Q. Discuss the aim and objectives of professional ethics. Q.
Q. What are the remedies available to the advocates against
What are the need for the Code of Legal Ethics?
Ans- Aim and objectives of professional ethics : Professional
ethics encompasses an ethical code governing the conduct of
persons engaged in the practice of law as well as persons
engaged in the legal sector. All members of the legal
profession have a paramount duty to the court and towards
the administration of justice. This duty prevails over all other
duties, especially in the circumstances where there may be a
conflict of duties. It is important that legal practitioners
conduct themselves with integrity, provide proper assistance
to the court, and promote public confidence in the legal
system. In carrying out their duties, they are required and
expected to deal with other members of the legal profession
with courtesy and integrity. Advocates, apart from being
professionals, are also officers of the court and play a vital
role in the administration of justice.
Accordingly, the set of rules that govern their professional
conduct arise out of the duties that they owe to the court,
the client, their opponents and other advocates. Rules on the
professional standards that an advocate needs to maintain
are mentioned in Chapter II, Part VI of the Bar Council of
India Rules. These Rules have been provided under section
49(1)(c) of the Advocates Act, 1961.
Need for Professional Ethics: The main object of the
professional ethics of advocacy is to maintain the dignity of
the legal profession. Chief Justice Marshall has observed in
this respect, "The fundamental aim of legal ethics is to
maintain the honour and dignity of the law profession to
secure a spirit of friendly co-operation between the bench
and bar in the promotion of higher standard of justice, to
establish honourable and fair dealings of the counsel with his
client, opponent and witness, to establish a spirit of
brotherhood with bar itself and to secure that lawyers
discharge their responsibilities to the community generally".
The American Bar Association Committee has well explained
the need of the code of legal ethics. It has observed that the
legal profession is necessarily the keystone of the arch of
Government. If it is weakened, and allowed to be a subject of
the corroding and demoralising influence of those, who are
controlled by craft, greed or gain or other unworthy motive,
sooner or later the arch, must fall. The future of the country
depends upon the maintenance of the shrine of the justice,
pure and unrolled by the advocates. Thus, it cannot be so
maintained, unless the conduct and motives of the members
of the legal profession are what they object to be. Therefore,
it becomes the plain and simple. duty of the lawyers to use
their influence in every legitimate way to help and make the
Bar what it is ought to be.
A code of ethics is one method of furtherance of this end.
The committee has further observed that members of Bar,
like Judges, are officers of the court and like judges, they
should hold office only during good behaviour and this good
behaviour should be defined and measured by ethical
standards, however high, as necessary to keep the
administration of justice, pure and unsullied. Such standard
may be crystallized into a written code of professional ethics
and the lawyer failing to conform thereto, should not be
permitted to practise or retain membership in professional
organisation.
Nature of Professional Ethics: A code of ethics is developed
for each profession. Suppose you write articles in a
newspaper. Professional ethics require that you verify facts
before you write that article. Similarly, in India for lawyer also
a set of guidelines have been laid down so far as professional
ethics are concerned, which defines their conduct in the
profession that is highly competitive and dynamic. Indian law
requires lawyers to observe professional ethics to uphold the
dignity of the profession. Lawyers are expected to follow
professional ethics and that they are accountable for
dishonest, irresponsible and unprofessional behaviour.
Further, lawyers can lose the license to practice if they are
found guilty of unethical practices that tarnish the dignity of
their profession. A lawyer must adhere to the professional
norms, for fair dealing with his client and to maintain the
dignity of the profession.
Provided that no order of the Disciplinary Committee of the
the order of punishment for misconduct?
Ans. Section 35 of Advocate Act 1961 provides for
punishment for professional misconduct or other
misconduct. In exercise of powers under Section 35 of the
Advocate Act, on receipt of a complaint against an advocate
or suo moto, if the State Bar Council has reason to believe
that any Advocate on its roll has been guilty of professional
or other misconduct, disciplinary proceedings may be
initiated against him. The Disciplinary Committee of the State
Bar Council is empowered to inflict punishment including
removal of his name from the rolls of the Bar Council and
suspending him from practice for a period deemed fit by it,
after giving advocate concerned and the Advocate-General
the state an opportunity of hearing. However, an appeal
against the order of the Disciplinary Committee may be
preferred to the bar Council of India under Section 37 and
thereafter to the Supreme Court of India against the order of
the Bar Council of India under the section 38 of Advocate Act,
1961.
The Advocate Act provides remedies against the order of
punishment. An advocate aggrieved by the order of
Disciplinary Committee can evoke the following remedies -
1) Review 2) Revision; 3) Application for Stay; 4) Appeal;
1) Review : It is provided in Section 44 of the Advocates Act,
1961. By virtue of this Section the Disciplinary Committee of
Bar Council of its own motion or otherwise review any order,
within 60 days of the date of order passed by it under this
Chapter. However, no such order of Review of the
Disciplinary Committee of a State Bar Council shall have
effect, unless it has been approved by the Bar Council of
India.
According to Section 48-AA of the Bar Council of India or any
of the its Disciplinary Committee, may on its own motion or
otherwise, review any order, within 60 days of the date of
that order, passed by it under the Advocate Act 1961.
The procedure for making review application is given in
chapter II, Part VII of the rules of the Bar Council of India. It is
in the form of petition duly signed and supported by an
affidavit accompanied by prescribed fee and certified copy of
the order, complained of.
2) Revision Section. 48-A (Amendment 1964): 1) The Bar
Council of India may, at anytime call for the record of
proceeding under this Act which has been disposed of by the
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 a reasonable
opportunity of being heard.
3) Application for Stay: According to Section 40(1) of the
Advocate Act, 1961, an Appeal made under Section 37 or
Section 38 shall not operate as a stay of the order appealed
against, but the Disciplinary Committee of India and the
Supreme Court as the case may be, may for sufficient cause
direct the stay of such order on such terms and conditions as
it may deem fit. Rule 29 of chapter I Part VII of the Bar
Council of India Rules provides that an application for stay
shall be accompanied by an affidavit and the fee prescribed
by the Bar Council of India.
4) Appeal - A) Appeal to the Bar Council of India B) B) Appeal
to Supreme Court
A) Appeal to the Bar Council of India :- In case the order of
punishment has been passed by the Disciplinary Committee
of the State Bar Council, an Appeal may be preferred to the
Bar Council of India under Section 37 of the Advocates Act,
1961. It provides that any person aggrieved by an order of
the Disciplinary Committee of a State Bar council made under
Section 35, of the Advocate General of State may, within 60
days of the date of the communication of the order to him,
prefer an appeal to the Bar Council of India. Under Section
37(2), every such Appeal shall be heard by the Disciplinary
Committee of the Bar Council of India which may pass such
order including an order varying the punishment awarded by
the Disciplinary Committee of the State Bar Council thereon
as it deemed fit;
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 a reasonable
opportunity of being heard.
B) Appeal to Supreme Court :- As per section 38 of the
Advocates Act, 1961 any person aggrieved by an order made
by the Disciplinary Committee of the Bar Council of India
under Section 36 or Section 37 or the Attorney-General of
India or the Advocate-General of the State concerned, as the
case may be, may, within 60 days of the date on which the
order is communicated to him, prefer an appeal to the
Supreme Court and the Supreme Court may pass such order
including an order varying the punishment awarded by the
disciplinary committee of the Bar Council of India thereon as
it deems fit:
Provided that no order of the Disciplinary Committee of the
bar Council of India shall be varied by the Supreme Court so
as to prejudicially affect the person aggrieved without giving
him a reasonable opportunity of being heard.
The Bar Council of India has framed the rules as to the
procedure to be observed in case of Appeal. The Appeal
memo in a prescribed form to be accompanied with the
certified copy of the order appealed against signed by the
appellant with a prescribed fee within limitation period.
Delay can be condoned if satisfactorily explained and to be
supported by an affidavit.
Thus, an appeal against the order passed by the Disciplinary
Committee may be preferred to the Bar council of India and
an appeal against the order of the Bar council of India may be
preferred to the Supreme Court.
Q. Explain the duties of the Judge and that of the advocates
while dealing a case in the court.?
Ans. Duties of Judges :- (1) A person who is acting as a Judge
in the Court of Law must discharge his duties without fear or
favour, ill will or affection.
2) A Judge must be impartial and must do everything for
justice and nothing for himself or his friends or relatives.
3) A Judge should have patience and gravity of heating. He
should allow the advocate or party fullest opportunity to
present case.
4) A Judge should respect the Privilege of Bar. 5) A Judge
should sit with a receptive mind. No Judge should form the
opinion regarding the merit of the case till he heard the
parties.
6) No Judge Should desire that the Bar Should be servile
7) A Judge must not allow himself to be subjected to any
influence other than the influence of law and justice of the
cause.
8) A Judge should avoid controversial manner or tone a
controversial manner or tone in addressing counsel litigant or
witness. in addressing
9) A Judge should avoid interruption in the Counsel in their
argument and in the examination of the witness.
10) An important duty which the judge owes to the Bar is of
consideration and courtesy. He should possess calm temper.
Like Judges, Advocates also plays important role in the
administration of Justice. Advocates are officers of the court,
they are expected to assist the Court in the Administration of
Justice. Advocates collect materials relating to the case and
thereby assist the Court in arriving at a (conclusion) correct
judgment. An advocate is a partner with the judiciary in the
administration of Justice.
Duties of an Advocate in the Court while dealing with his
case: (1) As the advocates are officers of the court, they are
required to maintain towards the court respectful attitude
bringing in mind that the dignity of the judicial office is
essential for the survival of the society.
2) An advocate should make his best effort to restrain and
prevent his Clint from resorting to unfair practices in relation
to the court
3) An advocate should not influence the decision of the court
by any illegal or improper means
4) An advocate should not communicate with a judge relating
to pending case
5) An advocate is required to conduct himself with dignity
and self-respect during the presentation of the case
6) An advocate should not consider himself mere mouthpiece
of the client and should exercise his own judgment in the use
of restrained language in dealing with the court
7) An advocate should not use intemperate language during
arguments in the court he should avoid scurrilous attacks in
pleadings.
