DISCIPLINARY MECHANISM OF BAR COUNCIL OF INDIA : A CRITICAL

ANALYSIS OF COMPLAINT REDRESSAL AND PUNITIVE MEASURES

Introduction:

The Bar Council of India (BCI) serves as the regulatory body for legal professionals in India.
It enforces disciplinary mechanisms to ensure ethical conduct within the legal profession.
Complaints against lawyers are typically addressed through the disciplinary committee of the
respective state bar council. The process involves investigations, hearings, and potential
sanctions, such as warnings, fines, suspension, or disbarment, depending on the severity of
the misconduct. The BCI plays a crucial role in maintaining the integrity of the legal
profession by upholding ethical standards and addressing violations through a systematic
disciplinary process.

The Bar Council of India (BCI) stands as the vanguard of legal ethics and professional
conduct, entrusted with the responsibility of regulating and disciplining legal practitioners
across the country. The disciplinary mechanism of the BCI is a multifaceted process designed
to uphold the integrity of the legal profession and ensure that lawyers adhere to ethical
standards.

At the heart of the disciplinary mechanism is the BCI's authority to investigate complaints
against lawyers. These complaints may arise from various sources, including clients, fellow
lawyers, or even the judiciary. The process typically commences with the filing of a
complaint with the disciplinary committee of the respective state bar council. This committee
acts as the initial forum for evaluating the merit of the complaint.

Upon receiving a complaint, the disciplinary committee initiates an investigation, often

involving hearings where the accused lawyer is provided with an opportunity to present their
defence. The process is characterized by a commitment to due process, allowing the accused
lawyer a fair chance to respond to the allegations against them. The committee meticulously
examines evidence, interviews relevant parties, and weighs the gravity of the alleged
misconduct.

The nature of disciplinary actions that may be taken by the BCI is diverse, ranging from mild
admonitions to severe penalties such as suspension or disbarment. The severity of the
punishment is determined by the gravity of the misconduct and its impact on the legal
profession's integrity. This graduated approach underscores the BCI's commitment to
proportionate and fair disciplinary measures.
An essential aspect of the BCI's disciplinary mechanism is its role in setting ethical standards
for lawyers. Through guidelines and codes of conduct, the BCI provides a framework that
legal practitioners are expected to follow. By maintaining a high standard of professional
conduct, the BCI aims to foster public confidence in the legal system.

Moreover, the disciplinary mechanism operates as a deterrent against malpractice within the
legal profession. The knowledge that stringent consequences await those who breach ethical
norms serves as a powerful incentive for lawyers to uphold the highest standards of integrity
in their practice.

The transparency of the BCI's disciplinary proceedings is a cornerstone of its effectiveness.

While respecting the confidentiality required for certain aspects of the investigations, the BCI
strives to keep the process as open as possible, ensuring that the legal community and the
public are aware of the steps taken to maintain professional standards.

Disciplinary Committee

Disciplinary committee means a person or a group of people who are empowered to hear
cases and proceedings involving professional misconduct of an advocate upon a complaint,
revision or suo motu. The disciplinary committee is mainly formed to ensure that the
members of the bar council of India or the bar council of any state are maintaining
professional ethics and standards.

S.9 of the Advocates Act empowers the state Bar Councils to constitute one or more
Disciplinary Committees. Each Disciplinary committee will consists of 3 members. Two shall
be selected from the members of bar council and one shall be selected from the advocates
who are having more than 10 years of standing in the profession. Among the three members
the senior most in the profession shall act as the chairman of the committee.

S.42 of the Advocates Act deals with the power of the Disciplinary committee. It provides
that the Disciplinary Committee of the State Bar Council shall have the same powers as the
civil court under the C.P.C. in respect of the following matters.

1. Summoning and enforcing the attendance of any person and examining him on oath.

2. Requiring discovery and production of any documents.

3. Receiving evidence on affidavit.

4. Requiring any public record or copies of any record from any court or office.
5. Issuing commissions for the examinations of witnesses or documents.

The disciplinary committee has no right to require the attendance of the following persons.

(i) Any presiding officer of the court.

(ii) Any officer of the revenue court.

A presiding officer of a court shall be summoned to attend the proceedings of the

Disciplinary Committee with permission of the High Court and an officer of the revenue
court shall be summoned with the permission of the State Govt.

All the proceedings before the Disciplinary Committee of a Bar Council shall be deemed to
be a judicial proceedings within the meaning of S.193 & 228 of I.P.C and every such
disciplinary Committee shall be deemed to be a civil court.

Enquiry Procedure: The main function of the Disciplinary Committee of the Bar Council is to
enquire the complaints of professional misconduct against the Advocates award suitable
punishments.

