ABHIJIT

LECTURE 1: LAMPS OF ADVOCACY

Lecture – 11th August – Beginning of 7 Pillars of Advocacy

Honesty

 You shout not lie. But honesty to whom?

 According to Perry, honesty means speaking what is truly there in one’s belief,
conscience and understanding.
 Abraham Lincoln – in his first case, when his case was called – he stood up and told
the judge what preparation he had done, which cases he had brought and how he was
going to present. Apparently, this is honesty (??????). Truthful to all the knowledge
he has.
 Two fold – honesty by advocate presenting the case and honesty by client. Signatures
are taken on affidavits by clients for this reason to ensure honesty. Honesty by client
is extracted by the advocate – must be accurate to the best knowledge of the client.
 Based on the honesty of the advocate and client, justice is done.
 Honesty is become very important. With the growth of science and technology, lying
has become difficult and hiding has become difficult.
 Honesty means straightforwardness, integrity, consistent, lack of twisting.
 Reality is only one.
 Crucial problem – it is said that you are serving the client, but you are also a friend of
the court and upholder of the constitution – if you hide facts from court for one client,
then the rest of the society is watching. If people see you are lying – they will not
bring their cases to you.
 Advocate has 4 roles – serving client, friend of society, friend of court, upholder of
constitution.
 Honesty tests are also there – to test whether you are honest or not.
 Curious or cautious – if curious: open to new facts and accepting; if cautious: able to
block some facts for one’s own benefit.
 Good to be cautious but not to be overly so.
 OCEAN – Openness, Cautious, Extroversion, Agreeableness, Neuroticism.
Courage

 Courage is the capacity to believe in yourself – capability to believe in what you are
doing.
 Dictionary meaning – ability to confront and change the reality that you are facing.
 Not just absence of fear, but capacity to overcome fear (*plays emotional background
music*)
 Example: In England, during court proceedings, a man stood up and started saying
facts and arguing – 2-3 hours he spoke – his identity was unclear – apparently this is
courage. He had no fear. (????) [I’m almost certain the actual example is different
from what he said – please check the document for yourself].
 “Very very very important quality”
 In India, many great lawyers are honest – Palkivala in one situation – he is an expert
on tax – a publisher published Palkivala’s book on tax in a different name – Palkivala
sued in Madras – judge asked how do you claim that this book is yours – everyone
can interpret the provisions in the same way – Palkivala said ask any question from
the book and I can answer – whatever questions judged asked he could answer
verbatim – - clean and clear – court was stunned. This is courage.
 Courage is not being a daredevil or doing “ha hu ha hu”.
 All about ability, skill, confidence, efficiency, knowledge.

Industry

 Means hardwork – Lincoln known for hardwork – takes books from library at night
and finish by 3-4 am while everyone is sleeping
 In the modern legal profession, industry is very important. You need to know the law
in the legislature, the law being implemented by the executive and the law being
adjucated in the court. You have to read continuously.
 Hardwork, smart work.
 Understanding all aspects of a case – reading about everything about the case.
 You get great recognition if people know you work hard. Appreciation is invaluable.
 Client gets joy as a result of your hardwork when you win.

SOHAM:
 Lecture – 17th August – Continued with 7 Pillars of Advocacy

 Why only in legal profession such professional ethics are discussed such as
honesty, integrity etc?
 What legal ethics deal with is not a tangible social external thing but the
regulation of internal behaviour - how one should be in relation to the collective
and what norms are there in society. This is largely subjective in nature and in
the plain of psychology. This is why it is better to have psychological values to
guide our human behaviour.

Wit

 Something which lightens the situation. Even in our social lives, when
something happens which we don't expect, the spontaneity creates an impression
on the nervous system and that creates humour.
 When somebody laughs so much, they do it with an impression. It may not be
rational and intellectual.
 You are walking and somebody falls stepping on a banana skin, why do we
laugh? Because individuals did not expect it intellectually. The nervous system
feels a tingling sensation and that is what is expressed as laughter.
 This can be brought about by telling a joke. Jokes should be told in a way that it
is not expected.
 Don't go to court and tell a joke to lighten the situation.
 Wit means in a situation where everyone is talking normally and then you bring
humour into through your words. This is how it is different from purely a joke.
 Example - Advocate called Tej Bahadur Sapru was a great advocate and
freedom fighter. In one of the cases he was explaining the contract act to an
English judge. He started explaining it in great detail - Judge said you are
overexplaining as if we don't understand even though we drafted it - Judge look
annoyed - Sapru did not stop and kept explaining. Everyone was looking at him.
Judge said he if he continued like this he would hear from the left side and leave
from the right side. Sapru gave back and said that he knows there is nothing in
 between the Judge’s head (?????????????????). Sapru changed the words to
create humour in the situation.
 Plenty of instances of courtroom humour being shared in many websites.
 Thus, wit is required to lighten the situation. Because courtrooms are normally
situations with high tension and worry. Therefore, wit can be used to lighten the
situation. But it should not hurt people. It should be pointed to the topic and to
the theme.
 Don't crack poor jokes. Mindful of the situation and everyone present. If an
opportunity presents itself to lighten the mood, only then crack it.
 Story - there is a client which came running to court and the judge was
conducting a case and judge asks why do you want. He said he wants justice.
Judge said there is a procedure. He said he doesn't know what to do. Judge
started explaining the modalities to him. He said he doesn't know anything.
Judge said you look outside and near the neem tree there are many advocates
eating vada, go get one of them. Judge wanted to ridicule the lawyers who were
ridiculing those lawyers who are jobless. But Param said he doesn’t fully
understand this as there is nothing wrong in eating vada and drinking a chai – no
need to ridicule morning breakfast but he puts this down to the humour of a past
generation. He went to advocates and said that judge sent me and told them what
he said. Those advocates got annoyed that the judge was ridiculing the
profession and said that advocates said those advocates who used to eat vada
became judges. Apparently, this is banter and humour which is bordering into
“cross-revenge” jokes and being crass. His point is that wit is only to bring
lightness to the situation.
 Wit should not have bad intention. Should not hurt judge, court, judiciary, client,
opposite client, opposite advocate, gender, age group. Should only bring
lightness.
 Wit is largely dependent on the intention and people understand this. Should not
be bad intentioned.
 Advocate cannot be naïve.

Eloquence
  Apparently once in the Shimla HC, there were these pleadings which nobody
could understand – it had great English and all but the sentence construction was
such that nobody could understand it.
 First aspect, it is not about showing what you want to say. Not great quotes from
Shakespeare, Milton etc. This was there before. Eloquence is all about
knowledge.
 This does not work in the modern era.
 Second aspect is persuasion. Construct words in such a way that you grab the
attention of the judge and opposite counsel. Unless and until it sticks to the facts
and law on hand, there is no need to go beyond that.
 Talking in a commanding tone etc was effective in a previous generation. Not
anymore since the idea of justice has changed.
 In the Hindu, there used to be a separate coloumn called know your English
written by K Subramaniam and Param found this phrase of over eloquence. In
an American office, the junior told the federal officer that I have been working
here for a while and you have not given me salary so kindly increase my salary.
What should the federal officer do? Either accept, reject or increase salary
mildly. Instead he wrote a letter saying that “Dear Sir, because of the pre-
dispositional fluctuations in your position, productive capacity as juxtaposed to
the company’s standards, it would be momentarily injudicious to increase your
salary”. Param says no need to say so much, just say performance not upto the
mark and cant increase. We don’t need such eloquence in our fast moving
world. Advocates also have multiple cases, no time for all this.
 Eloquence is all about clarity of the matter and brevity and lucidity in the matter.
Explaining things to the point and explaining very lucidly. Time and energy is
conserved.

Judgement

 The right decision that you take. Complicated quality.

 Look at the pros and cons of the situation and make a choice.
 Don't take up the wrong case.
 Judgement is the sense of right and wrong in a lawyer.
 Legalisation of justice did not happen before.
 If all lawyers feel that a particular person is guilty, then what will happen?
Collective punishment will happen outside of the justice system. This happens
in the US but India is not ready.
 Montesqieu and compartmentalisation of justice. The three branches were
created. This was never there before Montesqiues' treaty called the spirit of law.
King used to do everything before this.
 Colonisation took place. Invader could not understand customs and started
making laws regardless. Idea of justice was very weird in those times. American
critical school was the basis of this justice is from the individuals who are
powerful.
 Systemisation of Justice - Harayana Panchayat decided that they will not allow
anyone to defend an individual who raped a child. We want everyone to be
system based. Ideas of liberties, justice, fraternity are being systematised and
legalisation.
 People are recognising the problems in this and there is decentralisation of
justice is taking place. Ex - WTO, ICJ are all pushing for decentralisation of
justice.
 Legalisation of Justice - Party autonomy. ICJ Statute allows ex aqueo et bono.
But barely used by ICJ. Party autonomy is now only relevant in economic
spheres. Due to extreme legalisation and systemisation, the very idea of justice
is being destroyed.
 The 4 types of justice. Distributive, Retributive, Restorative, Punitive.

18th August – Judgement Continued

 Judgement does not mean court judgement. Judgement means one’s ability to
grasp the whole case, the entirety of the client’s issue. What are the facts, the
applicable laws etc. Unfortunately, the judgement currently is understood in an
entirely different way.
 When a client comes to you, whatever be the cause, he will come to you with
some kind of an angst. They will express all the thing. You have to navigate the
client by asking the right questions.
 Putting facts and circumstances in such a way in order to make it presentable
before the court. In order to make it go according to procedure. In order to go
according to the final idea of what the client wants.
 After hearing the client, you should be able to identify cause and effect, thought
and action.
 If people come to know that I am a law professor, they start asking me
questions. People think lawyers have rationality, reasoning is very clear.
 People like talking to lawyers at parties.
 Another aspect of Judgement is not be in a pleasing mode to client. You have to
be truthful about the prospects of what the law and what the possibilities and
circumstances are. The social and economic situation is to be taken into account.
 No one discusses the psychological element of the accused. Only money and
social position is considered.
 But this is changing. Focus on human rights is to be considered. Law is lacking
an inter-disciplinary approach.
 According to Param, human rights activism goes overboard. Even take up cases,
where there is no sense of justice. For example, people defending the rights of
terrorists to kill people. [When tf has this ever happened].
 Judgement means overall understanding of the case but also how to tackle it.
 Judgement of case, judgement of position of the client etc are important. Be
truthful to client. But not harsh to client.
 But you cannot be non-committal. You have to have a passion to argue.
Otherwise, Client will not come to you.
 However, judgements means to assess the facts and circumstances and
understand the probable central outcome of the case.
 Advocates should not advertise. Judgement of facts and circumstances of the
case is to be given by the court and not by the lawyer. Cannot guarantee 100%
success as in advertisements. Not possible. That is why advertisement is wrong.
Judge has to give the judgement, lawyer cannot guarantee.
 Be honest. Honesty means Integrity. Integrity is Consistency. Consistency
means facts as facts. If the case is very favourable, then tell that to the client and
that you’ll try your best.
 Even in corporate practice, cannot mislead clients.
  Legal profession is the only profession that has 360 degree knowledge. Can
tackle all other professionals.

Fellowship

 Means the common sense of fraternity, solidarity and so on.

 In school days, everyone is studying together. We argue, we fight, but don't give
up. Common feeling of brotherhood, sisterhood and staying together.
 Legal profession is like that.

4 angles:

i. Client

[did not discuss. Combined discussion of client and cause].

ii. Cause

 One does not represent client, but his cause. Cause is deeper as it related to society.
Behind every client there is a society. Especially in PILs. The client is a whole part of
society not necessarily the person arguing. Behind every client, there is a society.
Important to understand the root cause.
 Ex - MC Mehta in environmental law cases. Suffering may not be done by MC Mehta
but he may in the future. He is also arguing for society.
 PIL also requires locus standi. Are you suffering, do you have any remedy due to any
law? No? But you are still cautioning the court and society that it will bring many
issues later.
 Thus, advocate should also think of cause.

iii. Care

 Next, care - not every cause should go to court. Arguing before court is not enough.
MC Mehta suggest various methods to improve law and policy and asks the court to
inform the state.
 He influences the policy framework. Many of his arguments have become policy.
Thus, his fellowship extends to the society as a whole and not just his fellow lawyers.
 Duty of care is very visible. He appeals to court, to state and brings attention to issues
in society.
 Not all advocates are capable of doing this.
 Suggests means, methods to the court to tell the executive to take actions.
 Covid has flattened everyone. We need to think of a greater cause. One of the reasons
for covid is how much we have damaged environment.
 Param is very fond of educational matters and legal research. He could see the very
definition of justice and slowly he started deviating from this and look into the well-
being of justice and spirituality and justice.

iv. Change

 Lawyers have capability to suggest change. Through suggesting changes in the law
and policy etc.
 Thus, fellowship is not about lawyers only. But beyond that as well. Fellowship with
society also. Inter-bar, intra-bar; between Bar and Bench, Bar and Human Society,
Bar and Human Development, Bar and Peace & Unity (???????????)
 Law is the only field which has the capacity to assimilate all other disciplines of
knowledge. Everyone has to seek protection from the law. It is a holistic profession.

Tact [8th Lamp – Additional]

 Skill and ability to understand all the other 7 lamps. This quality was added. Need to
understand Tact to apply all the other 7.
 You have to connect yourself to the situation and see how you are going to act.

7 Lamps – Honesty, Courage, Industry, Wit, Eloquence, Judgement, Fellowship + Tact.

[He says he’s sent a link for the 7 lamps where it has been discussed in more detail. Go
through it if you want to].
READ BARE ACT FOR ADVOCATES ACT 1961

HANSAJA

WHY LEGAL PROFESSION IS NOBLE

Bar Council mandates that only an Indian citizen can practice law within India.

In India, the legal knowledge is specialized knowledge- it is got at the university level- what
about a person with a sense of right and wrong? This specialized knowledge differentiates
law from other professions. The service that a lawyer gives to a particular client is a service
wherein the interrelationship of the client is involved. In a legal problem, settling it, or
ascertaining the rights with others, will necessarily lead to interactions with the other. All
professions come to law for resolving the issues that they have. When an interrelationship
gets into a conflict, then need lawyer + there may be involvement of more people in a law
case, people outside the person concerned will be involved. For eg: the lawyer can involve
the mother of the client, but a doctor cannot.

Legal Profession is Noble because it brings harmony in interrelationships. Once a legal

decision is made about an interrelationship, it must be honored. Ideal is always to resolve
conflict and stress between parties. One more thing is that law serves a social purpose.
Moving towards a sense of collectivity and harmony between society. Judge remains not
involved, but the lawyer gets involved with the parties. [Legal system being adversarial in
nature is the fault of the legal system, and not of the law]

In law, once decided by the highest court, cannot violate it. But, in other professions, there is
no authority to stop anyone from doinga anything. For example, a person who is an alcoholic
and advised to stop drinking by the doctor, can still go and drink again.

Lawyer can take up a greater cause, can become part and parcel of change himself. Can get
involved in having changes made in the judiciary or in the legislature.

Canon of Ethics- USA

1. Respect- Important aspect is respect- patiently look and dispassionately observe- when in
front of judges, many resort to screaming about their pain, but the judge cannot pay heed to
this.
2. Duty before Client
3. No personal influence- Should not meet the judge on personal level- matters should only be
discussed in the open court, with the presence of the opposite lawyer
4. When lawyer is asked to be counsel for an indigent person, cannot try to leave it. Must try to
put in full efforts for such a client as well- when you are taking up a case, need to do your
best. A lawyer assigned as counsel for an in- digent prisoner ought not to ask to be excused
for any trivial reason, and should always exert his best efforts in his behalf
5. Adverse Influences & Conflict of Interest- Cannot argue for both sides, should not have any
personal interest in the dealings.
6. Defence of Persons accused of Crime: When dealing with the client, only dealing with the
cause, should not change the nature of the relationship. Client is only client.
7. Professional Colleagues and Conflicts
8. Advising Upon the Merits of a Client's Cause: A lawyer should endeavor to obtain full
knowledge of his client's cause before advising thereon, and he is bound to give a candid
opinion of the merits and probable result of pending or contemplated litigation. The
miscarriages to which justice is subject, by reason of surprises and disappointments in
evidence and witnesses, and through mistakes of juries and errors of Courts, even though
only occasional, admonish lawyers to beware of bold and confident assurances to clients,
especially where the employment may depend upon such assurance. Whenever the contro-
versy will admit of fair adjustment, the client should be advised to end litigation. Should not
be surprised, cannot argue beyond pleading.
9. Negotiations with Other Party: Cannot have, unless both parties want to drop the case.
10. Acquiring Interest in Litigation
11. Dealing with Trust Property: Cannot touch any trust property.
12. Fixing the amount of fee: Must be in writing, and fixed. In determining the amount of the
fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the
questions involved and the skill requisite properly to conduct the cause; (2) whether the
acceptance of employment in the particular case will preclude the lawyer's appearance for
others in cases likely to arise out of the transaction, and in which there is a reasonable
expectation that otherwise he would be employed, or will involve the loss of other business
while employed in the particular case or antagonisms with other clients; (3) the customary
charges of the Bar for similar services; (4) the amount involved in the controversy and the
benefits resulting to the client from the services; (5) the contingency or the certainty of the
compensation; and (6) the character of the employment, whether casual or for an
established and constant client.
 13. Contingent Fee
14. Suing Client for Fee
15. How far to go in defending cause of the Client: In case of a rapist, cannot defend the act of
rape by itself.
16. Restraining Client in Improprieties

Effective Lawyering

1. Treat Client as a Friend

2. Understand Needs and not Wants: Thin line of difference between this, both are related to
solving the problem. The lawyer needs to find the distinction between the two.
3. Communicate your fee structure in writing
4. Respect the extent of confidentiality: Never lie to a doctor or a lawyer
5. Understand the needs of the opposition, should also understand what the other party is
asking – To what extent one can bargain
6. Matching Client’s Needs with the other party’s needs: According to Lord Denning- 3 things
determine whether justice is done when foreign element is involved – there should be a
socially desirable consequence, balance of convenience between the parties, should match
up with the rights and obligations of the parties. Need to understand both parties’ mind.
7. Keep ends in mind : Solve client’s problem, fulfill needs, and there should be a healing in the
client’s relationships. Should be very compassionate, and kind in dealing with.
8. Explain needs to client
9. Try to sell a win win philosphy
10. Develop a viable solution
11. Communicate your procedure
12. Play it straight: Do not mislead

Also see 10 Commandments of Legal Profession.

 CODE OF CONDUCT - BCI
Section 7 of Advocates Act empowers BCI to formulate code of conduct for their
professionals – the lawyers. It is under this section that BCI has formulated Professional
standards, Rules applicable to Disciplinary Proceedings and Procedure of complaints against
Advocates. Words like ‘Canons’, ‘ethics’, ‘responsibility’, ‘standards’, ‘conduct’ are used to
define the demeanour of a Advocate as advocacy is a noble profession

In whichever area people want to know the role between two individuals in society, they want
to discuss it under the purview of ethics. Now new kinds of ethics, information ethics, animal
ethics, journalism ethics – anything which deals with interrelationships of people

Normative Ethics: What is very idealistic, and what should be. Normative ethics is the study
of ethical behaviour, and is the branch of philosophical ethics that investigates the questions
that arise regarding how one ought to act, in a moral sense.

Applied Ethics: Bring normative ethics down to normal life, what can be accepted in real life
In USA, called real ethics. Professional ethics fall in this category.

Altruistic Ethics

Ethics is opening up the platform of the legal profession to ADR- Law is the only profession
with 360 degree education, action and impact on society, law is a derivative knowledge,
which has only values and no knowledge of its own, need to assess based on the
circumstances. When discussing the normative quality of law itself, it is normative, but then
when bringing it down to the applied ethics level, it is difficult to actually have rules for
conduct
Legal education can also be used for social engineering, including economic development,
importance of corporate practice. Unethical behaviour can be in any kind of practice. 131 st
LCI said that legal profession should be based on social reform- this does not only mean
litigation, can have economic reform by way of corporate works. The best way to follow
professional ethics is to check your own passion, and commitment, where this commitment
exists, the lamps of advocacy follow – your heart is always there, your mind follows
automatically – this is also the importance of emotional quotients- it is emotions which push
energy into analytical reasoning. This is when the output that comes out of the person who
has a passion, that becomes automatic in excellence, you get satisfied and fulfilled- then you
will not be doing any harm to anyone. The lack of satisfaction is what leads to the creation of
an agitated feeling.

Advocates have a dual responsibility of fearless upholding the interest of their client and at
the same time conducting themselves as officers of the court. It is a two way relations
wherein advocate must be fearless in putting the legal wants of clients before the court, but at
the same time he must ensure that the reputation of the court and interest of justice is not
sacrificed while advocating the interest of the client. ‘While conducting’ means that it
operates as a restriction on fearlessly advocating client’s interest because you are not only an
advocate of the client, but also an officer of the court. Therefore, all acts of the advocate to
propagate interest of client must be within the realm of, limited by requirements of
professional ethics and conduct of the officer of the court.

In some cases what clients hold as their interest may not be interest of the society or justice.
If it is against society, court may still uphold it if it does not do much harm. Advocates
loyalty is towards law and hence clients interest must be upheld by fair and reasonable
means.

Accordingly, they are expected to adhere to the highest standards of probity and honour.
Highest standard of probity and hour is that which is constant and which does not change
from one client to another, one judge to another. If it changes, it is not a standard. Constant
and consistency are different. Constant means a value which is there permanently which will
not change according to the situation. This is laudable and an ideal. Though one may not be
consistent in showing the same amount of vigour in dealing with different cases – white
collar crime to bank robbery to drafting. But the standard of obedience to professional ethics
must always be constant, whether it be while drafting or while arguing a case before the
court. The commitment must be the same. These values of professional standards must
become psychological values which do not change.

An advocate’s conduct should reflect their privileged position in society which derives from
the nobility of this profession.  Advocate has a privileged position because people come to
them for resolving their disputes. It is only after the failure to settle the dispute amicable that
people turn towards and look upto the lawyers in the society to resolve their problems. When
do this, it means they unfathomable trust that the advocate will not misguide them and will
resolve their dispute. They trust that the advocate will be impartial, scientific, objective,
impersonal, dispassionate, inclusive and empathetic. At such a time an advocate cannot
afford to do a thing that fall short of this standard. Client has a psychological understanding
that lawyer ill solve the problem for him. there is a very thin hidden line of trust and
confidence in the advocate which comes out of psychological values and the advocate must
not disturb this. This comes from practise of highest nobility. Advocates have a privileged
position because constitution has given a monopoly that only advocates can resolve the
disputes. It is a multidisciplinary profession that enjoys respect from all corners of the
society. Advocates are problem solvers and solving any problem give a sigh of relief and
happiness to the client. Constitution defines this happiness in terms of liberty, equality,
freedom, fraternity. Advocates give back the liberty and freedom snatched, ensure equality
prevails, etc. Society has made advocates responsible for resolving peoples disputes and
giving them their rights and hence advocates service to common man must be moral,
compassionate and lawful.

In a nut shell, if you are an advocate your service to the common man should be
compassionate, moral and lawful. Word ‘moral’ is used because it is the society that created
the law. Human agencies can socially engineer themselves by creating laws for themselves
for the things they want to regulate. Humans have to be lawful to the laws they have created.
When you create law, you give a promise that you will abide by it. When a law is created, it
is implied that adherence to that law is possible because impossibility to perform makes a
contract void. Hence, when any law is made, it must be adhered to and promise must be
performed.
The Bar Council of India Rules on standards of professional conduct and etiquette shall be
adopted as a guide for all advocates in conducting matters related to law.

The standards expected from lawyers is the 7 lamps of advocacy. Perfection is to find one
own’s calling and interest because where maximum passion and interest lies, only there you
will be able to contribute maximum. Unethical elements come only when your identity is not
clear and profession must reflect ones true identity.

In no other jurisdiction other than India, are the rules of conduct so specifically and clearly
laid down.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

1. Act in a dignified manner

During the presentation of his case and also while acting before a court, an advocate should
act in a dignified manner. He should at all times conduct himself with self-respect. However,
whenever there is proper ground for serious complaint against a judicial officer, the advocate
has a right and duty to submit his grievance to proper authorities. Prashant Bhushan’s case
revolves around this lapse in conduct of submitting grievances to the proper authorities.
Grievances must not be expressed randomly through tweets, but only to proper authorities.

Advocates must first value themselves in order to act in a dignified manner. Advocates must
conduct oneself with self-respect.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in mind
that the dignity and respect maintained towards judicial office is essential for the survival of a
free community. The self- respect of the advocate and the requirement of carrying themselves
in a dignifies manner is essential to the survival of free community. Survival means that
society does not only have to continue mere existence, but continue harmonious existence, it
pre-communal existence in which problems are not there and inter-relationship amongst
people are not disturbed. If it is disturbed it becomes a court case and a legal point. The
methods of handling cases-whether they be economical, family or other sensitive issues, it is
a matter of dignity and in arguing those cases, no disrespect should be shown to the client or
the court. All these disputes have a psychological under-pinning.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge. An advocate should not influence the decision of a court
in any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing
counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his
client from acting in any illegal, improper manner or use unfair practices in any mater
towards the judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper
means. An advocate shall excise his own judgment in such matters. He shall not blindly
follow the instructions of the client. He shall be dignified in use of his language in
correspondence and during arguments in court. He shall not scandalously damage the
reputation of the parties on false grounds during pleadings. He shall not use unparliamentary
language during arguments in the court.

6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable. Black and white –
tradition since 16th c. when there were not many colour available for dying clothes. Black
absorbs all colours and white lightens all colours. It is a symbolic representation of good and
evil. A dress code instils discipline and commitment.
7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father,
grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother,
daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law
daughter-in-law or sister-in-law.

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar
Council, Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt.
He should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs

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 practise. He should levy fees which is at par with
the fees collected by fellow advocates of his standing at the Bar and the nature of the case.
Special circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them. He can withdraw only if he has a sufficient cause and by giving reasonable and
sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has
not accrued to the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If
he has a reason to believe that in due course of events he will be a witness, then he should not
continue to appear for the client. He should retire from the case without jeopardising his
client’s interests.