8) An advocate should make accurate statement of facts and
should not twice them 9) An advocate should not misguide
the court by citing knowingly an overruled decision or a
repealed statue
10) An advocate should uphold the dignity and should not do
anything which brings the court into disrepute
Q. Define 'contempt of court' with reference to the
exceptions to it. Is contempt a civil or criminal offence? What
are the different situations when a person can be charged
with contempt of court?
Q. Discuss the nature and extent of punishment to the
contemner under the Contempt of Courts Act, 1971?
Ans- The Indian legislature does not provide with a concrete
definition of contempt, however section 2(a) of The
Contempt of Courts, 1971 says "contempt of court means
civil contempt or criminal contempt".
Section 2(b) & section 2(c) of The Contempt of Courts Act,
1971 defines civil and criminal contempt. Although the
legislature has not defined what amounts to contempt, it has
defined civil and criminal contempt. Thus contempt cannot
be confine to four walls of a definition. Therefore, what
would offend the court's dignity and what would lower the
court's prestige is thus a matter which can be decided by the
court itself and it's for the court to deal with each case of
contempt under the facts and circumstances of that case.
Kinds of Contempt: Contempt of courts are classified under
three broad categories, according to Lord Hardwick:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the
presence of court.
3. Prejudicing the public before the cause is heard.
However, in India, contempt is classified under two major
categories: 1/. Civil contempt 2/. Criminal contempt.
Civil Contempt: According to section 2(b) of the Contempt of
Courts Act, 1971 civil contempt means willful disobedience to
any judgement, decree, direction, order, writ or other
process of a court or willful breach of an undertaking given to
a court.
Criminal Contempt: According to section 2(c) of The
Contempt of Courts Act, 1971, criminal contempt means the
publication (whether by word, spoken or written, or by signs,
or by visible representation, or otherwise) of any matter or
the doing of any other act whatsoever which-
i)-Scandalizes or tends to scandalize, or lowers or tends to
lower the authority of, any court, ii) Prejudices or interferes
or tends to interfere with the due course of any judicial
proceeding, or iii) Interferes or tends to interfere with, or
obstruct or tends to obstruct, the administration of justice in
any other manner.
Punishment Under The Contempt of Court Act: Section 12 of
the act deals with the punishment for contempt of courts. It
provides as follows--
Sec-12. Punishment for contempt of court: (1) Save as
otherwise expressly provided in this Act or in any other law, a
contempt of court may be punished with simple
imprisonment for a term which may extend to six months, or
with fine which may extend to two thousand rupees, or with
both:"
Provided that the accused may be discharged or the
punishment awarded may be remitted on apology being
made to the satisfaction of the court. Explanation. -An
apology shall not be rejected merely on the ground that it is
qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any other law for
the time being in force, no court shall impose a sentence in
excess of that specified in sub-section (1) for any contempt
either in respect of itself of court subordinate to it. or a
(3) Notwithstanding anything contained in this section,
where a person is found guilty of a civil contempt, the court,
if it considers that a fine will not meet the ends of justice and
that a sentence of imprisonment is necessary shall, instead of
sentencing him to simple imprisonment, direct that he be
detained in a civil prison for such period not exceeding six
months as it may think fit.
(4) Where the person found guilty of contempt of court in
respect of any undertaking given to a court is a company,
every person who, at the time the contempt was committed,
was in charge of, and was responsible to, the company for
the conduct of business of the company, as well as the
company, shall be deemed to be guilty of the contempt and
the punishment may be enforced, with the leave of the court,
by the detention in civil prison of each such person: Provided
that nothing contained in this sub-section shall render any
such person liable to such punishment if he proves that the
contempt was committed without his knowledge or that he
exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4),
where the contempt of court. referred to therein has been
committed by a company and it is proved that the contempt
has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director,
manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be
deemed to be guilty of the contempt and the punishment
may be enforced, with the leave of the court, by the
detention in civil prison of such director, manager, secretary
or other officer.
Q. What do you mean by professional ethics? Discuss the role
of the Bar and the Bench in the administration of justice.
Ans- Professional ethics encompasses an ethical code
governing the conduct of persons engaged in the practice of
law as well as persons engaged in the legal sector. All
members of the legal profession have a paramount duty to
the court and towards the administration of justice. This duty
prevails over all other duties, especially in the circumstances
where there may be a conflict of duties. It is important that
legal practitioners conduct themselves with integrity, provide
proper assistance to the court, and promote public
confidence in the legal system. In carrying out their duties,
they are required and expected to deal with other members
the legal profession with courtesy and integrity. Advocates,
apart from being professionals, are also officers of the court
and play a vital role in the administration of justice.
Accordingly, the set of rules that govern their professional
conduct arise out of the duties that they owe to the court,
the client, their opponents and other advocates. Rules on the
professional standards that an advocate needs to maintain
are mentioned in Chapter II, Part VI of the Bar Council of
India Rules. These Rules have been provided under section
49(1)(c) of the Advocates Act, 1961.
Role of the Bar and the Bench in administration of justice: (i)
Bar: Advocates are enrolled by the State Bar Council as such,
on getting L.L.B degree from a University and getting a
certain training under some advocate as prescribed by rules.
The advocates are known as the 'Bar' as a whole body of
advocates and an advocate represents the Bar. In short, Bar
is a collective term for the attorneys who are licensed to
practice in the Courts, or a particular court, of any state.
(ii) Bench: Bench means all the judges taken together as
distinguished from the 'Bar' the name for all the members of
the legal profession-bench is that part of the court
considered in its official capacity, while the judges are sitting.
The earlier meaning of Bar contained the part of Bench also
at the present term 'Bar' is applied for the attorneys part of
the court and the term is used for the judicial officers part of
the Court.
The Bar and Bench play important role in the administration
of justice. According to Justice C.L. Anand, there is no office in
the State of such power as that of the Judge. Judges hold
power which is immensely greater than that of any other
functionary. The common people's life, and liberty, personal
domestic happiness, property, and reputation subject to the
wisdom of the judges and hang citizens on their decisions. If
Judicial power becomes corrupt no security is left of life,
liberty expires, there no guarantee is left of personal or
domestic happiness. A strong powerful, impartial active and
the capable judiciary is the greatest need of a State. On the
account of the importance of the judges in the maintenance
of the orderly society, judges should perform their duties.
Judge is a public officer who hears and decides cases, settling
the dispute in the court of law. There is no office in the State
of such power as that of the Judge. Judges hold power. which
is immensely greater than that of any other functionary.
3) Bar-Bench Relations: Administration of Justice is not
something which concerns Bench only. It concerns the Bar
also. Mutual respect is necessary for the maintenance of the
cordial relations between the Bar and Bench. Advocates and
Judges are complementary to each other. Bar is the Principal
ground for recruiting Judges. So they both belong to the
same community. Bar and Bench should maintain cordial
relations with each other. But on account of nature of duties
to be discharged by advocates and judges, they may get into
dialogues sometimes, humorous, sometimes heated and
sometimes harsh.
Scandalising of the court by an advocate is really polluting the
very foundation of justice and such conduct by an advocate
brings disrepute to the whole administration of justice.
The attitude of an Advocate towards the Court should be one
of the uniform respect, whatever the status of the Court.
Advocates Private opinion about the Presiding officer, he
must not show in its behavior because he has to uphold the
dignity of the judiciary as an institution. At the same, it is
equally the duty of the judiciary not only to be polite towards
the members of the Bar but to do everything possible to
advance its high traditions.
The uncourteous conduct or misconduct of a lawyer or judge
may amount to contempt of Court, there are two types of
Contempt of Court, for example, using insulting language
against a judge or threatening him with transfer or
impeachment or addressing the judge in a loose manner or
questioning his authority to ask questions or making
scandalous allegations against a judge etc. It amounts to
contempt of Court. He is liable for his uncourteous act and
punishable for such contempt of Court. The punishment for
contempt of Court is intended to protect the public
confidence in the system of Administration of Justice.
Q. Write an exhaustive note on the unprofessional conduct of
an advocate.
Ans- Meaning of Misconduct-Misconduct is the antonyms of
conduct. Conduct means behavior with good manners and
treatment shown towards others. Misconduct represents
misbehavior. Misconduct as explained in the Dictionary is
'improper conduct'. The term 'misconduct' has been. defined
in Black's Dictionary as 'a transgression of some established
and defined rule of action, a forbidden act, a dereliction of
duty, unlawful behavior, willful in character, improper or
wrong behavior'. Its synonyms misdemeanor, impropriety,
are mismanagement, offence, but not negligence or
carelessness.
In State of Panjab V. Ram Singh (AIR 1992, SC 2188) the
Supreme Court held that the term may involve moral
turpitude,
An advocate is bound to conduct himself in a manner
befitting the high and honorable legal profession. The legal
profession is a noble profession having high traditions. An
advocate is expected to uphold those traditions. He must
comply with the conduct of professional ethics and etiquette
as laid down by bar council of India.
Meaning of Professional misconduct and other misconduct -
Section 35 of the Advocate makes it clear that an advocate
may be punished for professional misconduct or other
misconduct. The terms misconduct and professional
misconduct are not defined In Section 35 or any other
provisions of the Advocate Act, 1961. The expression
'professional or other misconduct are mentioned in section
10 of Bar Councils Act, 1926. By using those words it was
made clear that the authority might take action in all cases of
misconduct, whether in professional or other capacity.
Every misconduct may not be Professional or other
misconduct. Only unsatisfactory professional conduct of a
substantial, recurring or continuing nature is considered as
professional or other misconduct. Thus a guilty or fraudulent
grossly improper conduct of an advocate in the discharge of
his professional duty is considered as professional.
misconduct.
Professional misconduct is conduct occurring otherwise than
in connection with the practice of law that would justify a
finding that its preparation is not of good fame and character
or is not a fit and proper person to remain on the Roll of
Legal Practitioners.
Giving of improper Advice and wrong Advice: It is
professionally improper for a member of Bar to prepare false
document or to draw pleadings knowingly that the
allegations made are untrue to his knowledge. Thus, giving of
improper legal advice may amount to professional
misconduct.