Complaint Redressal Procedure

Complaint and Enquiry under Section 35, 36 and 36B of the Advocates Act

As per Section 35 of The Advocates Act 1961, in case an advocate commits a professional
misconduct then he is liable for punishment. One can file a complaint in the Bar Council of
the particular state and if the disciplinary committee of the council finds the complaint to be
genuine then proceedings are initiated against that advocate. So, for initiating the
proceedings, a complaint is the first step taken as per the procedure mentioned below-

Language of Complaint

The complaint against a lawyer must be in the form of a petition. It can be in English, Hindi
or in any regional language that is declared to be a state language. In case, the complaint is
filed in Hindi or any other regional language, it shall be submitted with a copy of its
translation into English.
Verification of Complaint

The complaint must contain the details of the lawyer against whom the complaint is made as
well as the personal details of the petitioner. The details regarding the name, address, phone
number, enrollment number of the lawyer must be there. The complaint has to be duly signed
and verified as required under the Civil Procedure Code (CPC), 1908.

Fees and Removal of Defects in a Complaint

Every complaint is to be accompanied by the fees which are prescribed in the Bar Council of
India Rules (i.e. 500 rupees or more, depending upon the state where the case is filed). These
rules have been placed under Section 49 of the Advocates Act, 1961. The secretary of the Bar
Council may require the complainant to pay the fees if the prescribed fees have not been paid.
The secretary can also ask the complainant to remove the defects as he may find necessary.

Moreover, to support the complaint the petitioner is required to contain an affidavit on a

non-judicial stamp paper of Rs 10/- and attest it by the Oath Commissioner or the Notary. If
the complaint is in order, it shall be registered and shall be placed before the Bar Council for
an order to be passed.

Notice to the Lawyer

Once the above proceedings are completed, the complaint is referred to one of the
disciplinary committees of the State Bar Association. Then the registrar shall efficiently send
a notice to the concerned lawyer.

The notice asks the lawyer to showcase within a specified time period. Moreover, it asks the
lawyer to submit the statement of defence, documents and affidavits in support of their
defence. In case, the advocate or his representative do not appear in the court after receiving
the showcase notice, then the matter shall be heard and determined in his absence.

Date of Enquiry

After the notice is sent, the committee discusses whether the complaint is genuine and there is
a requirement for the matter to be investigated. In case, the committee thinks that the
concerned lawyer is liable, then the disciplinary committee of the State Bar Council chooses
a date to hear the matter.

The date, hour and place of the enquiry are fixed by the chairman of the disciplinary
committee. The date of enquiry must not be later than 30 days from the receipt of the
reference. The registrar gives the notice regarding the date and time of enquiry to the
complainant, the concerned advocate and the Attorney General or the Additional Solicitor
General of India in whose presence the case is to be decided.

The notice may be sent through messenger or by registered post. The complainant is
supposed to pay the cost of the notices unless the disciplinary committee directs otherwise.

Appearance

Parties can appear in person or through an advocate who should file a vakalatnama and give
the name of the Bar Council in which he is enrolled, his telephone number and his residential
address.

In case either the complainant or the respondent do not appear in an inquiry before the
Committee, then the Committee may proceed with an ex-parte decree. This decree is passed
when either of the parties is absent on the hearing date. It gives power to the judge to pass an
order in favour of the party that is present there. If both the parties are absent then the
complaint is rejected and the petitioner has to file a fresh complaint.

Record of Evidence and Proceedings

Every document that is recorded by the Committee as evidence shall be signed by the
Chairman or by any member of the Committee in absence of the Chairman.

Every disciplinary committee has to make a record of its day-to-day proceedings. A case
diary is to be maintained by the registrar in which all the relevant information is to be
recorded. For example, the date of filing, the date for the hearing, details of service of the
notices, statements or petitions filed and other proceedings in matters before the committee.

All the above proceedings are considered to be judicial proceedings. Hence, these are
governed under Section 193 and Section 228 of the Indian Penal Code (IPC), 1860.

Judgement

The disciplinary committee shall hear and determine the matter. The findings of the
committee along with a reason to support that finding may be given in the form of a
judgement. The registrar shall send a certified copy of the final order to each of the parties in
the proceedings free of charge. The order is to be signed by all the members of the committee
and then sent to the office of the Bar Council. In case the committee believes that the matter
should be cross-examined and must be in the interest of justice, the procedure for the trial of
civil suits shall be followed.