4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure 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
judgement in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and
honourable means. An advocate shall do so 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. An advocate should always remember that his loyalty is
to the law, which requires that no man should be punished without adequate evidence.
6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings
in a manner that it does not lead to conviction of the innocent. An advocate shall by no means
suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the communications
made by his client to him. He also shall not disclose the advice given by him in the
proceedings. However, he is liable to disclose if it violates Section 126 of the Indian
Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or
the client’s authorised agent.

10. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or
property received after the success of the matter.

11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable claim.
Nothing in this rule shall apply to stock, shares and debentures of government 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.

12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in
any legal proceeding in which he was in any way professionally engaged. However, it does
not prevent an advocate from bidding for or purchasing for his client any property on behalf
of the client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for his
own benefit or for the benefit of any other person), any property which is the subject matter
of any suit, appeal or other proceedings in which he is in any way professionally engaged.

14. Not adjust fees against personal liability

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

15.An advocate should not misuse or takes advantage of the confidence reposed in him
by his client.

16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted to him. The
accounts should show the amounts received from the client or on his behalf. The account
should show along with the expenses incurred for him and the deductions made on account of
fees with respective dates and all other necessary particulars.

17. Divert money from accounts

An advocate should mention in his accounts whether any monies received by him from the
client are on account of fees or expenses during the course of any proceeding or opinion. He
shall not divert any part of the amounts received for expenses as fees without written
instruction from the client.

18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the advocate must
without any delay intimate the client of the fact of such receipt.

19. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to
him from the account of the client. The balance in the account can be the amount paid by the
client or an amount that has come in that proceeding. Any amount left after the deduction of
the fees and expenses from the account must be returned to the client.

20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by him
on demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.

22. Not lend money to his client

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 client. An advocate cannot be held guilty for a
breach of this rule, if in the course of a pending suit or proceeding, and without any
arrangement with the client in respect of the same, the advocate feels compelled by reason of
the rule of the Court to make a payment to the Court on account of the client for the progress
of the suit or proceeding.

23. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or
other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the
opposite party in the same matter. He should not appear for two clients whose interest’s
conflict.

RULES ON ADVOCATE’S DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through the
advocate representing the parties.

2. Carry out legitimate promises made

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.

RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES

1. Not advertise or solicit work

An advocate shall not solicit work or advertise in any manner. He shall not promote himself
by circulars, advertisements, touts, personal communications, interviews other than through
personal relations, furnishing or inspiring newspaper comments or producing his photographs
to be published in connection with cases in which he has been engaged or concerned.

2. Sign-board and Name-plate

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or

name-plate or stationery should not indicate that he is or has been President or Member of a
Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular type
of work or that he has been a Judge or an Advocate General.

3. Not promote unauthorized practice of law

An advocate shall not permit his professional services or his name to be used for promoting
or starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules
when the client is able to pay more.
5. Consent of fellow advocate to appear

An advocate should not appear in any matter where another advocate has filed a vakalt or
memo for the same party. However, the advocate can take the consent of the other advocate
for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the
matter for the same party, then he should apply to the court for appearance. He shall in such
application mention the reason as to why he could not obtain such consent. He shall appear
only after obtaining the permission of the Court.

In case, an advocate is not able to present the consent of the advocate who has filed the
matter for the same party, then he should apply to the court for appearance. He shall in such
application mention the reason as to why he could not obtain such consent. He shall appear
only after obtaining the permission of the Court.

Qualifications

 Any law degree which is obtained from a law college established in India
 Foreign colleges are not allowed, unless look at reciprocity
 Must be enrolled at the state roll

Enrollment happens at state level, if some conditions are satisfied:

 Have to be a citizen of India to practice, but foreigners are allowed to give their opinion
 Completed 21 years of age- now being debated, a petition has been sent to the Supreme
Court
 Obtained a degree in law

If enrolled under the Tamil Nadu State Bar Council, can I practice in another state?
Yes, but will have to appear before the Bar Council of another state, and show all his
documents.

All India Bar Council Examination: from the year 2010 onwards – certificate of practice is
given only when pass this examination – otherwise, just enrolled and cannot go to the court.
Chapter IV: Advocates Act

What is the logic of the integrated approach? Law is a multidisciplinary field, this is the
sense of having an integrated approach. A question arises then, why are only lawyers allowed
to practice? – Shravan argues with Sir…

Admission as Senior Advocates -

   According to Sec.16 of Advocate Act ,1961-

      
      1) There shall be two classes of Advocates, namely , Senior Advocates and Other
Advocates.

      2) An Advocate may, with his consent, be designated as senior advocate if the Supreme
court or A High court is of opinion that by virtue of his ability, standing at the Bar or special
knowledge of experience in law he is deserving of such distinction.

      3) Senior Advocate shall, in the matter of their practice , be subject to such restrictions as
the Bar Council of India may, in the interest of the legal profession, prescribe.

      4) An Advocate of the supreme court who was a senior advocate of the court immediately
before the appointed day shall, for the purposes of the section, be deemed to be a senior
Advocate.

    Provided that were any such senior advocate makes an application before 31 of
December,1965 to the Bar council maintaining the role in which his name has been entered
that he does not desire to continue as a senior advocate , The Bar Council may grant the
application and the role shall be altered accordingly.

  Designate an advocate as a senior advocate means recognition of his professional skill ,long
standing in the bar, experience and services rendered to the society. An advocate can be
called as senior advocate on the basis of  his -
                  (a) ability ;
                  (b)long standing at the bar ;
                  (c) his special knowledge or experience in law ;
                  (d) confirmation by the supreme court or high court.

Restrictions on senior Advocates U/S49 (1)(G) -

               Under section 49 (1)(g), The Bar council made rules restricting in the matter of
parties to which senior advocates shall be subjected in chapter I of  part VI of the bar council
Of India thus :

      Senior Advocate shall, in  the matter of their practice of the profession of law mentioned
in sectioned in section 30. of the Act be subject to the following restrictions-

First lets see what is Section 30 of the Advocate Act, 1961-

                            Sec.30 of the advocate Act 1961 says . Subject to the provisions of this Act ,
every advocate whose name is entered in the state roll  shall be entitled as of right to practice
throughout the territories to which this act extends-

        1) In all courts including the Supreme court .

        2) Before any tribunal or person legally  authorised  to  take evidence;
        3) Before any other authority or person before whom such advocate is by under any law
for the being in force entitle to practice

Restrictions on senior Advocates -

      a) A senior advocate shall not file a vakalatnama or act in any court , or tribunal , or
before any person or other authority mentioned in section 30 of the act .

      b) (i) A senior advocate shall not appear without an advocate on on record in the supreme
court without an advocate an advocate of the state roll in any court or any tribunal or before
any person or other authorities mentioned in section 30 of the act.

         (ii) where a senior advocate has been engaged prior to the coming into force of the rule
in this chapter shall not continue thereafter unless an advocate in Part II of the state roll is
engaged along with him:
      c) He shall not accept instruction to draft pleading or affidavit , advice on evidence or to
do any drafting work of an analogous kind in any court or tribunal , or before any person or
authority mentioned in the  section .30 of the act or undertake conveyancing work of any kind
whatsoever. This restriction however shall not extend to settling  any such matter as aforesaid
in consultation with an advocate in Part-II of                   t state roll.

      cc) A Senior advocate shall, however, be free to make connections or give undertaking in
the course of arguments on behalf of his clients on instructions from the junior advocates.

        d) He shall not accept directly from a client any brief or instructions to appear in any
court or tribunal , or before any person or any other authority in India.

         e) S senior advocate who had acted as an advocate (junior) in a case, shall not after he
has been designated as a senior advocate advice on grounds of appeal in a court of appeal in a
court of appeal or in the supreme court , except with an advocate as aforesaid.

         f) A senior Advocate may in recognition of the services rendered by an advocate in Part
II of the state roll appearing in any matter pay him a fee which he consider reasonable.  

Criticisms

The requirement for designation of SAs are not very clear, what is the meaning of knowledge
and experience- is unclear.

Some states have their own rules: in Tamil Nadu, must be 45 years old minimum- 10 years
practice in the state OR 15 years as a district and sessions judge & income tax assessee for 10
years & high ethical standing expected of a senior advocate both inside and outside of the
court & at least 15 judgements to credit in the last 5 years wherein they have contributed to
the development of the law.

No advocate shall be eligible for designation as senior advocate if a charge has been framed
for an offence involving moral turpitude or if the advocate has been convicted by any court of
law for an offence involving moral turpitude and if the advocate has been found guilty of
professional misconduct or has an enquiry pending for the same before the bar council. There
should also be no contempt of court proceedings against the advocate. Permanent Committee
exists in Tamil Nadu for designation as a SA - All matters relating to designation of Senior
Advocates in the High Court shall be dealt with by the Permanent Committee for designation
of Senior Advocates, which will be headed by the Chief Justice and consist of the two Senior-
most Judges of the High Court, the Advocate General and a designated Senior Advocate of
the Bar to be nominated by the members of the Permanent Committee.

Refer to: http://www.hcmadras.tn.nic.in/SeniorAdvocateRules.pdf

On designation as a Senior Advocate, the Advocate concerned shall not: file any Vakalat or
Memo of Appearance, appear before any court, tribunal or judicial authority unless assisted
by another Advocate, directly give consultation to any litigant, appear for mentioning any
matter to the Court nor seek an adjournment in any Court, accept instruction to draw
pleadings or affidavits, advise on evidence or do any drafting or work of an analogous nature
in any Court or Tribunal, or undertake conveyancing work of any kind whatsoever. However,
these prohibitions shall not extend to settling any such matter as aforesaid in consultation
with an instructing advocate, be a standing counsel of any Government, Public Sector
undertaking, institution or local corporate body and if he holds such a position, he shall resign
or relinquish the same upon being designated a Senior Advocate.

Interesting issues pertaining to advocates act – how do you get enrolled? Three steps, first
complete bachelors degree, second enroll in state bar council, third appear for All India Bar
Examination – definition of advocate is advocate enrolled under the provisions of this act –
definition of bar council – definition of law graduate – university is established under UGC,
and standards of law by BCI, established by India – definition of bachelors degree –
definition of roll call of advocates – 3 conditions before being enrolled on roll call of
advocates, first citizen of India, second 21 years of age, third possess degree of law – recently
a petition has been filed before Supreme Court on removal of fixing of upper age limit (40
years) – if an advocate registered with the Tamil Nadu bar council wants to appear before
Delhi bar council, is eligible to practice but must require approval (check this?) – steps, first
degree, second enrollment, third certificate of practice (after passing the AIBE) – Chapter IV
Right to practice – section 33: sales tax practitioners were allowed to go to court but this is
not practice (vakalatnama, etc.)

Senior advocate cannot file vakalatnama, he shall appear only through an advocate, he shall
not accept instructions to draft pleadings from client directly, ____

5 questions in relations to queen’s council –

There can be additional criteria to be qualified as senior advocate as per state bar council –
Param sir referred to Tamil Nadu state bar council

National judicial data grid – statistics on cases in every district of India

Ecourts.gov.in

Designation as senior advocate – is given in all high courts and also supreme court – supreme
court has its own rules – looked at notification dt. 13.11.2018 for designation of senior
advocates – notice of al people who applied for senior designation – according to guidelines,
‘a committee for designation of senior advocates’ – members – meet at least twice in a
calendar year – have a permanent secretariat – chief justice or other justice may recommend
in writing to recommend a name of an advocate as senior advocate – AOR seeking
conferment as senior advocate may submit an application in the prescribed format, to the
secretariat – only AOR can practice in Supreme Court (provisions of constitution of India is
the basis for this- discussed later) – senior advocate can appear for AOR – which advocates
can apply for designation? – first, 10 years combined standing as advocate or judge –
Secretariat will publish decision to designate and seek opinions of stakeholders – overall
assessment is based on a point based format indicate in a table including years of practice,
judgements (reported and unreported) which show legal formulations advanced by advocate,
etc. – then a list shall be prepared of the senior advocates – some AOR can also be senior
advocates (https://main.sci.gov.in/pdf/seniorAdvocatesDesig/guidelines.pdf),
https://main.sci.gov.in/senior_advocates_designation

Advocates on record examination – section 52 of the advocates act 1961 – saving clause –
Supreme court can makes rules under Article 145 (earlier Article 214 of the Government of
India Act 1035) for laying down conditions subject to which a senior advocate shall be
entitled to practice in Court, or determining the persons who shall be entitled to act or plead
in that Court (AOR) - article 145 (1) (a) – subject to any law made by parliament, supreme
court may from time to time, with approval of president , make rules for regulating generally
the practice and procedure of the Court including rules as to the persons practicing before the
Court

The Supreme Court Rules 1966 – various amendments (2014, 2019) – addendum on
contempt – Rule 2: definition clause, - practice means regular practice before Court and filing
vakalatnama, do not confuse with appearance, an advocate can appear but not practice
Part 1 Order IV: relating to advocates – rule 4 and 5 in relation to AOR

1. No advocate shall be registered as AOR unless has been borne on the roll of any state
bar council for a period not less than 4 years after training,

2. Second, undergone training for one year under AOR (AOR should have minimum 10
years of experience) as approved by the Court

3. Third, undergoes AOR test – an attorney shall be exempted from such training and
test - Bombay exemption - solicitor on the rolls of the Bombay Incorporated Law
Society shall be exempted from training and test if name is borne on the roll of the
State Bar Council for a period of not less than 7 years on date of making application
for registration as AOR – Chief justice may in appropriate cases also grant exemption
for the requirement of training for advocates on the roll of any state bar council for a
period not less than 10 years

4. Have an office within 16 km radius from Supreme Court in Delhi and

5. Undertake to appoint a registered clerk within one month of his/her designation

6. Pay registration fees of 25 rupees

Presently, there are 2777 advocates and a list is published by SC – question papers of AOR
exam looked into – 4 papers, each for 100 marks and 3 hours – pass is 50 marks individually
and aggregate is 60% - rules and procedure of Supreme Court (Paper 1) - Drafting (national
and international issues) (Paper 2) – advocacy and professional ethics (Paper 3) – Leading
cases (Any subject) (Paper 4) – office bearers of AOR

Critical analysis of section 52 – should there be this classification of advocates intro three? –
Supreme Court is the final recourse – there must be standards on procedure, knowledge of
laws, etc. of an advocate – the 4 papers test an advocate for his knowledge on drafting etc. –
render complete justice

Privileges: Preferential standings, special robes, others in Advocates Act, 1961

AOR Cases

Balraj Singh Malik v. Supreme Court of India through its registrar (2012)

Contention- AOR examination conducted under SC rules 1966 is not required, needs to be
abolished – why? - there are provisions in the advocate act – section 16 – admission and
enrollment of advocates – read with section 29 and 30 – also section 24 must be seen – no
more regulations are required – another question – why is a separate examination conducted
for AOR in the Supreme Court?

We earlier read section 52(b) read with article 145 – section 52 is a savings clause – section
52 is empowered by Article 145 of the Constitution of India – are these rules to regulate or
restrict? – he contended that the exam does not regulate, but restricts advocates from
practicing who have failed this examination –this provision supplants and not supplements –
was Article 145 overused?

Article 14 and 19(1)(g) were also used in contentions

Referred – Entry 77 of Union List of Schedule 7 of Constitution of India

Held – Article 145 gives inherent power to Supreme Court, read with entry 77, gives
Parliament power to make laws – it is not overuse of article 145 – the classification was also
not arbitrary – the AOR examination does not restrict practicing in any other Court but
regulates the entry into Supreme Court – by giving AOR, the advocates who can practice in
Supreme Court is expanded – the content of the exams are something which an advocate
should already know (ethics, leading case laws, Supreme Court procedure, and drafting

Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar (2009/2011)

Earlier Paper 3 was Professional accounting and ethics – he contended that accounting shall
not be a necessary paper – it might have been necessary five decades ago – but now the AOR
has available the appropriate computer software, or can engage chartered accountants and
company secretaries, and does not require knowledge of book keeping and accountancy to
such an extent to pass an examination on the subject – 2010 amendment removed accounting
from AOR exam

As regards the contention of AOR exam needs to be removed – why? – He contends AOR
just give name lending and do not do their work properly

Held – it is one thing to criticize how the system is functioning, and one thing to criticize the
system itself – if there are problems with how AOR advocates are functioning, this can be
discussed separately –
What were changes brought by this case? – _____________, registered office within 16 km
(initially was 10 km), professional accounting removed - wherever convenient, the conditions
can be expanded

AOR exam is not discriminatory, not restrictive but regulatory

In Re: Lily Isabel Thomas v. Unknown (1964)

1st woman to get enrolled for master degree in Department of Legal Studies (Madras
University) – initially practicing under the Madras High Court – moved to Supreme Court –
Supreme Court had 1964 rules – There was an AOR examination – different exam, AOR
clerk, apprenticeship etc. – she contended that under section 52(b) – persons include those
advocates already practicing before the High Courts

Conclusion/ Analysis

In India we follow pyramidical structure, Supreme Court is at the top – setting some
qualifications is not restrictive – there is no recourse after Supreme Court

(ABHIJIT)PROFESSIONAL MISCONDUCT OF ADVOCATES

LECTURE 2

The nature of contempt, the kind of contempt, is dependent on complex facts. Civil contempt
is disobedience of the Court’s order, after the outcome of the proceedings, despite an
undertaking that has been given. Criminal contempt is about scandalising or attempt to
scandalise {Section 2(a)(b) and (c)}, interfering or attempting to interfere in the process of
justice in Courts and prejudicing others about the court. Contempt can be initiated against any
individual, judge, lawyer or even a public servant. However for public servant, the concerned
authority needs to grant permission for the same.

So, contempt is based on the language that is used, nature of the publication, print or verbal
or signs which includes social media. Thus not only the content but the nature of the
publication is also important and the reach it has, that is, to whom is it going and how it is
creating the sense of courts being scandalised and prejudiced, along with interfering with the
process of justice.

Cases

1) Kunal Kamra Case –

He made certain tweets. He said that SC is the Supreme Joke of the country. The premise of
the joke is that, the bail given to Arnab Goswami was incorrect and bias and uses this as a
justification for calling the SC a supreme joke. Additionally he changed the Indian flag into a
certain party’s colour. He being a popular person, it will reach a lot of people. Someone
asked the AG for consent to initiate contempt proceedings for demeaning the Court, in the
name of a joke. He gave permission and said that it is a clear case of contempt. Articles in the
media have justified his comments on the ground that he is a comedian and he has only made
a joke and freedom of expression and liberty should be protected. The other view is that
comedians make jokes, they bring subtle thoughts with them, which are interspersed with
humour. This humour is about the presentation of social happenings in a humorous way.
Comedy or humour is the tool of presentation and the content of the presentation is not a
joke. Sir agrees with the second view, that humour is only the tool, while the content of the
joke is not the joke (??). SC is yet to decide this matter.

However, what Sir wants to convey is that contempt is all about content. Example of a Folk
singer of TN was given – this singer was very famous and he presented a song, around 6-7
years back, in which he described the policies of the government in a folksy way. However,
one of the paragraphs was that the then CM of the State by keeping the liquor shops open
{the singer himself was against the consumption of liquor which he believed brought
disturbances to the family system, especially in vulnerable households – whatever little
money the family earns is spent on alcohol} is essentially directly responsible for spoiling
their livelihood. Even this much is fine. Subsequently, he made an analogy of two persons
going for a drink where one drinks while the other aids the other to drink. He said that the
person aiding was the CM.

Contempt for criminal defamation was filed by the Government. He claimed freedom of
expression. He said that what I am saying is fact. I have merely stated in a State argued that
saying that the CM is the person giving liquor to everyone and aiding everyone to drink is
scandalous. This tends to prejudice and disturb the administration of the State. Court agreed
with the State’s contention. Later they also asked YouTube to take the video down. Thus,
contempt is all about the content, how you are presenting the content. Ultimately what is
conveyed is the matter and the fact that you convey it by song, speech etc does not matter.

Coming back to Kunal, sir doesn’t understand what the joke is in calling the SC a Supreme
Joke. The point of humour is not to hurt, not to prejudice and nowadays humour has become
like that. Just because some people may laugh doesn’t make it humour. Thus, content is most
important along with the subtlety in the language. Section 2 is very clear about civil and
criminal contempt (not sure, check the section). For criminal contempt, it is scandalising or
attempt to scandalise or prejudicing or attempt to prejudice others and interfering or
attempting to interfere in the administration of justice. This attempt or tending to prejudice
scandalise or interfere should be debated because it has a large scope (how do you know there
is potential to scandalise prejudice and interfere). In such cases we need to correlate between
though and content, which is forseeability. This is the most difficult thing to prove in tort.

To have a successful claim under a tort, there must be a duty, which must be breached, which
results in injury and you ask for damages. The duty of care may or may not be specifically
provided for in the law and it is my duty to identify if the same exists. A similar
understanding must be used in cases of contempt as well. Wendell Holmes said that freedom
of speech is not absolute, in fact no freedom is absolute as long as we are living in society
that is interdependent in nature. Your freedom blossoms only if it is a freedom to you and it
stops the moment it disturbs someone else’s freedom. Thus, debates exercise of freedoms
happen in court where the injury might be vague.

Coming back to the case, criticism of judgement is allowed. So far no court has said that
judgements cannot be criticised. In a case that was apparently discussed in the previous class
(shivkumar case), an MP made a statement in which he said that there is a clash
compensation (not sure of this term, couldn’t understand his accent) in the appointment
of judges. When it was challenged under contempt, the court said that there is no contempt.
The court said that the kind of language used by the Minister could have been tempered but it
will not disturb the working of the court.

There are three things in criminal contempt, (i) scandalising the dignity of the court itself (ii)
interfering with the administration of the court (iii) prejudicing the public. When you
criticising the judgement, you do so in analytical terms, but attributing something to the
intention judge, such that you are questioning their dignity and bringing disrepute to them is
not welcome. However, if you have evidence, then it is a valid defence. The 2006
Amendment to the Act, allows truth as a defence, provided that (i) it is reasonable (you
cannot be unreasonable in your statement – by saying things like I know the truth), (ii) it must
be bonafide and (iii) it should be in public interest (section 13 in the Act – check if it was
added in 2006 or 2013)

2) Pritam Pal v. MP HC

When remedy sought was denied by the Court which held in favour of the OP, the advocate
made a remark that the judges were biased in favour of the OP. He could have gone for
appeal, or if he really had a problem with the judge he still had the option of going to the
superior judge and complain about him, which is allowed under the Bar Council Rules
(advocate can express their grievances about a judicial officer to the appointing authority or a
person who has a supervisory role).

However a question comes as to why should only the court be insulated from comments
or humour, while all institutions are open for such ridicule?

The reason is that society is not mature enough to such a level to be open and remain
uninfluenced if someone tries to influence you. We haven’t reached that level of social
consciousness, and we must keep that in mind (didn’t make a lot of sense). We are still
subject to social conditioning.

Courts are insulated because courts are the last avenue for remedy of grievance and in the
existing situation, even if that is ridiculed, then it is a little difficult. Fair criticism is allowed.
You have legal remedies available if you are not happy with a judgement or an individual,
but making personal remarks on judges on platforms like social media, is not correct or fair.

Issue of discussions around how the court has so many pending matters but is still
hearing the Kamra case
Sir believes it is fair to criticise it as long as personal remarks or insinuations are not made.
You cannot pinpoint other circumstances in order to find fault in my case.

Sir said that he already discussed Prashant Bhushan’s case in the previous class. The court
did not punish him, but merely imposed a fine of Re. 1.

3) One more case

Similar case to the one above where an advocate made a remark when the Magistrate was
reading an order in favour of the Respondent – he said that the Court was biased towards the
OP. Said advocate was convicted of contempt and sentenced to two month’s imprisonment.

However, such wasn’t the case with Bhushan. In some pages of the judgement it is seen that
lawyers from both the sides (government and contemnor) argued that punishment should not
be given. Both of them also told the court that in order to discuss the nature of the contempt
and the actual contempt, Rajeev Dhavan (representing Bhushan) and Dushyant Dave said that
they do not want to read the tweet. They argued that the comment was made in public spirit.
The Court however made it clear that it was afraid of punishing in this case. Another
complexity in this case was that allegations were made against several judges who had
retired.

He again reiterates that fair criticism can and should be made, and highlights the importance
of academic criticism.

{Coming back to the Bhushan case, he tweeted a picture of the CJI on a bike, which was not
the subject of contempt. What he said in that tweet was that the SC has destroyed democracy
and that this statement is very vague. Then he says 4 CJIs are involved in this (paraphrased
exactly what sir said)}

The truth that you say in such cases must be evidentiary. One cannot claim that their
statement is the truth because one feels so. It must be backed by evidence.

As a lawyer, public servant etc, where you are giving advice and opinions, see that your
opinion is (i) free from contempt (ii) they are such that you can request and advice parties to
go on appeal {for instance you can go for writ jurisdiction again once you have been
unsuccessful if there is an apparent error in the face of the record}

He reiterates that fair criticism must be encouraged. Fair criticism is v important as well. In
Ravichandran Aiyyar v. AM Bhattacharya the SC observed that lawyers agitating in front of
the judge and not letting other lawyers argue should instead go to the CJ and tell them of their
suspicion about a judge, or go to the highest authority and lodge a complaint (SC, President
Speaker etc). The Court also suggested to have an in-camera proceeding and submit your
resolutions. The current form of protest by obstructing the functioning of the court is not
correct.

Court has the right to defend itself.

 (HANSAJA) PROFESSIONAL MISCONDUCT OF ADVOCATES

How misconduct id defined in the act? Why misconduct or good conduct was not capable of
definition?

I. Meaning
Misconduct can be either civil or criminal. It is not considered contempt if, whatever is said,
written or expressed is bonafide, in public interest and there is an element of truth. Prashant
Bhushan took the defence of truth in arguing in case. SC had said that in exercising your
right, others must not be disrespected and hence re.1 fine was imposed on Prashant Bhushan.
PB argued that if he is restricted from speaking the truth, in matters of public interest, it is a
clear restriction on his Fundamental Freedom of speech. On the other hand, in exercising this
right, respect and dignity of court maybe compromised. Hence there is an inherent conflict
between right to speech and contempt law. Is contempt law a reasonable restriction on
freedom of speech? PB also put forth another issue that while conducting legal proceedings,
he will need to say certain things that might again be considered a contempt, but without
saying those things, it will be impossible to argue the case.