Negligence and Professional misconduct: Whether
negligence will amount professional misconduct or not
depends upon the facts and circumstance of each case. Gross
negligence in the discharge of duties partake of shade of
delinquency and would undoubtedly amount to professional
misconduct. But negligence without moral turpitude or
delinquency may not amount to professional misconduct.
Moral turpitude :- Moral turpitude is very serious
professional misconduct. From section 24-A of the Advocate
Act, it is clear that a person cannot be admitted as an
advocate on a State Roll if he is convicted of an offence
involving moral turpitude. Thus a person who is convicted of
an offence involving moral turpitude is disqualified for being
admitted as an advocate. on the State Roll of advocates. This
means that the conduct involving conviction of an offence
moral turpitude which will disqualify a person from being
enrolled as an advocate has to be considered a serious
misconduct when found to have been committed by a person
who is enrolled as an advocate and it would call for the
imposition of punishment of removal of the name of the
advocate from the Roll of Advocates.
Examples of Misconduct of Advocates - *Discourteous
behaviour towards the Bench in the Court. *Involving in
moral turpitude. *Defrauding of cheating the party.
*Engaging in a business of profit making. *Failing to file a
case after accepting a brief and fee plus expenses. *Exhibiting
ill temper which has the effect of overbearing the Court.
*Giving of improper Advice and wrong advice. *Use of hot
words or epithets or disrespectful, derogatory or threatening
language in the court. *Framing of charge against Advocate.
The Advocate Act, 1961, has conferred the jurisdiction to
take action in all cases of misconduct, both professional or
other and left it to the discretion of Disciplinary Authority. It
is the charging party has the burden of proving the charge of
misconduct in the Disciplinary proceedings.
Q. Liability for civil contempt under the Contempt of Courts
Act, 1971. (7 % marks)
Ans- The Indian legislature does not provide with a concrete
definition of contempt, however section 2(a) of The
Contempt of Courts, 1971 says "contempt of court means
civil contempt or criminal contempt".
Section 2(b) & section 2(c) of The Contempt of Courts Act,
1971 defines civil and criminal contempt. Although the
legislature has not defined what amounts to contempt, it has
defined civil and criminal contempt. Thus contempt cannot
be confine to four walls of a definition. Therefore, what
would offend the court's dignity and what would lower the
court's prestige is thus a matter which can be decided by the
court itself and its for the court to deal with each case of
contempt under the facts and circumstances of that case.
Civil Contempt: According to section 2(b) of the Contempt of
Courts Act, 1971 civil contempt means willful disobedience to
any judgement, decree, direction, order, writ or other
process of a court or willful breach of an undertaking given to
a court.
Section 12 of the act deals with the punishment for contempt
of court. It provides as follows-
Sec-12. Punishment for contempt of court: (1) Save as
otherwise expressly provided in this Act or in any other law, a
contempt of court may be punished with simple
imprisonment for a term which may extend to six months, or
with fine which may extend to two thousand rupees, or with
both:"
Provided that the accused may be discharged or the
punishment awarded may be remitted on apology being
made to the satisfaction of the court.
Explanation. -An apology shall not be rejected merely on the
ground that it is qualified or conditional if the accused makes
it bona fide. (2) Notwithstanding anything contained in any
other law for the time being in force, no court shall impose a
sentence in excess of that specified in sub-section (1) for any
contempt either in respect of itself or of a court subordinate
to it.
(3) Notwithstanding anything contained in this section,
where a person is found guilty of a civil contempt, the court,
if it considers that a fine will not meet the ends of justice and
that a sentence of imprisonment is necessary shall, instead of
sentencing him to simple imprisonment, direct that he be
detained in a civil prison for such period not exceeding six
months as it may think fit.
(4) Where the person found guilty of contempt of court in
respect of any undertaking given to a court is a company,
every person who, at the time the contempt was committed,
was in charge of, and was responsible to, the company for
the conduct of business of the company, as well as the
company, shall be deemed to be guilty of the contempt and
the punishment may be enforced, with the leave of the court,
by the detention in civil prison of each such person: Provided
that nothing contained in this sub-section shall render any
such person liable to such punishment if he proves that the
contempt was committed without his knowledge or that he
exercised all due diligence to prevent it’s commission.
(5) Notwithstanding anything contained in sub-section (4),
where the contempt of court referred to therein has been
committed by a company and it is proved that the contempt
has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director,
manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be
deemed to be guilty of the contempt and the punishment
may be enforced, with the leave of the court, by the
detention in civil prison of such director, manager, secretary
or other officer.
Q. What are the obligations / duties of an advocate? (7 %
marks)
Ans- The following is a general outline of the obligations of an
advocate-
Duty towards public - An advocate is a privileged member of
the community and a gentleman besides being a citizen. He
has greater responsibility to protect the country and lead the
community.
A) Duty towards country - 1) An advocate shall endeavor to
make the laws suitable to the well being of the people.
2) An Advocate shall guard the liberty and freedom of the
people.
3) An Advocate should protect the fundamental and human
rights and respect the constitution of the nation.
4) An advocate should strive for social legislation's to
accelerate the advent of socialistic pattern of society in India
by dedicating to the public service.
5) An advocate shall uphold the integrity and Unity of the
nation.
6) An advocate shall educate the people to respect the law
and respect for the courts and the judges.
B) Duty towards community- 1) An advocate shall establish
Legal Aid Societies for the purpose of rendering legal
assistance to really poor and deserving persons free of any
charge.
2) An advocate shall help the people local bodies such as
panchayats in villages to function on sound lines, so that the
people may discharge their functions in an enlightened and
responsible manner.
3) An advocate shall provide Legal education to the illiterate
and working people by informing them for the rights and
legal provisions in simple language.
4) An advocate shall compose family differences and Settle
petty Disputes and by amicable settlement.
5) An advocate shall educate the masses on the right lines to
come out of many social ills from which people are suffering.
6) An advocate shall work with social welfare committees to
promote social order in which justice, political, economic and
social will be assured to one and all.
Duty towards the court: 1) An advocate should be
straightforward and his arguments should be pointed, clear,
precise and concise.
2) An advocate should have sense of humor and pleasing
manners in his arguments.
3) An advocate must be tactful in presenting the matters.
4) An Advocate should not mislead the Court.
5) An advocate shall not influence the decision of the court
by any illegal or improper Means.
6) An advocate shall appear in the court at all times only in
the prescribed dress. He shall not wear a band or gown in
public places other than in Courts.
7) An advocate shall, when presenting his case and while
otherwise acting before a court, conduct himself with dignity
and self respect.
8) An Advocate shall not enter appearance, act, plead or
practice in any way before a Court, tribunal or authority on
behalf of close kith and Kin.
9) An advocate shall not criticize the Judiciary with malice.
10) An advocate should not act or plead in any matter in
which he himself pecuniarily interested.
11)An advocate shall not stand as a surety or certify the
soundness of a surety for his client, required for the purpose
of any legal proceedings.
12) An advocate shall assist court by presenting fully the
pertinent law in his case.
Q. Discuss the duties of an advocate towards his client and
opponents.
Ans. Advocate's Duty to the Client : Chapter II of Part IV of
Bar Council of India Rules (Rule 11 to 33) provides the
provisions relating to advocate's duty to client. Advocate's
profession is a noble and honorable profession in the society.
It is a public service. But at the same time it should be kept in
mind that it is not bed of roses especially for the new
entrants. An advocate has several duties to his clients. The
clients generally prefer an advocate who is hard working.
The relationship between the advocate and client is of two
types. They are:
1. Contractual Relationship: It basically arises and ends only
till the period of contract exist. In India, the relationship
between the advocate and his client arises primarily from
contractual obligations. A client chooses an advocate for his
case depending upon his professional success, with strong
desire that he is the fit person to defend his cause. After
hearing the cause, the advocate decides whether to take the
case or not. If he wants to take up the case, he will offer the
client with certain amount of fee.
2. Fiduciary Relationship: Fiduciary relationship is the
relationship which never ends. If a client approaches the
advocate and discloses the confidential information of his life
then this kind of information comes under fiduciary
relationship which the advocate has to keep it as a secret and
not disclose it all his life.
It is the duty of the advocate to give proper advice to his
client. Rule 32 of the bar council of India provides that an
advocate is not supposed to lend his money to his client for
any kind of legal proceedings. But there is an explanation
which says that and advocate cannot be pronounced as guilty
if he does something that breaches the above said rule. It is
more like an exception but given as explanation.
Advocate's Duty To The Opponent: An advocate and his
opponent are like brothers in the profession but representing
the different interests of different clients. Clients are not
permanent they come with the case and leave, once the case
is done but advocates adhere to the court and see each other
or meet each other frequently in the court. If an advocate
quarrels with another, they cannot face each other or work
together happily. Their difference and grudge spoil the
atmosphere. It also affects their clients. If it creeps to the
court it spoils the administration of justice. In the court,
advocate is not the decision maker, judge is the decision
maker.
An advocate must always try to convince the court by the law
and precedents. He must be in a position to defeat his
opponent advocate by using law and precedents. For this
purpose there must always healthy competition between an
advocate and his opponent. Leaving this highway, if an
advocate starts fighting with his opponent as an ordinary
person by using scurrilous language, it does not help his
carrier. Moreover it spoils his clients, and further degrades
the court.
Advocates are the part and parcel of the administration of
justice. They fight for justice. They struggle for the welfare
and good of their clients. It does not mean that the advocate
and the opponent advocate enemies with each other. There
is a controversy and discrimination on the issue but not
between them. Their conflict ends as soon as they come out
of the court premises. If they quarrel with each other like
ordinary persons it affects the bar- bench relations. It may
lead to the groups in the bar.
Finally it badly vitiates the peaceful atmosphere of the court.
Every advocate has a right to cross examination, arguments,
verification of documents etc. while doing so he shall not be
interrupted unnecessarily. Like him, the opponent advocate
shall enjoy the same right therefore, any advocate shall not
interrupt his opponent in cross examination, arguments
unnecessarily. Interruption of the opponent is improper. This
destroys the decorum of the court. It obstructs the ideas of
the opponent. If necessary, an advocate may raise any
objection with the permission of judge. No advocate has the
right to prevent a judge following the course of argument of
the opposite advocate.
