne by
his innocent client, such a claim is repugnant to any principle of fair play and canons of ethics.
Therefore, when he opts to strike or boycott the Court he must as well be prepared to bear at least
the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all
confidence that his cause would be safe in the hands of that advocate.

The Constitution provides for an independent and efficient justice delivery system. Any delay in
disposal of cases not only creates disillusionment amongst the litigants, but also undermines the
37
AIR 1979 SC 1360.
38
Criminal Appeal No. 509 of 2017 decided on 9th March 2017.
39
AIR 2001 SC 207.

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capability of the system to impart justice in an effective manner. 40 The Supreme Court
disapproved the conduct of the party resorting to dilatory tactics before the court seeking
adjournments on one or other pretext and observed that the party acted in a manner to cause
colossal insult to justice and to the concept of speedy disposal of cases. 41

In addition to the issue of strikes, the Supreme Court has also dealt with a large number of cases
of browbeating of courts by advocates for getting a favourable order. As a rule, anAdvocate, as
an officer of the court, cannot be adamant on any unwarranted and uncalled for issue.

The Supreme Court in Vishram Singh Raghubanshi v. State of Uttar Pradesh 42 held:

“The Superior Courts have a duty to protect the reputation of judicial officers of subordinate
courts, taking note of the growing tendency of maligning the reputation of judicial officers by
unscrupulous practising advocates who either fail to secure desired orders or do not succeed in
browbeating for achieving ulterior purpose. Such an issue touches upon the independence of not
only the judicial officers but brings the question of protecting the reputation of the Institution as
a whole.”

In M.B. Sanghi v. High Court of Punjab and Haryana43, it has been opined that:

“The tendency of maligning the reputation of judicial officers by disgruntled elements who fail
to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And,
when a member of the profession resorts to such cheap gimmicks with a view to browbeating the
Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise
which would shake the confidence of the litigating public in the system, the damage caused is
not only to the reputation of the Judge concerned but also to the fair name of the judiciary.”

In R.D. Saxena v. Balram Prasad Sharma44, the Supreme Court held:

“In our country, admittedly, a social duty is cast upon the legal profession to show the people
beckon (sic beacon) light by their conduct and actions. The poor, uneducated and exploited mass

40
Syed Gulzar Hussain v. Dewan Syed Ale Ramul Ali Khan, (2014) 10 SCC 825.
41
Gayathri v. M.Girish, (2016) 14 SCC 142.
42
AIR 2011 SC 2275
43
AIR 1991 SC 1834.
44
AIR 2000 SC 2912.

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of the people need a helping hand from the legal profession, admittedly, acknowledged as a most
respectable profession. No effort should be made or allowed to be made by which a litigant could
be deprived of his rights, statutory as well as constitutional, by an advocate only on account of
the exalted position conferred upon him under the judicial system prevalent in the country.”

In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd.45, the Supreme Court held that it is the
solemn duty of every Court to proceed with the judicial business during court hours and no Court
should yield to pressure tactics or boycott calls or any kind of browbeating. The Court held:

“At any rate, no advocate can ask the Court to avoid a case on the ground that he does not want
to appear in that Court.”

In M/s. Chetak Construction Ltd. v. Om Prakash46, the Court deprecated the practice of making
allegations against the Judges observing as under:

“Lawyers and litigants cannot be allowed to “terrorize” or “intimidate” Judges with a view to
“secure” orders which they want. This is basic and fundamental and no civilised system of
administration of justice can permit it.”

Similar view has been reiterated in Radha Mohan Lal v. Rajasthan High Court.47

In view of the observations by the Courts, in the event of a strike, a court is not obliged to
become complicit in the illegality by adjourning the case for the absence of counsel, it may
proceed to pass orders ex parte. Litigation work requires the representatives and authorities to
systematically engage in legal proceedings at various points over sustained periods of time so as
to arrive at resolution to the disputes. To use this situation of necessity to claim increased
bargaining power is a wanton perversion of the aims of the justice delivery system. To forcibly
prevent other advocates from appearing in their respective proceedings is even worse. The act of
going on strike amounts to a violation of an advocate’s duty as an officer of the court and his
duty to maintain standards of professional conduct and ethics. It also results in a violation of his
agreement with the client. At the same time, it is also contempt of court and a violation of the
right of speedy trial for litigants. The unacceptable actions of advocates have not shown any
45
AIR 1999 SC 287.
46
AIR 1998 SC 1855.
47
AIR 2003 SC 1467.

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significant improvement despite the establishment of competent authorities to regulate the
conduct of advocates. The reasons for strikes reported in case law have not been found to justify
organised violence directly prejudicial to the vital function of justice delivery.