Such issues and conflict arise because professional misconduct is not defined and civil and
criminal contempt are not demarcated.

BCI code of conduct provides a proper channel to report grievances to appropriate authority
and such complaints against judicial officer or judicial process or office will not be
considered as a contempt. Such complaints have to be made to the highest officer of the court
– the CJI.

Law Commission in its 2017 report had the task to come up with the definition of
misconduct. 266th report therefore focused on misconduct in AA, 1961. The Report also
stated that it is almost impossible to define misconduct because it depends on the merits and
facts of every case.
LCI in its report states, Misconduct means a wrongful conduct and not merely an error in
judgement. It is a digression of a well-established rule of action which may not be statutory
or codified, but is a definite and well established and provides not scope of discretion.

 Misconduct can also be carelessness. Care is the relation between cause and action, thought
and action which a reasonable man of ordinary prudence takes. Eg. Misplacing file or brief of
the client. By going from one court to another and forgetting the brief on one of the tables.
Brief is equivalent to the client, it is the whole cause of action and if you misplace that, you
are simply careless.

 Misconduct also includes any behaviour which involves neglect by which right of party has
been affected. Eg. allegation of disproportionate asset, misappropriation.

 It includes breach of trust, not acting diligently and doing things that are detrimental to the
prestige of institution.

Misconduct injures, violate, disturbed somebody or something outside you, it comes out from
your action, flow out from your thoughts. The injury faced by the victim may be actual injury
or injustice like misappropriating client’s money or it may be a potential injury that an
individual or the society may face in future. Such potential injury is difficult to prove from
both the sides, but the former is easy to prove as only a volume of facts is required to show
injury. If the client objectively proves and show injury, than lawyer has no way to escape
contempt punishment. IN PB case, the injury was not objective, there was scope of arguing
that it is a bonafide belief which a person can express and hence the punishment was not
harsh and PB could escape by Re.1 fine.

When misconduct proceedings are initiated, it is because your words and actions have
disturbed or injured something or somebody and hence a person defending himself against
misconduct requires to prove a very high standard of public interest that was there in his act.

In PB case, the action of PB belittled justice and then hi tried to take it to the public extent
level. He argues that any attempt to curb his speech is a violation of art 19.
Misconduct refers to or leads to an injury or injustice That act is a disgraceful conduct that
does not befit the legal profession. It defeats legal professions or scandalizes court. Legal prof
is not a trade or business, it is a noble profession and hence the dignity of the profession must
be upheld. Advocate must adhere to the norms of the profession, dignity of judiciary is to be
maintained. eg. absenting yourself from court, attesting forged evidence, not returning brief
to client, failure to attend trial after accepting brief, indecent cross-examination (asking
nature of relation is fine, but concluding that the victim was lude or close to the accused is
immoral and indecent as it shows bias. Judgement and opinions must not be passed by
lawyers in the proceedings), moral turpitude, bribing the judge, retaining money of the decree
holder to be deposited inexecution proceedings.

Law Commission came out with 131st report in 1988 which was about Role of Legal
Profession in Administration of Justice. LCI connected legal prof. with court and justice
giving it it’s noble character. LCI wanted to bring an idea of public image of the profession.
The report dealt with matters like, what must be the attitude of legal prof ? it was answered
that, the legal profession has some kind of role towards policy of social change and towards
upholding the ideal of our Constitution. It is an instrument of social change. LCI also
discussed role of BCI and relation between politicians and Bar and Bar and judiciary, lawyers
freedom of strike, what must be the fee charged by lawyers? Should it be standardised? This
question is pertinent because lawyers have a monopoly to resolve disputed and hence the fee
must be standardised. The earlier LCI reports discussed noble character of the profession, its
connection of justice, to the constitution and how it is an instrument of social change. But
today, as seen in the 266th LCI report in 217, the matters of discussion have come down to
whether lawyers should return briefs of client and how they should conduct themselves in the
society. This shows the diminution of the reputation of legal profession.

Khanna’s report on legal profession and legal education points out that nobility of legal prof
starts with legal education itself. But there is a considerable shift from this high epitome of
respect and reputation as today the discussion surrounds the question that whether lawyer can
hold the brief till the client pays the fees. Legal prof is also becoming like any other ordinary
trade and profession which is money minded and profit oriented. The lawyers today need to
become more self-aware. They need to self-introspect and find out if they can do such an act.

In USA there are so many misconduct cases that they have adopted alternative approaches of
peaceful or collaborative lawyering.

The essence of legal professional conduct lies in behaving in such a manner that the client
feels secure that the lawyer he has appointed to resolve his trouble is doing something in
furtherance of that cause and is not simply making money. A compliant by a client speaks
volumes about your professional relationship with the clients and hence advocates must be
cautious in how they behave and conduct themselves with the client.

II. Punishment and Procedure for Misconduct

Important provisions of Advocates Act, 1961 relating to punishment and procedure are:

35. Punishment of advocates for misconduct.—(1) Where on receipt of a complaint or

otherwise a State Bar Council has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee.

1[(1A) The State Bar Council may, either of its own motion or on application made to it by

any person interested, withdraw a proceeding pending before its disciplinary committee and
direct the inquiry to be made by any other disciplinary committee of that State Bar Council.]

(2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing
of the case and shall cause a notice thereof to be given to the advocate concerned and to the
Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned
and the Advocate-General an opportunity of being heard, may make any of the following
orders, namely:—

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State
Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he
shall, during the period of suspension, be debarred from practising in any court or before any
authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-
General may appear before the disciplinary committee of the State Bar Council either in
person or through any advocate appearing on his behalf.

1[Explanation.—In this section, 2[section 37 and section 38], the expressions “Advocate-

General” and Advocate-General of the State” shall, in relation to the Union territory of Delhi,
mean the Additional Solicitor General of India.]

36. Disciplinary powers of Bar Council of India.—(1) Where on receipt of a complaint or

otherwise the Bar Council of India has reason to believe that any advocate 3[***] whose
name is not entered on any State roll has been guilty of professional or other misconduct, it
shall refer the case for disposal to its disciplinary committee.

(2) Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar

Council of India may, 4[either of its own motion or on a report by a State Bar Council or on
an application made to it by any person interested], withdraw for inquiry before itself any
proceedings for disciplinary action against any advocate pending before the disciplinary
committee of any State Bar Council and dispose of the same.

(3) The disciplinary committee of the Bar Council of India, in disposing of any case under
this section, shall observe, so far as may be, the procedure laid down in section 35, the
references to the Advocate-General in that section being construed as references to the
Attorney-General of India.

(4) In disposing of any proceedings under this section the disciplinary committee of the Bar
Council of India may make any order which the disciplinary committee of a State Bar
Council can make under sub-section (3) of section 35, and where any proceedings have been
withdrawn for inquiry 5[before the disciplinary committee of the Bar Council of India] the
State Bar Council concerned shall give effect to any such order.

1
[36A. Changes in constitution of disciplinary committees.— Whenever in respect of any
proceedings under section 35 or section 36, a disciplinary committee of the State Bar Council
or a disciplinary committee of the Bar Council of India ceases to exercise jurisdiction and is
succeeded by another committee which has and exercises jurisdiction, the disciplinary
committee of the State Bar Council or the disciplinary committee of the Bar Council of India,
as the case may be, so succeeding may continue the proceeding from the stage at which the
proceedings were so left by its predecessor committee.]

2
[36B. Disposal of disciplinary proceedings.—(1) The disciplinary committee of a State
Bar Council shall dispose of the complaint received by it under section 35 expeditiously and
in each case the proceedings shall be concluded within a period of one year from the date of
the receipt of the complaint or the date of initiation of the proceedings at the instance of the
State Bar Council, as the case may be, failing which such proceedings shall stand transferred
to the Bar Council of India which may dispose of the same as if it were a proceeding
withdrawn for inquiry under sub-section (2) of section 36.

(2) Notwithstanding anything contained in sub-section (1), where on the commencement of

the Advocates (Amendment) Act, 1973 (60 of 1973), any proceedings in the respect of any
disciplinary matter against an advocate is pending before the disciplinary committee of a
State Bar Council, that disciplinary committee of the State Bar Council shall dispose of the
same within a period of six months from the date of such commencement or within a period
of one year from the date of the receipt of the complaint or, as the case may be the date of
initiation of the proceedings at the instance of the State Bar Council, whichever is later,
failing which such other proceedings shall stand transferred to the Bar Council of India for
disposal under sub-section (1).]

37. Appeal to the Bar Council of India.—(1) Any person aggrieved by an order of the

3 4
disciplinary committee of a State Bar Council made [under section 35] [or the Advocate
General of the State] may, within sixty days of the date of the communication of the order to
him, prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of

India which may pass such order 1[(including an order varying the punishment awarded by
the disciplinary committee of the State Bar Council)] thereon as it deems fit:

1[Provided that no order of the disciplinary committee of the State Bar Council shall be

varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect
the person aggrieved without giving him reasonable opportunity of being heard.]

3
[39. Application of sections 5 and 12 of Limitation Act, 1963.—The provisions of
sections 5 and 12 of the Limitation Act, 1963 (36 of 1963), shall, so far as may be, apply to
appeals under section 37 and section 38.]

45. Penalty for persons illegally practising in courts and before other authorities.—Any
person who practises in any court or before any authority or person, in or before whom he is
not entitled to practise under the provisions of this Act, shall be punishable with
imprisonment for a term which may extend to six months.

1
[46. Payment of part of enrolment fees to the Bar Council of India.—[Omitted by Act 70
of 1993 w.e.f. 26.12.1993).]]

2
[46A. Financial assistance to State Bar Council.—The Bar Council of India may, if it is
satisfied that any State Bar Council is in need of funds for the purpose of performing its
functions under this Act, give such financial assistance as it deems fit to that Bar Council by
way of grant or otherwise.]

47. Reciprocity.—(1) Where any country, specified by the Central Government in this behalf
by notification in the Official Gazette, prevents citizens of India from practising the
profession of law or subjects them to unfair discrimination in that country, no subject of any
such country shall be entitled to practise the profession of law in India.

(2) Subject to the provisions of sub-section (1), the Bar Council of India may prescribed the
conditions, if any, subject to which foreign qualifications in law obtained by persons other
than citizens of India shall be recognised for the purpose of admission as an advocate under
this Act.
48. Indemnity against legal proceedings.—No suit or other legal proceeding shall lie

against any Bar Council or any committee thereof or a member of a Bar Council 3[or any
Committee thereof] for any act in good faith done or intended to be done in pursuance of the
provisions of this Act or of any rules made thereunder.

4
[48A. Power of revision.—(1) The Bar Council of India may, at any time, call for the
record of any proceeding under this Act which has been disposed of by a State Bar Council or
a Committee thereof, and from which no appeal lies, for the purpose of satisfying itself as to
the legality or propriety of such disposal and may pass such orders in relation thereto as it
may think fit.

(2) No order which prejudicially affects any person shall be passed under this section without
giving him a reasonable opportunity of being heard.]

1
[48AA. Review.—The Bar Council of India or any of its committees, other than its
disciplinary committee, may of its own motion or otherwise review any order, within sixty
days of the date of that order, passed by it under this Act.]

2[48B. Power to give directions.—(1) For the proper and efficient discharge of the functions

of a State Bar Council or any Committee thereof, the Bar Council of India may, in the
exercise of its powers of general supervision and control, give such directions to the State Bar
Council or any committee thereof as may appear to it to be necessary, and the State Bar
Council or the committee shall comply with such directions.

(2) Where a State Bar Council is unable to perform its functions for any reason whatsoever,
the Bar Council of India may, without prejudice to the generality of the foregoing power,
give such directions to the ex officio member thereof as may appear to it to be necessary, and
such directions shall have effect, notwithstanding anything contained in the rules made by the
State Bar Council.]

49. General power of the Bar Council of India to make rules.—3[(1)] The Bar Council of
India may make rules for discharging its functions under this Act, and, in particular, such
rules may prescribe—
4[(a) the conditions subject to which an advocate may be entitled to vote at an election to the

State Bar Council including the qualifications or disqualifications of voters, and the manner
in which an electoral roll of voters may be prepared and revised by a State Bar Council;

(ab) qualifications for membership of a Bar Council and the disqualifications for such
membership;

(ac) the time within which and the manner in which effect may be given to the proviso to sub-
section (2) of section (3);

(ad) the manner in which the name of any advocate may be prevented from being entered in
more than one State roll;

(ae) the manner in which the seniority among advocates may be determined;

1[(af) the minimum qualifications required for admission to a course of degree in law in any

recognised University;]

(ag) the class or category of persons entitled to be enrolled as advocates;

(ah) the conditions subject to which an advocate shall have the right to practise and the
circumstances under which a person shall be deemed to practise as an advocate in a court;]

(b) the form in which an application shall be made for the transfer of the name of an advocate
from one State roll to another;

(c) the standard of professional conduct and etiquette to be observed by advocates;

(d) the standards of legal education to be observed by universities in India and the inspection
of universities for that purpose;

(e) the foreign qualifications in law obtained by persons other than citizens of India which
shall be recognised for the purpose of admission as an advocate under this Act;

(f) the procedure to be followed by the disciplinary committee of a State Bar Council and by
its own disciplinary committee;
(g) the restrictions in the matter of practice to which senior advocates shall be subject;

1[(gg) the form of dresses or robes to be worn by advocates, having regard to the climatic

conditions, appearing before any court or tribunal;]

(h) the fees which may be levied in respect of any matter under this Act;

2[(i) general principles for guidance of State Bar Councils and the manner in which directions

issued or orders made by the Bar Council of India may be enforced;]

(j) any other matter which may be prescribed:

3[Provided that no rules made with reference to clause (c) or clause (gg) shall have effect

unless they have been approved by the Chief Justice of India:]

4[Provided further that] no rules made with reference to clause (e) shall have effect unless

they have been approved by the Central Government.

3[(2) Notwithstanding anything contained in the first proviso to sub-section (1), any rules

made with reference to clause (c) or clause (gg) of the said sub-section and in force
immediately before commencement of the Advocates (Amendment) Act, 1973 (60 of 1973),
shall continue in force until altered or repealed or amended in accordance with the provisions
of this Act.]

5
[49A. Power of Central Government to make rules.—(1) The Central Government may,
by notification in the Official Gazette, make rules for carrying out the purposes of this Act
including rules with respect to any matter for which the Bar Council of India or a State Bar
Council has power to make rules.

(2) In particular and without prejudice to the generality of the foregoing power, such rules
may provide for—

(a) qualifications for membership of a Bar Council and disqualifications for such
membership;
(b) the manner in which the Bar Council of India may exercise supervision and control over
State Bar Council and the manner in which the directions issued or orders made by the Bar
Council of India may be enforced;

(c) the class or category of persons entitled to be enrolled as advocates under this Act;

(d) the category of persons who may be exempted from undergoing a course of training and
passing an examination prescribed under clause (d) of sub-section (1) of section 24;

(e) the manner in which seniority among advocates may be determined;

(f) the procedure to be followed by a disciplinary committee of a Bar Council in hearing

cases and the procedure to be followed by a disciplinary committee of the Bar Council of
India in hearing appeals;

(g) any other matter which may be prescribed.

(3) Rules under this section may be made either for the whole of India or for all or any of the
Bar Councils.

(4) If any provision of a rule made by a Bar Council is repugnant to any provision of a rule
made by the Central Government under this section, then, the rule under this section, whether
made before or after the rule made by the Bar Council, shall prevail and the rule made by the
Bar Council shall, to the extent of the repugnancy, be void.

1[(5) Every rule made under this section shall be laid, as soon as may be after it is made,

before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately following the session or the successive sessions aforesaid,
both Houses agree in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified form or be of
no effect, as the case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.]
51. Rule of construction.—On and from the appointed day, references in any enactment to
an advocate enrolled by a High Court in any form of words shall be construed as references
to an advocate enrolled under this Act.

52. Saving.—Nothing in this Act shall be deemed to affect the power of the Supreme Court
to make rules under article 145 of the Constitution—

(a) for laying down the conditions subject to which a senior advocate shall be entitled to
practise in that Court;

(b) for determining the persons who shall be entitled to 1[act or plead] in that Court.

55. Rights of certain existing legal practitioners not affected.—Notwithstanding anything

contained in this Act,—

(a) every pleader or vakil practising as such immediately before the date on which Chapter IV
comes into force (hereinafter in this section referred to as the said date) by virtue of the
provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920
(17 of 1920), or any other law who does not elect to be, or is not qualified to be, enrolled as

an advocate under this Act; 1 [***]

2[(c) every mukhtar practising as such immediately before the said date by virtue of the

provisions of the Legal Practitioners Act, 1879, or any other law, who does not elect to be, or
is not qualified to be, enrolled as an advocate under this Act;

(d) every revenue agent practising as such immediately before the said date by virtue of the
provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any other law,]

shall, notwithstanding the repeal by this Act of the relevant provisions of the Legal
Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act 17 of
1920), or other law, continue to enjoy the same right as respects practice in any court or
revenue office or before any authority or person and be subject to the disciplinary jurisdiction
of the same authority which he enjoyed or, as the case may be, to which he was subject
immediately before the said date and accordingly the relevant provisions of the Acts or law
aforesaid shall have effect in relation to such persons as if they had not been repealed.
 I. Cases

There are 3 qualities which every advocate must have: need to be very very peaceful – cannot
take agitated by themselves- questions need to be asked peacefully and to the point- client
may not know what to ask exactly, so have to be progressive in helping the client – nobility
in the legal profession, very harmonious

Be Peaceful, Be Pointed, Be Progressive

Client brought to the notice of the advocate that a particular judge is corrupt, and the
advocate replied in letter again- and said that he was corrupt, also told client that if you are
able to influence then you can do. Client went to State Bar Council- suspension of advocate-
appeal to BCI – permanently license cancelled. Appeal to SC- here, the advocate did not deny
that a letter was written- did not dispute, advocate said that he was just agreeing to what the
client says, and what he knew as fact – that judge took bribe of 10K Rs.

Bar Council Of Maharashtra vs M. V. Dabholkar Etc. Etc on 3 October, 1975

In Maharashtra, a group of lawyers used to stand near the gate of the court, would stop people
to the extent of taking their bags, then would force them to enter the library and speak to
them about how much is charged, and discuss their case. BomHC gave direction to State Bar
Council to constitute a disciplinary committee, the State Bar Council found that this was
indeed happening- lawyers were trying to induce people to take up their case, were acting like
brokers- State Bar Council established disciplinary committee- held that this amounts to
solicitation of work, and they were debarred for some amount of time, appealed against to
BCI- BCI brought punishment down to 1 year- almost they were acquitted- BCI said that for
solicitation, it is needed that there needs to be some evidence of some people whose cases
have actually been solicited.

State Bar Council decided to go to SC against order of BCI- wanted to know what the
interpretation of Rule 36 will be- does it mean that actual solicitation has to be proven? And,
is it necessary that solicitation be actually proven? SC said that Rule 36 also extends to
attempt to solicit- do not have to wait for actual solicitation to take place

Sir read out Indian Kanoon Headnote.

Supreme Court found this to be professional misconduct- a broad interpretation was done.

Rangadurai v. D. Gopalan And Ors on 4 October, 1978

Told the client that case was going on- but case was actually not filed, and he had taken
money, told the client that junior has been given responsibility but junior did not do it. Money
however was given to the senior- this is negligent behaviour. Complained against him.

In Tamil Nadu, the lawyers passed comment about judge stating that judge was acting like
the advocate of the other side, and these comments were shared on social media – so as a
punishment, these lawyers were debarred from using social media. In Madras, the judge
ordered the lawyer to plant trees for green development.

Can be reparimand, punishment or debarring – punishment should not be seen in the

traditional way.

PS Gupta v. BCI

Lawyer cannot retain the money, even if a small amount- cannot withhold, the judgement
money cannot be withheld to get more money – single instance of lending- cannot be claimed
as a business

Read here: http://www.legalserviceindia.com/legal/article-2375-case-analysis-of-prahlad-

saran-gupta-v-s-bar-council-of-india-professional-misconduct-.html

Sir speaks about how reparimand is also a serious punishment- it leads to psychological
impact as well, one needs to know that a reparimand from the BCI means a lot! Sir also
reminds that one must ensure records of every transaction and every interaction

Harish Chand Singh v. SN Tripathi

Respondent was president of Bar Council of state and he was also roped in

1. The appellant was admittedly engaged as a counsel of the complainant to represent him in
the consolidation proceedings which were pending against him wherein the dispute regarding
the very same suit land was on the anvil between the complainant Daya Ram on the one hand
and complainants father's sister's husband Shri Bisai.

2. It is also well established that the appellant persuaded the complainant to execute a
Mukhtarnama in favour of Respondent no.2 whose evidence showed that he was the
appellant's junior and was well known to him and accordingly Mukhtarnama was executed by
complainant Daya Ram in favour of Respondent no.2.
3. That Respondent no.2 executed Sale Deed in respect of the property in favour of Shri Nand
Kishore Singh.

4. Shri Nand Kishore Singh was the father of the appellant.

5. The copy of the Mukhtarnama dated 18th January, 1972 shows that the complainant had
allegedly given full power to Respondent no.2 to dispose of his property.

6. The copy of the Sale Deed dated 25th January, 1972 was executed by Respondent no.2 as
an agent of complainant in favour of Nand Kishore Singh, father of the appellant.

7. The copy of the Kutumb Register showed that Shri Nand Kishore Singh and the appellant
being father and son were living in the same house.

Here, junior was very open and clear that he was not sure about what done, and also
mentioned that if he has done something wrong- here, of course, it was clear that the advocate
was doing something wrong- and then also being dishonest about what he was doing later, as
if it was not abundantly clear from his actions.

Hikmat Ali Khan vs Ishwar Prasad Arya & Ors on 28 January, 1997

UP Sales Tax Service Association v. Taxation Bar Association

M. Veerabhadra Rao v. Tek Chand

Omkar Singh v. Angrez Singh

C. Ravindra Iyer v. AM Bhattacharya

John D’souz v. Edward

Bar Council of Maharashtra v. Dhabolkar

Shambhu Lal Yadav v. Hanuman Das Khatri

Narotanmal (?) Chouraria v. M.R. Murli

Lalitha Maskey Case

 ADVOCATES ACT, 1961

Section 14, 16, 23, 24, 29, 30,33,34,35, 36, 36A, 36B, 37, 39, 45, 46A, 47, 48, 48A, 48AA,
48B, 49, 49A, 51, 52, 55CH-V, 49, 52, CH-II, CH-III

BCI Rules on Other Employments

Rules 47-52

Harish Chand Singh v. SN Tripathi

Respondent was president of Bar Council of state and he was also roped in a case.
1. The appellant was admittedly engaged as a counsel of the complainant to represent him in
the consolidation proceedings which were pending against him wherein the dispute regarding
the very same suit land was on the anvil between the complainant Daya Ram on the one hand
and complainants father's sister's husband Shri Bisai.
2. It is also well established that the appellant persuaded the complainant to execute a
Mukhtarnama in favour of Respondent no.2 whose evidence showed that he was the
appellant's junior and was well known to him and accordingly Mukhtarnama was executed by
complainant Daya Ram in favour of Respondent no.2.
3. That Respondent no.2 executed Sale Deed in respect of the property in favour of Shri Nand
Kishore Singh.
4. Shri Nand Kishore Singh was the father of the appellant.
5. The copy of the Mukhtarnama dated 18th January, 1972 shows that the complainant had
allegedly given full power to Respondent no.2 to dispose of his property.
6. The copy of the Sale Deed dated 25th January, 1972 was executed by Respondent no.2 as
an agent of complainant in favour of Nand Kishore Singh, father of the appellant.
7. The copy of the Kutumb Register showed that Shri Nand Kishore Singh and the appellant
being father and son were living in the same house.
Here, junior was very open and clear that he was not sure about what done, and also
mentioned that if he has done something wrong- here, of course, it was clear that the advocate
was doing something wrong- and then also being dishonest about what he was doing later, as
if it was not abundantly clear from his actions.
 