Q. Explain the procedure and powers of the Disciplinary
Committee of the State Bar Council in a case of misconduct
by an advocate.
Q. Disciplinary provision under the Advocates Act, 1961 (7%
marks)
Ans-Section 42 of Advocates Act, 1961, provides the Powers
of Disciplinary Committee of a Bar Council. The Provisions of
this Section are same for both, the State Bar Council as well
the Bar Council of India.
Constitution/ Composition of Disciplinary Committee:
According to Section 9 of Advocates Act, 1961, A Bar Council
shall constitute one or more disciplinary committees, each of
which shall consist of three persons of whom two shall be
persons elected by the Council from amongst its members
and the other shall be a person co-opted by the Council from
amongst advocates who possess the qualifications specified
in the proviso to sub-section (2) of section 3 and who are not
members of the Council, and the senior-most advocate
amongst the members of a disciplinary committee shall be
the Chairman thereof.
Powers of Disciplinary committee: 1) The disciplinary
committee of a Bar Council shall have the same powers as
are vested in a civil court under the Code of Civil Procedure,
1908 (5 of 1908), in respect of the following matters, namely
- (a) summoning and enforcing the attendance of any person
and examining him on oath; (b) requiring discovery and
production of any documents; (c) receiving evidence on
affidavits; (d) requisitioning any public record or copies
thereof from any court or office; (e) issuing commissions for
the examination of witness or documents; (f) any other
matter which may be prescribed:
Provided that no such disciplinary committee shall have the
right to require the attendance of--(a) any presiding officer of
a Court except with the previous sanction of the High Court
to which such court is subordinate; (b) any officer of a
revenue court except with the previous sanction of the State
Government.
2) All proceedings before a disciplinary committee of a Bar
Council shall be deemed to be judicial proceedings within the
meaning of sections 193 and 228 of the Indian Penal Code,
1860, and every such disciplinary committee shall be deemed
to be a civil court for the purposes of sections 480, 482 and
485 of the Code Criminal Procedure, 1898.
3) For the purposes of exercising any of the powers conferred
by sub-section (1), a disciplinary committee may send to any
civil court in the territories to which this Act extends, any
summons or other process, for the attendance of a witness
or the production of a document required by the committee
or any commission which it desires. to issue, and the civil
court shall cause such process to be served or such
commission to be issued, as the case may be, and may
enforce any such process as if it were a process for
attendance or production before itself.
4) Notwithstanding the absence of the Chairman or any
member of a disciplinary committee on date fixed for the
hearing of a case before it, the disciplinary committee. may,
if it so thinks fit, hold or continue the proceedings on the
date so fixed and no such proceedings and no order made by
the disciplinary committee in any such proceedings shall be
invalid merely by reason of the absence of the Chairman or
member thereof on any such date:
Provided that no final orders of the nature referred to in sub-
section (3) of section 35 shall be made in any proceeding
unless the Chairman and other members of the disciplinary
committee are present..
Sub-section (3) of Section 35: "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."
5) Where no final order of the nature referred to in sub-
section (3) of section 35 can be made in any proceedings in
accordance with the opinion of the Chairman and the
members of a disciplinary committee either for want of
majority opinion amongst themselves or otherwise, the case,
with their opinion thereon, shall be laid before the Chairman
of the Bar Council concerned or if the Chairman of the Bar
Council is acting as the Chairman or a member of the
disciplinary committee, before the Vice-Chairman of the Bar
Council, and the said Chairman or the Vice Chairman of the
Bar Council, as the case may be, after such hearing as he
thinks fit, shall deliver his opinion and the final order of the
disciplinary committee shall follow such opinion.
Q. Discuss the role of an advocate in building up society with
his relation with Bar and Bench in the administration of
justice.
Ans- At the dawn of independence, the parliament of
independent India was the forge where a document that will
guide the young nation was being crafted. It will fall on the
keen legal mind of B. R. Ambedkar to formulate a
constitution for the newly independent nation. The Indian
Bar had a role in the Independence movement that can
hardly be overstated that the tallest leaders of the
movement across the political spectrum were lawyers is
ample proof. The new nation saw its first leader in Jawaharlal
Nehru, and a paternal figure in M. K. Gandhi, both exemplary
lawyers. Perhaps it is the consequent understanding of law
and its relation to society that prompted the founding fathers
to devote the energy required to form a Constitution of
unprecedented magnitude in both scope and length.
Lawyers played a central role in drafting of constitution. The
proceeding clearly show the part played by the lawyers in
elaborating the basic concept of secularism, democracy and
egalitarianism. It was because lawyers understood the than
society in reality rather than substantive term. They also
introduced well known ambiguities such as the uncertainty
about fundamental rights and directive principles of state
policy which were primary. Even after the constitution was
adopted lawyers continued to play an important role in
national politics.
Being lawyer is a noble and honorable profession which
requires a manner and conduct be carefully followed. In Bar
Council of India rules a lawyer holds a duty to act with dignity
and self-respect, to uphold the interest of client by all fair
and honorable means and shall not take advantage of the
confidence reposed in him by his client. A lawyer is bound to
conduct himself in a manner befitting the high and honorable
legal profession and if he departs from the high standard
which the profession has set for itself and demands of him in
professional matter, he will be liable to disciplinary actions.
Apart from fighting cases lawyers provide their skills and
knowledge to the society by doing pro bono cases and
lending legal services to the poor and needy. A huge change
has been brought upon by the legal aid services in India.
Legal Aid implies giving free legal services to the poor and
needy who cannot afford the services of a lawyer for the
conduct of a case or a legal proceeding in any court, tribunal
or before an authority.
Article 39A of the Constitution of India provides that State
shall secure that the operation of the legal system promotes
justice on a basis of equal opportunity, and shall in particular,
provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or
other disability. Articles 14 and 22(1) also make it obligatory
for the State to ensure equality before law and a legal system
which promotes justice on a basis of equal opportunity to all.
Legal aid strives to ensure that constitutional pledge is
fulfilled in its letter and spirit and equal justice is made
available to the poor, downtrodden and weaker sections of
the society. The Constitutional duty to provide legal aid arises
from the time the accused is produced before the Magistrate
for the first time and continues whenever he is produced for
remand.
Various branch of studies deals with the specific study of
which they are specialized for. For example A medical
practitioner can deal only in the line of medicine, an engineer
only in his limited scope of engineering but a lawyer deals
with all the fields of society including science, social values,
human rights, banking, Intellectual property etc.
Public-Interest Litigation is litigation for the protection of the
public interest. In Indian law, Article 32 of the Indian
constitution contains a tool which directly joins the public
with judiciary. A PIL may be introduced in a court of law by
the court itself (suo motu), rather than the aggrieved party or
another third party. For the exercise of the court's
jurisdiction, it is not necessary for the victim of the violation
of his or her rights to personally approach the court. In a PIL,
the right to file suit is given to a member of the public by the
courts through judicial activism. The member of the public
may be a non governmental organization (NGO), an
institution or an individual.
In the case of SP Gupta vs Union of India that the Supreme
Court of India defined the term Public Interest Litigation in
the Indian Context. The concept of Public Interest Litigation
(PIL) is in consonance with the principles enshrined in Article
39A of the Constitution of India to protect and deliver
prompt social justice with the help of law. Justice Bhagwati
and Justice V.R, Krishna Iyer were the first to accept the PIL.
The entertained a from two professors at the University of
Delhi seeking enforcement of the constitutional right of
inmates at a protective home in Agra who were living in
inhuman and degrading conditions.
Lives of people are not only affected by standing in court and
proving if one is innocent and guilty. They are affected even
when a company takes over another, there is change in the
banking rules or even there is increase in gas prices. One
might not know but lawyers are not just confined to
courtrooms but extended to the high profile business
meetings of these Multinational Companies to the merchant
selling his business to another. As their transactions are
governed by law and a corporate lawyer is the one who helps
them in solving out the legal paradoxes and allow them to do
their business freely.
The role as a lawyer is challenging and demanding. The role
of lawyer is not simply to appear in court and argue
passionately on the behalf of the client, but there is a
multitude of background work as well as responsibilities
related to this profession especially in favour of the country
and not personally. A lawyer's contribution is not seen in
terms of calculative methods but its impact can be felt by
generations to come.
Q. Write an exhaustive note on the rights of advocates in the
light of decided cases.
Ans- An Advocate is a professional or an expert in the field of
law. In India each state has its own Bar Council whose role is
to register the Advocates which are willing to practice.
He/she is a person who is deemed to be a responsible person
in society
According to Sec 2(a) of Advocates Act, 1961, advocate
means an advocate entered in any roll under the provisions
of this Act. In layman language it means a law graduate which
can be termed as a legal practitioner. It is esteemed that
every person has rights and duties to be designated.
Right means legal, social, or ethical principles of freedom or
entitlement i.e. rights are the fundamental normative rules
about what is allowed of people or owed to people according
to some legal system, social convention, or ethical theory.
LEGAL PROVISIONS: Various acts has been formed in order to
consolidate the law relating to legal practitioners and to not
deprive any of their rights as provided to them.
Provisions for rights all are provided under various
legislations drafted by various legislatures such as:- 1.
Advocates Act, 1961
2. Constitution of India, 1949
3. Legal Practitioners Act, 1879
Also through various judgments also, these rights were taken
into effect such as:-
1. It was observed in the case of Sampath Kumar v. Bar
Council of India, the right to practice as an advocate is merely
a statutory right and not a fundamental. right.
2. It was held in the case of Praveen Pandey v. The State of
Madhya Pradesh, that if the advocate has been restrained
from doing legal work, then it will be termed as the violation
of their right as also mentioned under Art 19(1)(g) of
constitution.
3. In the case of Ramnath Lathi v. State of Madhya Pradesh,
provides that an advocate who does not suffer
disqualification has the right to plead. Various rights which
are provided to the advocates are listed below:
RIGHTS: 1. Right to Practice as it is provided under chapter IV
of Advocates act, 1961
2. Sec 30 of Advocates act- right of Advocate to practice it
means an exclusive right given to advocates to practice law
before courts and tribunals. (specific protection)
3. Section 33 of the Advocates Act confers an exclusive and
monopoly right on the enrolled advocate or pleader to plead
and practice in Court of law.