The unacceptable trend of making false allegations against judicial officers and humiliating them
requires to be curbed, otherwise the judicial system would lose its credibility. The Bench and the
Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are
in the interest of none. “Liberty of free expression is not to beconfounded or confused with
license to make unfounded allegations against any institution, much less the Judiciary” 48. An
Advocate in a profession as well in his conduct should be diligent and conform to the
requirements of the law by which an Advocate plays an important role in the preservation of
justice system. Any violation of the principles of professional ethics by an Advocate is
unfortunate and unacceptable. Any kind of deviance not only affects the system but corrodes the
faith of the people at large .49In Arun Kumar Yadav v. State of Uttar Pradesh Through District
Judge50, the Supreme Court observed:

“The judicial proceeding has its own solemnity and sanctity. No one has any authority to sully
the same. It is the obligation of everyone to behave with propriety when a judicial proceeding is
conducted. Any kind of deviancy not only affects the system but corrodes the faith of the
collective at large. Neither any counsel nor a litigant can afford to behave in this manner.”

The lawyer who presents the application before the court making unfounded allegations against a
judicial officer, impleading him by name, though not permissible in law as explained by the
Court in Savitri Devi v. District Judge, Gorakhpur51, without reasonably satisfying himself about
the prima facie existence of adequate grounds, is equally responsible for contempt for
scandalizing the court for the reason that he cannot be a mouthpiece of his client and cannot
associate himself with his client in maligning the reputation of judicial officer merely because his
client failed to secure the desired order from the said officer. A deliberate attempt toscandalise

48
Dr.D.C. Saxena v. Hon’ble Chief Justice of India, (1996) 5 SCC 216, 220.
49
O.P. Sharma v. High Court of Punjab and Haryana, AIR 2011 SC 2101.
50
(2013) 14 SCC 127.
51
AIR 1999 SC 976.

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the court which would shake the confidence of the litigating public in the system would cause a
very serious damage to the name of the judiciary52

In Re: Ajay Kumar Pandey53, the Supreme Court held:

“No one can be permitted to intimidate or terrorize judges by making scandalous unwarranted
and baseless imputations against them in the discharge of their judicial functions so as to secure
orders which the litigant ‘wants’…The liberty of expression cannot be treated as a licence to
scandalize the court...”

In Bar Council of India v. High Court of Kerala54, the Supreme Court observed, “An advocate in
no circumstances is expected to descend to the level of appearing to support his view in a vulgar
brawl.”

In Re: S. Mulgaokar55, the Supreme Court observed that public interest and public justice require
that whenever there is an attack on the judge, it is scurrilous, offensive, intimidatory or
malicious, the law must strike a blow on him as he challenges the supremacy of law by fouling
the source and stream.

The legal profession requires the safeguarding of moral standards. As an officer of the court, a
lawyer has a duty to the court towards his profession and to the public. Since the prime duty of a
lawyer is to assist the court in dispensing justice, the members of the Bar cannot behave in a
manner which isdoubtful, or full of scruples or which strives to thrive on litigation. Lawyers
must remember that they are to assist the court in the administration of justice. If lawyers do not
perform their function properly, it would be degenerative to the rule of law.

A suggestion has been made that at every district headquarters, the District Judge may constitute
an Advocates’ Grievance Redressal Committee headed by a Judicial Officer which will deal with
the day to day routine matters, as large number of issues and grievances arise in the smooth
working of the advocates. In this regard, the High Court may issue a circular in exercise of its

52
M.Y. Shareef v. Hon’ble Judges of Nagpur High Court AIR 1955 SC 19; Shamsher Singh Bedi v. High Court of
Punjab &Haryana AIR 1995 SC 1974;Tushar D. Bhatt v. State of Gujarat (2009) 11 SCC 678and R.K.Anand v.
Registrar, Delhi High Court (2009) 8 SCC 106.
53
AIR 1998 SC 3299.
54
AIR 2004 SC 2227
55
AIR 1978 SC 727.

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power under article 235 of the Constitution providing for redressal of grievances of the
Advocates which will help in improving their efficiency.

In case there is some grievance against a Judicial Officer, the Bar may raise the grievance before
the Chief Justice of the concerned High Court.

DENOUNCING THE CONTEMPTUOUS ACT :-

In a case, where the attitude of a lawyer is contemptuous, the Court may initiate the proceeding
for contempt against the lawyer and restrain him from appearance. In Supreme Court Bar
Association v. Union of India56, the Supreme Court held as under: “In a given case it may be
possible, for the Court or the High Court, to prevent the contemnor Advocate to appear before it
till he purges himself of the contempt but that is much different from suspending or revoking his
licence or debarring him to practice as an Advocate….”