Hekmat Ali Khan v Ishwar Prasad Arya (20thJanuary 1997, Supreme Court)
Facts: Mr. Ishwar was an advocate – in the course of a particular proceeding, the matter was
over but it was a district court where space was limited and advocates formed long lines –
attacked another person with knife, was also said to have a gun in his pocket, and all of this
was committed on Court premises – gun was not able to be sufficiently proved – Ishwar
punished under section 307 of IPC (attempt to murder) and section 25 of Arms act (to hold
arms), and punished for 3 years – the State Bar Council based on pronouncement of district
court was suspended for a period of three years
Ishwar appealed and the High Court upheld 3 years suspension – except the firearm could not
be proved and that was omitted
There was a letter from home ministry stating that the governor of Uttar Pradesh has – it was
later found out that this letter was fabricated
Hekmat complained before bar council of India – who upheld the order of State bar council –
but Hekmat asked Ishwar has committed an offence in addition to sudden provocation to
attack with knife – the fabrication of document goes against the rule of law – hence the
licence should be debarred permanently
Supreme Court: pulled up the bar councils – how can only three years punishment be given –
Ishwar was debarred from service and his licence was cancelled – against his name in the roll
call was written bad character
But what about cases involving of domestic violence or drunk driving? – if continuously
violates rule of law – then should be punished – according to Param sir
 
UP Sales Tax Service v. Taxation Bar Association (1995, Supreme Court)
Allegations against an officer - road roko was done and advocates were prevented from
appearing – High Court issued writ of prohibition against officer for corruption without any
proof for this
Supreme Court: Is this officer really corrupt? Simply because there is protest, an order of this
nature cannot be passed, and there needs to evidence against a judicial officer of the tribunal
– Cannot be browbeat to take any action against judicial officer without evidence of
wrongdoing
 
John D’souza v. Edward (1993, Supreme Court)
Facts: The advocate was called in question for professional misconduct under section 35 –
There was an old lady living in Karnataka – she had certain properties in Karnataka – but she
routinely travelled between England and India – so she wrote a will and gave the will to the
custody of her advocate – advocate gave a receipt in this regard – when this lady visited
abroad, she wrote to the lawyer to handover the copy of the will to her son-in-law – advocate
did not respond to this letter – son-in-law filed misconduct case with evidence being of
receipt – before the lady’s death, she had written yet another letter on the same subject to
which she also received no reply – the family made another will and obtained another will
regarding the same subject with another advocate – still son-in-law wanted to see the old will
even if the new will would take effect
Advocate stated that he had not received any letter – and if he wants the son-in-law can
approach to collect whenever he wants and come to the advocate’s office – son-in-law said
that he will complain but even to this there was no response by the advocate – son-in-law
approached the State bar council and State bar council found prima facie no basis for
allegations made by him
Bar Council of India: awarded a suspension of one year – advocate appealed for revision of
their order
Bar Council of India: Cannot be revised like this since there was evidence of receipt of letter
etc. – there has been neglect by the advocate and disregard of caution and care – advocate
said that there was no intention (animus), the son-in-law could have approached him in office
and given the old will – advocate gave another argument asking a stay of suspension of the
suspension of the advocate while the matter was heard before the Supreme Court (SC allowed
this)
Supreme Court: Another argument was taken here that since a new will is created and
registered, the old will became res nullius – hence the argument was made that there can be
no misconduct – the SC did not accept this argument - the SC then held that a will amounted
to property and not allowing the same to be returned amounted to violation of custody
Misconduct can also result from actions of the advocate which brings indignity to the court
 
C Ravichandran Iyer v Justice AM Bhattacharjee
Maharashtra case – there was a group of advocates who were upset with a judge of Bombay –
Ravichandran informed State bar council to take action against such advocates – because the
conduct of advocates is prescribed to be officer of the court and be a gentleman in society – a
gentleman understands everybody and is conscious of the surrounding – law touches
interrelationship of humans; between humans and flora and fauna; between humans and
space, law is everywhere – there is a process to inform the speaker, governor, chief justice
about misconduct by a judge – the advocates cannot engage in rumour mongering
Supreme Court: Bar council is supposed to monitor these kind of things – the advocates must
approach the judge directly with allegations – then the proper process must be adopted
Sir’s comments: Advocate must consider - role to the client – officer of the court – gentle to
society – role to the constitution – role to fellow advocates – privileged member of society
 
Onkar Singh v. Angrez Singh and others, 1992
Facts missed
 
M Veerabhadra Rao v. Tek Chand, 1984
Case from Andhra Pradesh - Rao was the advocate and Veerabhadra Rao was his junior, and
Chand was the client – matter in relation to execution of sale deed and power of attorney
given in this regard – junior advocate impersonated the document for respondent (client) and
junior advocate collected the commission – and it came as a shock to the client that the sale
deed was executed – there is also a responsibility on the senior to verify the actions of the
junior
Supreme Court: Junior advocate committed the mistake – the State bar council had given a
simple reprimand since it was a first offence – before BCI reprimand and little fee was
imposed – this was found to be lackadaisical – the punishment imposed was 5 years from the
date of the judgement and the junior advocate had to pay the entire cost of litigation
This case opened the door for the responsibility of the senior advocate but no punishment was
imposed on senior in the present case

(HRITHIK) Causes of Professional Misconduct

This is not normally dealt in professional ethics. However in order to understand the meaning
and ways of professional misconduct, it is important to understand its causes.

Misconduct can lead to injustice to client, legal system or to the dignity, integrity and
reputation of the legal system. Wherever there is this injury or there is such injustice, the
current legal system deal with it with punitive system i.e. the person is punished for the injury
that has been caused to another person in order to create deterrence amongst everyone. Crime
happens because of lack of connection of thought and conduct/behaviour. In this context,
when a lawyer commits misconduct which has been proved, we need to understand the
causes of such professional misconduct.

In foreign law schools, religious and altruistic values are being taught in legal profession
since:

1. It is impractical for judges to handle all the cases.

2. There is an increase in cost of litigation.
3. There is a hidden cost of which the clients are not aware.

Therefore, the courts are asking advocates, in certain cases, to undertake mediation and
conciliation before bringing the disputes to the courts.

No advocate willing involves himself/herself in professional misconduct because the cost

involved in committing such misconduct is huge. Misconduct brings disrepute to the
advocate, career, court, client and to the society.

Causes

1. Negligence
2. Callous Attitude
3. Lack of Efficiency

However what are the Core Causes for such negligent, callous or inefficient attitude?

1. Non-consciousness of one’s own thought and conduct :

There must be connection/synchronisation between one’s own thought and conduct (i.e. the
Behaviour). There has to be continuity between the inner thoughts and the actual acts. In the
Veerbhadra Rao v. Tek Chand (1984) case, the junior advocate had signed the sale deed on
behalf of the client without obtaining requisite instructions. This was considered as
impersonation of the client. He had signed on the sale deed presuming that his senior and the
client were close friends and there will be no consequences of his action. However, this is an
example of non-consciousness of one’s own thoughts and subsequent conduct. His conduct is
negligent, callous and inefficient.

There is a lack of harmony or disconnect between the thoughts and conduct i.e. the thinking
and the acts. In criminal law, it is called mens rea (intention/thinking) and actus rea (act).
Human beings are expected to be self-aware i.e. aware of the consequences of their acts. The
actions of the advocate can affect the life of the client and his/her property in the society. The
money that the advocate is being paid is a consideration as per the Indian Contract Act which
involves abstaining from certain acts including professional misconduct. There is consensus
ad idem in contracts. If there is disturbance in the thoughts, it can lead to injury to client,
court and society. The advocate should be aware of such disturbance as well in order to avoid
professional misconduct.

The clients can always approach with complaints of professional misconduct however the
advocate has to ensure harmony between his/her thoughts and actions (which put together are
known as Behaviour and the 8 lamps of advocacy). The mind is programmed from influences
from within (body biology, chemistry and emotions) and from outside (social influences). In
order to ensure good conduct, one should be aware of both these influences.

Stress may be caused either due to lack of ability of being able to do some work or due to the
lack of confidence. Stress may be caused due to pressure to excel in the office i.e. to achieve
a higher award. Mind, Emotion, Sense and Body- if there is disconnect between these 4
components can lead to stress and disconnect between thought and act. The advocate should
be aware of these 4 components along with the possible consequences of his/her actions (put
together constitutes individual excellence). Emotional quotient should support the legal
knowledge that one possesses, otherwise there will not be balance and injury can be caused to
client or court or legal system. The body has to be trained in order to balance these motor
coordination skills and the same has to be reflected in the actual work that is being
undertaken. Example: In exams, all of us write proper answers for first few questions
however, due to lack of time or clarity of thoughts, the pattern is not followed in the later
questions showing that there is lack of coordination between emotions, thought and action.
There are certain students who do not write answers in the exams even though they are aware
about the answers.

If there is disconnect between the abovementioned 4 components/layers, then advocate may

be involved in misconduct even if he/she does not intend to do so. Example: An advocate
used to say ‘Okay, Okay’ after making each argument in a way attempting to know if the
judge has understood the argument or not however the judge got irritated by such conduct
and asked him to make arguments without using such mannerisms. The advocate should
know the law, issues and volume of impact of the case, financial strength of the case and be
aware about the role within the office & society.

The advocates involved in misconduct are not dumb however their coordination of thought
and action is affected by pressure and stress being caused by personal or professional reasons.
The shame associated with being held accountable for professional misconduct is such that
the person may not be able to face the court or his/her peers again, therefore the coordination
and awareness of thought and action is very important or otherwise heartfelt apology should
be tendered in case the advocate is involved in a case of misconduct.

Comparative examples of coordination: playing games to maintain coordination in eyes, ears

and mind, taking into consideration all internal and external factors while driving a car.

2. Lack of development of intra personality and inter personality dimensions :

The best worth of a person is not only the intelligent one but also one who recognises the
interpersonal relations and someone who comes to your rescue by using the motor
coordination skills. The 4 components viz. Mind, Sense, Body and Emotion (intra-personality
dimensions) can impact each other and because of their interdependence, their coordination is
essential. These intra personality dimensions are equal to Individual + excellence. These
dimensions also account for inter personality dimensions which are equal to the social +
collective + organisational dimensions. In USA, there are diversity programmes to let
individuals interact with each, irrespective of the diversity in their race, caste and gender, for
development of inter personality dimensions. Unless intra personality dimensions are not
developed, the person cannot develop or excel in inter personality dimensions.

Bar Council of India Rules and Regulations (Standards of Etiquette and Conduct)- lawyer’s
role with the client, fellow advocates, court and above all the connection with the
Constitution and Legal System (inter personality dimensions).

How can these dimensions be developed in practical sense?

 There should be willingness to develop such dimensions.

 Identify areas of strengths and weaknesses (SWOT Analysis). Strength, Weakness
(vulnerabilities), Opportunities and Targets have to be identified in SWOT Analysis. In offices,
such analysis is generally undertaken by seniors before allocating the work however in case
of self employment like in litigation, such an analysis is to be done by the advocate
himself/herself or the client will point them out by filing a complaint for professional
misconduct. Concentrate on areas of strengths and opportunities. In order to grow, work
may be taken up in weaker areas however it should not be at the cost of strengths and most
importantly not at the cost of the client. Professional and/or good conduct brings success in
one’s career, irrespective of the capacity in which the advocate is involved. Self-Discipline
will also help the advocate in succeeding in his/her career.

Excellence means quality of life of the advocate/professional. Restraint should be exercised

by the advocate in taking up the matters in order to take care of the advocate’s own health
and harmony in motor coordination skills. If matters are taken up just to achieve the so called
Number 1 position, there will always be a possibility of causing injury to clients or the court
which may amount to professional misconduct. Excellence should not be confused with greed
which may include forcing clients to file cases only to take care of their own livelihood.
Misconduct can be costly for the profession as a whole.

At the stage of entering litigation practice, an advocate has to balance between the quality of
service and earning livelihood while taking up the cases. If there is imbalance then there is an
increased possibility of faulty service and misconduct. While going after greed, faulty
services should not be rendered to clients. If we convert our emotion of choosing law to a
skill or career then excellence can be achieved. If the advocate is satisfied with what he/she is
doing then there will be lesser chances of misconduct. While pursuing one’s interests, there
no need to get so competitive that such interests are compromised.

In case of criminals, there is disharmony between intra personal and inter personal
dimensions (thoughts and acts). They are not fully aware of their sensory skills and the motor
coordination skills.

(DISHA) PROFESSIONAL LEGAL ETHICS

Discusses the course outline: whatever he has tried to cover up in 50 classes.

Mix matched theory and practical part because professional ethics is one thing in which the
theory, or the value or the philosophy on side and the practice on another side. They both are
interrelated because there is no clear cut law, no clear cut statutes, no clear cut dos and donts.
Even the Bar council dos and donts are largely recommended and are largely guidelines. So,
we relied on maximum case laws and how the legal profession be based on Bar council
guidelines, Advocates Act and the Constitution.

So, that how we discuss. Theory is there in module 1 and some practical understanding and
some case laws. Only the case laws he does in class will come.
Law is not just advocacy in the court or litigation. It is a 360 degree. It is also a service, a
career, a jo, work, a field to work, NGO, social transformation. As much as life is diverse and
complex so is law. We cannot divorce law from life or life from law. Because the product or
the source of life is law. Or the product of life in a social collectivity is law. It is we who
create law not law who creates us. The PREAMBLE clearly tell us. We the people of India.
Justice, equality, liberty and fraternity has to assure dignity to the whole nation.

Who are the best person who have the knowledge to this are us the people who study law.
Law is not only litigation, corporate, Higher education, etc. it is 360 degree. And for all this
we require ethics, morality, legality and so on. All these are combined. Under all this is
ethics. Ethics is one that runs across. It promotes justice. So in the module he has put all
kinds of legal proportions.

DISCUSSES ABOUT TWO- THREE STUDENTS

whatever you do should help everyone. A lawyer should serve everybody. This is the angle of
the sincere approach pursuing the passion, connecting with what you want to do and then
slowly bringing a feasibility to it, practical aspect and economic dimension to it. That will
make you an ethical professional. Ethics and moral is not a debate about right or wrong. It is
about pursuing you passion in most right way which means no injustice or injury to anybody.
That which promotes justice to oneself and others.

This is what he has tried to share with everyone in the 50 classes.

His questions will make you think and he expects different answers to see how people think.
(HRITHIK) Excellence Skills or Good Conduct in Legal
Profession
Revised the class on Causes of Professional Misconduct.

Misconduct arises from non-satisfaction and non-fulfilment of the expectations of the client.
This can arise even in shops and fairs. However in legal profession, the rights and duties of
the clients are being determined and the clients do not have the luxury of approaching another
advocate if their rights have been adversely affected due to the misconduct of the original
advocate (there is always an option of appeal or review but for once, their rights and duties
are determined by the court), therefore there is a bigger and deeper responsibility on the
advocate to satisfy the expectations of the clients. If the service is found to be negligent or
careless then the client will file a case for professional misconduct.

Appellate jurisdiction is also relevant for violation of principles of natural justice or

discovery of new facts or new issues or evidence or patent illegality or error apparent on the
face of the record (which can be due to the faulty service by the advocate). The client can
drag the advocate to the advocate to higher authorities for faulty services.

4 essential skills that a legal professional ought to have/possess in order to succeed in every
environment (corporate law firm or litigation etc.):

1. Self awareness: Do you know who you are? You are not just a bundle of molecules or just a
body. Mind is a memory bank for the sensory reactions (5 senses) - this memory bank
constitutes the knowledge. One needs to be aware about the mind, emotions, body and
thoughts (skills).
2. Self confidence: under confidence and over confidence are both wrong. It should be
measured confidence. It is in relation to a combination of awareness, understanding and
responsibility.
3. Self understanding: understanding the consequences of one’s own acts.
4. Self responsibility: awareness and understanding leads to responsibility (responsible actions
in relation to client, court and society).

All these 4 components have to operate together. Even if one of these components is
dysfunctional then there will be mismatch, negligence and faulty service. This behaviour will
not be acceptable even if the client does not file an action for professional misconduct.
Example: Veerbhadra case, the junior advocate impersonated the client. His self
responsibility is lost and this is a case of over-confidence.

Difference between Self Awareness and Self Understanding

Ravichandra Iyer v. Justice AM Bhattacharya, advocates suspected the actions of a judge

because he was not giving them favourable orders, their actions and protest forced the judge
to resign. There was absence of logical reasoning and thinking otherwise they would have
approached the superior authority or talk to the judge in his chambers but rather the advocates
stopped others from entering the judge’s court. This shows that they are self aware (thinking
what should be done) but they lack understanding of the consequences. Understanding brings
the relationship in the awareness. Awareness is that the surrounding circumstances in which a
person is walking on the street however understanding is not throwing stones or garbage on
those streets.

Oliver Wendell Holmes: You can go and watch a movie in the theatre. But you cannot
scream ‘Fire, Fire!’ in the theatre without responsibly knowing what will be the impact of
such an action on others in the theatre. People will start running to save their lives even
though for the person it was just a moment of humour. He is aware that he can bring comedy
by shouting these words but that has not transformed into an understanding whether he
should do it or not (this is not how freedom of speech can be exercised). Awareness is the
whole and Understanding is the relation to the whole. He is fully aware of himself but he is
not aware of his inter-relational self that is where understanding comes.

Example: An advocate was sitting with another advocate and having lunch. In a heated
argument, he started beating & kicking the other advocate and pointed a gun at him. He must
be an intelligent man wanting to self-preserve himself but such behaviour is not acceptable. If
intra personality is affected then it will affect inter personality dimensions as well.

There is basic awareness but there is lack of understanding or fore-standing because people
do not understand the consequences of their acts.

The interplay between the four skills

To be a good advocate, one should be aware of the intra personal and inter personal
dimensions. If he/she is not aware then it leads to negligent, callous and careless behaviour.
Example: seeking frequent judgements, not returning the case brief to the advocate. John
D’Souza v. Edward Ani (1978), the advocate retained the ‘will’ even after receiving repeated
requests from the client and the advocate. The court held that the conduct of
appellant/advocate in not returning the will even on demand is unworthy of an advocate
belonging to a noble profession. He has no right to withhold the property (will) of a client.
The advocate is aware about the role of custodian but his other quotients are not working in
consonance (emotions and sensory skills are not functioning properly) which would stop him
from engaging in such conduct.

All misconduct cases are related to lapse in mind, emotions, sensory skills, body coherence of
the 4 components or the inter relationship between the individual and society. If it leads to
theft then it is a punishable offence, if it results in accident then it lead to a motor vehicle
accident claim and if it is in relation to the clients then it can lead to professional misconduct
where the law firm or company or BCI will come down heavily on you. When faulty service
is given in a law firm then the client would come down on the firm which in turn will punish
the advocate concerned.

Therefore, self-confidence (measured confidence and not over-confidence), self-awareness

(intra personality), self understanding (inter personality) leading to self responsibility is very
important to maintain good conduct. Self awareness and self understanding has to be seen in
the context of client, court, the constitution and the legal system.

Exclusivity of legal profession because we presume that lawyers can understand the issues
because they study all kinds of inter personality dimensions. These dimensions help them in
honing their skills and delivering quality service. Professional good conduct is essential to be
developed for any and every capacity in which a lawyer in involved (litigation, ADR,
corporate law firm etc.). In order to make connection between thought and action, the 4 skills
(self-awareness, self confidence, self responsibility and self understanding) are essential.
Advocates should seek proper directions from the court in order to act responsibility like if a
legislation should be enacted in relation to matter pertaining to decriminalisation of Section
377 then a direction should be sought from the court however it is the responsibility of the
advocate to take the same to the Parliament as well. Sometimes the responsibility is limited to
not only to the clients but it goes above and beyond to the society as well.

In order to attain excellence in legal profession, one should not involve in competition with
others (because the quotients and variables may be different) rather we should do what we
want to do for ourselves which would help in developing our career as well. Going away
from this can lead to dissatisfaction leading to misconduct.
Art of Thinking Clearly by Rolf Dobelli- We are not very conscious of ourselves and about
others. Once we clear the doubts and become conscious then we can become successful in
our own sense.

(DISHA) SENIOR ADVOCATES & AOR AS ADVOCATES

Only Advocates should be permitted to practice because the client needs to protected and
their interests needs to be safeguarded and social interaction, harmonious relation that are
going on needs to be balanced and so on. There is a larger picture. It’s not about lawyer.

What we mean by the term practice is that a continuous function representing the client in the
court for that certain eligibilities, criteria’s are given and three most important ones are:

Stage 1:

1. Indian Citizen
2. Law degree obtained from university established by law in India
3. 21 years of age

Stage 2:

1. Get yourself enrolled in the State Bar Council where you want to practice. But as stated
getting enrolled in one state Bar council does not restrict the person from practicing in other
courts subject permission given by state bar council.
2. It is also subjected to unless you acquire the certificate of practice and examination that is
conducted by AIB.

Chapter III talks about Admission and enrollment of Advocates:

According to Section 16 of Advocate Act ,1961:

1) There shall be two classes of Advocates, namely , Senior Advocates and Other Advocates.

2) An Advocate may, with his consent, be designated as senior advocate if the Supreme court
or A High court is of opinion that by virtue of his ability, standing at the Bar or special
knowledge of experience in law he is deserving of such distinction.

3) Senior Advocate shall, in the matter of their practice , be subject to such restrictions as the
Bar Council of India may, in the interest of the legal profession, prescribe.

4) An Advocate of the supreme court who was a senior advocate of the court immediately
before the appointed day shall, for the purposes of the section, be deemed to be a senior
Advocate.

    Provided that were any such senior advocate makes an application before 31 of
December,1965 to the Bar council maintaining the role in which his name has been entered
that he does not desire to continue as a senior advocate , The Bar Council may grant the
application and the role shall be altered accordingly.

 Initially they state that only Advocates are the only class of person as per Section 24 and 29.
Now they state that 2 classes of advocates are there.

 Among all the advocates who are enrolled in each and every bar council, HC and SC can
categorize, designate, differentiate (discuss later if this amounts to discrimination or not) a
particular person as senior advocate by the consent of the person.

 Appointing authority: SC and HC

 Methodology that the SC and HC follow
 If they are of the opinion that by virtue of his ability that his standing at the bar and the
knowledge or the experience in law that he is deserving such a distinction.

 This is a British practice where the Queen’s council was there. The same is repeated. The
Queen appoints certain people in the council who can argue for the queen and who can take
special seating arrangement in the order of presentation. Suppose, This is also criticized and
followed in India, still- If a case is going on and if the judge permits, the senior advocate can
present his case even if it is not in list or order.
 What is the methodology to call someone other advocate and senior advocate;
The number of years, standing at the bar, experience in law and special knowledge. The
highlighted ones are said to be vague because there is no methodology to examine that.
 Section 16 (3) can put certain restrictions under part VI of Rules governing advocates:

“Senior Advocates shall, in the matter of their practice of the profession of law mentioned in
Section 30 of the Act, be subject to the following restrictions :

(a)        A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or
before any person or other authority mentioned in Section 30 of the Act.

Explanation : " To act " means to file an appearance or any pleading or application in any
Court or Tribunal or before any person or other authority mentioned in Section 30 of the Act,
or to do any act other than pleading required or authorized by law to be done by a party in
such Court or Tribunal or before any person or other authorities mentioned in the said Section
either in person or by his recognized agent or by an advocate or any attorney on his behalf.

(b) (i) A Senior Advocate shall not appear without an Advocate on Record in the Supreme
Court or without an Advocate in Part II of the State Roll in any Court or Tribunal or before
any person or other authorities mentioned in Section 30 of the Act.

 
(ii) Where a Senior Advocate has been engaged prior to the coming into force or the rules in
this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is
engaged along with him.  Provided that a Senior Advocate may continue to appear without an
advocate in Part II of the State Roll in cases in which he had been briefed to appear for the
prosecution or the defence in a criminal case, if he was so briefed before he is designated as a
senior advocate or before coming into operation of the rules in this Chapter as the case
maybe.

(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do
any drafting work of an analogous kind in any Court or Tribunal or before any person or
other authorities mentioned in Section 30 of the Act or undertake conveyancing work of any
kind whatsoever. This restriction however shall not extend to settling any such matter as
aforesaid in consultation with an advocate in Part II of the State Roll.

(cc) A Senior Advocate shall, however, be free to make concession or give undertaking in the
course of arguments on behalf of his clients on instructions from the junior advocate.

(d) He shall not accept directly from a client any brief or instructions to appear in any Court
or Tribunal or before any person or other authorities in India.

(e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not after he has
been designated as a Senior Advocate advise on ground of appeal in a Court of Appeal or in
the Supreme Court, except with an Advocate as aforesaid.

           

(f) A Senior Advocate may in recognition of the services rendered by an Advocate in Part - II
of the State Roll appearing in any matter pay him a fee which he considers reasonable.”

First lets see what is Section 30 of the Advocate Act, 1961-

“Sec.30 of the advocate Act 1961 says . Subject to the provisions of this Act , every advocate
whose name is entered in the state roll  shall be entitled as of right to practice throughout the
territories to which this act extends:

1) In all courts including the Supreme court .

2) Before any tribunal or person legally  authorised  to  take evidence;
3) Before any other authority or person before whom such advocate is by under any law for
the being in force entitle to practice.”

 Shows the vakalatnama format.

 4 major restrictions
 A senior advocate after being designated, though we are contesting whether the designation
is right or wrong which is we found vague. After being designated he will not sign any
vakalatnama, he will not appear before court without the instructions from advocate. He
cannot take instructions from the client. He will settle disputes and he will not directly
interact with the client.
 This is in question, why do we have this?/
 Now, if we see the queen’s council model which has been adopted for India senior advocate,
there also the department of constitutional affairs of the Uk, European, the English
parliament to say precisely. They have put five questions:
1. Is it appropriate for the state to award professional and promotional rank in any
profession?
2. Does the rank of the queen’s council in current form in what way it benefits public, grant
justice, bring social justice, in what way it brings social reform, in what way does it
confidence upon the client. If senior advocate will not the client, and not be able to take
instructions from the client, he will not sign the vakalatnama, he will only be there to
present the matter because he has been designated and it has been claimed by
themselves. it has been approved by the SC or HC that he has special knowledge and
special capabilities, long standing and so on.
Question; is it correct ?
It has been discussed many times in advocates forum, they say it should be prevented.
 Reason: what is the exact understanding of a particular court, HC or SC that decide a
person be designated as a senior advocate? Now they found that there is a normally a
50 year old person designated as a senior advocate, we may think that he has a long
standing in power, experience, knowledge similarly a young person is also added in the
category of senior advocate. So, where is the clarity? Shouldn’t there be a uniform
practice as to this.
Here, we need to understand this that AOR is completely different. For AOR there is an
exam that needs to be passed. Any advocate after 5 years of experience can give that
exam. AOR is totally different from Senior advocates. OR is a constitutional right A case
went upto SC; SC was clear that AOR in SC whoch is apex court in the country, in order to
permit anyone to enter into the court, he/ She should be tested on the basis on
knowledge so they give that exam.

So, can this qualification of standing in power, knowledge etc how does this happen?
Allegations: those who are advocates, prominent advoctaes they are getting senior
advocates. The experience you get in house, hereditary. That is something you cannot
avoid. Not doubting whether a designation given by HC/ SC right or wrong, that will be
dealt on case to case basis but the qualifications are not clear. This is one side of
argument.

Second set of argument; if an advocate is not able to meet the client, discuss with him
face to face then he will not be able to understand the light of relieve or remedy which is
sought for. And how are you going to charge the fees. Senior adv normally charge more.
So, how do we have an understanding about this. Does this amount to class within a
class, discrimination among advocates. So people say we should not have such
provisions, if we do then the public should be made clear of all the provisions so that
they will also understand the qualifications required. But the present qualifications are
not clear. In this manner a fresher cannot become a senior advocate.