4. Sec 23 of Advocates act- right of pre audience - it means
that an advocate can represent or present hi client in the
court of law till when he/she wants to speaks in the front of
the audience and cannot be stopped until he disturbs the
decorum of court.
5. Sec 26A of Advocates act- Has the power to remove their
name from roll at request to the state bar council.
6. Right to plead this right is provided to advocates to prove
his/her innocence against the false disqualifications charged
upon them.
7. Article 19(1)(g) - right of individuals to practice of their
own choice. (fundamental right).
8. Sec 55 of legal practitioners act, 1879- saves the rights of
certain legal practitioners such as, pleaders, vakils, attorneys,
mukhtars and revenue agents, who shall continue to enjoy
the same rights to practice.
9. Article 177 provides with the rights of the advocate
General to speaker otherwise take in part in the proceedings
of the state Legislature or any committee of the Legislature
of which he may be a member of.
It is been seen that Advocates act who is the primitive act in
mentioning about the rights of an advocate is an elaborative
act dealing in various aspects in relation to legal profession
and it is prominent to state that according to the Section 29
to 34 of the Advocate Act, 1961, Practice of Advocates is a
right.
These were the all rights as provided to the advocates, so
that individuals who are the protectors of the law of the
country are not deprived of their rights. Also, with the rights
duties are also given to the law practitioners.
It may, however, be noted that the Advocates Act, 1961,
came into existence for over four decades back, but still
Section 30 of this Act, is not enforced.
In view of the above provisions, it is crystal clear that no
body, except an advocate who is enrolled with the State Bar
Council, can argue case before the Hon'ble Supreme Court,
High Court, Tribunal, Appellate Authority, Assessing
Authority, or person, and cannot practice the profession of
law either in litigious as well as non litigious matters with
holding their rights.
Q. What is professional ethics? Is there any difference
between ethics and morality?
Ans- Fundamental prerequisite of any profession is good
ethics. Ethics denotes to human behaviour to make decisions
between what is correct and what is wrong. Professional
ethics are those set code or moral principles that govern a
person's conduct in a professional workplace or work life. In
the legal profession, a lawyer must obey to professional
codes for fair dealing with the client and uphold the self-
possession. The Indian government has established a
statutory body known as The Bar council of India under the
Advocate Act, 1961.
Difference between ethics and morality: The difference
between Ethics and Morality is explained below. Ethics is a
branch of philosophy that "involves systematizing, defending,
and recommending concepts of right and wrong behavior.
Morality can be a body of standards or principles derived
from a code of conduct from a particular philosophy, religion,
or culture, or it can derive from a standard that a person
believes.
The major difference between Ethics and Morality are:
Ethics: i) The word Ethics originated from the Greek word
ethos. The meaning of ethos is a character.
ii) Legal guidelines and professional rules govern ethics. The
acceptability of ethics is confined within a particular space
and time frame.
iii) Ethics are dependent on the prism of others.
iv) If the contexts are different then the ethics could be
different, hence there is some degree of flexibility in ethics.
v) Ethics are followed because society has decided that it is
the right course of action.
vi) A person who follows the ethical principles need not
necessarily have strong moral values, in fact, there are even
possibilities that he may not have any morals.
vii) Ethics is something usually associated in the field of law,
medicine or business. Ethics does not have religious a
connotation.
Morality: i) The word Morals originated from the Latin word
Mos. The meaning of Mos is custom.
ii) When it comes to the acceptability of Morality it
transcends the norms laid down by culture.
iii) Morality is seen from the perspective of an individual.
iv) Change in Morality depends on the change in the beliefs
of an individual.
v) Morality is followed because a person believes that it is the
right course of action.
vi) There could be situations where ethics are violated by a
moral person to maintain to uphold his moral values.
vii) Morality has a religious connotation
Q. Discuss the powers of the Supreme court of India and High
Court to punish an advocate for contempt of court.
Ans- Depending on the nature of the case in India, Contempt
of Court is of two types.
1. Civil Contempt 2. Criminal Contempt
Civil Contempt: Section 2(a) of the Contempt of Court Act,
1971 states Civil Contempt as willful disobedience to the
order, decree, direction, any judgment or writ of the Court by
any person or willfully breach of undertakings by a person
given to a Court. Since Civil Contempt deprives a party of the
benefit for which the order was made so these are the
offences essential of private nature. In other words, a person
who is entitled to get the benefit of the court order, this
wrong is generally done to this person.
Criminal Contempt: According to Section 2(c) of the
Contempt of Court Act, 1971, Criminal Contempt is Defined
as (i) the publication of any matter by words, spoken or
written, or by gesture, or by signs, or by visible
representation or (ii) doing of any act which includes: 1. a)
Scandalize or tends to scandalise, or lowers or tends to lower
the authority of any court, or 2. b) Biasness, interferes or
tends to interfere with the due course of any type of Judicial
proceedings, or 3. c) obstructs or tends to obstruct, interfere
or tend to interfere with the administration of justice in any
manner.
Punishment for Contempt of Court: Section 12 of the
Contempt of Court Act, 1971 deals with the punishment for
Contempt of Court. High Court and the Supreme Court have
been given the power to punish someone for the Contempt
of Court. Section 12(1) of this Act states that alleged with the
Contempt of Court can be punished with simple
imprisonment and this person who imprisonment can extend
to six months, or with fine which may extend to two
thousand rupees or can be of both type punishment.
However, an accused may be discharged or the punishment
that was awarded to him maybe remitted on the condition
that if he makes an apology and this apology should satisfy
the court then only he can be exempted from the
punishment of Contempt of Court. Explanation of this
sentence is that if the accused made an apology in the bona
fide then this apology shall not be rejected on the ground
that it is conditional or qualified.
The court cannot impose a sentence for Contempt of Court in
excess of what is prescribed under the given section of this
Act either in respect of itself or of a court subordinate to it.
Contempt Proceedings: Two Sections of the Contempt of
Court Act, 1971 deals with the procedure of Contempt
proceeding. One talks about the proceeding in the face of the
court of records and other talks about the proceedings other
than the court of records.
Section 14 of the Contempt of Court deals with the
procedure of contempt proceeding in the face of the court of
record whereas Section 15 of this Act deals with the
procedure of the contempt proceeding outside the court of
records
These courts of record have got the power to punish for its
contempt inherently. Therefore, these courts of record can
deal with the matter of content by making their own
procedure. While exercising the contempt jurisdiction by the
courts of record the only case to be observed is that the
procedure adopted must be fair and reasonable in which the
alleged contemnor should be given full opportunity to defend
himself. If the specific charge against the person who is
punished for the contempt is distinctly stated and he is given
a reasonable opportunity to answer and to defend himself
against the charge then only he will be liable for contempt of
court and the court proceeding runs against him. Where the
person charged with contempt under this section applies
whether orally or in writing to have the charge against him,
tried by some judge other than the judge or judges in whose
presence or hearing the contempt is alleged to have been
committed and the court is of the opinion that it is necessary
in the interest of justice that the application should be
allowed, it shall cause the matter to be transferred before
such judge as the Chief Justice may think fit and proper under
the circumstances of the case or placed before the Chief
Justice with the statement of facts of the case.
Contempt committed outside the court: Criminal Contempt
rather than Civil Contempt committed outside the Court.
Section 15(1) of the Contempt of Court Act, 1971 deals with
the notice of Criminal Contempt by Court of Record such as
the Supreme Court and the High Court. Following manners
can be taken by the Supreme Court and the High Court for
cognizance of the Criminal Contempt:
1. On the motion of court of records. 2. On the motion of the
Advocate General of the Supreme Court and the High
Court. 3. If any person proceeds the motion with the consent
of the Advocate General in writing.
4. If the law officer who is related to the High Court for the
Union Territory of Delhi as the Central Government notify
proceeds the motion. Then it can be considered as contempt
committed outside the court.
Section 15(2) of this Act states that in the criminal contempt
of the subordinate court, the high court may take certain
actions in the manner given in this Act.
Q. Discuss the meaning, nature and main features of the
Contempt of Courts Act, 1971.
Ans- The nature and main features of the Contempt of Courts
Act:
The "contempt of court" can be either civil contempt or
criminal contempt;
(a) Civil contempt: willful disobedience to any judgment,
decree, direction, order, writ or other process of a court or
willful breach of an undertaking given to a court
(b) Criminal contempt: publication (whether by words.
spoken or written, or by signs, or by visible representations,
or otherwise) of any matter or the doing of any other act
whatsoever which-
(i) Scandalizes or tends to scandalize, or lowers or tends to
lower the authority of, any court
(ii) Prejudices, or interferes or tends to interfere with, the
due course of any judicial proceeding
(iii) Interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other manner
Innocent publication and distribution of matter not
contempt: (1) A person shall not be guilty of contempt of
court
-on the ground that he has published (whether by words
spoken or written or by signs or by visible representations or
otherwise) any matter which interferes or tends to interfere
with, or obstructs or tends to obstruct, the course of justice
in connection with any civil or criminal proceeding pending at
the time of publication, if at that time he had no reasonable
grounds for believing that the proceeding was pending at
that time. publishing he had no reasonable grounds for
believing that the proceeding was pending.
-in connection with any civil or criminal proceeding which is
not pending at the time of publication shall not be deemed to
constitute contempt of court.
Fair and accurate report of judicial proceeding not contempt:
A person shall not be guilty of contempt of court for
publishing a fair and accurate report of a judicial proceeding
or any stage thereof.
Fair criticism of judicial act not contempt: A person shall not
be guilty of contempt of court for publishing any fair
comment on the merits of any case. which has been heard
and finally decided.
Complaint against presiding officers of subordinate courts
when not contempt: A person shall not be guilty of contempt
of court in respect of any statement made by him in good
faith concerning the presiding officer of any subordinate
court to- (a) any other subordinate court, or (b) the High
Court, to which it is subordinate.