Similarly in Ex Capt. Harish Uppal v. Union of India57, the Supreme Court held as under:

“One last thing which must be mentioned is that the right of appearance in Courts is still within
the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into
force and rightly so. Control of conduct in Court can only be within the domain of courts. Thus,
article 145 of the Constitution of India gives to the Supreme Court and section 34 of the
Advocates Act gives to the High Court power to frame rules including rules regarding condition
on which a person (including an advocate) can practice in the Supreme Court and/or in the High
Court and Courts subordinate thereto. Many Courts have framed rules in this behalf. Such a rule
would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised,
Courts may now have to consider framing specific rules debarring advocates, guilty of contempt
and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if
framed would not have anything to do with the disciplinaryjurisdiction of the Bar Councils. It
would be concerning the dignity and orderly functioning of the courts. The right of the advocate
to practice envelopes a lot of acts to be performed by him in discharge of his professional duties.
Apart from appearing in the Courts he can be consulted by his clients, he can give his legal
opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other

56
AIR 1998 SC 1895.
57
Supra note 8.

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documents, he can participate in any conference involving legal discussions, he can work in any
office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc.
Such a rule would have nothing to do with all the acts done by an advocate during his practice.
He may even file vakalatnama on behalf of a client even though his appearance inside the Court
is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar
Council cannot claim that what should happen inside the Court could also be regulated by
them in exercise of their disciplinary powers.”

InR.K. Anand v. Registrar58, the Supreme Court upheld the judgment of the Delhi High Court
debarring the advocate to appear in Courts for a particular period for proved misconduct,
observing that unless a person purges himself of contempt or is permitted by the court conviction
results in debarring an advocate from appearing in the court even in absence of suspension or
termination of the licence to practice. In Amit Chanchal Jha v. High Court of Delhi 59 , the
Supreme Court reiterated the same view upholding the order debarring the advocate from
appearance in court on account of his conviction for criminal contempt.

The Supreme Court in R.K. Anand v. Registrar, Delhi High Court60, directed that the contemnor
shall not do any kind of professional work charging any fees or for any personal considerations
for one year from the date of judgment. He shallexclusively devote his professional services to
help pro bono the accused who, on account of lack of resources, are not in a position to engage
any lawyer to defend themselves and have no means to have their cases effectively presented
before the court. The contemnor shall place his professional services at the disposal of the Delhi
Legal Services Authority which, in coordination with the Delhi High Court Legal Services
Authority, will frame a scheme to avail of the contemnor’s services for attending the case of
undefended accused either at the trial or at the appellate stage. The contemnor shall appear in
court only in cases assigned to him by the Legal Services Authority. The Delhi Legal Services
Authority shall keep a record of all the cases assigned to the contemnor and the result/progress
made in those cases. At the end of the year, the Delhi Legal Services Authority shall submit a
report to Supreme Court in regard to all the cases done by the contemnor at its instance which

58
(2009) 8 SCC 106.
59
(2015) 13 SCC 28
60
AIR 2013 SC 670.

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shall be placed before the Judges for perusal. At the end of one year it will be open to the
contemnor to resume his private law practice. But he shall not leave any case assigned to him by
the Legal Services Authority incomplete. He shall continue to do those cases, free of cost, till
they come to a close.

Keeping in view the aforesaid judgments, most of the High Courts have framed the rules under
s.34(1) of the Advocates Act, empowering High Courts as well as the district judges concerned
to pass an order debarring an advocate from appearing in court. The relevant parts of the
Allahabad High Court Rules, read as under:

“10. Suspension of advocate under C.P.C.:- No advocate who has been debarred or suspended
or whose name has been struck off the Roll of Advocates shall be permitted to act as a
recognised agent of any party within the meaning of Order III of the Code of Civil
Procedure, 1908.

11. Appearance of advocate after committing contempt:- No advocate who has been found
guilty of contempt of Court shall be permitted to appear, act or plead in any Court unless he has
purged himself of contempt, either by tendering apology which is accepted or by suffering
punishment imposed on him or where, in case of an appeal, a stay order is in operation.

[Explanation: For the purpose of purging of contempt under this Rule, the suffering of
punishment or payment of fine or both shall not necessarily be sufficient.]”

The Madras High Court, on 20 May 2016 published amendments to rules framed under section
34(1) of the Act, 1961. The relevant portions are reproduced below:

“14-A: Power to Debar:- ….