State Bar Council have brought certain regulations:

One of which is Tamil Nadu through Tamil Nadu Govt. Gazette

“4. Qualification Criteria:-

(1) An Advocate will be qualified to be designated as a 'Senior Advocate', if he:

a. has completed 45 years of age and is ordinarily practicing in the Madras High Court or its Bench at Madurai
and Courts Subordinate to it, including Tribunals for not less than 10 years preceding the date of consideration of
his application for designation as Senior Advocate; or

b. has 15 years combined standing as an Advocate or a District and Sessions Judge, or as a Judicial Member of
any Court or Tribunal in India whose qualification for eligibility for such appointment, is not less than that
prescribed for appointment as a District Judge; and

c. is an Income-tax assessee for the previous 10 consecutive years. The Advocate shall furnish copies of the
annual income tax returns for the preceding 10 years duly certified by a Chartered Accountant.

d. exhibits distinction and eminence for legal acumen and special knowledge and maintains integrity, reputation
and high ethical standards expected of a Senior Advocate both inside and outside the Court;

e. has 15 judgments to his credit, in the preceding five years, where he has contributed to the growth of law;”

Now, this kind of criteria given the state bar of Tamil Nadu at least gives some kind of
clarity. As compared to Section 16 this clears out he criteria.

They have given a counter also:

“4.(2) No Advocate is eligible to be designated as a 'Senior Advocate', if

a. a charge has been framed for an offence involving moral turpitude or he has been convicted by any
court of law for an offence involving moral turpitude or
b. any proceeding for professional misconduct is pending before the Bar Council or if he has been found
guilty of professional misconduct by the Bar Council
c. Any contempt of court proceedings are pending before any Court of Law or if he has been found guilty
of contempt of court.”

“ 4.(3).Permanent Committee and the Full Court shall take into account the caliber, merit and ability and
academic distinction of the Advocate concerned, including his character, conduct and behaviour towards the
court and other members of the Bar.”

They have made clear that there will be a permanent committee:

All matters relating to designation of Senior Advocates in the High Court shall be dealt with
by the Permanent Committee for designation of Senior Advocates, which will be headed by
the Chief Justice and consist of the two Senior-most Judges of the High Court, the Advocate
General and a designated Senior Advocate of the Bar to be nominated by the members of the
Permanent Committee.

Refer to: http://www.hcmadras.tn.nic.in/SeniorAdvocateRules.pdf

“3.Permanent Committee For Designation Of Senior Advocates:

1. All matters relating to designation of Senior Advocates in the High Court shall be dealt
with by the Permanent Committee for designation of Senior Advocates, which will be headed
by the Chief Justice and consist of the two Senior-most Judges of the High Court, the
Advocate General and a designated Senior Advocate of the Bar to be nominated by the
members of the Permanent Committee.

2. The Committee constituted under Sub-Rule (1) shall have a Secretariat, the composition of
which will be decided by the Chief Justice of the High Court, in consultation with other
members of the Committee.

3. The Committee may issue such directions from time to time as deemed necessary
regarding functioning of the Secretariat, including the manner in which, and the source from
which the necessary data and information with regard to designation of Senior Advocates are
to be collected, compiled and presented.”

8.

On Designation Of Advocates As Senior Advocates:-

(1) On designation as a Senior Advocate, the Advocate concerned shall not:

a. file any Vakalat or Memo of Appearance,

b. appear before any court, tribunal or judicial authority unless assisted by another Advocate,

c. directly give consultation to any litigant,

d. appear for mentioning any matter to the Court nor seek an adjournment in any Court,

e. accept instruction to draw pleadings or affidavits, advise on evidence or do any drafting or work of an
analogous nature in any Court or Tribunal, or undertake conveyancing work of any kind whatsoever. However,
these prohibitions shall not extend to settling any such matter as aforesaid in consultation with an instructing
advocate,

f. be a standing counsel of any Government, Public Sector undertaking, institution or local corporate body and if
he holds such a position, he shall resign or relinquish the same upon being designated a Senior Advocate.
(2) Upon designation as Senior Advocate, the name of such Senior Advocate shall be entered in the Roll of
Senior Advocates to be maintained by the Registry and an order to that effect shall be issued conferring such
distinction on the Advocate, by the Registrar General, whereupon, the Advocate shall thereafter be addressed as
a 'Senior Advocate' of the High Court.

(3) Upon an Advocate being designated as Senior Advocate, the Registrar General, shall communicate the same
to the Supreme Court of India, all the High Courts, Bar Council of India, the State Bar Councils and the Bar
Associations of the Madras High Court and Madurai Bench

9. Privileges Of The Senior Advocate:- A Senior Advocate:

a. shall have a preferential right of audience in all Courts according to seniority;

b. shall be entitled to wear special robes meant for Senior Advocates;

c. shall be entitled to such other rights and privileges conferred by the practice of Senior Advocate under the
Advocates Act, 1961.

There is one more section that talks about Right of pre- audience ( Section 23)

“23. Right of pre-audience.―(1) The Attorney-General of India shall have pre-audience over all other
advocates.

(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience
over all other advocates.

(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India
shall have pre-audience over all other advocates.

4
[(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor-
General of India shall have pre-audience over all other advocates.]

5
(4) Subject to the provisions of sub-sections (1), [(2), (3) and (3A)], the Advocate-General of any
State shall have pre-audience over all other advocates, and the right of pre-audience among
Advocates-General inter se shall be determined by their respective seniority.

(5) Subject as aforesaid—

(i) senior advocates shall have pre-audience over other advocates, and

(ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be
determined by their respective seniority.”

Read out the section.

Shows the National Judicial Data Grades

Professional is important because it is not discussing morals and ethics, it is about your
excellence. Ethics is not about what is right and wrong but after figuring out, fight for it.
 (RAHUL ) ADVOCATE ON RECORD – LECTURE I
 There is a classification between Senior and other advocates under section 16 of the
Advocates Act, 1961 (the Act). Additionally, section 24 has also laid down the
criteria for enrolment as an advocate in the state bar association which include;
o Should be a citizen of India; and
o Has completed 21 years of age; and
o Has obtained a law degree from a recognised University.

 In addition to enrolment as an advocate, there is a sub-category called ‘Senior

Advocates’ which can be designated by either the Supreme Court or any High
Court. An advocate may be designated as a Senior advocate if the High Court or
Supreme Court is of the opinion he/she is deserving of this distinction by virtue of
his/her ability, standing at the Bar or special knowledge or experience of law.
(Section 16(2) of the Act) (Fun Fact – There are 416 practicing Senior Advocates)

 An Advocate on Record (AOR) is another sub-category of advocates entitled to

practice in the Supreme Court (SC). This further categorization was created by the
Supreme Court Rules which is updated from time to time. They are currently
referred to as the Supreme Court Rules, 2013 (the Rules). The Rules were
introduced based on the powers of the Supreme Court under section 52 of the Act
and article 145 of the Constitution. (Fun Fact – There are currently 2077 AORs
registered in the SC)

Section 52 - “Savings – Nothing in this Act shall be deemed to affect the

power of the Supreme Court to make rules under article 145 of the
Constitution –
(a) for laying down the conditions subject to which a senior advocate
shall be entitled to practise in that Court;
(b) for determining the persons who shall be entitled to act or plead
in that Court.”
Article 145 – Rules of Court, etc. (I have not reproduced the same here
as it is extremely long. Refer https://indiankanoon.org/doc/1537130/)
 The benefits and rights to which an AOR is entitled are:
o Only an AOR can appear, plead and address the SC. Any other advocate may
appear only if he/she has been instructed by the AOR or permitted by the
Court.
o A Senior advocate may appear only if accompanied by an AOR.

 An advocate can apply to be an AOR through the Rules and has to complete the
following requirements:
o Advocate’s name has been on the roll of any State Bar Council for a period of
not less than 4 years on the date of commencement of his/her training;
o Advocate has undergone training for 1 year with an AOR whose name has
been on the roll of any State Bar Council and has been borne on such roll for
a period of not less than 10 years;
o Pass the AOR exam. The exam comprises of 4 papers ((1) Practice and
Procedure of the Supreme Court, (2) Drafting, (3) Advocacy and Professional
Ethics and (4) Leading Cases) of 100 marks each. The requirement is to pass
each exam (50%) and also obtain a minimum aggregate score of 60%. (Given
under Form No. 30 of Schedule IV of the Rules) (While speaking about the
importance of drafting, Sir gave the example of the Sushant Singh Rajput
case where there was a question of the involvement of CBI. The Court held
that the involvement of CBI is not unconstitutional. I’m not sure how this is
relevant but apparently it is)
o He/She has an office in Delhi within a radius of 16 km from the Supreme and
has employed a registered clerk within 1 month of being registered as an
AOR
o Payment of registration fee of Rs. 250.

 Additional details about the AOR exam:

o An attorney shall be exempt from such training and test (Order IV Rule 5(ii)
(a));
o A solicitor on the rolls of the Bombay Incorporated Law Society shall be
exempt from such training and test, if his/her name has been on the roll of the
 State Bar Council for a period of not less than 7 years (Order IV Rule 5(ii)
(b));
o The Chief Justice of India is also entitled to grant exemptions (Order IV Rule
5(ii)(c)).
o An advocate who has been convicted of an offence of moral turpitude shall
not be eligible for a period from the date of conviction provided he/she has
paid the fine imposed and/or served out the sentence imposed, as the case may
be.

AOR Cases – Lecture II

The introduction of AOR has been challenged on multiple occasions which are given as
follows:

1. Balraj Singh Malik vs Supreme Court of India Through Its Registrar General
 The contentions were as follows:
o Primary contention was that the AOR exam conducted under the Supreme
Court Rules, 1966 is not required and needs to be abolished.
o Section 16 of the Act already creates a classification between Senior and other
advocates. This section read with section 24 of the Act (requirements for
practicing law – Refer previous lecture) has empowered people to practice
law. Additionally, section 29 of the Act states that there shall be only one class
of persons entitled to practice law, namely, advocates. This right to practice in
all court, including the SC, has been provided by section 30 of the Act.
o People who have been entitled to practice law cannot be further restricted by
the 1966 rules.
o Even though the Supreme Court has been granted the power to make rules
under section 52 and article 145 of the Constitution, this cannot be used to
restrict the right to practice in the Supreme Court

 The SC held as follows:

o Section 52 and article 145 are to be read with entry 77 of List I 1. Therefore,
the Supreme Court has not misused this freedom to make rules. Anybody can
1
Entry 77 – Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of
such Court), and the fees taken therein; persons entitled to practice before the Supreme Court.
 become an advocate upon fulfilling the conditions under section 24 of the
Court but a person should be entitled to practice before the SC.
o The SC is the apex court and the forum of last resort. There needs to be a
certain standard in this court. The creation of a separate category is not over
classification, creation of ‘creamy layer’ and it does not violate articles 14 and
19(1)(g).
o Reference made to the case of Vijay Dhanji Chaudhary vs Suhas Jayan
Natawadkar (SLP No. 18481/2009 – Decided on 12.10.2011 (SC)). In this
case similar questions such as the sufficiency of 4 years of practice and 1 year
of training. At the time, the 3rd paper of the AOR exam was ‘Elementary
knowledge of Book Keeping and Accounts and Professional Ethics’. It was
submitted that advocates need not have knowledge of accounting since there
are professionals like Chartered Accountants who deal with all manner of
accounting. The SC said that it is one thing to criticize the working of the
system and another to criticize the system in its entirety. The SC said that it is
ready to amend the provisions of the AOR exam but it will not scrap the
system entirely.

2. In Re: Lily Isabel Thomas vs Unknown (AIR 1964 SC 855 – Decided on

14.01.1964)
 Lily Isabelle Thomas was practicing in the Madras HC, which was then under the
aegis of the Indian Bar Councils Act, 1929. She was admitted as an AOR in the SC
on 29.10.1960. She pleaded before this court that, as an advocate, she is entitled to
practice in this court as a right. This includes the right not only plead but also to act.
Therefore, the rules of this Court (latest amendment to the Supreme Court Rules at
the time was in 1962) which prescribe the qualifications in order to permit her to
practice before the SC are invalid.
 The court disagreed with this submission by relying on the language of article 145
where the opening words indicate that any rule made by this court would have
operation subject to laws made by the Parliament on the subject of entitlement to
practice. Therefore, these rules merely supplement the pre-existing qualifications of
an advocate by requiring the presence of further qualifications to practice before the
SC. These rules only supplement and do not supplant.
 (Fun Fact – Article 145 is based on section 214 of the Government of India Act,
1935)
(Fun Fact – Lily Isabel Thomas was the first female LLM candidate in India. She is
known for arguing in the case where it was held that individuals convicted for two
or more years’ prison cannot sit in Parliament)

(LALITHA). FOREIGN LAW FIRMS AND FOREIGN

ADVOCATES' PRACTICE IN INDIA

PPT:

Breaking the myths

 The issue of ‘entry of foreign law firms’ in India has been debated ever since in the legal
industry.
 Most of the ‘so called concerns’ in respect of the subject have proved to be ‘Myths’ as
against their respective ‘Reality’.
 This tussle within the industry has affected the development our/Indian-legal industry.
 Need of the hour is to break these ‘Myths’ as against their respective ‘Reality’ and come
together and take our/Indian-legal industry, which is reported to be world’s second largest,
to the next booming level.
 MYTH 1: Advertisement by law firms - Prohibited as per the Bar Council of India Rules
Reality :
a. All major law firms in India advertise in India and abroad by sponsoring the conference,
paid listing in directories, hosting networking events, sponsored content in legal article
etc.
b. Law firms – their directory listings and publications:
o Legal 500 – over 75 law firms
o Chambers and Partners – over 75 law firms
o IBLJ – over 20 law firms
o Asia law – over 50 law firms
c. Also, almost all major law firms have their website casing respective firm profile, area
of practice, team profiles , etc.
 MYTH 2: Setting up foreign offices by Indian lawyers / law firms – Restricted
Reality:
 a. As we know various major law firms have offices and are indeed operating from offices,
outside India in jurisdictions like – London, USA, Dubai, Singapore.
b. Firms and their respective overseas offices:
o Kochar & Co. - has offices in Dubai, USA and Singapore.
o Singhania & Co. has offices in London and USA.
o Nishith Desai & Associates has offices in USA, Singapore and Germany.
 MYTH 3: Whether foreign law firms hire Indian-lawyers
Reality:
a. Yes. Various major global law firms have hired Indian lawyers in jurisdictions like –
Singapore, London, Dubai, etc.
b. Infact, for the reason foreign law firms are not allowed to set up their offices in India,
therefore they have setup India desks in jurisdictions outside India.
c. Some major global law firms and their Indian desks:
o Allen & Overy - has around 100 partners and associates - India specialists
across their international network of offices – in Dubai, Hong Kong, London,
Singapore and New York, working on India-related matters.
o White & Case – India practice team based out of offices at New York,
Singapore and London.
o Clifford Chance – has India Dispute Resolution and Regulatory practice that
is run from their Singapore office.

 MYTH 4: Are foreign lawyers really interested in setting up their offices in India?
Reality:
a. Yes, indeed foreign law firms are very keen to set up their offices in India. As we see that
because of the restriction of not being able to do so, foreign law firms have set up their
India desks in jurisdictions outside India.
b. It has been reported that various foreign countries such as – USA, Japan, Australia and
some EU states through their representative bodies have been lobbying and approached
the Government of India to seek liberalisation of India’s legal industry.

 MYTH 5: Entry of foreign law firms in India will result in loss of opportunities for Indian
Lawyers
Reality:
 a. If foreign law firms set up offices in India, they would be hiring Indian lawyers.
b. As rightly put by Mr. Harish Salve in an interview: “If 20 global law firms hire 2,000
youngsters from India, whose future are we stealing?”.

 MYTH 6: Entry of foreign law firms is opposed by majority of Indian lawyers

Reality:
As records show, only few are against and that too on the basis of the Myths as also
discussed here. Else, majority of Indian law firms / Lawyers and Judges are in favour of
liberalising the Indian legal Industry and allowing foreign law firms to set up their offices in
India.

 MYTH 7: Entry of foreign law firms onto India may hinder the Indian Legal Industry
Reality:
a. All in all, the entry of foreign law firms into India will benefit the Indian legal industry in
many ways, inter-alia:
o Better employment opportunities for the law graduates;
o Global / broader exposure for the lawyers in the legal industry;
o Vast / global range of legal services for the clients.
b. To further break this myth, it is pertinent to take note of the fact and which has been
rightly put by Mr. Harish Salve in an interview: “Foreign firms are NOT interested in
litigation - the bread and butter of 90% of Indian lawyers. They are here for transaction
work.”

 MYTH 8: Foreign Lawyers are currently not working in India

Reality:
a. As a matter of fact, in many cross-border transactions, the foreign lawyers / team of
lawyers visit and stay India for a substantial period of time to work on such transactions,
resulting in inter-alia:
o no accountability as such on part of the foreign lawyers / team of lawyers;
o loss of revenue to the Indian tax authorities given their source of income remains
their home/workplace country.
b. Also, many Indian law firms have either hired or have had foreign lawyers on
secondment basis to work on their cross-border transactions and also for the purposes
 of expanding their cross-border business. Hence, this sector / entry of foreign law firms /
foreign lawyers practicing in India must be regulated in all aspects.

 MYTH 9: Liberalisation of Indian Legal Sector may not benefit the Indian Legal Sector
Reality:
a. Liberalisation of Indian legal industry will rather boost the Indian legal industry in many
ways thus enhancing the Indian legal industry to a global standard.
b. UK – has the biggest market presence in the global legal industry space and benefitted
from the liberalization of legal services sector having over 200 foreign law firms in UK
from countries such as the United States (US), Europe, Australia and Canada.
c. Malaysian legal industry was recently liberalised and has seen considerable excitement
amongst UK based law firms, such as Allen & Overy, Clifford Chance, Herbert Smith
Freehills, Linklaters, and many other in the league.
d. Another Asian legal market space is seen in China where the number of foreign law firms
operating in China rose from 12 in 1992 to about 170 in 2015.

 MYTH 10: Allowing foreign law firms will not benefit the litigation lawyers as such
Reality:
a. Given the proposed restricted liberalisation safeguarding interests of individual litigation
lawyers, the same will rather result in maintaining exclusivity of Indian litigation
lawyers / so to say ‘of lawyers duly registered with the Bar Council of India and practicing
in Indian courts’ as they will be briefed by Indian offices of foreign law firms.
b. Also to note that this would also let the individual litigation lawyers be exposed to
international space in the legal industry.

 MYTH 10: Only lawyers render legal opinions

Reality:
a. Additionally, in many instances, it is seen that not only lawyers are rending legal
opinions, but also the respective fields’ consultants are rendering legal service / legal
opinions, such as in case of issue arising with respect to import-export policies,
consultants specialising in import export matters, though not being a lawyer are
rendering services much like legal services.
 b. Likewise is the case with respect to labour law compliances, corporate compliances, and
so on, where non-lawyers render services much like legal services. This sector also calls
for some checks and to be regulated.

CONTEMPORARY ISSUES : DOCUMENT

https://economictimes.indiatimes.com/news/politics-and-nation/indian-law-firms-
agree-to-open-doors-for-foreign-peers/articleshow/70285997.cms?from=mdr

Indian law firms agree to open doors for foreign Peers

 The Society of Indian Law Firms (SILF) has recommended to the government that foreign
law firms be allowed into India in four phases, marking a reversal in position that could lead
to the bar being lifted. However, the group is still opposed to the Big Four — Deloitte, PwC,
EY and KPMG — offering legal services.

 The entry of overseas law firms has long been staunchly opposed by their domestic
counterparts, led by SILF.

 If the government agrees, the Advocates Act will need to be amended. The government may
get the ministries of commerce and law to work on a regulatory structure to allow
multinational law firms in, said people in the know.

 SILF recently submitted to the government a detailed plan on the matter. This includes
allowing Indian firms to promote their services.

“We want that foreign law firms be allowed in India but that has to happen in a phased
manner,” said Lalit Bhasin

 “The government first has to amend the Advocates Act as currently only Indian citizens can
pursue law,” Bhasin said. “However, SILF and Bar Council of India are strongly against the
Big Four venturing into the legal profession and we are fighting them in courts.”

 The Delhi bar council said it’s opposed to overseas law firms.
 “The stated position of the Bar Council of Delhi (BCD) as well as other bar councils of our
country is to oppose the entry of foreign law firms in any manner said chairman KC Mittal.
The BCD has directed lawyers affiliated with the Big Four to refrain from practising law until
further orders. It’s hearing a complaint filed by SILF against major audit and accounting firms
practising law. It’s expected to hear the matter next on August 23.

Govt in Favour of Allowing Foreign Law Firms

 Indian law firms have previously opposed moves to open up the sector.
 The government had amended a rule to allow multinational law firms to set up offices and
advise clients in special economic zones in 2017 to benefit the Gujarat International Finance
Tec-City (GIFT). After law firms condemned this as a ploy to allow multinationals in through
the ‘backdoor’, the plan was abandoned.
 The firms were also up in arms in 2018 when an expert panel constituted by the ministry of
corporate affairs (MCA) recommended that the Advocates Act be amended to allow audit
firms to offer legal services. The MCA panel, which was set up to look into the regulation of
audit firms and their networks, was of the view that development of multi-disciplinary
practice (MDP) firms should be facilitated, and to meet this goal, auditors should be allowed
to expand their portfolio of services.
 Local law firms are fighting a legal battle with the Big Four over the latter allegedly flouting
rules and offering legal services. Globally, they offer full-scale legal services in some
geographies and ‘alternate’ legal services in others. According to a senior counsel based in
New Delhi, the government has on several occasions made clear that it wants foreign law
firms in India.

Supreme Court Of India Clarifies Foreign Law Firms/Lawyers' Scope Of Services In

India

 LAWYERS COLLECTIVE V. BCI2

 BCI V. AK BALAJI3

2
Judgment provided by Sir in the mail: DEC 10 – Reading Material 3/3
3
Judgment provided by Sir in the mail: DEC 10 – Reading Material 3/3
Overview

 The Hon'ble Supreme Court of India (Supreme Court) pronounced a judgment restricting
foreign law firms/lawyers from setting up offices in India and has only allowed them to come
to India on temporary basis for advise on foreign law only and for participation in
international commercial arbitrations in India. Further, restrictions have been imposed on
BPO's so that they do not venture in to practice of law in any manner.

Background

 Under the Advocates Act 1961 (Act), a foreigner is not entitled to practice law in
view of the restrictions contained under the said Act. However, under the guise of
different entities foreign lawyers were conducting seminars and conferences etc in
India. Foreign law firms were also practicing the profession of law in India in
violation of the Act. Writ petitions were filed before the Hon'ble Madras High Court
(ie, AK Balaji vs. Government of India (Madras HC Judgment)) and Hon'ble Bombay
High Court (ie, Lawyers Collective vs. Bar Council of India (Bombay HC Judgment)),
seeking restrictions on such practices.
 The Supreme Court, in Bar Council of India vs. AK Balaji & Ors, passed a landmark
judgment dated 13 March 2018, which has put to rest some of the major issues
concerning the entry of foreign lawyers and law firms in India.

The key issue was whether foreign lawyers and law firms are permitted to practice in India.

Madras HC judgment

 The main issue arising in the Madras HC Judgement was whether foreign lawyers and
law firms can practice law in India in case of litigation and commercial transactions.
 The writ petition was filed by Mr AK Balaji, Advocate, seeking directions restricting
the entry of foreign lawyers and law firms in India. The Madras High Court held that:


o There was no bar on foreign lawyers and law firms from taking part in
negotiations, settling of documents and conducting arbitrations in India.
o There was no bar on foreign lawyers and law firms providing
consultancy/support services as the same cannot be treated as practice of law.
 o There was no bar on foreign lawyers and law firms to participate in
international commercial arbitration in India. It was observed that foreign
contracting parties are entitled to lawyers from their own country.
o Foreign lawyers and law firms can "fly in and fly out" of India for advising
their clients in India on foreign law and there is no bar on the same.
o It was also observed that several accountancy and management firms are
employing law graduates who are rendering legal services which is contrary to
the Act and, and held that in case any activity is carried out against the
provisions of the Act, Bar Council of India will be entitled to take appropriate
action.

Bombay HC judgment

 The main issue arising in the Bombay HC Judgment was whether foreign law firms
can open liaison offices in India to carry on the practice in non-litigious matters
without being enrolled as Advocates under the Act.
 The Bombay High Court held that,


o The phrase "to practice profession of law" used in Section 29 of the Act is
wide enough to cover litigious as well as non-litigious practice. As a result,
foreign lawyers and law firms were bound to follow provisions of the Act.
o The Reserve Bank of India was not justified in granting permission to foreign
law firms to open liaison offices in India.

Supreme Court judgment

 The Hon'ble Supreme Court held that the phrase "practice of profession" includes
both litigation practice and non-litigation practice. The understanding of "practice of
profession" has thus been given a wider meaning to include provision of advisory
services, legal opinions etc.
 On the issue whether practice by foreign lawyers and law firms is permissible without
fulfilling the requirements of the Act and Bar Council of India Rules, the Hon'ble
Supreme Court held that the regulatory framework for conduct of advocates applies to
non-litigation practice. It was further held that the prohibitions as applicable under the
Act are applicable to foreign lawyers and law firms also.
  On the issue whether there is a bar on foreign lawyers and law firms to visit India on a
"fly in and fly out" basis for giving legal advice regarding foreign law, the Hon'ble
Supreme Court held a casual or temporary visit for giving advice will not be covered
under "practice" and the same is permissible. On the issue whether a particular visit
will be treated as 'casual' or 'regular' will be decided on a case to case basis.

The Hon'ble Supreme Court has subjected the foreign law firms/lawyers to regulatory
mechanism in India and suggested the Bar Council of India or Union of India to frame
appropriate rules in this regard.

The Hon'ble Supreme Court also clarified that the Act deals with companies and firms in
addition to individuals. This is the first instance wherein law firms or entities engaged in the
legal sector were recognized, which were earlier not recognised by the Bar Council of India.

 On the issue of foreign law firms/lawyers conducting arbitration in international

commercial arbitration, the Hon'ble Supreme Court also held there is no absolute bar
and the same would be subject to the rules and regulations of the concerned
arbitration institution or the provisions of Section 32 and 33 of the Act. It further held
such foreign law firms/ lawyers will however be subject to Code of Conduct as
applicable to legal profession in India.
 On the issue whether the business process outsourcing companies (BPOs) providing
integrated services being covered under the Act or the Bar Council of India Rules, the
Hon'ble Supreme Court held that there is no strict violation, only if, in "pith and
substance" the activities do not amount to practice of law. Whether the services
offered by a BPO amount to "practice of law" under the Act will be decided on a
case-to-case basis.