Publication of information relating to proceedings in
chambers or in camera not contempt except in certain cases:
Power of High Court to punish contempt of subordinate
courts: Every High Court shall have and exercise same
jurisdiction, powers and authority in respect of contempt of
courts subordinate to it as it has in respect of contempt of
itself: Provided that no High Court shall take cognizance of a
contempt alleged to have been committed in respect of a
court subordinate to it where such contempt is an offence
punishable under the Indian Penal Code (45 of 1860).
Power of High Court to try offences committed or offenders
found outside jurisdiction: A High Court shall have jurisdiction
to inquire into or try contempt of itself or of any court
subordinate to it, whether the contempt is alleged to have
been committed within or outside the local limits of its
jurisdiction, and whether the person alleged to be guilty of
contempt is within or outside such limits.
Punishment for contempt of court: (1) A contempt of court
may be punished with simple imprisonment for up to six
months, or with fine up to two thousand rupees, or with
both. The accused may be discharged or the punishment
awarded may be remitted on apology being made to the
satisfaction of the court. The court, if it feels that the ends of
justice will not be met without imprisonment may direct that
he be detained in a civil prison.
(2) In case of contempt committed by a company, if it is
proved that the contempt has been committed with the
consent or connivance of, or is attributable to any neglect on
the part of, any director, manager, secretary or other officer
of the company, such an officer officer shall also be deemed
to be guilty of the contempt and such a person may also be
punished.
Contempt not punishable in certain cases: The court is not
supposed to impose a sentence under this unless it is
satisfied that the contempt is of such a nature that it
substantially interferes, or tends substantially to interfere
with the due course of justice
Cognizance of criminal contempt in other cases: (1) In the
case of a criminal contempt the Supreme Court or the High
Court may take action on its own motion or on a motion
made by (a) the Advocate-General, or (b) any other person,
with the consent in writing of the Advocate General or Law
Officer (in case) of some Union Territory).
(2) The High Court may take action on reference made to it
by the subordinate court or on a motion made by the
Advocate-General or Law.
Contempt by judge, magistrate or other person acting
judicially: (1) A judge, magistrate or other person acting
judicially is also liable for contempt of his own court or of any
other court in the same manner as any other individual and
the provisions of this Act shall applies to them as well
accordingly.
(2) Although this doesn't apply to any observations or
remarks made regarding a subordinate court in an appeal or
revision pending before such judge, magistrate or other
person against the order or judgment of the subordinate
court.
Limitation for actions for contempt: A court can initiate
contempt proceedings only within a period of one year from
the date on which the contempt is alleged to have been
committed.
Act not to apply to Nyaya Panchyats or other village courts:
This Act does not apply to contempt of Nyaya Panchayats or
other village courts.
Power of Supreme Court and High Courts to make rules:
The Supreme Court or any High Court may make rules, not
inconsistent with the provisions of this Act, providing for any
matter relating to its procedure.
Q. What do you mean by professional misconduct?
Distinguish between professional misconduct and ethics
relating to legal profession.
Ans- Meaning of Misconduct- Misconduct is the antonyms of
conduct. Conduct means behaviour with good manners and
treatment shown towards others. Misconduct represents
misbehaviour. Misconduct as explained in the Dictionary is
'improper conduct'. The term 'misconduct' has been defined
in Black's Dictionary as 'a transgression of some established
and defined rule of action, a forbidden act dereliction of
duty, unlawful behaviour, willful in character, improper or
wrong behaviour. Its synonyms are mismanagement, offence,
but not negligence or carelessness. misdemeanour,
impropriety,
In State of Panjab V. Ram Singh (AIR 1992, SC 2188) the
Supreme Court held that the term may involve moral
turpitude,
An advocate is bound to conduct himself in a manner
befitting the high and honorable legal profession. The legal
profession is a noble profession having high traditions. An
advocate is expected to uphold those traditions. He must
comply with the conduct of professional ethics and etiquette
as laid down by bar council of India..
Meaning of Professional misconduct and other misconduct :-
Section 35 of the Advocates Act makes it clear that an
advocate may be punished for professional misconduct or
other misconduct. The terms misconduct and professional
misconduct are not defined in Section 35 or any other
provisions of the Advocate Act, 1961. The expression
'professional or other misconduct' are mentioned in section
10 of Bar councils Act, 1926. by using those words it was
made clear that the authority might take action in all cases of
misconduct, whether in professional or other capacity.
Every misconduct may not be Professional or other
misconduct. Only unsatisfactory professional conduct of a
substantial, recurring or continuing nature is considered as
professional or other misconduct. Thus a guilty or fraudulent
grossly improper conduct of an advocate in the discharge of
his professional duty is considered as professional
misconduct.
Professional misconduct is conduct occurring otherwise than
in connection with the practice of law that would justify a
finding that its preparation is not of good fame and character
or is not a fit and proper person to remain on the Roll of
Legal Practitioners.
Giving of improper Advice and wrong Advice -It is
professionally improper for a member of Bar to prepare false
document or to draw pleadings knowingly that the
allegations made are untrue to his knowledge. Thus, giving of
improper legal advice may amount to professional
misconduct.
Negligence and Professional misconduct -Whether
negligence will amount professional misconduct or not
depends upon the facts and circumstance of each case. Gross
negligence in the discharge of duties partake of shade of
delinquency and would undoubtedly amount to professional
misconduct. But negligence without moral turpitude or
delinquency may not amount to professional misconduct.
Moral turpitude:- Moral turpitude is very serious professional
misconduct. From section 24-A of the Advocate Act, it is clear
that person cannot be admitted as an advocate on a State
Roll if he is convicted of an offence involving moral turpitude.
Thus a person who is convicted of an offence involving moral
turpitude is disqualified for being admitted as an advocate on
the State Roll of advocates. This means that the conduct
involving conviction of an offence moral turpitude which will
disqualify a person from being enrolled as an advocate has to
be considered a serious misconduct when found to have
been committed by a person who is enrolled as an advocate
and it would call for the imposition of punishment of removal
of the name of the advocate from the Roll of Advocates.
Examples of Misconduct of Advocates - *Discourteous
behaviour towards the Bench in the Court. *Involving in
moral turpitude. *Defrauding or cheating the party.
*Engaging in a business of profit making. *Failing to file a
case after accepting a brief and fee plus expenses. *Exhibiting
ill temper which has the effect of overbearing the Court.
*Giving of improper Advice and wrong advice. *Use of hot
words or epithets or disrespectful, derogatory or threatening
language in the court. *Framing of charge against Advocate.
The Advocate Act, 1961, has conferred the jurisdiction to
take action in all cases of misconduct both professional or
other and left it to the discretion of Disciplinary Authority. It
is the charging party has the burden of proving the charge of
misconduct in the Disciplinary proceedings.
Q. Explain the nature and extent of the powers of the High
Courts to punish contempt of its subordinate courts under
section 10 of the Contempt of Courts Act, 1971. Can person
be held guilty for criticising the personal behaviour of a
judge?
Ans- Contempt of Court or Contempt has been defined as any
conduct which tends to disrespect or overlook the authority
of Law and Order. The expression 'contempt of court' has not
been defined by the Constitution. But- Article 129 Grants
Supreme Court the power to punish for contempt of itself.
Article 142(2) Enables the Supreme Court to investigate and
punish any person for its contempt and Article 215 Grants
every High Court the power to punish for contempt of itself.
The law regarding contempt has been made for preserving
the dignity of the courts and keeping the administration of
justice properly. According to Halsbury, Contempt consists of
any words, spoken written which obstruct the course of
administration of justice.
The Contempt of Court Act, 1971, defines the power of
courts to punish for their contempt and regulates their
procedure. It seeks to protect judicial institutions from any
kind of disobedience towards judges, or obstruction in the
implementation of their directives, or comments and actions
that exhibits disrespect. Such a person can be punished
under section 12 of the Act.
Section 10: Power of High Court to punish contempt of
subordinate courts:
Every High Court shall have and exercise the same
jurisdiction, powers and authority, in accordance with the
same procedure and practice, in respect of contempt of
courts subordinate to it as it has and exercises in respect of
contempt of itself.
Provided that no High Court shall take cognizance of a
contempt alleged to have been committed in respect of a
court subordinate to it where such contempt is an offence
punishable under the Indian Penal Code (45 of 1860).
Section 11: Power of High Court to try offences committed or
offenders found outside jurisdiction.
A High Court shall have jurisdiction to inquire into or try a
contempt of itself or of any court subordinate to it, whether
the contempt is alleged to have been committed within or
outside the local limits of its jurisdiction, and whether the
person alleged to be guilty of contempt is within or outside
such limits.
Section 12: Punishment for contempt of court
Notwithstanding anything contained in any law for the time conduct and motives of the members of the legal profession
being in force, no court shall impose a sentence in excess of are what they object to be.
that specified in sub-section (1) for any contempt either in
respect of itself or of a court subordinate to it. Importance Of Professional Ethics In Legal Profession: First,
because lawyers and judges are integral to the working-out
Section 15: Cognizance of criminal contempt in other cases. of the law and the Rule of Law itself is founded on principles
of justice, fairness and equity. If they do not adhere and
In the case of any criminal contempt of a subordinate court, promote these ethical principles then the law will fall into
the High Court may take action on a reference made to it by disrepute and people will resort to alternative means of
the subordinate court on a motion made by the Advocate- resolving conflict. The Rule of Law will fail with a rise of public
General or, in relation to a Union territory, by such Law discontent.
Officer as the Central Government may, by notification in the
Official Gazette, specify in this behalf. Second, lawyers are professionals.: This concept conveys the
notion that issues of ethical responsibility and duty are an
inherent part of the legal profession. It has been said that a
Thus, under Article 129 and 142(2) of the Constitution of
profession's most valuable asset is its collective reputation
India, The Supreme Court ruled out that it has the power to
and the confidence which that inspires. The legal profession
punish for contempt not only of itself but also of high courts,
subordinate courts and tribunals functioning in the entire especially must have the confidence of the community.
country and is not against any provisions or Acts. Therefore,
The Supreme Court being the Apex court has the jurisdiction Third, because lawyers are admitted as officers of the court
to initiate or entertain proceedings for contempt of the and therefore have an obligation to serve the court and the
subordinate courts as well. administration of justice
Under Article 215 of the Constitution of India, High Court In view of the above, following duties have been briefly
being a court of record has inherent power in respect of explained:
contempt of itself as well as of its subordinate courts even in
the absence of any express provision in any Act. Also Section Lawyers To Court-
10 of the Contempt of Courts Act, 1971 empowers the High
Courts to punish contempt of its subordinate courts.