(vii) An Advocate who is found to have accepted money in the name of a Judge or on the pretext
of influencing him; or

(viii) An Advocate who is found to have tampered with the Court record or Court order; or

(ix) An Advocate who browbeats and/or abuses a Judge or Judicial Officer; or

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(x) An Advocate who is found to have sent or spread unfounded and unsubstantiated
allegations/petitions against a Judicial Officer or a Judge to the Superior Court; or

(xi) An Advocate who actively participates in a procession inside the Court campus and/or
involves in gherao inside the Court Hall or holds placard inside the Court Hall; or

(xii) An Advocate who appears in the Court under the influence of liquor;

shall be debarred from appearing before the High Court or Subordinate Courts permanently or
for such period as the Court may think fit and the Registrar.

General shall thereupon report the said fact to the Bar Council of Tamil Nadu.

14-B: Power to take action:- …

(iv) Where any such misconduct referred to under Rule 14-A is committed by an Advocate
before the High Court, the High Court shall have the power to initiate action against the
Advocate concerned and debar him from appearing before the High Court and all Subordinate
Courts.

(v) Where any such misconduct referred to under Rule 14-A is committed by an Advocate before
the Court of Principal District Judge, the Principal District Judge shall have the power to initiate
action against the Advocate concerned and debar him from appearing before any Court within
such District.

(vi) Where any such misconduct referred to under Rule 14-A is committed by an Advocate
before any subordinate court, the Court concerned shall submit a report to the Principal District
Court within whose jurisdiction it is situate and on receipt of such report, the Principal District
Judge shall have the power to initiate action against the Advocate concerned and debar him from
appearing before any Court within such District.

14-C: Procedure to be followed:-

The High Court or the Court of Principal District Judge, as the case may be, shall, before making
an order under Rule 14-A, issue to such Advocate a summon returnable before it, requiring the

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Advocate to appear and show cause against the matters alleged in the summons and the
summons shall if practicable, be served personally upon him.

14-D: Power to pass Interim Order:-

The High Court or the Court of Principal District Judge may, before making the Final Order
under Rule 14-C, pass an interim order prohibiting the Advocate concerned from appearing
before the High Court or Subordinate Courts, as the case may be, in appropriate cases, as it may
deem fit, pending enquiry.”

Other High Courts, like the Gujarat High Court, have also framed similar set of rules under
section 34(1) of the Advocates Act.

PROPRIETORY OF PERFORMANCE OF PUBLIC FUNCTIONS :-

The Law Commission considered the desirability of suggesting modifications in section 24A of
the Advocates Act which provides for disqualification for enrolment in certain cases. Section
24A provides that any person who has been convicted of an offence, may become eligible to be
enrolled as an advocate after the expiry of two years from completion of the sentence. Further, it
is also seen that section 26A, which makes provision for Bar Councils to remove names from the
rolls, does not provide for removal of names of advocates, who stands convicted for an offence.
These aspects need examination, keeping in view the judgment given by the Gujarat High
Courtin ‘C’ v. Bar Council of Gujarat61which was quoted and reiterated by the Supreme Court in
Mahipal Singh Rana (supra), as under:

“... We, however, wish to avail of this opportunity to place on record our feeling of distress and
dismay at the fact that a public servant who is found guilty of an offence of taking an illegal
gratification in the discharge of his official duties by a competent court can be enrolled as a
member of the Bar even after a lapse of two years from the date of his release from
imprisonment. It is for the authorities who are concerned with this question to reflect on the
question as to whether such a provision is in keeping with the high stature which the profession
(which we so often describe as the noble profession) enjoys and from which even the members
of highest judiciary are drawn. It is not a crime of passion committed in a moment of loss of

61
(1982)2Guj LR 706.

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equilibrium. Corruption is an offence which is committed after deliberation and it becomes a
way of life for him. ... It is for the legal profession to consider whether it would like such a
provision to continue to remain on the statute book and would like to continue to admit persons
whohave been convicted for offences involving moral turpitude and persons who have been
found guilty of acceptance of illegal gratification, rape, dacoity, forgery, misappropriation of
public funds, relating to counterfeit currency and coins and other offences of like nature to be
enrolled as members merely because two years have elapsed after the date of their release from
imprisonment. Does passage of 2 years cleanse such a person of the corrupt character trait, purify
his mind and transform him into a person fit for being enrolled as a member of this noble
profession? Enrolled so that widows can go to him, matters pertaining to properties of minors
and matters on behalf of workers pitted against rich and influential persons can be entrusted to
him without qualms, court records can be placed at his disposal, his word at the Bar should be
accepted? Should a character certificate in the form of a black gown be given to him so that a
promise of probity and trustworthiness is held out to the unwary litigants seeking justice? A
copy of this order may, therefore, be sent to the appropriate authorities concerned with the
administration of the Bar Council of India and the State Bar Council, Ministry of Law of the
Government of India and Law Commission in order that the matter may be examined fully and
closely with the end in view to preserve the image of the profession and protect the seekers for
justice from dangers inherent in admitting such persons on the rolls of the Bar Council.”.