Comment

 The judgment by the Hon'ble Supreme Court is a landmark judgment on the issue of
entry of foreign lawyers and law firms in India;
 It is interesting to note the observations of Madras High Court which has been noted
by the Supreme Court that foreign law firms/lawyers have accepted the position that
there is express prohibition for them to practice Indian law.
 The Hon'ble Supreme Court has clearly held that foreign law firms/lawyers cannot
practice profession of law in India either in the litigation or non-litigation side,
without compliance of relevant provisions of the Act and concerned Rules and
Regulations.
 The judgment has however carved out an exception in favour of foreign law firms/
lawyers to advise on either of the issues of (a) foreign law (b) on their own system of
law or (c) diverse international legal issues on a "fly in and fly out" basis.  This
implies that the foreign law firms/lawyers cannot be allowed to set up permanent set
ups or liaison offices in India and can only visit India on temporary or casual visits
which have been held to be not amounting to practice.
 The "fly in fly out" however has not been clearly defined in the judgment, as to what
could be the restrictions or parameters to identify whether a visit would be 'regular' or
'casual' visit and the same has been left open to Bar Council of India or Union of India
to make rules and regulations in this regard.
 The judgment is also a welcome step to allow foreign law firms/lawyers to conduct
Arbitration proceedings in India in an international commercial arbitration which is
the need of the hour and is also in line with growing international trade and exchange
of foreign goods and services in India.
 The judgment has also observed that there appears to be no restriction on third parties
(non-lawyers) funding of the litigation in India and getting repaid depending on
outcome of litigation. The judgment further clarifies that such funding by a lawyer is
however prohibited and the lawyer is also prohibited to charge fee based on outcome
of litigation.
 It is relevant to note the observation in the judgment that Advocates Act not only
deals with individuals but also with firms or companies. This seems to be a welcome
step by recognition of 'firms' and other entities practicing law in India as earlier there
was no such recognition of any entity apart from an individual lawyer. It is now
expected that the Bar Council of India will take cue from this judgment and frame
appropriate rules and regulations governing such firms or companies engaged in the
field of law.
 The judgment however cannot be called an exhaustive judgment as it lays down basic
parameters based on which the Bar Council of India or the Union of India have been
called upon to frame rules and regulations for foreign law firms/lawyers.
  The judgment may not be strictly in line with the stand of the present government
which promoted entry of foreign law firms/lawyers in India, which also envisaged
setting up of their offices in India. The Bar Council of India or Union of India now
have to come up with rules and regulations at the earliest so that there is more clarity
to the foreign law firms/ lawyers.

Foreign Law Firms in India: Why it isn't a bad thing

https://barandbench.com/foreign-law-firms-india-not-bad-thing/

Pragya Chaturvedi

It was not long ago that the entry and operation of foreign law firms and lawyers in India
seemed improbable.

However, the Bar Council of India (BCI), under direction from the Ministry of Law &
Justice, drafted and notified the Registration and Regulation of Foreign Lawyers in India
Rules, 2016. These rules allow the entry of foreign law firms and lawyers in India and allow
them to practice non-Indian law.

While the journey up until now has been rocky and full of U-turns on the part of the BCI, the
much awaited liberalisation of the Indian legal market is now more likely to happen than
ever.

Present Situation

Section 24 of the Advocates Act, 1961 lists the conditions for enrolment of advocates to their
respective State Bar Councils. Indian citizenship, inter-alia, is one of the conditions for the
enrolment. The proviso to sub-section (1), however, allows foreign nationals to enroll in
India, subject to reciprocity in their home country.
The reciprocity provisions of Section 47 empower the BCI to prescribe conditions, subject to
which non-Indian citizens with foreign law degrees may enrol as advocates in India. It also
attempts to protect Indian citizens from unfair discrimination in foreign countries. Section 47
(1) prohibits foreign nationals from practicing law in India if there is no reciprocal
arrangement in their home country.

Section 49 empowers the BCI to make rules for enrolment of non-Indian citizens with a
foreign law degree.

Genesis for Change

The introduction of these Rules is not a compulsive exercise. It is a result of prolonged

debates, discussions, and deliberations over a long period of time.

Foreign law firms are not new to doing business in India. In the 1990s, a couple of foreign
firms (Ashurst, Chadbourne & Parke and White & Case, for example) were operating
through liaisoning offices in India. But the judgment in Lawyers Collective v. BCI  forced
them to shut shop.

Circumvention attempts saw foreign firms setting up Indian desks in other places such as
London or Singapore. Entering into a 'best friend' referral arrangement was another such
attempt.

However, these were only temporary arrangements and full-fledged operations by foreign law
firms did not come to fruition.

The Present Debate

The present debate surrounding entry of foreign law firms and foreign lawyers in India dates
back to at least 2012. On 21st February, 2012, the Madras High Court in AK Balaji vs
UOI ruled that,

"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."

The 2 judge-bench also held,

"foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in
respect of disputes arising out of a contract relating to international commercial arbitration."

Earlier, the Supreme Court, in Vodafone International Holdings B.V. v. Union of India and
another, had expressed a similar view. While the primary issue concerned taxation of Capital
Gains, the SC observed that

"in the overall economic growth of the country, International Commercial Arbitration would
play a vital part."

The Madras High Court, while delivering the judgment in AK Balaji, took the above
judgment into account and held that in the era of FDI and foreign transactions, it was
imperative to have lawyers with expertise on foreign law.

International Agreements and Government Initiatives

India is a part of the WTO and the GATS. Consequently, it is obligated under the agreement
to introduce liberalization in services, including services in the legal sector.

The Narendra Modi government, acting on the above obligation, initiated talks with BCI in
February 2015 to allow foreign law firms to enter the Indian legal sector.

The Society of Indian Law Firms (SILF), after initial resistance, has been in favour of legal
liberalization. The BCI too, after initial opposition and reservation, has agreed to allow
foreign lawyers in India 'in principle'. Both SILF and BCI agreed that the entry should
be done in a phased manner to allow Indian firms and lawyers to cope with the change.

Pursuant to the above agreement, in 2016, BCI drafted Rules allowing foreign lawyers in
India.
Situation under the New Rules

The new draft rules provide for the following:

 Allowing foreign law firms and lawyers to set up an office in India. This is subject to
registration with BCI for an initial period of 5 years and practicing non-Indian law.
 Deeming foreign lawyers as Indian lawyers under section 29, 30, and 33 of the
Advocates Act.
 Barring foreign lawyers from appearing before Indian courts and tribunals or to
provide any advice relating to them.
 Allowing foreign lawyers to hire and enter into a partnership with Indian lawyers.
 Registration fee of $25,000 for individuals and $50,000 for partnership firms.
 Renewal fee of $10,000 for individuals and $20,000 for partnership firms.
 Allowing foreign lawyers to participate in international arbitration in India.
 Refundable security deposit for foreign lawyers to practice in India.
 Registering foreign lawyers on a reciprocal basis.
 Requirement of certificate from home ministry and bodies equivalent to foreign bar
councils.
 Same disciplinary and ethical obligations for foreign and Indian lawyers.

Foreign Lawyers in India: Good or Bad?

Allowing entry of foreign lawyers is a bone of contention among Indian lawyers and Bar
Councils. The primary reason for opposition to the proposed changes to the BCI Rules is the
potential loss of livelihood for the Indian legal community.

However, it is important to analyze the situation with a holistic view and consider its overall
impact before arriving at a conclusion.

The Good

Despite initial apprehensions, there are numerous ways in which entry of foreign lawyers in
India may prove to be a boon.
Transfer of Knowledge

Entry of foreign players into India would allow exchange of knowledge, expertise, and skill
between Indian and foreign firms. This will facilitate enrichment and transfer of resources at
a mutual level.

Global Opportunities for Indian Lawyers

Allowing foreign law firms in India on reciprocal basis will provide Indian lawyers the
opportunity to practice abroad. The result will be a wider net of opportunity to provide
services to leading companies, locally as well as globally.

Indian firms will be able to widen the net of their practice by providing advice on
transnational transactions involving Indian companies.

Infrastructural Development at Institutional Level

This kind of development is necessary at both academic and practical training level. Entry of
foreign law firms will raise the bar of present legal education. The focus will shift from
academic cramming to instilling practical knowledge and training in students.

Job Creation

If foreign law firms set up shop in India, they will need manpower in the form of lawyers
who are well versed with the local law. Indian attorneys who know the local working
conditions first-hand fit the bill perfectly. Even if a small percentage of the total workforce
consists of foreign lawyers, it is still a huge job creation opportunity for the Indian legal
service sector.

The Indian legal fraternity stands to gain from this move and not lose out. Graduates fresh out
of law school will be able to find lucrative opportunities in their home country, but with
international exposure.

Improved Quality of Service

The competition that emerges at an international level will help improve the present quality
of legal service. Service that conforms to international standards will eventually lead to
superior quality of service being offered at competitive prices. This will prove to be a
substantial relief for a client who have to shell out significant sums of money to avail quality
legal service.

The Bad

Loss of opportunities for local law firms and Indian attorneys is the primary concern at this
moment. Just as the entry of retail giants like Amazon has hit small time retailers and dealers
in India, this move is being perceived in a similar vein.

Another concern is the considerable gap in legal training and education in India when
compared to its foreign counterparts. This raises serious questions about the employability of
fresh graduates and young legal professionals.

Stringent immigration laws and astronomical tuition and bar exam fee is another area of
concern for those wanting to equip themselves with a foreign law degree.

Unfounded Fears

Prominent Senior Advocates Harish Salve and Gopal Jain have re-iterated the government's

pro-liberalization stand in a recent interview. They have termed the reservations expressed
above as unnecessary fear-mongering. As per Mr. Salve, in India, they have set up high walls
just to keep it as a preserve of the few. He also questioned the loss of livelihood premise by
making a well-reasoned argument.

"If 20 global law firms hire 2,000 youngsters from India, whose future are we stealing?"

Mr. Jain believes that when foreign players can come and play cricket in India, why can't
foreign lawyers come and practice here? He stated that international exposure can only
benefit the Indian legal fraternity.

Conclusion
The downside, as of now does seem like a deterrent. But, the benefits of allowing foreign
lawyers in India far outweigh the negatives on any given day. However, as former Chief
Justice of India JS Khehar suggested, reciprocity is the solution to this problem. The
Advocates Act, 1961 also provides for the same. Entering into MoUs with other nations and
insisting on reciprocity is the way forward.

The service sector thrives on competitive prices and quality of service on offer. Entry of
foreign firms and foreign lawyers in India will result in increased competition. In turn, it will
see Indian firms competing to provide the best price and offer the best service.

Eventually, it will play out to the benefit of both the service recipient and the provider.
Increased quality will translate to increased business. For the customers, quality and
competitive prices will ensure the best service at negotiable prices.

Support of seasoned lawyers only strengthens the case for allowing foreign lawyers in India.

It is possible to bridge the gap in training and education through infrastructural and
administrative reforms at an institutional level. MoUs and exchange programs with foreign
law universities will facilitate international legal education.

Entry of foreign lawyers in India in a phased manner is the need of the hour so as to allow the
Indian legal service market to keep abreast with the global legal industry.

Entry of Foreign Law Firms in India

https://www.foxmandal.com/foreign.html

 
There is an ongoing battle being fought on the issue of liberalization of legal service sector in
a growing economy. India is on the brink of opening its doors to foreign firms. Both
international and local firms have a lot at stake in India, and the path to foreign entry is
proving to be harder than expected.

Being in sync with this view, Mr. Som Mandal has approached various Governmental bodies
concerned. Whatever may be the ultimate decision of the Government, we believe that in an
upcoming economy like India, there can be plenty of work for everyone. Hence, the choice
will depend on the tremendous need of foreign law firms with the size of the average Indian
foreign acquisition rising tenfold to $315 million in recent years. Only when the Bar Council
finally stands to one side and allows full deregulation will India’s legal market, not just its
economy, flourish.

Also, a public interest is related to this issue, as Mr. Mandal rightly puts forth…

FOXMANDAL LITTLE HAS CAREFULLY CONSIDERED THIS ISSUE. WE BELIEVE

ON BALANCE THAT THE PUBLIC INTEREST WOULD BENEFIT FROM THE ENTRY
OF FOREIGN LAWYERS SUBJECT TO APPROPRIATE SAFEGUARDS OF COURSE.

“We would like to categorically support the view adopted by the Ministry of Law and Justice
in allowing the entry of foreign law firms to the Indian legal services sector to practise
foreign law. We understand that foreign law firms are not interested in litigation and in that
respect the objections raised by the Bar Council of India and all other Bar, lawyers and law
firms fail to stand ground. A sufficient safeguard to this effect would be, to formulate rules
that allow foreign law firms to only practice the law of their jurisdiction. The availability of
foreign lawyers would greatly minimize costs to the Indian business enterprises, since as of
date, to avail the services of a foreign lawyer an enterprise would have to approach lawyers
located in that jurisdiction, which obviously entails more expenses. Indian lawyers are
competent and can deliver quality work. We are positive that Indian lawyers will not be
scared to face the competition once the government decides to open its door.

It is a common phenomenon in India that prior to liberalization of any sector, there has been
widespread opposition and your Ministry is well aware of that situation. An example is the
insurance sector wherein employees of some Indian insurance companies had gone on strike
in the wake of liberalization of the insurance sector. As of date, all the
insurance companies have been operating in a highly competitive and level playing field
thereby ensuring convenience to the end consumer at affordable rates. The legal profession
would also prosper in a similar manner in the years to come once the sector opens. If one
looks carefully at all those countries which opened its door to foreign lawyers, one would see
that the lawyers specially at the major firms have always been very sceptical of the opening
of services since they are the most affected. It is typical reaction in all industries which opens
up with globalisation.

We would like to highlight that the Ministry of Commerce ought to play a neutral role and
not to give preferences to the group of law firms opposing the entry of foreign law firms. It
was glaringly felt that during your meeting with the heads of law firms on 17th October 07,
members of firms opposing entry were given much more opportunity to speak and even give
power point presentation on this issue. Further, if you look at the JETCO committee or other
committees of your Ministry dealing with the issue of Foreign Lawyers Entry, it comprises of
mainly lawyers opposing such moves.

Our friends in the legal fraternity have expressed various apprehensions towards the entry of
foreign law firms. We will discuss these in brief and our arguments against the objections
raised would shed more light on the matter.

It was claimed that the legal profession in India at present does not demand the entry of
foreign law firms and the discussion to allow them was part of a hidden agenda with the
Ministry of Law and the Prime Ministers office. It is worrying to notice that India’s
commitment to the WTO to liberalize the services sector received a passing reference by
members of the legal fraternity opposing the entry of foreign firms. In our opinion it is only
fair and in the interest of reciprocity that foreign firms be allowed to practice in India. Indian
law firms are allowed to open offices and practice in many jurisdictions. The entry of foreign
firms would go a long way to enhance the competence of legal professionals in India. In that
respect any competition in the legal service sector must be both sought and welcomed.
Moreover a significant factor is that since India is a responsible and prominent member
country of the multilateral trading system, India must endeavour to abide by its commitment
to the WTO.

Another key issue that was highlighted was that the existing legal talent in the country was
being drained by large overseas firms such as Clifford Chance, etc. the so called “Brain
Drain”. Our view in this regard is that, this is totally misconceived, as the entry of foreign law
firms would among other benefits result in better pay for the entry level lawyers, exposure to
international best practices, exposure to cross border transactions and a wealth of
opportunities for the 80,000 lawyers graduating from Indian law schools every year. An open
legal services market would make recruitment a competitive process and law firms would be
forced to provide opportunities to lawyers from all parts of the country. Often, only the
students who can afford an expensive education in private law schools are afforded the
opportunity to work with the larger firms. It is  a matter of immense concern that although
80,000 lawyers graduate from various law schools across India every year, the number of
corporate lawyers in law firms around the country number less than 1500 even with a liberal
estimate. The theory of “brain drain” is the result of the unwillingness of domestic firms to
invest in competitive recruitment or imparting training or providing competitive salaries to
the large pool of lawyers in the country. Every Indian industry had similar concerns when the
economy started opening up. If one examines why law firms in the US and UK, until
recently, used to recruit heavily from countries like Australia and New Zealand, it would be
evident that this was due to the lack of supply of lawyers in their country and also to attract
better talents at lesser pay. Moreover, in countries like Australia and New Zealand the
lawyers not only spoke in English but were also trained in a common law system. Most of the
talented law graduated from these countries used to look for better pastures for training as
well as better pay packages and as a result moved to US and UK law firms. These countries
lost a lot of their better talented lawyers to most powerful UK and US law firms. However,
the law firms in these countries, not only survived but found ways and means to grow and
become powerful themselves with competition and not only lured back their “lost talent”
from the UK and US firms but also stopped to a larger extent the so called “brain drain” by
providing good opportunities for the young lawyers in their country. As we have now seen,
many of the US and UK law firms are now hiring extensively from Indian firms and
universities as well. This clearly goes to show how matured and talented our lawyers have
become. The Indian law firms ought to take up the challenge and provide ample opportunities
to their juniors in order to retain them.

Another major concern was lack of a level playing field to compete with international law
firms. The sheer size and revenue generated by the Multinational law firms in comparison to
the largest domestic firms in India was one more issue raised in the meeting. It is apparent
that in the presence of a level playing field in India for the legal services sector, there are
glaring disparities among law firms in terms of size, revenue and quality even now. Going by
the arguments advanced by domestic law firms opposing the entry of foreign law firms,
smaller law firms should have already perished and the market should have been consolidated
and dominated by a few firms. However, the truth is to the contrary, where all firms operating
in the market today have managed to consolidate and discover a niche market for themselves.
In the event foreign firms enter the market, disparities would remain and each firm would
work around to ensure that it remains in competition. This has been a world wide
phenomenon and is not going to change in the Indian context. If one looks carefully at all
those countries which opened its door to foreign lawyers, one would see that the lawyers
especially at the major firms have always been very sceptical of the opening of services since
they are the most affected.

It is hypocrital to oppose the liberalization of the legal services sector, which would benefit
business enterprises in India. On one hand domestic law firms have reaped the benefits of
liberalization, resulting from the introduction of competition in various sectors of the Indian
economy, but on the other they adopt a protectionist attitude and lobby to prevent the entry of
competition in the legal services sector that would benefit other businesses.

The third and most pressing concern, for opposing the entry of foreign lawyers, is that the
Indian Advocates Act, 1961, does not allow advertisement in any form either by way of
website or listing in professional directories while such restrains are not imposed upon
foreign firms globally and as such those firms will have an undue advantage over Indian
firms. We do share to some extent this concern but do not believe that this cannot be
addressed properly. In fact, to be absolutely candid, my personal view is that the Rule that
most of these law firms are referring to concerning “Advertisement” can be logically
addressed. The said specific Rule under Professional Ethics reads as follows:

“Section IV – Duty to Colleagues

(36) An advocate shall not solicit work or advertise either directly or indirectly whether by
circulars, advertisements, touts, personal communications, interview not warranted by
personal relations, furnishing or inspiring newspaper comments or producing his photographs
to be published in connection with cases in which he has been engaged or concerned…”

This rule according to us when framed in 1961 could not and would not have possibly
considered “Advertisement” to include “website” or “listing in legal directories” or even a
brochure. Further, had the Bar Council of India been so strict to maintain its ethic, then they
ought to have barred lawyers from having a website or list in legal directories or print
brochure by bringing in an amendment to the said rules. The word advertisement in the
dictionary or in legal parley does not include “website”, brochure or “listing in law
directories”.

In this modern age of technology when even court proceedings are filed through the internet,
it is preposterous to even suggest that information on lawyers and law firms cannot be made
available through the internet. Without arguing further, we would like to point out that even
this concern raised by the opposing lawyers has been diluted when the Bar Council of India’s
Counsel in a matter before the Supreme Court of India on this issue, had purported to have
conceded on this point especially regarding website. However, we would also like to point
out that even those firms and lawyers who are hiding behind this rule ought to look at their
own conduct in this regard first. Some of these very lawyers and law firms very happily take
out very expensive listings in leading law directories and law magazines comparable to
listings by foreign firms or sometime even more expensive as well and to the extent that they
not only give their contact details but also give photographs, names and important deals
handled by their colleagues and partners, to show how much power they wield in the Indian
government. Some sample copies of some of these law firms are enclosed. We urge you to
look at these listings very carefully.

Another lame excuse, the opposing lawyers and law firm provide is that foreign law firms can
have unlimited number of Partners and are very powerful and Indian law firms can have only
20 Partners. Our question is how many of them have the vision or even desire to have more
Partners?? Indian law firms like their business counterparts are either family owned or
individual centric. Even if the law had allowed them more than 20 Partners, in practice hardly
many firms would have exceeded that limit. If you look at the Big four Accounting firms in
India, they have survived and doing good business even with these restrictions, therefore,
there is no major concern here. Firms have formed multipartnerships and have gone beyond
the 20 partner limit in any case. Further the government initiative to introduce the Limited
Liability Partnership will also address this issue.

On a concluding note we would like to state that, steps undertaken by the Ministry of Law
and Justice, to pursue liberalization of the legal services sector are praiseworthy and must be
welcomed by one and all in the legal fraternity. As one of the premier law firms in the Indian
legal services sector, we are sympathetic towards the concerns raised by our counter parts and
would stand with them in assisting the Ministry of Law and Justice and the Government in
addressing the same by adopting viable solutions and reforms. But, lobbying for a blanket
ban on the entry of foreign law firms in India is nothing short of a selfish maneuver to
safeguard the vested interests of a few individuals and propagate the ongoing concentration
of wealth in a few hands.” 

LECTURE:

 Section 16, 24, 29, 30 – definition of advocate under the advocates act
 In order to practice in India as a lawyer:
a. law degree from a uni established by govt of India
b. Citizen of India and
c. 21 years of age
d. All India Bar exam
 Foreign law firms and lawyers: From the above four essentials, they do not fall under the
three conditions (apart from 21 years of age)
 Due to liberalization, cannot afford to avoid looking into the aspect of taking expertise from
foreign lawyers, requirement of their services is necessary
 But Bar Council of India Rules, Advocates Act don’t mention anything related to the aspects
of foreign lawyers or firms practicing in India.

LAWYERS COLLECTIVE V UOI: 2009

 BOM HC: How did the foreign law firms, having tie up with the Indian firms, doing the same
kind of work as the Indian lawyers, is it permitted under the BCI rules and advocates act?
 Around 25 law firms were identified and were sent show cause notices.
 State BCI was clear that it wouldn’t allow such foreign law firms to practice in India.
 Lawyers Collective argued that: If FERA allows them to bring in money and make use of
money without any contraventions of any regulation.
 They claimed they are offering liaison services to Indian law firms, and giving opinions and
assisting in drafting, and not doing any litigation work.
 Bombay HC asked “Show us the purpose, aims and objectives of your organisations as per
which using FERA you are allowed to bringing in money.”
  Before Bombay HC they said- To give transactional assistance, prepare case digests, case
summary, secretarial services etc. Only litigation work does not mean “practicing law”.
 Court: Practice of law includes non-litigation work of this nature as well, under section 29 of
the Advocates Act. Referred to different decisions from different jurisdictions. Pre-litigating
services are also practice of profession of law. Only advocates who are enrolled in state bars
can practice law. He should be an Indian national.
 Court held, FERA is not fully justified in allowing foreign lawyers to open their liasioning
office in India.
 Govt. said- We ensure that the money brought in is very clean. Based on aims and objectives
foreign law firms were allowed. Sec 29&30 of FERA, they shouldn’t contravene other
legislations at any cost. but FERA cannot supervise each and every activity of the firms, and
check whether they are violating any law or not. This was 2009.
 Finally the court state: Need to find out from BCI about their stance and foreign were allowed
to perform secretarial services in India.

AK BALAJI CASE

 In 2018 a Madras advocate, disturbed with this kind of process, figured out - legal process
outsourcing (LPO), Business process outsourcing (BPO) that was being practiced in India.
 They enter India through gates of academic functions like seminars etc. and slowly tie-up with
local law firms and start liaison services.
 He posed a question: Can foreign law firms have liasioning office in India as it is endangering
the jobs of lawyers in India?
 Madras HC said foreign law firms cannot appear before the Court but can offer liaison service,
administrative, paralegal, parallel legal service, preparing case digest/summaries. They can do
this on “Fly in Fly out basis”. They come give opinions and go back. They can assist in matters
of international law, foreign laws, international arbitration. But that too on temporary or casual
basis, not on regular basis. If violation of this found, the BCI shall look into the matter.

SC:
 AK Balaji again aggrieved by the position approached SC for clarification. Lawyer’s Collective
(foreign law firm group) also approached SC.
 SC:
a. practice of law includes litigation and non-litigation services.
b. Scope of S. 16, 24, 29 and 30 is wide to include advisory, legal and other non-
litigation services also.
 On the question of whether for law firms are permissible to practice without fulfilling the
conditions mentioned under BCI rules and advocates Act:
 a. SC came to conduct of lawyers apply to non-litigation lawyers, hence applicable to
foreign lawyers also. The prohibition is on foreign advocate as well as the foreign law
firms alike, so it is not discriminatory.
b. SC clarified that advisory service on “Fly in Fly out basis” will be allowed. On casual
and temporary basis it will be allowed but depends on a case to a case basis. What is
casual and temporary will be decided on case-to-case basis. Pith and Substance will
be looked into. Hence, when services are of regular nature, then only can be said to be
“practicing”.
 If foreign law firm is setting up an office through any methods or means, it means regularising
the service and making is practice. In such case BCI shall take strict action, if any such back
door entry observed.
 Foreign law firms cannot set up an office in India and can only come to give advice and legal
opinions and have to go back.

 Question: Indian nationals holding Foreign Law Degree: Bar Council regulation on this
question – Indian national holding foreign law degree notification.

BCI notified: NLS, Bangalore, Hyderabad, Calcutta etc. are empowered to conduct
“Bridge Courses”, which will allow Indian Nationals holding foreign law degree to
practice in India.