Respecting the court
It should be noted here that The power of the High Courts to
Follow appropriate dress code
punish for contempt of a subordinate court is derived from
legislation and not from the Constitution.
Don't take up cases of clients who insist on use of unfair
means
Can person be held guilty for criticising the personal
behaviour of a judge: The publication or other Act amounts
Have a dignified behaviour
to Contempt of Court only when it has nexus with the
functioning of a judge. The statement complained of may
Lawyers To Lawyers :-
amount to Contempt of Court only when it is made against a
judge in his judicial capacity in the exercise of his judicial
functions. However, in such a situation a judge is not Do not promote unauthorized practice.
remediless and he has the same remedies available which are
available to a common man. A defamatory attack on a judge Avoid advertisement and solicitation of work
may be Libel or Slander and he has a discretion to proceed
for Defamation in civil, criminal or simultaneous proceedings Appear after consent of fellow advocate
against the person concerned but he cannot be punished
summarily under criminal contempt of court. The object of
Lawyers To Client:-
Contempt law is to protect the confidence of the people in
the administration of justice and its object is not to prevent
attacks upon the personal reputation of any individual judge. Don't take cases where the lawyer has to be a witness
So, any personal attack upon the judge unconnected with the
office he holds, is dealt with under the ordinary rules of Libel Never withdraw service halfway
and Slander.
Don't refuse a brief
Q. "The fundamental aim of legal ethics is to maintain the
honour and dignity of law profession, to secure a spirit of Give client top priority
friendly co-operation between the Bench and the Bar in the
promotion of highest standards of justice." Explain. Don't try to tamper with the evidence or suppress it
Ans- The Legal Profession plays an important role in the Act according to the client's instructions
administration of Justice. The Lawyers are considered to be
the centre of the administration of justice. Lawyers are the
Fees adjustment as per liability is a strict no
one who are related to the parties, they listen to the party
and collect all the relevant. legal materials relating to the
Bidding for purchasing property arising of legal proceeding is
case and argue the case in court, thus helping the Judge to
a strict no
arrive at the correct and fair judgment.
Don't take undue advantage of the client's trust
Without the assistance of the lawyers it would be a
superhuman task for the Judge to come at the satisfactory
judgment. Justice P.N. Sapru has stated that: justification for Variation in charges depending upon the success of the case
the existence to the counsel is that each side to the is a strict no
controversy should be in a position to present its case before
an impartial tribunal in the best and most effective manner Proper accounting of everything is important
possible.
Absolute clarity about things with the client is necessary
What Are Ethics?: Ethics are principles and values, which
together with rules of conduct and laws, regulate a Lawyers To Opponent:-
profession, such as the legal profession. They act as an
important guide to ensure right. and proper conduct in the Fulfill the promises made
daily practise
No negotiations with party directly
Need For Professional Ethics: The legal profession is
necessarily the keystone of the arch of Government. If it is
The bar association has also stated that the license of the
weakened, and allowed to be a subject of the corroding and
lawyers who do not abide by the code of ethics would be
demoralising influence of those, who are controlled by craft,
confiscated besides facing trial and imprisonment if found
greed or gain or other unworthy motive, sooner or later the
guilty.
arch must fall. The future of the country depends upon the
maintenance of the shrine of the justice, pure and unrolled
by the advocates. It cannot be so maintained, unless the
Conflict Of Interest:- It is well settled that a solicitor has a
fiduciary duty to his or her client. That duty carries with it
two presently relevant responsibilities. The first is the
obligation to avoid any conflict between his duty to his client
and his own interests - he must not make a profit or secure a
benefit, at the expense of his client's expense. The second
arises when he endeavours to serve two masters and
requires.... full disclosure to both.
In India, the counsel's relation with his client is primarily a
matter of contract. The relation is in the nature of agent and
principal. The agreement determines to what extent the
counsel can bind his clients by his acts and statements; what
shall be its. remuneration, whether he will have a lien on his
client's property, etc. It is evident, however, that as counsel is
also conform to the ethical code prescribed for him by law
and usage, he cannot be a mere agent or mouthpiece of his
clients to carry out his biddings.
To conclude the above, the professional ethics are also
termed as the duties to be followed, these are the morals
and the basic courtesy which every person in this profession
should know. These are not only the duties to be performed
because the Bar Council has made the rule but these are the
basic manners which one should incorporate within them.
These are the duties towards the Court, Client, Colleague or
Opponent.
The Advocate who does not work with sincerity, who does
not follow the rules of conduct is said to have misconduct in
his profession. He is guilty of the misconduct of duty for
which he is punished. In order to avoid misconduct, one
should work in proper and appropriate manner not for the
sake of getting punished but for being loyal towards them,
their profession.
Justice Marshall thus stated- "The fundamental aim of legal
ethics is to maintain the honour and dignity of the law
profession, to secure a spirit of friendly co-operation, to
establish honourable and fair dealings of the counsel with his
client, opponent and witnesses, to establish the spirit of
brotherhood in the Bar itself; and to secure that lawyers
discharge their responsibilities to the community generally.
Legal profession is necessarily the keystone of the arch of
government. It has been created by the state for the public
good."
Q. "In law a man is guilty when he violates the right of others.
In ethics, he is guilty if he only thinks of doing so." Elucidate
the statement in the light of the Bar Council Code of Ethics.
Ans- Law which was made by nation, constitution or an entity
to govern in the way it expects, whereas ethics deal with
subjective moral conscious of an individual at societal level.
Later one denotes subjectivity which includes actions as well
as thoughts and former one avows its objective essence to
actions only.
The above quote by Immanuel Kant makes a distinction
between ethics and law.
Laws are externally enforced upon a society and deter
potential crime. Ethics, on the other hand, serve to guide
individual conscience by enabling people to separate right
from wrong.
Thoughts lead to actions. In law, the legality of actions is
adjudged. Similar purpose for thoughts is served by ethics.
For example, person who thinks about killing another person
is not guilty in law as he does not deprive the other person of
his right to life. However, simply by harbouring thoughts of
murder, he is ethically guilty. Similarly, men who think of
violating a woman's dignity are guilty from an ethical point of
view, even though they may not be considered legally guilty
until they actually perform that act.
On the other hand, Kant's statement may not always hold
true, as ethics reflect the society's mindset, which changes
with time.
For example, Adultery was a criminal act in India till very
recently, by law as well as ethics. Now it is decriminalied by
law (Supreme Court judgment) but large section of the Indian
society still consider it unethical.
Ethics and laws are complementary to each other. Most laws
are derived from ethics, and both of them reinforce each
other to create a stable, harmonious society. The purpose of
both is to create a just, equitable, rule-based environment
for humans to thrive in and flourish.
Q. Discuss the Rule making power of the Bar Council of India
to prescribe the professional conduct and etiquette.
Ans- The rule making power of the BCI to prescribe the
professional conduct and etiquette has been given U/S 49/1)
(c) of the Advocates Act, 1961.
Advocates, in addition to being professionals, are also
officers of the courts and play a vital role in the
administration of justice.
Accordingly, the set of rules that govern their professional
conduct arise out of the duty that they owe the court, the
client, their opponents and other advocates.
Rules on the professional standards that an advocate needs
to maintain are mentioned in Chapter II, Part VI of the Bar
Council of India Rules. These rules have been placed there
under section 49(1)(c) of the Advocates Act, 1961.
Following are the prescribed rules in the form of duties of
advocates towards various authorities which are to be
followed strictly by an Advocate as a part of his professional
standard and maintain his etiquette.
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 a
proper ground for serious complaint against a judicial officer,
the advocate has a right and duty to submit his grievance to
proper authorities.
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 the judicial
office is essential for the survival of a free community.
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 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.
7. Refuse to appear in front of relations:- An advocate should
not enter an 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 the 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.
ADVOCATE'S DUTY TOWARDS THE CLIENT
1. Bound to accept briefs:- An advocate is bound to accept
any brief in the courts. O tribunals before any other authority
in or before which he proposes to practice. He should levy
fees that are 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 jeopardizing his client's interests.
4. Full and frank disclosure to the 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 judgment in either engaging him or continuing the
engagement.
5. Uphold the 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 does not lead to the 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 the 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. 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.
9. 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.
10. 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.
ADVOCATE'S DUTY TOWARDS 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.
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 unauthorised 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. Consent of fellow advocate to appear:- An advocate should
not appear in any matter where another advocate has filed a
vakalatnama 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
an application mention the reason as to why he could not
obtain such consent. He shall appear only after obtaining the
permission of the Court.
Q. What do you mean by Book Keeping? State the objects of
Book keeping. (5 marks)
Ans- Meaning of Bookkeeping : Bookkeeping is the activities
concerned with the systematic recording and classification of
financial data of an organization in an orderly manner. It is
essentially a record-keeping function done to assist in the
process of accounting. It is a key component in forming the
financial statements of the organization at the end of the
financial year.
Bookkeeping also concerns itself with the classification of
financial transactions and events. Such classification of
transactions is essential to maintain proper financial
accounts. It also involves preparing source other business
operations being carried out. transactions and documents for
the financial
There are many methods of book-keeping. The most
common ones are the double entry system and the single-
entry system. But even methods other than these, which
involves the process of recording financial transactions in any
manner are acceptable book keeping systems or processes.
Objectives of Bookkeeping:- The main objective of book-
keeping is to keep a complete and accurate record of all the
financial transactions in a systematic orderly, logical manner.
This ensures that the financial effects of these transactions
are reflected in the books of accounts.
Then the second main objective is to ascertain the overall
effect of all recorded transactions on the final statement of
the company. Book-keeping will eventually ascertain the final
accounts of the company, namely the Profit and Loss Account - For the convenient preparation of financial statements, the
and the Balance Sheet. trial balance is prepared to bring debit and credit ledger
balances together.