The Law Commission is of the view that wiping out the bar after enrolment, in case of
conviction of an advocate after two years in the nature of cases mentioned in section 24A, does
not render the person in any way desirable to plead on behalf of a person seeking redressal of his
grievance through the justice delivery system. The legal profession, as such, has been placed on
a very high pedestal acknowledging advocates’ legal status and authority to plead on behalf of a
person in court of law. Similarly, there can be hardly any justification for wiping out such
disqualification, which is otherwise applicable for enrolment, after the enrolment is made.
Having regard to the broader objective of the provision, the said bar should certainly operate post
enrolment. With this in view, the Commissionrecommends the substitution of section 24A and
26A with new provisions to take care of the objectives of undesirability of a convicted person
being allowed to perform important public functions.

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ADVOCACY LURKING IN THE SHADOWS :-
As per recent media reports62, the Bar Council of India conducted verification of advocates under
the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, and it was
reported that a very high percentage (33 to 45%) of lawyers were fake. Such lawyers were
practicing either with the fake law degree or without any degree at all. The process of
verification is not yet complete and the so-called bogus lawyers could be identified only by
scrutiny. Apprehension has been raised that the alleged bogus lawyers could have succeeded in
making entry in the judiciary, government services and some of them could have been appointed
as Government pleaders, Law Officers, etc. Such persons might have succeeded in mission by
impersonation and entering into criminal conspiracy. Thus legal advice offered by such persons
could affect the deliverance and quality of justice and their mere existence in legal system would
definitely erode the public trust.

This is a crucial matter casting shadow on the nobility of the legal profession. As such, to
establish the probity of advocacy, it requires a thorough scrutiny and verification. Towards this
end, the Law Commission recommends a specific rule making power for Bar Council of India to
make rules for verification of certificates of Advocates and for periodical verification of
antecedents, conduct, place of practice of Advocates; and to make a data based web-portal of all
the advocates.

LEGAL EDUCATION IN INDIA :-

The mandate to the Commission is centred on regulating the conduct of advocates in the
profession. It is necessary to point out that it would only be a piecemeal effort of addressing the
issues involved if, we do not realise that the regulatory scheme for the maintenance of standards
should run in a straight line from the stage of education and training to enrolment and active
practice. Any laxity in standard-setting at the foundational level would multiply the problems at
later stages.

Lawyers have been in the vanguard of a country’s progress and have always zealously guarded
human liberties and the rule of law. Having specialised in the legal field, they champion the
cause of victims of violations of fundamental and legal rights; protect the civil and human rights

62
The Times of India, Delhi dated 23.01.2017, The Hindu dated 26.01.2017 and Hindustan Times dated 19.03.2017.

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of the citizens. They also canvass before the courts that the action of the State cannot be
arbitrary. Therefore, legal education should also prepare professionals equipped to meet the new
challenges and dimensions of internationalisation where the nature and organization of law and
legal practice are undergoing a paradigm shift. Further, there is need for original and
pathbreaking legal research to create new legal knowledge and ideas that will help meet these
challenges in a manner responsive to the needs of the country and the ideals and goals of our
Constitution. Today, legal education derives its impetus from the economic, socio-economic and
political setup of the society.

Legal education plays an important role in promoting social justice. Education or awareness of
laws, characterises the lawyers as Social Engineers. Legal education was formally introduced in
1855 when it was started in Government Hindu College, Calcutta, Elphinstone College, Madras
and Government Law College, Bombay.

Felix Frankfurter observed, “In the last analysis, the law is what the lawyers are. And the law
and the lawyers are what the law schools make them.’’ 63

The University Education Commission was appointed by Government of India under the
chairmanship of Dr. S Radhakrishnan, “to report on Indian University Education and suggest
improvements and extensions that might be desirable to suit the present and future requirements
of the country. 64 ” The Commission in its report submitted in August 1949 inter alia
recommended substantial improvement in legal education.