 S. 47 of Advocates Act- Reciprocity- If a country prohibits an Indian citizen to practice law or

subject him to unreasonable discrimination, no subject of such country shall be allowed to
practice in India. Allow foreign firms to practice in India, provided reciprocity is available.
 Foreign law firms in India, functioning on fly in fly out basis:
https://www.legal500.com/c/india/foreign-firms/
 (SHAMIK) ETHICS: 8. MULTIDIMENSIONALITY TO
LEGAL PROFESSION, ADVERTISEMENT, SOLICITATION
ETC

 Ques. Whether non practising/litigating (pre-litigation stage) advocates (not going to courts,
where appearance before courts through vakalatnama is not there) can give
advertisements/solicit?
Ans. Rule 36 (Rule 36 to Section IV (Duty to Colleagues) of Chapter II (Standards of
Professional Conduct and Etiquette) of Part VI (Rules Governing Advocates) of the BCI Rules)
provides that it is not permitted, even for non-practising advocates. Practice includes non-
litigation also in this context. Thus, solicitation is not permitted. Rule 36 provides:

“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
photographs to be published in connection with cases in which he has been engaged or
concerned. His sign-board or name-plate should be of a reasonable size. The sign-board or
name-plate or stationery should not indicate that he is or has been President or Member of a
Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular
type of worker or that he has been a Judge or an Advocate General.”

 Only one area where some kind of advertisements are permissible, in certain services. Those
services in which there is no essential determination of rights and obligation and no
pecuniary gain, but there is only “effective communication or information” about what are
you doing. There should be no intention to attract people for pecuniary gain. The reasoning
for this is that law is the final arbiter, and not the lawyer. The realist school says this, and
contextualises this by saying that advertisement is possible if it is only about the limited
information, without intention to have pecuniary gain. What is allowed is ‘benign
information’ about what you are doing, but not “why or how you are doing”.
 If someone breaches this, and if continuity of action is proved, where an advocate is even
involved as a middleman or is involved in processing of documents etc essential to the
solicited or advertised service provider, then they can be booked for “Professional
Misconduct” under Rule 34 and 35.
 What is the extent of the term “service” and how wide can you cast its net, as everything is
surrounded by law and is “drenched in the legalisation of life”, and thus most services won’t
be able to advertise. So how do you go about this? What is meant by the term service.
Article 3(b) of the GATT(????? Wasn’t Clear, but I think this is what he meant.) provides that
it includes any service in any sector other than the services provided in the exercise of the
governmental authority. Very broad.

 After Liberalisation and Doha Round, the WTO brought out a “Services Sectoral Classification
List” where each and every country was told to tell WTO what they understand by the term
“service”, whether legal services, pre-litigation services etc are services or not. And if they
are, then they come under WTO rules.

 Provisional Central Product Classification (Also called UNCPC) brought out by the UN to bring
a global understanding of the term “service” since WTO has come into picture. And
countries could give their own classifications as they what they wanted to include within
term service or exclude from the term. However, India did not make any such classification,
they did not submit its list.

 “Legal Services” comes under Clause 861 of the UNCPC. And further sub-services within that.
Like “Legal Advisory and Representation Services in Different Fields of Law”.

 Representation is when you appear before court. In that case, no solicitation as per AK Balaji
Case and Lawyer’s Collective Case.

 Within this sub-classification there is further classification, namely, “Legal Advisory and
Representation Services concerning criminal law” which is legal advisory and representation
services during litigation process, and drafting services of legal documentation in relation to
criminal law. Generally, this implies the defence of a client in front of a judicial body in case
of a criminal offence. However, it can also consist of acting as a prosecutor in a case of
criminal offence, when private legal practitioners are hired on a fee basis by the
government. Included are both the pleading of a case in court and out of court legal work.
The latter comprises research and other work for the preparation of the criminal case and
the execution of post litigation work in relation to criminal law.
 Then there is legal advisory and representation services in judicial procedures concerning
other fields of law, basically to laws other than criminal law. This also includes pleading of
case in court and out of court legal work.

 Then, legal advisory and representation services in statutory procedures of quasi-judicial

tribunals, boards etc. In India, under the Advocates Act, none of these are possible. (for
foreign law firms, foreign legal service providers). Only in fly-in and fly-out basis and must be
temporary and casual for foreign national, law firm and advocates. “Temporary and casual”
is seen on a case by case basis for foreign legal service provider. (I didn’t understand how
this is connected).

 Further, Legal Documentation and Certification Services, which includes preparation,

drawing up and certification services of legal documents. It comprises of advice, and
execution of various tasks necessary for drawing up or certification of documents. Includes
drawing up of wills, marriage contracts etc.

 Then there is Other legal advisory and information services which includes advisory services
to clients related to their legal rights and obligations and providing information on legal
matters not elsewhere classified. Services such as escrow services and estate settlement
services are included.

(India has not said yes to this list, nor said no to this. Unless Advocates Act changed with
respect to this, only then can something be done. Thus, as per Article 3(b) of GATT and the
UNCPC, you can do advertising for such non-litigating advocates, HOWEVER, India has not
accepted it, and thus we are governed by Advocates Act. But we have accepted WTO, so
there is an anomaly. Thus, till the time Advocates Act is not amended or changed, they
cannot advertise. Bar Council has come out with draft saying they can allow in certain
cases, like the China Model, which allows foreign law firms to be established in the
jurisdictions of China, but under strict regulations. Registration of 25,000 per advocate
license, only certain practice areas and what is extent of service in allowed areas and
license of 5 years. For law firms it is 50,000 dollars for five years license. Then it needs to
be renewed. In Param’s opinion, this internationalisation and globalisation is one sided
and skewed in favour of the developed countries. But in India, there are hard socio-
economic realities which need to be brought under equilibrium.)

 GATT says that there are two type of obligations. One, some provisions of the GATT which
WTO adopted, apply to every member every type of service, including legal services. Blanket
imposition. UNCPC will also be applicable. Two, other obligations apply only if country has
 come out with its list, in relation to the specific commitments drawing up the area of
services where the country wants to open up. In that respect, India did not make any
commitment and stayed quiet. They knew that it was very difficult to change the Advocates
Act.

 However, these services can be operable under 4 conditions: (a) cross border supply, where
services supplied from territory of one party to territory to another party (b) consumption
abroad (c) services provided through the service providing entity of one party in the territory
of another and (d) services provided by the nationals of a party, in the territory of another
(the foreign law firm thing comes under this condition). If person fulfils following conditions:
21 years of age, degree in law in institution established by govt in india, citizen of india,
clearing the bar exam, then they can practice. However, if they don’t fulfil the
abovementioned conditions, then it is based on principle of reciprocity. That if we allow,
then your country must allow the same. Reciprocity is the only condition under which it is
possible in India (IDK WHAT HE IS SAYING), however in India no such case of reciprocity (as
per his research). Only law firms are permitted to have their office, but only through indian
law firm registered in India, and only doing non-litigation services and pleading through
indian advocate (sister law firms) and can only be on fly-in and fly out basis, temporary and
casual basis. It is seen on case to case basis. Based on AK Balaji case. Sections 16, 20, 24, 29
and 30 of the Advocates Act, which provide who are eligible to practice in India.

 Thus, based on the above khichdi, the status quo in India right now, is that you cannot
advertise. As a result of VP Joshi case, you can now have a website, but only with the
purpose of providing information.

 Where does that leave us. For example if someone has found a very unique area of practice.
For example, he knows a guy who deals with cases related to artifacts and objects of
historical significance. Whether him giving information through a brochure about this
new/niche area amounts to advertisement? This is a lacunae that exists right now in the
Indian framework. Mr. Raju in the SC thus argued that if there is no change then neither
innovation will take place nor anything of the sort will happen.

 Then he showed some random video which was advertisement of his course or some
seminar he was conducting
 (RISHBHA) 9. LEGAL PROFESSION AND SOCIETY
References: Professional Ethics for Lawyers – bar and bench relation Doc pg. no. 17-22.

Duty to the Court(Rule 1-10)

In the administration of the justice, the role of the advocate is to help the court to take a right
decision in the dispute. While performing this job, an Advocate is duty bound to perform
certain duties to the court. Following are duties prescribed by the Bar Council rules as duty to
the court, which should be observed by the Advocates.
1. An Advocate shall show the due respect to the court and shall never act in any manner to
undermine the confidence in the judiciary.
2. He shall not exert or attempt to exert any personal influence on the decision of the court,
nor shall give any impression that he possesses personal influence with the judge before
whom he normally practices.
3. He shall be always punctual in attending courts in the prescribed dress.
4. He shall be fair and frank in the court proceedings.
5. He shall not include any fact which he knows to be false in the pleadings, petitions or
affidavits.
6. He shall not ask for any adjournment of a case without genuine reasons.
7. He shall not communicate privately with the judges to influence them relating to any
pending case.
8. He shall not speak ill of judges or use abusive remarks about them. But, if the judge
behaves improperly, it is not only the right but also his duty to report it to the proper
authorities.
9. He shall not interrupt when the counsel for the otherside or the judge is speaking.
10. He shall appear in the court in the prescribed dress and his appearances shall always be
presentable. He shall not wear bands or gown in the public places.
11. He shall not practice before a judge if he is related to him.
12. He shall not act or plead in any matter in which he is pecuniarily(monetary) interested.
13. He shall not appear for any organization, institution, society or corporation if he is the
member of the executive committee of such organization, institution, society or corporation.

Duty to the Clients (Rule 11-33)

A client is entrusting a case with an Advocate because of his trust and confidence on him. In
order to honour this trust and confidence the Bar Council of India rules 11-33 prescribes the
following duties as duty to the client.
1. An Advocate is bound to accept a case in the courts or tribunals where he is normally
practicing.
2. He shall not withdraw from a case which he has already accepted without sufficient
reasons. He shall not withdraw from the case merely because his fees has not been paid in
full. He shall withdraw from the case only after giving a reasonable notice to his client. After
his withdrawal he must refund such part of the fees which is in excess in his hand.
3. He shall not accept a case in which he has reason to believe that he will be called as
witness. If he already engaged in a case in which he is called as a witness then he should
return the case. But, if his retirement will cause irreparable loss to the client then he can
continue to appear as a lawyer.
4. He must make full and frank disclosures to his client relating to his connection with the
parties and his interest in the controversy which may likely to affect his clients interest.
5. He should fearlessly uphold the interest of his client by fair and honourable means without
the fear of any pleasant consequences to himself or to any other person. He shall not refuse to
appear for an accused person merely because in his personal opinion the accused has
committed the offence.
6. An Advocate appearing as a prosecution counsel shall be fair and shall not conduct the
prosecution with hostility to the accused to secure conviction. He should not obstruct the
defence counsel in placing the relevant material evidence to prove the innocence of the
accused.
7. He shall not disclose any matter communicated to him in his professional capacity to any
other person without the consent of his client.
8. He shall not be a party to fomenting of litigation.
9. He should act at the instructions of his client and not at the instruction of any other person.
10. He shall not stipulate a fee depending on the success of the case or agree to share the
proceeds of the litigation.
11. He shall not buy or agree to share the interest of the litigation.
12. He shall not directly or indirectly bid or purchase in his own name or in any other name
any property sold in execution of a decree in which he was engaged as a lawyer.
13. He shall not adjust fees payable to him by his client against his own personal liability to
the client.
14. He shall not do anything whereby he abuses or takes advantage of the confidence reposed
in him by the client.
15. He should keep regular accounts of the clients money entrusted to him. The account
should show the particulars of the amount received from the client and the expenses incurred
for him.
16. He should maintain separate accounts for the amount received for the fees and for the
expenses. The amount received for the expenses shall not be converted for fees without the
consent of the client.
17. Where any amount received on behalf of the client (either from the court or from any
other person) it should be intimated to the client as early as possible.
18. After the proceedings are over, he shall take the settled fee from the client’s money in his
hand and the balance, if any should be returned to the client.
19. If the Advocates fee is left unsettled, he shall take a reasonable fee from the client’s
money in his hand, after the proceedings are over.
20. A copy of the clients account shall be furnished to him on demand.
21. He shall not convert the client’s money in his hand as loan given to him by the client.
22. He shall not lend money to his client for the purpose of any legal proceeding in which he
is engaged as the lawyer. But, any amount given to his client in an unanticipated emergency
shall not be treated as beach of this duty.
23. An Advocate who has advised or prepared the pleadings or appeared for a party in any
suit or appeal shall not act, appear or plead for the opposite party.
In addition to the above duties prescribed by the Bar Council of India an Advocate is
expected to perform the following duties also to the client.
1. He shall give advise to his client honestly and in good faith.
2. He shall prepare the case with due care and skill.
3. He shall submit all relevant documents before the court in support of the claim of his
client.
4. He should attend the court on every day fixed for hearing of his client’s case.
5. He should return the whole fees received from his client, if he is not in a position to
conduct the case.

Lawyers Duty to Opponent Party(Rule34&35)

Rule 34 &35 deals with the duties of an Advocate to the opponent party. They are as follows.
1. Rule 34 provides that an Advocate shall not in any way communicate or negotiate upon the
subject matter of dispute with the opposite party directly. For any reasons, If we want to
communicate anything then it should be done through his Advocate.
2. Rule 35 provides that an Advocate shall do his best to carry out all legitimate promises
made to the opposite party. Even if such promises are not in writing or not enforceable under
the rules of the court, he must try his level best to perform his promises.
3. He shall not use unfair and malicious tactics against the opponents.
4. He shall not abuse the rules of evidence and the process of the court in order to injure the
opponent.
5. He shall not make baseless attacks on the reputation of the opponent or his witness or
unduly harass them.
6. He may make concessions to the convenience of the opponent and his lawyer in fixing the
date of trial.

Duty to profession (rule 36-40)

Every Advocate owes an obligation to uplift the profession to which he belongs. He must
avoid, any conduct that may lead to lower the standards of the profession. He shall never
forget that he belongs to the noble profession. Following are some of his important duties to
the profession. These duties are incorporated with the intention of raising the standards of the
profession.
1. An Advocate shall not speak ill of the profession. He should conduct himself in such a way
to enhance respect, sympathy and good feeling between the members of the profession and
strive to maintain the honour and dignity of the profession.
2. He shall not discuss in the newspapers any pending case or appeal.
3. He shall not in any way solicit cases by advertisement or otherwise.
4. He shall not act or plead in his professional capacity before any officer of the state not
exercising judicial or quasi-judicial powers.
5. He shall not appoint intermediaries for procuring cases and divide the fees between them
or pay commission to them for such work.
6. He shall not entertain or show any undue hospitality to any particular judge.
7. He shall not place himself in the situation which may be unbecoming of a member of the
bar.
8. He shall not oppose the desire of his client for additional professional help or assistance
from other lawyers also.
9. He must appear in robes in the court proceedings. He shall not wear robes or gown in
public places except on ceremonial occasion.
10. He shall not act as a managing Director or a secretary of a company without the leave of
the Bar Council.
11. He shall not work as a full time salaried employee.
12. He shall not do any other business. An advocate who inherits any family business may
continue it, but he should not personally participate in the management of the business.
Duty to Render Legal Aid
Justice is a great interest of man on earth and the lawyer is the high priest in the shrine of
justice. The quality of justice, to a great extent, depends on the moral quality, integrity and
fairness of the lawyers. To develop their moral qualities, the lawyers must actively participate
in the legal and aid programs and give free legal services to the poor and the needy people.
This is one of the important duty an Advocate owes to the society. If a lawyer personally
knows that his client is unable to pay because of poverty then he must represent the case
without demanding any fees from him.
Similarly, when the court appoints a lawyer to defend an accused, it is his moral obligation to
accept such order and discharge his duties towards the court and the accused by the best use
of his knowledge and ability.
Lawyers shall co-operate and actively participate in joining hands with the local area legal
services Authorities in organizing Lok Adalats and Legal Aid programs and conciliation
proceedings.

Duty to Self
Legal profession is the noble profession. The degree of standard expected from the lawyer
with respect to his knowledge, skill and ability is so high. So, an Advocate should follow the
following duties as duty to self.
1. An Advocate must develop the habit of systematic study of law and acquire up-to-date
knowledge in law.
2. He shall exercise prudence, deligience and judiciousness in all his activities.
3. He shall never be a party to anything which he known to be wrong.
4. He shall not stir up litigations.
5. He should discourage vexations (groundless)litigation.
6. He shall encourage compromise between the parties.
7. HE shall not indulge in any act which amounts to professional misconduct.
8. He should not do any act which amounts to contempt of the court.
9. He must be fair and honest in his dealings.

Duty to colleagues
In order to maintain good relation among the members of the Bar, an Advocate has to
perform the following duties to colleagues.
1. An Advocate shall not enter appearance in any case in which there is already an Advocate.
2. He shall not in any way solicit cases by advertisement or otherwise.
3. He shall not allow his name to be used by some other person for unauthorized practice of
law.
4. He shall not accept a fee less than the fee chargeable under law.

10. ADVERTISEMENT IN LEGAL PROFESSION

References: Class notes (Samidha’s), Lecture Recordings titled “Advertisement, Solicitation
etc” and “Advertisement, Simultaneous Profession etc” and Professional Ethics for Lawyers –
bar and bench pg. no. 22 and 24

1. FOREIGN LAWYERS
Reference: Breaking the Myth PPT and Lecture Recording
BRIEF OF BCI DRAFT RULES REFERRED IN CLASS:

 Require foreign lawyers to be registered with the BCI to practice foreign law in India. 
 This will allow foreign lawyers to be deemed an advocate within several sections of the
Advocates Act, namely section 29, 30 and 33, allowing them to do transactional legal work,
and in international arbitrations having their seat in India for foreign companies. 
 It will also allow them to open up law offices in India and hire local advocates, and to enter
into partnership with Indian lawyers, and to work as an advocate for any Indian law firm. 
 Requires foreign lawyers to pay: 
$25,000 registration fee for individuals, 
$50,000 registration fee for partnership firms, 
$10,000 / 20,000 renewal fee for individuals / firms respectively. 
 Requires foreign lawyers to deposit a security guarantee (without interest), which is
returnable when the foreign lawyer voluntarily terminates foreign law practice in India or
their registration expires, less any adjustments for penalties, etc. The deposit amounts are: 
$15,000 for individuals, 
$40,000 for law firms. 
 To register as a foreign lawyer to practise in India will require home and Indian government
ministry certificates, as well as certificates of practice from foreign bar council-equivalent
bodies. 
 Requires foreign lawyers to make a declaration on oath that they shall not “practice Indian
law in any form or before any court of Law, Tribunal, Board or any other Authority legally
entitled to record evidence on oath”. 
 Registrations will be valid for five years, renewable thereafter for $10,000 and $20,000 for
individuals and firms respectively.
 Foreign lawyers will be governed by the same disciplinary and ethical obligations as Indian
advocates, which would be enforced by the Bar Council of India (BCI).

2. Restriction on other Employments

Bar council of India Rule-40 restricts the Advocates not to personally engage in any other
business other than the legal profession. The reason for this restriction is that he should fully
concentrate in the legal profession and elevate it to the high stand . If he is allowed to do
other business then that may lower down the standard of this profession. If he join as a full
time salaried employee either in the Government or in the private sector he must request the
Bar Council to remove his name from the Advocates Roll.
Though there is general restriction on other employment, there is no restriction for engaging
himself in the following works. He can be a Sleeping partner in a business, if in the opinion
of the State Bar Council that business is not inconsistent with the profession.
1. An Advocate who has inherited a family business shall continue it, but he shall not
personally participate in the management of the business.
2. He shall engage himself in writing Law Books.
3. He shall join as a part-time Law Teacher or any other part –time job which may not be
inconsistent with the legal profession. The part-time job should not exceed more than 3 hours
in a day.
4. He shall prepare question papers for the Exams.
5. He shall review parliamentary Bill for a remuneration.
6. He shall act as a member of the parliament or Member of the State Assembly.
7. He shall study Post Graduate course in Law without suspending his practice.
An Advocate who is engaged in other business shall be punished for professional misconduct
(see Dr. Kaniraj L.Sulani V. Bar Council of Maharashtra at P 66, Babulal v, Subash Jain at p
49 and Sharma v. Grudial singh at P 58).
BCI Rules on Other Employments (From Samidha’s Notes)
VII. Restriction on other Employment
47. An advocate shall not personally engage in any business; but he may be a sleeping
partner in a firm doing business provided that in the opinion of the appropriate State Bar
Council, the nature of the business is not inconsistent with the dignity of the profession.
Pawan Sharma Case: An advocate had 4 taxis being run by his family members in his name-
taxi service- the State Bar Council did not allow him to run the taxi business- went to BCI-
upheld the decision, then went to the SC- SC said that the important golden rule is that when
one is in the legal profession, one should not give half hearted time to the profession. If
dividing time in two professions, then not giving enough attention to the client. Here, PS was
owning he taxis but was not driving them on his own. SC said that here there was lack of
evidence that PS was not giving full time to the legal profession.
48. An advocate may be Director or Chairman of the Board of Directors of a Company with
or without any ordinarily sitting fee, provided none of his duties are of an executive
character. An advocate shall not be a Managing Director or a Secretary of any Company.
49. An advocate shall not be a full-time salaried employee of any person, government, firm,
corporation or concern, so long as he continues to practise, and shall, on taking up any such
employment, intimate the fact to the Bar Council on whose roll his name appears and shall
thereupon cease to practise as an advocate so long as he continues in such employment.
“That as Supreme Court has struck down the appearance by Law Officers in Court even on
behalf of their employers the Judgement will operate in the case of all Law Officers. Even if
they were allowed to appear on behalf of their employers all such Law. Officers who are till
now appearing on behalf of their employers shall not be allowed to appear as advocates. The
State Bar Council should also ensure that those Law Officers who have been allowed to
practice on behalf of their employers will cease to practice. It is made clear that those Law
Officers who after joining services obtained enrolment by reason of the enabling provision
cannot practice even on behalf their employers.”
“That the Bar Council of India is of the view that if the said officer is a whole time employee
drawing regular salary, he will not be entitled to be enrolled as an advocate. If the terms of
employment show that he is not in full time employment he can be enrolled.”
Because of this, the teachers of law, law officers, etc cannot practice as well.
50. An advocate who has inherited, or succeeded by survivorship to a family business may
continue it, but may not personally participate in the management thereof. He may continue
to hold a share with others in any business which has decended to him by survivorship or
inheritance or by will, provided he does not personally participate in the management
thereof.
Cannot solicit people through this
51. An advocate may review Parliamentary Bills for a remuneration, edit legal text books at
a salary, do press-vetting for newspapers, coach pupils for legal examination, set and
examine question papers; and subject to the rules against advertising and full-time
employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal
and non-legal.
52. Nothing in these rules shall prevent an advocate from accepting after obtaining the
consent of the State Bar Council, part-time employment provided that in the opinion of the
State Bar Council, the nature of the employment does not conflict with his professional work
and is not inconsistent with the dignity of the profession. This rule shall be subject to such
directives if any as may be issued by the Bar Council India from time to time.
The Gujarat Bar Council has brought a new amendment asking the Indian Bar Council to
allow lawyers to practice other professions, as lessening of transactions due to COVID.

Refer to: https://www.indialegallive.com/top-news-of-the-day/news/resolution-of-bar-

council-of-gujarat-to-allow-practicing-advocate-engage-in-other-employment-not-in-tandem-
with-bci-rules/#:~:text=The%20Bar%20Council%20of%20Gujarat,to%20the%20limited
%20functioning%20of
Dr. Haniraj L. Chulani vs. Bar Council of Maharashtra & Goa
Was a surgeon- cleared the law degree, wanted to practice- was denied a certificate of
practice by the Bar Council of Maharashtra- stated that cannot work in two professions like
this- ultimately matter went to SC. The SC held that legal profession requires full time
attention and would not countenance an Advocate riding two horses or more at a time. A
surgeon has to give full time to his patients. The appellant said that it violated his right to
practice under Article 19(1)(g). The court said this cannot be brought up because the interest
of the client is paramount. You may have ability but must be able to give fundamental
importance to cases. Cannot question as violation to FR- these are constitutional bodies-
power under Article 145 of the Constitution – here, client interest is kept at the very centre.
Jalpa Pradeepbhai Desai Vs Bar Council of India (Gujarat High Court) where a lawyer who
worked as a full time consultant with a public sector undertaking and had been unsuccessfully
trying to get enrolled with the Gujarat Bar Council held that “Considering the nature of
service contract of the petitioner with the Corporation, there is no gainsaying that she incurs
debility in terms of Rule 49 as her employment could be characterized as a full-time salaried
employment. As a result, refusal by the respondents to grant the petitioner enrolment and the
certificate to practice law could be said to be eminently proper and legal.”
Ashwini Upadhayay Case
Filed in SC contested that MPs and MLAs should not be allowed to practice law. SC held that
it is not appropriate, they should be allowed. Centre's submission that an MP or an MLA is an
elected representative and not a full-time employee of the government, hence the plea was
not maintainable.
However, senior advocate Shekhar Naphade, appearing for Upadhyay, had told the court that
a lawmaker draws a salary from the public exchequer and a salaried employee is debarred by
the Bar Council of India from practising in the courts of law.
To this, the bench had replied that employment postulates a master-servant relationship and
the government of India is not the master of a Member of Parliament.
According to Sir, PV Narasimha Rao Case – MPs and MLAs are also public servants, here,
when there is a contract of employment already, a MP or MLA cannot be lawyers. No
exception for MP and MLAs, in fact they have a very important role to play, so, they should
be denied practice according to Sir. However, SC held that since this is in a unique nature,
unless it is specifically barred, MPs and MLAs should be allowed to practice.

3. Restriction on Advertisement
Rule 36 of Bar Council of India restricts the Advocates not to advertise about the profession.
This restriction is imposed because Advocate profession is the noble profession. Due to this
restriction Advocates are banned to do the following things.
1. Directly or indirectly advertise about their profession.
2. Publishing his photo along the news regarding his appearance in a case.
3. Circulation of phamplets or giving advertisement with a view of soliciting case. His name
board should be small and in prescribed size. In the name board the following matters should
not be mentioned.
1. Information relating to his membership in Bar Council or post in the Bar Association.
2. Information about the specialization in a particular branch of law.
3. Information about Ex-Judicial Officer or Ex-Government Advocate.
4. Information about his membership in other associations. Making advertisement against the
above said restrictions will be treated as professional misconduct.