Grounds on which Enquiries are Dropped

The enquiries before the disciplinary committee shall never be dropped solely because it has
been withdrawn, settled or otherwise compromised or the complainant does not wish to
proceed with the enquiry. There are certain grounds for the dropping of enquiries as
mentioned below-

1. When the complainant dies during the proceedings of the enquiry and no
representative is there to conduct the case. If this happens then the disciplinary
committee, based on the allegations made and the evidence available, shall make a
suitable order either to proceed with the enquiry or to drop it.
2. When the enquiry is against only one advocate and he dies, the committee shall
drop the proceedings.
3. When the enquiry is against more than one advocate and one of them dies, then the
committee may continue the inquiry against the others unless it decides otherwise.

Consequences of Filing a Complaint

After filing a complaint under Section 35 of the Act, the advocate concerned is given equal
opportunity of being heard. After the advocate is heard, the disciplinary committee of a State
Bar Council under Section 35(3) of the same Act may make any of the following orders-

1. Dismiss the complaint if it does not seems to be a genuine one

2. Initiate the proceedings
3. Reprimand the advocate
4. Suspend the advocate from practice for a particular period
5. Remove the name of the advocate from the State roll of advocates in severe cases

In a case, New India Assurance Co. Ltd. v. A.K. Saxena AIR [2004], the respondent was an
advocate. A dispute escalated between the client and the advocate because of which the
advocate was asked to return the files to his client. He was ready to return the files on the
condition of getting his fees paid. The client filed a complaint claiming the return of his files.
The court held that it is open for the advocate to file a recovery suit against his client for the
fees to be paid but retaining the files of the client comes under the breach of professional
duty.
In another case, the State of Punjab and ors v. Ram Singh ex. Constable , the gunman of the
Deputy Commissioner of Police (the respondent) was found heavily drunk while roaming
around the bus stand wearing a service revolver. He was dismissed from the service due to
such an act. He filed a suit claiming that such dismissal is illegal, ultra vires and opposed to
the principle of natural justice as dismissal can only be done for the gravest act of
misconduct. The court restored the order of dismissal and held that the word ‘misconduct’
does not have a precise definition but it can be connoted from the context, delinquency in the
performance and its effect on the discipline. The court also has given a list of acts that are
considered professional misconduct. They are-

– Moral turpitude;

– Improper or wrongful behaviour;

– A forbidden act;

– Carelessness or negligence in the performance of duty; and

– Disobedience of established set of rules or code of conduct.

Appeal to the Bar Council of India

If a lawyer’s conduct is unprofessional owing to which the State Bar Council withdraws the
licence of that concerned lawyer or awards some other punishment, he still has a chance to
take the matter to the Bar Council of India if he thinks injustice is done to him.

After an order is passed against an advocate, the Advocate-General of the State may prefer an
appeal to the Bar Council of India within 60 days from the date of the communication of the
order. The appeal to the Council shall be made in the form of a memorandum in writing.
Later, the Registrar of the Bar Council of India shall issue a notice to the State Bar Council
for the complete records to be sent to the Council.

The disciplinary committee of the Bar Council of India then shall hear such appeal and may
pass an order as it deems fit. It has the power to even vary the punishment that was awarded
by the disciplinary committee of the State Bar Council. The committee of the Bar Council of
India shall exercise all the powers that are exercised by the Civil Court or Court of Appeal
under C.P.C. The order that is passed is then communicated to the parties and the Secretary of
the State Bar Council Concerned.

Related Case Laws

In a case, Suo Motto Enquiry vs Nand Lal Balwani the respondent (an advocate) hurled the
shoes and shouted some slogans in the Supreme Court of India. Proceedings for both
contempt of court and professional misconduct were initiated against him. The Supreme
Court found him guilty and awarded him imprisonment for 4 months along with some fine.
He was also found guilty of professional misconduct as per the disciplinary committee of the
Bar Council of India. As a punishment, his name was removed from the Bar Council of
Maharashtra and Goa.

In another case, V.C. Rangadurai v. D. Gopalan and Others, the court observed that law is a
noble profession and is viewed as a profession for the people. The nobility of this profession
lasts as long as the members maintain their commitment to integrity and service to the
community. Hence, the legal profession is viewed as a responsibility towards the people. This
is why every delinquent who deceives his client deserves to be frowned upon.

Conclusion

The disciplinary mechanism of the Bar Council of India is instrumental in upholding the
ethical standards of the legal profession. Through a meticulous complaint redressal process
and a judicious application of punitive measures, the BCI ensures that advocates maintain the
highest standards of professionalism. This mechanism not only safeguards the interests of
clients and the public but also contributes to the overall credibility and trustworthiness of the
legal system. As the legal landscape evolves, the Bar Council of India must continually adapt
its disciplinary mechanisms to address emerging challenges and maintain the profession's
integrity in the face of changing dynamics.