The Constitution initially laid down the duty of imparting education on the States by putting the
matter pertaining to education in List II of the Seventh Schedule. But it now forms part of List
III, giving concurrent legislative powers to the Union and the States. Legal profession along
with the medical and other professions also falls under List III (Entry 26). However,the Union is
empowered to coordinate and determine standards in institutions for higher education or research
and scientific and technical education besides having exclusive power, inter alia, pertaining to

63
Letter from Felix Frankfurter to Mr. Rosenwold, (May 13, 1927) cited in Benjamin H. Barton, The Lawyer-Judge
Bias in the American Legal System (Cambridge University Press, New York, 2011) 273
64
Ministry of Education, Government of India, “The Report of the University Grants Commission” (Dec.1948-
Aug.1949),Vol(1950)availableat:www.academicsindia.com/Radhakrishnan%20Commission%20Report%20of
%201948-49.pdf. at page

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educational institutions of national importance, professional, vocational or technical training and
promotion of special studies or research.The Supreme Court, taking into account the provisions
of articles 21 and 39A of the Constitution, directed the State Governments to provide grants-in-
aid to the institutions imparting legal education. 65

The Law Commission of India, in its 14th Report published in 1958, titled “Reform of Judicial
Administration”, emphasised on the standard of legal education and portrayed a dismal picture
and lamented the system observing that legal education was imparted in large number of schools
by part time teachers of mediocre ability and indifferent merits. There was mushroom growth of
law colleges. Most of the schools had skeleton libraries. Students were taught how to pass
LL.B. examinations by cramming short summaries published by enterprising publishers.
Colleges were housed in dingy rooms without adequate trained staff. Such institutions were
basically fee collecting centres as there was no institution with proper facilities. There was no
regular attendance of students. Thus, the law college had been producing half-baked lawyers
who did not even have basic knowledge of law and were considered as drones and parasites.

On the question of the Bar Council’s involvement in the regulation of legal education, it is worth
noting that there has been some scrutiny given to the issue of what the appropriate body should
be for the governance in higher education. As mentioned in the 184th Report of the Law
Commission, the composition of the Legal Education Committee may need to be changed to
accommodate specialized and dedicated persons in the education sector while also ensuring that
legal education remains relevant to rapid developments in legal practice. The Commission also
examined questions relating to standardsetting in legal education, skills and values, globalization
and accreditation, ADR training, adjunct teachers from the Bar and the Bench, processes for
establishment of law schools, apprenticeship, etc. However, the suggestions contained in the
184th Report have not been taken forward.A similar line of reasoning is found in the National
Knowledge Commission’s Report in 2009 66 which proposed and explained the need for an
Independent Regulatory Authority in Higher Education as well as a Standing Committee for
Legal Education with 25 persons representing all stakeholders. As part of this set-up, the

65
Prem Chand Jain &Anr. v. R K Chhabra, AIR 1984 SC 981; University of Delhi v. Raj Singh, AIR 1995 SC 336;
and V. Sudeer v. Bar Council of India, AIR 1999 SC 1167.
66
National Knowledge Commission, Report to the Nation 2006-2009, March 2009, at pp. 7981

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Commission also made a number of suggestions regarding quality of education, rating systems,
curriculum development, examination system, legal research, faculty talent, legal education
finance, international dimensions and usage of Information and Communication Technologies.

The Supreme Court, through its decision in the matter of Bar Council of India v. Board of
Management, Dayanand College of Law67, surveyed the statutory powers available to BCI under
the provisions of the Advocates Act, as well as the Rules framed thereunder, and concluded that
BCI was concerned with the standards of the legal profession and legal education in the country.

In Prem Chand Jain &Anr. v. R K Chhabra68, the Supreme Court emphasised at length the role
and responsibility of University Grants Commission (UGC) vis-à-vis the regulation of standards
of higher education in India.

The decision of the Supreme Court in the matter of University of Delhi v. Raj Singh 69 , is
illuminative in this regard. The Supreme Court held that regulations framed by UGC prescribing
qualifications for teaching staff would override and prevail over all other legislations in this
regard. UGC’s regulatory character was succinctly reaffirmed by the Supreme Court in the case
of Prof. Yashpal v. State of Chhattisgarh70, as well.

The BCI is envisaged as a body for regulating the minimum standards to be maintained by
institutions imparting legal education, and the Rules framed by BCI in exercise of its powers
under the Advocates Act, indeed provide for a comprehensive framework for the evaluation of
institutions on de minimis criteria. However, a need for the qualitative improvement of the Bar
has been long felt, and has also been the subject matter of judicial attention in V. Sudeer v. Bar
Council of India 71. Two measures have been recognised asimperative for the melioration of the
standards of the legal profession, i.e., introduction of a bar examination as well as compulsory
requirement of apprenticeship under a senior lawyer prior to admission to the Bar.