The idea of advertisement comes in when advocates need to consider how do they make the
larger public aware of their work. Closely interrelated to the issue of restriction on other
employments. Since a lawyer cannot take up any other area of employment and draw their
salary from another source, they need to earn their bread from the profession of law- how do
they publicize their services?
Normally, when anyone needs a lawyer or have a matter in the court they may approach a
lawyer through word of mouth. The question is should lawyers have a right to tell the general
public about their services.
Rule 36 Section IV (Duty to Colleagues) of Chapter II (Standards of Professional
Conduct and Etiquette) of Part VI (Rules Governing Advocates) of the BCI Rules: 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
photographs to be published in connection with cases in which he has been engaged or
concerned. His sign-board or name-plate should be of a reasonable size. The sign-board or
name-plate or stationery should not indicate that he is or has been President or Member of a
Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular
type of worker or that he has been a Judge or an Advocate General.
After the case of V. B. Joshi (2000), which challenged the prohibition as imposed by Rule 36,
an amendment was brought in 2008-
Provided that this rule will not stand in the way of advocates furnishing website information
as prescribed in the Schedule under intimation to and as approved by the Bar Council of
India. Any additional other input in the particulars than approved by the Bar Council of
India will be deemed to be violation of Rule 36 and such advocates are liable to be
proceeded with misconduct under Section 35 of the Advocates Act, 1961.
This provision came from the English law of Champerty, extended to barons- used to
encourage litigants stating that can win the case and would have to give 10% of the
winnnings back to them. Cannot foster litigation in the society in this way, just like a doctor
cannot actively seek out patients for the purpose of gaining solicitation. Should not have a
pecuniary interest in it eg: getting a commission.
Advertisement is also freedom of expression- called commercial freedom- one can inform,
but it should not amount to an imposition.
Was an advocate in Surat, Gujarat. Was appointed by English court to collect information
about land of the waqf board, and submit to the registrar. He printed postcards, stating that he
was appointed to do this job, and asked for commission, asking people to come to him.
However, here, asking for commission and actively asking amounts to solicitation. The court
said you cannot do this. Merely sending postcard would be okay, but here he put a pecuniary
gain for himself.
Sir referred to this article regarding COVID-19 and Rule 36-
https://www.lexology.com/library/detail.aspx?g=4d55f554-44bb-4391-9e18-7c74cb849443
One argument, from the market point of view, is this, that society and general people are not
stupid and irrational, will not be attracted by mere advertisements. Clients have their own
analytical understanding. Need to have some competition, to ensure best services.
Advertisements are required to give full information regarding practice. Market approach is
more suitable for corporate firms where the corporations have more awareness regarding their
rights and services are supervised by in-house counsels.
Conversely, from a sociological point of view, in the Indian society, people are still
struggling for equilibrium, in this, if you have advertisements in place, they can disrupt- this
is a ban on commodification of the legal profession. We need to first diversify and increase
access to rights horizontally.
An advocate is doing a work, which is a service, cannot inform in advance how much it will
cost. Client who is coming to the advocate is coming for a big problem in his life. When the
outcome is not in your hand, how do you decide amount of payment in advance, and actively
make promises.
(Sir thinks the above mentioned point is highly technical point so explain with examples both
the approaches and the problems that arise with both the approaches. He leans towards
sociological approach)
Another question is, what apart from the the 5 things specified by the BCI do you want to
add?

Legal Profession cannot be enticed, cannot make it more attractive- no differentiation

between litigation and advisory work. However, internationally, there has been classification
of legal services – 8611 classification code- divided into different kinds of law – (a) criminal
law, litigation process, drafting , (b) legal certification and documentation, (c) judicial
systems, (d) quasi judicial tribunals and (e) other legal services – GATT Article III

Legal advisory and representation services in the different fields of law

 86111 Legal advisory and representation services concerning criminal law

Legal advisory and representation services during the litigation process, and drafting
services of legal documentation in relation to criminal law. Generally, this implies the
defence of a client in front of a judicial body in a case of criminal offence. However, it
can also consist of acting as a prosecutor in a case of criminal offence when private legal
practitioners are hired on a fee basis by the government. Included are both the
pleading of a case in court and out-of-court legal work. The latter comprises research
and other work for the preparation of a criminal case (e.g. researching legal
documentation, interviewing witnesses, reviewing police and other reports), and the
execution of post-litigation work, in relation to criminal law.

86119 Legal advisory and representation services in judicial procedures

concerning other fields of law

Legal advisory and representation services during the litigation process, and drafting
services of legal documentation in relation to law other than criminal law.
Representation services generally consist of either acting as a prosecutor on behalf of
the client, or defending the client from a prosecution. Included are both the pleading of
a case in court, and out-of-court legal work. The latter comprises research and other
work for the preparation of a case (e.g. researching legal documentation, interviewing
witnesses, reviewing police and other reports), and the execution of post-litigation
work, in relation to law other than criminal law.

8612 86120 Legal advisory and representation services in statutory procedures of quasi-
judicial tribunals, boards, etc.

Legal advisory and representation services during the litigation process, and drafting
services of legal documentation in relation to statutory procedures. Generally, this
implies the representation of a client in front of a statutory body (e.g. an administrative
tribunal). Included are both the pleading of a case in front of authorized bodies other
than judicial courts, and the related legal work. The latter comprises research and other
work for the preparation of a non-judicial case (e.g. researching legal documentation,
interviewing witnesses, reviewing reports), and the execution of post-litigation work.

8613 86130 Legal documentation and certification services

Preparation, drawing up and certification services of legal documents. The services

generally comprise the provision of a number of related legal services including the
provision of advice and the execution of various tasks necessary for the drawing up or
certification of documents. Included are the drawing up of wills, marriage contracts,
commercial contracts, business charters, etc.

8619 86190 Other Legal advisory and information services

Advisory services to clients related to their legal rights and obligations and providing
information on legal matters not elsewhere classified. Services such as escrow services
and estate settlement services are included.
 (LALITHA) ROLE OF THE BENCH AND THE BAR

By MR. JUSTICE MIRZA HAMEEDULLAH BEG

Broad purpose of Bench and Bar

The body of persons which operates the machinery through which justice is administered, composed mainly of
the Judges and the Advocates who help them in discharging their difficult duties, has existed and functioned
both in ancient and modern times. Its broad purpose throughout has been to realise all those goals which are
labelled "Justice” according to the law which has to be administered in a society whether it is ancient or modern,
capitalistic or socialistic, feudal or industrial. Concepts of justice, however, have changed vastly in the course of
time. And, as between different States in modern times too, Justice, as embodied in the law, has different
contents and connotations.

Such differences as we find between different States as regards the functions of the Bench and Bar are, I
suggest, mainly due to the some what differing basic concepts of justice found in the laws of different States.
These concepts have been produced and moulded by the operations of complex and interconnected, constantly
acting and counter-acting, sets of factors in the course of our histories.

Shrunk and organically interlinked modern world

A basic factor moulding life and thought in every country today is what has been called the shrinking of

the modern world. The various parts of the world are becoming increasingly organically interlinked and

interdependent. Distances have vanished. Space time relationships have altered vastly. Modern science has

made it possible for us not only to communicate quickly with each other and to share ideas and thoughts with

ease, but its practical applications have produced a uniformity in patterns of thinking, behaving, and living,
cutting

across all barriers of political organisation and ideology, culture, race, creed, and colour. The operation of these

factors has produced a progressive development of uniform basic notions of justice as well as common patterns

of law in various parts of the world.

In spite of the unifying trends operating in the modern world, there are differences in origin, in traditions, in

organisation, in aims sought to be achieved, and in the means adopted for achieving even the same objects

through the machinery for the administration of justice under different systems in the modern world. Hence, the

need to study these differences so that we may benefit by mutual exchange of experiences and ideas and

notions, and improve, where possible, our own systems.

Two Law Commissions

In this country, at any rate, there has been considerable hard thinking about the basic structure and the

operations of our machinery for the administration of justice. An All-India Commission, under the
Chairmanship of Mr. M. C. Setalvad, who conferred upon us a great favour by presiding at the sessions of our
Seminar at

Allahabad, during the Centenary Celebrations of the High Court, produced a voluminous and exhaustive report

after three years of collection of information, intensive study, and deliberation. A Law Commission appointed
by

the Government of Uttar Pradesh had also made its comprehensive study and surveyed the conditions under

which Justice is administered in this State. I am sure that we will benefit greatly if we could have access to
similar

mines of information about their machinery of justice and its operations in other countries.

Common Scientific approach to Justice

In this modern age of science, the approach of all Jurists to the problems of justice is certainly that of

scientific humility. It cannot be dogmatic. They do not see justice descending in the form of divinely inspired

dictates or their collections, the "Themistes" of early law, as Sir Henry Maine called them, but as Del Vecchio, a

famous Italian jurist, saw it at the conclusion of a historical and philosophical essay on ‘Justice’: "that idea of

justice which, inherent and always springing up anew in our spirit, is found in all laws but is exhausted in none".

Changing Concepts

Our concepts of Justice do not consist of a body of eternal, abstract, immutable, unchanging norms, but

they will be found to be the products of an interchange of shifting pulls and forces which spring from changing

social, political, cultural, and economic conditions. New moral values, ultimately translated into law, emerge in
the process. Our notions of Justice are relative and results of empirical knowledge of what satisfies certain needs

believed to be basic. The satisfaction which these needs demand is only permitted in legally recognised modes.

One may mention here that what is legally sanctioned should not be viewed apart from what is morally sound
and
right. This is the approach of a growing school of legal thought powerfully represented by the English Judge
Lord

Devlin today.

Sense of Dedication

I may here quote a conclusion reached by Professor Del Vecchio in the essay already mentioned above:

"He who consecrates himself truly to the ideal of justice overcomes himself as individual, since he identifies

himself universally with 'others', beyond the sphere of physical appearances, and following that inner vocation

which proclaims to him the law of his spirit as a rational being he enters the kingdom of the eternal and the

absolute."

Although concepts of justice are not unchanging and eternal, the spirit of consecration and dedication

which impels human beings towards what they believe to be 'Justice' certainly appears to be a part of the eternal

and the unchanging human nature. Of course, the urge to see justice done to others, viewed as reflections and

even as parts of one's own self, is often submerged by other powerful drives and passions. The effort, however,
of those who consciously seek justice, as members of both the Bench and the Bar must always do, will be to

overcome the passions and prejudices which interfere with such a disinterested pursuit of justice. Justice, in a

sense, may be conceived of as an eternal quest of every being who deserves to be called human. As Mr. Du

Cann puts it, in his book entitled "Miscarriages of Justice", "the need for justice raises in every human heart a
cry

as imperative as the blood of murdered Abel crying from the ground, or Rachel in Rama weeping for her
children

slaughtered by Herodian soldiers".

The Specialist's approach

The difference, however, between the quest of the man in the street and that of the Judge and of the

Advocate for justice is that the latter class of persons is meant to be dedicated to the pursuit of justice and seeks
it scientifically by employing ordered knowledge contained in the form of law and by scientific means found
both

inside and outside the law. I believe that such a sense of dedication or consecration combined with a scientific

technique constitutes the common ground between the members of the Bench and the Bar and in every country
and in all ages.

The Persona

According to H. G. Wells, writing in his work entitled "The Work, Wealth and Happiness of Mankind",

every individual performs his role in life for a reason which impels him to do so. That reason is to be found in
the

concept which the individual has of himself and of his mission in life. The concept is described by the term

"persona" in the language of the psychologist Yung. This term is derived from the mask which the Greek and

Roman actors wore on the stage. The "persona" stands for one's character as one conceives it and propels one

to perform one's role in life. H. G. Wells has divided these persona into three kinds and shown them as emerging

in the course of the development of the modern western society. But, this very process is found in the histories
of

other nations too. The first he calls the "peasant persona", the "distinctive character of which is the complete
acceptance of the idea that toil is virtue, and its close intense adhesion to property and the acquisition of
property". An individual with such a persona is prone to envy and displays possessiveness although his soul may
be equalitarian.

The second type of persona is that typified by the nomad and the robber baron with a predatory tradition. The

individual with such a persona is adventurous, fond of display and ostentation, and is mercenary. He does,

however, possess a code of honour and considerable pride and vanity. He is attached to notions of class and

chivalry. His spirit is inegalitarian and exploitative. The third and the most valuable type of persona is that of the

educated and refined individual which may be called the priestly persona. For such a person, the driving force is

the sense of duty and the feeling of dedication. In this last and most valuable class of persons H. G. Wells places

the Judge and the lawyer. He observes: "Under this heading we shall pave to deal not only with priests and

ministers of religion, but with a vast world of quasi-disinterested effort, with teachers of every class, with
writers

and creative artists, with scribes and journalists, with doctors, surgeons and the associated professions, with

Judges and lawyers generally, with administrators, and particularly that excellent type, the permanent official,
with technical experts, and finally, most hopeful, various and interesting of all, with the modern scientific
worker". The most distinctive element of such a persona is its detachment from money-making motive. Its
motivating concepts are those of service and self-denial in order to attain what is considered the superior inner
satisfaction from high intellectual and spiritual achievement and the recognition of the value of such a person by
Society.

Before leaving this fascinating analysis of human types and the roles they perform in life, due to what

have been called their personae, I may quote an interesting passage from H. G. Wells:

"All these types of persona have characteristics in common that mark them off quite definitely from

either the proliferation of the varieties of acquisitive peasant townsman soul, or from the royalties, aristocrats,

robbers and genteel social parasites, who constitute the predatory classes. In the modern professional soldier we

have perhaps a type intermediate between the predatory and priestly group and deriving more and more from the

latter tradition, and in the modern barrister the pretensions of an aristocratic protector of a client subdued to the

exigencies of a hireling bravo, and mingled too often with the unredeemed greed of the peasant."

The Judge's Persona

The persona of the Judge today in this country has necessarily to be of the third type because there is no

financial charm at all left in the emoluments of judicial office. It is only individuals with the last and the most

advanced type of persona who can completely detatch themselves from the persuit of private gain and from

selfishness of every kind and rise above pettiness, passions, prejudices, obsessions and complexes of every type

by means of ruthless self analysis and broad human sympathies and culture, and preserve an unruffled temper

even when faced with the most trying of situations. Only such individuals can perform the role of the judge

satisfactorily.

What the Judge requires from the Advocate

The effectiveness and usefulness of an Advocate is determined by his capacity to satisfy the needs of the

Judge. It is clear that what the Judge requires from an Advocate is assistance in the performance of his own role.

It is impossible for an Advocate to give that assistance unless he has probity or all those qualities which are

discussed in the chapter on the "Honest Lawyer" in a rather illuminating little book entitled "Road to Justice"

containing a series of essays of Lord Denning, at present the Master of Rolls in England.
Power of Judge and Advocate over the Judicial Process

Coming now to special features of our judicial process, I would like to point out that the power exercised

by the Judge in this country over the fate of a litigation, whether on the criminal or civil side, is really enormous.

Similarly, the power of the advocate for good or evil is rather prodigious in determining whether justice will hit
or miss its mark. In England as well as in America a large number of cases, both civil and criminal, are tried
with the aid of jury, which gives its verdict on questions of fact. There, the function of the Judge, although
capable of being so performed as to lead the "jury by the nose" (as Francis Bacon put it), is yet only that of an
umpire and

instructor in law. And, in other cases, all matters of any importance are decided by Courts presided over by
more

than one Judge. The legal profession, too, both in England and America, is severely controlled by powerful

currents of professional and public opinion supported by the exercise of judicial discretion in such a way as to

penalise those practitioners who have been black-listed or have tarnished reputations. Rules of professional

ethics and etiquette cannot be violated there with such impunity as they can be, and are sometimes,

unfortunately, broken here. No one who has been a practising lawyer on the original or even the appellate side
or

a Judge of facts in this country for any length of time, with a desire to see the highest standards of honesty and

integrity maintained in litigation, would fail to remember lurid instances of how justice was either done by the
use of very questionable methods by those conducting cases or failed to be done because of the use of such

methods.

A Source of Miscarriages of Justice

The best of institutions can be misused and human frailties cannot be entirely eliminated anywhere. A

whole host of American cases in which wrong persons were convicted due to either perjured or honestly
mistaken

evidence are found collected in Mr. Earle Stanley Gardner's “Court of Last Resort", and in Judge Jerome Frank's

"Not guilty". Mr. Du Cann's book entitled 'Miscarriages of Justice" gives similar instances from Britain. The
danger, however, in this country of such miscarriages of justice is much greater due to the development of
practically in unwritten tradition or convention which, as our very astute and venerable Advocate, Dr. K.N.
Katju, has pointed out in his illuminating little books, “ Experiments in Advocacy”, seems not only to tolerate
and condone but almost to permit use of perjury in litigation by applying there the rule- “all is fair in love and
war”. This is a perversion of the noble traditions of the legal profession which, whether it reveals the inroads
made by the predatory persona or instincts of the robber baron or condottiere type of individual into the legal
profession or just indicates a fall in professional standards due to an intensified struggle for existence, certainly
discloses the need for a more stringent control over and a strict regulation of professional standards. Such
control is possible, under the present state of law after the new Advocates Act, only by the representatives of the
legal profession themselves. I confess that I have, at times, felt so perturbed at some of the tendencies noticed
today that I have wondered whether a largely controlled and nationalised bar, on the lines on which it is
organised in the U.S.S.R. Is not very necessary in this country today. Such a proposal has been seriously
discussed by no less respected and erudite an American Judge than Judge Jerome Frank, who has, in his works,
such as “Law and the Modern Mind” and “Courts on Trial”, indicated that problems and defects similar to those
which have revealed themselves in this

country in the sphere of administration of justice have arisen even in so economically advanced a country as

America. The pitfalls and snares which beset the path of justice in American courts are depicted rather
scathingly

by an American citizen, Mr. Callison, in a recent book entitled "Courts of Injustice".

A Source of Great Pride

In spite of the flaws in our system and failings of some, it has to be remembered that there is a powerful

tradition of rectitude, honourable conduct, and dedicated service to the cause of justice built up by members of
the Bar in this country. Mahatma Gandhi, the father of the Indian nation, came from the legal profession, and, in
the course of his professional career, he observed the highest possible standards of honesty and probity. From
the

ranks of the legal profession rose men with the most glittering records of dedicated service to the nation both

professional and political, such as Pandit Ajodhya Nath, Pandit Moti Lal Nehru, Sir Tej Bahadur Sapru, Pandit

Jawahar Lal Nehru to mention only a few of the giants of the past who practised at the Allahabad High Court.
We

can justly feel very proud of the intellectual and moral stature attained by such members of the Bar of this
country.

A Source of Danger

So far as the Judiciary of this country is concerned, I think we can assert that, even without any special

training in what may be called the science and art of adjudication, apart from training in law, it has not only set

high standards of learning and legal acumen but also of absolute integrity, probity, independence of character
and
judgment, and freedom from bias of every kind. It is, however, well to remember, before it is too late, that these

high standards, born out of a spirit of utter and unswerving dedication, can only be preserved or improved by

keeping the Judiciary free from financial strains, stresses, and worries. Unfortunately, the Judiciary, consisting
of

salaried office holders with scales of pay fixed long ago, can be, like other city dwellers and salaried individuals

with fixed salaries, classed with the sufferers and not with the beneficiaries of the present order of things in this

country in spite of vast socialistic schemes of Governmental expenditure. The strong inflationary trends, caused

by a variety of reasons which economists give, have sent up prices soaring so high in this country as to severely

curtail the real incomes of members of the Judiciary at every level. We understand that, in other countries,

including the U. S. S. R., judges are better paid and are not less (if not more) respected than they are in this

country.

A Source of Legitimate Pride to Indian Citizens

Indian citizens take considerable pride in the Constitutional role of the Judiciary in this country as the

protector of Fundamental Constitutional rights of citizens against any unjustifiable encroachment made by any

person or authority in the State. Members of the Judiciary of this country have performed this role very
creditably

with absolute independence and utter disregard for consequences to themselves and are assisted by a strong

and courageous Bar. Our Judiciary can and has questioned the validity of legislative measures of Parliament
itself

and has not shrunk from declaring a statutory provision invalid whenever it has found that it violates a

fundamental freedom and is constitutionally unjustifiable. It has stood between the citizen and the highest

authority in the State whenever it has suspected injustice. It has shielded the citizen against every kind of

governmental misuse or excess or abuse of power. It has fearlessly enforced what is known as the Rule of Law.
It has vindicated the supremacy of the Constitution which is legally Sovereign in this country.

The result is that an Indian citizen today could proudly speak, as Sydney Smith spoke in England more

than a hundred years ago, about the effect of what the Judiciary does with the help of the Bar:

"Nations fall when judges are unjust, because there is nothing which the multitude think worth

defending; but nations do not fall which are treated as we are treated . . .. And why? Because this
country is a country of the law; because a judge is a judge for peasant as well as for the palace; because

every man's happiness is safeguarded by fixed rules from tyranny or caprice . . . The Christian patience you

may witness, the impartiality of the judgment-seat, the disrespect of persons, the disregard of consequences."

The responsibility of the Constitutional role

The Constitutionally vital role placed upon the shoulders of the Judiciary by our Constitution carries with it

a very heavy responsibility on the part of the Judges as well as the Advocates who assist them, of propounding

solutions which are not out of harmony with "Justice: social, economic, and political", as the Preamble to our

Constitution describes a basic Constitutional purpose. The guardianship of the Rule of Law in a democratic set-
up imposes the duty to understand well the basic needs and purposes of the progressive, social, economic, and

political order sought to be set up by the Constitution. It implies a keen awareness of problems of contemporary

society and sufficient knowledge and wisdom to suggest their solutions together with the courage to adopt them.

Social Engineering

The "Judicial Process" in our country includes that task of "Social Engineering" which Judge Benjamin

Cordozo analysed in his essay on " The Nature of Judicial Process." Prof. W. Friedmann, in his "Law in a

Changing Society," thus describes the task of the modern Judge in a social order like ours: "The lot of the

democratic, judge is heavier and nobler. He cannot escape the burden of individual responsibility, and the great,

as distinct from the competent, judges have, I submit, been those who have shouldered that burden and made

their decisions as articulate a reflection of the conflicts before them as possible. They do not dismiss the

techniques of law, but they are aware that" by themselves, they provide no solution to the social conflicts of
which

the law is an inevitable reflection". He goes on to observe: "The law must aspire at certainty, at justice, at

progressiveness, but these objectives. are constantly 'in conflict with one another. What the great judges and

jurists have taught is not infallible knowledge, of a certain answer to all legal problems, but an awareness of the

problems of contemporary society and an acceptance of the burden of decision which no amount of technical

legal knowledge can take from us".

Isolationism out-of-date

Some Judges have, particularly in the past, considered it to be essential for the Judiciary to maintain not
only a detachment of mind and independence of outlook but to exhibit this by complete isolation from the rest of

society. 'According to this view, a Judge must not only abstain from any direct or indirect discussion of a
problem

which may arise before him but must not even acquire any information or knowledge of matters in general lest
his mind is affected. It is said that a British Chief Justice of the Bombay High Court adhered so strictly to this
view that he would not even read newspapers let alone coming into social contact with ordinary mortals. Such
an attitude of mind and course of conduct on the part of Judges would certainly invite the criticism that they live
in "ivory towers". I do not think that Judges should be required to do more than to abstain from participation in
partisan politics and from even academic discussions of issues which have either already arisen before them or
are expected soon to arise.

When I was practising at the Bar, I expressed the following opinion on an occasion when a controversy

arose about the limits on the right of a judge to express opinions outside his court-room in the course of an

academic discussion: "All conventions and traditions regulating the conduct and speech of holders of judicial

office must be related to the nature of their functions. The functions of our High Court Judges, as the

constitutionally appointed guardians of that binding force and of all those fundamental values which are
embodied

in the Constitution of our secular democratic republic are far more vital and more closely connected with orderly

progress than those of our High Court Judges in the past were or even those of High Court Judges in England
are

today. These functions are comparable to those of American Judges. Our Judges are the constitutionally

authorised exponents of what may be described as the 'religion' of the secular State, summed-up by the word

'justice'. They may have to determine the reasonableness of any measure of social, economic, or political reform

or change which may affect its legal validity. Therefore, on the one hand, there is a much greater call for caution

and carefulness upon their part in expressing their views, and on the other hand, there is a much greater need tor

them, than there was in the past, to be conversant and concerned with problems of national welfare in all

departments of life. They cannot possibly be required to withdraw into shells of an artificial and isolated
existence,

where the mind stagnates, knowledge becomes rusty, and awareness of current problems and ways of thinking

vanishes. Those who recommend such isolationism on the part of our Judges forget the true needs, the right

place, and the proper implications of the judicial function in our country today under the existing Constitution.

"The greatest and the most cherished tradition of the legal world, to which Judges belong, is lone which is
basically moral and ethical. It is a tradition of an incessant struggle for what is right. As Sir C. K. Allen puts it,
in

his Aspects of Justice: 'Right comes by the struggle for Right and justice by the pursuit and practice of justice'. It

was this pursuit of what was Right which enabled our jurists and Judges to subject the King in ancient India to
the

Rule of Law. It was dedication to what was Right, according to his conscience, that led a venerated Roman
Jurist,

Papinian, to sacrifice his life rather than justify the claims of a usurper. Again, Sir Edward Coke, a famous
English

Chief Justice, lost his office because he lectured, on bended knees, to King James of England, that the King

should leave the administration of law and justice to his judges. English Judges, in the course of the
constitutional

conflicts of the 16th and 17th centuries, did not hesitate to advance, albeit in their judgments, essentially new

legal doctrines in keeping with democratic political theories which robbed the British King of the undivided and

absolute sovereignty claimed by him. The precious tradition of judicial independence may be impaired, and our

expectations of sound and reasonable judgments, which are not out of harmony with existing realities and best

concepts of what is just and right, particularly in the socio-economic fields, are not likely to be met more

satisfactorily if Judges are required to abstain completely from invigorating academic discussions and
intellectual

exercises outside their courtrooms."

Conclusion

Ours is a State in which the Constitution has assigned to the Judiciary an extremely difficult and delicate

role fraught with dangers of a type which do not exist in every country. Some of the ends which mechanisms of

justice must serve in a modern democratic socialistic State, such as expedition, inexpensiveness, easy
availability

of refnedies against public servants, the reform and education of the criminal, speedy solution of difficult
questions

arising in the sphere of domestic relations and treatment of the mentally ill, seem to be much more satisfactorily

served in other countries. Every State has to devise efficient means for tackling these problems which must arise
in a modern society.