In 1994, in order to check the declining standards of the legal profession, a High Powered
Committee on Legal Education, headed by Justice A.H.Ahmadi was constituted. This Committee

67
AIR 2007 SC 1342.
68
AIR 1984 SC 981.
69
AIR 1995 SC 336.
70
AIR 2005 SC 2026.
71
AIR 1999 SC 1167.

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recommended and reiterated the requirement for apprenticeship and a bar examination. The Bar
Council of India (Training) Rules, 1995, were, therefore, framed by BCI in furtherance to the
recommendations of the said Committee, which were struck down by the Supreme Court in V.
Sudeer.72

The law colleges require transformation in infrastructure and resources. Library facilities in our
law colleges need to be upgraded, for which resources have to be mobilised.

Legal education in India should be structured in a manner where the BCI, along with legal
academics may endeavour to innovate, experiment and compete globally. A balance should be
maintained in order to change the entire fabric of legal education system in India, keeping in
mind the necessity of globalisation.

72
Ibid.

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ANALYSIS OF THE ACT

ANALYSIS OF THE RESPONSES RECEIVED BY LAW COMMISSION:-

Based on the facts in the matter of Mahipal Singh Rana, 73 the Apex Court highlighted the dismal
state of the regulatory mechanism governing lawyers with emphasis on an urgent need to review
the provisions of the Advocates Act dealing with the regulatory mechanism for the legal
profession and other incidental issues, in consultation with all concerned. 74

Consequently, the Court requested the Law Commission of India to go into all relevant aspects
relating to regulation of legal profession and submit a report on the same. In light of the above
direction, the 21st Law Commission of India issued a notice on 29th August 2016, inviting
comments on “the need for reform in regulation of legal profession”. In response to the notice,
136 responses have been received, out of which 79 are from judges; 10 are from Bar Council(s)
and Bar Associations; 16 are from Lawyers; 6 from Government Lawyers and Officials; 7 are
from academics, research organisations and other organisations and 18 from others.

At the very inception, the general tenor of the comments received point out the lack of defined
regulatory objectives and principles in the Advocates Act itself. Although the provisions of the
Act do provide for the basic regulation of legal profession throughout its scheme, it has been
observed that a set of defined objectives and guiding principles would do better in regard to the
interpretation of the Act with the regulatoryframework in mind. As the regulatory mechanism for
legal profession in India still abides by the principles of ‘selfregulation’, overwhelming number
of responses point out the failure of the existing mechanism and hence have realised the need for
urgent reform required. In regard to the responses regarding specific provisions, a number of
responses have highlighted the existence of faulty/unsatisfactory definitions such as the
definition of advocate (which does not extend to the law firms, partnerships, body corporate
etc.). Additionally, the general tenor of the responses have highlighted that at present, there
exists no definition of professional or other misconduct which has resulted in the arbitrary usage
of Section 35 (Punishment of advocates for misconduct). It is important to point out here that
changes to definition will also result in changes in the accompanying provisions such as

73
Supra Note 5.
74
Ibid. at p. 52..

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maintenance of rolls of advocates (to include rolls of law firms, partnerships, corporate entities
etc.).

For the ease of access to the list of State Bar Councils as well as to forgo the necessity of making
amendments to the Advocates Act every time a new State comes into existence, a list of the State
Bar Councils in the form of a schedule has been suggested. Moreover, a number of responses
have highlighted the need for stricter requirements regarding the eligibility of members to be
elected in the State Bar Councils as well as the Bar Council of India. Additionally, apart from
lawyers, to dilute the ‘self-regulatory’ mechanism in place, a number of responses have
suggested the need to change the composition of Bar Councils to include individuals outside of
the legal profession. In regards to the functions performed by the State Bar Councils as well as
the Bar Council of India, the general tenor of responses highlight the need for reform in relation
to Nation Entrance Tests, Continuing Education Schemes, ApprenticeshipPrograms as well as
concerns regarding inspection and approval of law universities across the country. Some
responses have also highlighted the lack of welfare schemes for advocates due to paucity of
funds received by the State Bar Councils for the same. Some specific responses also point out the
mushrooming of Bar Associations thereby urging the need to regulate the same.

While dealing with the provisions regarding the establishment of disciplinary committees for
regulating the conduct of lawyers, a large of number of responses have highlighted corrupt
practices within the lawyer fraternity thereby giving rise to issues of vested interests while
performing the disciplinary functions. The responses have hence urged to make amendments in
the Act providing for composition of disciplinary committees which would include retired
judges, persons from high court registry, civil society members, bureaucrats, and legal
academicians so as to dilute the majority of lawyers in the disciplinary committees. There have
also been calls to make disciplinary committees as permanent standing bodies. A number of
responses have also pointed out the need for uniform qualifying examination and thorough
verification of documents and character of a person as a pre-requisite for enrolment.

Moreover, to give effect to the observations made in the Mahipal Singh Rana judgment (supra),
the responses have unanimously agreed with the observation of the Supreme Court thereby
necessitating amendment in section 24A of the Advocates Act to provide for post-enrolment

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disqualification. Also, the responses have suggested increasing the duration of disqualification
(from 2 to 5 years) and have suggested necessary amendments in the provision to include
certificate ofgood character an essential before re-enrolment after the disqualification period.
Certain responses have also highlighted the need for statutory recognition of suspension of right
to practice until advocate purges himself of contempt. A number of responses have also called
for stricter penalties such as fine and imprisonment for professional or other misconduct and also
pointed out the need for statutory recognition of the power of the courts and disciplinary
committees to pass interim orders for the same. Additionally, some responses point out the need
to increase the time granted for disposal of disciplinary committee proceedings because it has not
been found to sufficient given the current capacity of the Bar Councils.

In regard to the power of the Bar Council of India as well as the High Court to make rules
regulating the conduct of lawyers, responses suggest that there is a need of specific mention in
section 49 I to exclude the jurisdiction of the Bar Council of India to regulate the conduct the
lawyers within the court thereby giving effect to the Harish Uppal’s judgement establishing the
domain of the High Courts’ to regulate conduct of lawyers even if has a limited effect on the
right to practice. In reiteration of the Supreme Court’s observation in Mahipal Singh Rana case,
certain responses have agreed that appeal to High Courts from the State Disciplinary Committees
should be made statutory recognising the existing powers of the High Court as found under
Article 226 of the Constitution of India.Other general suggestions include the need for
establishment client forums and legal ombudsman for protection of client interests. Problems
regarding the charging of exorbitant fees of by advocates have also resulted in responses urging
the need for structuring fee payments as well as capping and incidence of fee payments. A
specific response has also called for lifting the restriction on advocates for advertising while
highlighting the need for legal profession to adapt to evolving international best practices.

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CONCLUSION

To conclude the above, the professional ethics are also termed as the duties to be followed by the
Advocate, these are the morals and the basic courtesy which every person in this profession
should know. These are not only the duties to be performed because the Bar Council has made
the rule, but these are the basic manners which one should incorporate within them. These are the
duties towards the Court, Client, Colleague or Opponent. The performance of the duty by the
Advocate defines the determination, dedication and loyalty towards the profession. The
profession of law is honourable and it is expected from every person who are in this profession
to be honest and work in upright manner. And any deviation in their performance of duty should
be taken seriously. An Advocate in this profession has many obligations towards court, client,
judge, opponent, colleagues, etc. The Advocate who does not work with sincerity, who does not
follow the rules of conduct is said to have misconducted in his profession. He is guilty of the
misconduct of duty for which he is punished. In order to avoid misconduct one should work in
proper and appropriate manner not for the sake of getting punished but for being loyal towards
them, their profession. The fundamental aim of legal ethics is to maintain the honour and dignity
of the law profession, to secure a spirit of friendly co-operation, to establish honourable and fair
dealings of the counsel with his client, opponent and witnesses, to establish the spirit of
brotherhood in the Bar itself; and to secure that lawyers discharge their responsibilities to the
community generally. Legal profession is necessarily the keystone of the arch of government.
Legal profession is not a business but a profession. It has been created by the state for the public
good. Consequently, the essence of profession lies in two things:

• Organisation of its members for the performance of their function.

• Maintenance of certain standards, intellectual and ethical, for the dignity of the profession.

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BIOLIOGRAPHY

 Myneni Dr. S.R., Professional Ethics, Accountancy for Lawyers and Bench-Bar Relation,
Asia Law House, Hyderabad.
 Sirohi J.P.S, Professional Ethics, Accountancy for Lawyers& Bench Bar Relation,
Allahabad Law Agency.
 Prasad Prof. Anirudh, Principles Of The Ethics Of Legal profession in India, University
Book House, Rajasthan.
 Rai Dr. Kailash, Legal Ethics, Central Law Publications, Allahabad
 Deb Ashok Kumar, Indian Bar Review, The Bar Council of India Trust, Vol. 31
 Hugh E. wills, Legal Ethics, International Journal of Ethcis, Vol. 43, No. 3, pp. 269-278
 http://www.jstor.org/stable/2378112/10/10/2011/07:08, October 2011
 http://www.jstor.org/stable/25072186/ 10/10/2011/07:18, October 2011
 www.sabahakhan.articlesbase.com, October 2011
 http://www.ijtr.nic.in/webjournal/2.htm, October 2011
 http://www.scu.edu./ethics/publications/submitted/rhode/legaled.htm, October 2011
 http://legalsutra.org/1506/chaning-scenario-of-the-legal-profession, October 2011

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