Need for Bookkeeping:- One of the main reasons for
bookkeeping is so records can be maintained to show the - To proof accurate balancing of a ledger account.
financial position of each and every head/account of income
and expenditure. Through book-keeping, detailed - To detect mistakes in the process of accounts, if any.
information about each expense or income could be
obtained instantaneously.
- To provide information to the proper authority in time.
Say for example a company makes sales in both cash and
- To compare the balances of various ledger accounts of the
credit. Each of these sale transactions will be recorded. When
current year with those of previous year.
a credit sale is made, the creditor's account will be recorded.
So at any time, the management of the company can
Cash Book:- What is the Cash Book?
determine which creditors owe them how much money by
just looking at the records/accounts.
Cash Book contains cash transactions passing into and out of
business. 2 types of Cash Book are (1) general cash book and
Also, the maintenance of books of accounts and financial
(2) petty cash book. The general cash book is subdivided into
statements is a legal requirement in many cases. In the case
the single column, double column, and treble column cash
of companies or banks or insurance companies, there are
book.
acts that require such firms to keep and maintain financial
records. In such a case, book keeping becomes mandatory.
The primary book where transactions regarding cash receipts
and payments are recorded in chronological order of dates
Activities of Bookkeeping:-Book-keeping comprises of a lot
with explanations and balance is drawn at the end of the day
of functions and activities bundled together. Some such
or a particular period is called cash book.
activities are--
Among the financial transactions of concern, cash
•Recording all financial transactions
transactions carry much more importance.
•Posting debit and credits in the respective ledgers
Importance of Cash Book
•Producing and organizing all source documents such as
The features of the cash book are as follows;
invoices
- Since only cash transactions are recorded in the cash book,
•Payroll accounting and upkeep may also be clubbed in with
it is a special journal.
book-keeping
- The cash book serves the purpose of the journal and ledger.
Q. Write a short note on Cash book or trial balance. (5 marks)
- The cash book always shows a debit balance.
Ans-Trial Balance:- The statement which is prepared at a
particular date with the ledger account balances to test the
arithmetical accuracy of the ledger accounts and also to - The balance of the cash book always means cash in hand.
The balance of the cash book and cash of a cash box must be
facilitate preparation of financial statements is called a trial
equal.
balance.
- Non-cash transactions of cash books are transferred to a
It is to be noted that trial balance is not an account; it is a
relevant account in the ledger.
mere a statement.
Advantages of Cash Book:
A trial balance contains the columns - serial number of ledger
accounts,
- Cash receipts and cash payments for a particular period can
Account titles, Ledger folio, debit balance, and credit balance. easily be ascertained from the cash book.
If a trial balance agrees i.e. a total of debit money column - Since cash transactions are recorded in the cash book, it
and a total of credit money column are equal, it proves that becomes convenient to find any cash transactions for future
the ledger accounts are arithmetically accurate. reference.
Characteristics of Trial Balance: It appears from the - It avoids the journalization of huge cash transactions..
definitions of trial balance that the trial balance contains the
following features; - The amount of cash in hand can be ascertained at any time,
and it can be compared with the cash in a cash box. This
- The trial balance is neither an account nor a part of it. It is a ensures the accuracy of the cash book and detects misuse or
statement containing all balances of ledger accounts. misappropriation of cash..
- It is not recorded in any book of account. The trial balance is - Cashbook minimizes time and labor in preparing the ledger
prepared in a separate sheet or paper. as it performs both the journal and ledger functions.
- The trial balance is prepared with the balances of accounts -Proper maintenance of the cash book influences the
at the end of a particular accounting period. A trial balance is cashier's morality, which refrains him from stealing cash.
prepared before the preparation of financial statements at
the end of the accounting period.
- The statement contains all kinds of accounts, irrespective of
their classifications such as assets liabilities, income-expenses
etc. It helps to test the arithmetical accuracy of accounts.
Objects of Trial Balance: Although trial balance is not an
account, it is prepared to fulfill the following objects;
- The main object of the trial balance is to proof the
arithmetical accuracy of accounts.
- It is prepared to check whether the debit and credit
accounts of each transaction have been recorded properly.

Q. The purpose of accounting is to keep a track of the
incomes earned and expenses incurred towards earning the
income. Elucidate the statement. Why is the accountancy
important for lawyers?
Q. Explain the term accountancy of lawyers. Examine the
nature and function of accounting.
6. Analysis of the accounting entries facilitates a good and
proper control over expenses. incurred so as to maximise the
profits. 7. Amendment of business laws, provision of licenses,
assessment of taxes etc., are based on accounting records.
Functions of accounting: 1/.Record keeping function:- The
primary function of accounting relates to recording,
classification and summary of financial transactions-
journalisation, posting, and preparation of final statements.
These facilitate to know operating results and financial
positions.. The purpose of this function is to report regularly
to the interested parties by means of financial statements.
Thus accounting performs historical function, i.e., attention
on the past performance of a business; and this facilitates
decision making programme for future activities.
current amendment or enforcement of laws any come in the
country or state.
(4) Wit: Wit means to represent ideas with full confidence
and cleverness with moral spirit. It comes to an advocate
through a better understanding of truth, and it helps him to
quickly analysis all critical situations.
It helps an advocate to manage lessens workload in his busy
and struck routine life. This skill enables him to represent
effective arguments on behalf of his client. He can make good
conversations with the judge convince with the significant
facts of the case. An advocate can easily reduce his tress at
the result he can always confident about the verdict in favor
of his client.

Ans.- Accountancy means a method of keeping a track of the
money received and the money spent. Accountancy is all
pervasive, starting right from a simple housewife, who has to
manage her household expenses in a limited budget to a
large corporate entity where accounting implies, apart from
complying with statutory requirements, a means to measure
the value of the business.
For an ordinary individual, for example, a housewife,
accountancy is a loosely termed as 'hisab' and merely
involves keeping a track of money in hand, received or
earned and money spent on day to day expenses. For daily
earners, accountancy or even hisab holds no meaning and
importance, but for obvious reasons.
2. Managerial Function:- Decision making programme is
greatly assisted by accounting. The managerial function and
decision making programmes, without accounting, may
mislead. The day-to-day operations are compared with some
pre-determined standard. The variations of actual operations
with pre-determined standards and their analysis is possible
only with the help of accounting,
3. Legal Requirement Function:- Auditing is compulsory in
case of registered firms. Auditing is not possible without
accounting. Thus accounting becomes compulsory to comply
with legal requirements. Accounting is a base and with its
help various returns, documents, statements etc., are
prepared.
(5) Eloquence:- Eloquence is a Great ability that must-have in
every advocate. Here is the basic meaning of eloquence we
can say that talent of fluent speaking with attractive skillful
language. That skill enables him to impress everyone and the
judge too. It will attract the listener.
Eloquence is an art of speech that skill can develop in
advocate by doing practices with topical subjects. One thing
is to note that there is some difference between speaking
and the art of speaking.
This skill makes his words more powerful, which helps him to
build self-confidence. As a result of it, he can Easily get a
verdict in his favor.

4. Language of Business:-Accounting is the language of

In the strict term, accountancy can be defined as the
principles of recording the incomes earned and expenses
incurred to earn the income, wealth, or assets created out of
the income earned and the liability taken upon towards
running of an enterprise and generating income and wealth.
The importance of core accounting is necessarily understood
by persons, individuals or entities, who are involved in an
activity that generates income out of the efforts of such
individuals or entities. This is because, for every effort put in,
the result is measured in terms of value earned for the effort.
For every value earned, the efforts put in involve certain
amount of expenses, which may incurred out of the existing
available resources or from borrowed funds. Unless there is a
proper system of accounting for any entrepreneurial activity,
the satisfaction of viewing the final results of the activity will
not be easily identifiable.
(6) Judgment:- Here the judgment means taking the right
business. Various transactions are communicated through
decision at the right time. Through this lamp, advocates can
accounting. There are many parties-owners, creditors,
instantly take a right and proper decision in any situation.
government, employees etc., who are interested in knowing
the results of the firm and this can be communicated only
The ability skill of making judgment is base on facts and legal
through accounting. The accounting shows a real and true
technicalities of every case. This quality helps to take proper
position of the firm or the business.
and necessary action during the case or trial, which also
assists them to save time while preparing a brief of the case.
Q. What are the seven lamps of advocacy?
Judgment is the most important lamp among the seven
Ans.-Seven Lamps of Advocacy:
lamps of advocacy. It develops his mind at an advanced level
of decision-makers from all sides of the case.
(1) Honesty: As a human being honesty is good quality, it
builds strong moral self-confidence to improve good quality
The advocate will advance think all possibilities of the whole
work with good ethics. Every advocate works hard and
side of the case. Through this skill, he can develop his mind
passionate about his profession. These qualities enable him
on how to present the case, and he can conclude that what
to gain the trust of the client, genuineness.
kind of result he can get in his favor.

Advocate work with different people and different subjects,

As mentioned earlier, accountancy is important to any
entrepreneurial activity, which involves not only the business
of trading but also activities of professionals like doctors,
chartered accountants, lawyers and management
consultants. I shall now discuss accountancy in relation to the
activities of a legal professional.
For an advocate, the most important investment in his
profession is the qualification earned. This can be called as
the initial investment required for setting up a legal practice.
Unlike a business activity, where initial capital investment can
be brought into account, a professional qualification cannot
be quantified and accounted as initial capital investment.
However, one of the important ingredients for a practicing
professional should be a bank account meant only for the
purpose of the practice, as distinct from a normal savings or
current account which may be in existent at the time of
beginning of the practice. The amount put in at the time of
opening the bank account can for the purpose of accounting
be termed as the initial capital investment.
Nature and objectives of accounting (also the importance of
accounting)
1. Accounting provides a permanent record of each
transaction.
2. Entries related to incomes and expenditures of a concern
facilitate to know the profit or loss for a given period.
3. Soundness of a firm can be assessed from the records of
assets and liabilities on a particular date.
4. It enables to prepare a list of customers and suppliers to
ascertain the amount to be received or paid.
5. Accounting as a method gives opportunities to review the
business policies in the light of the past records.
(7) Fellowship :- In a simple term, we can say that fellowship
that way it necessary for him to go straight forward, provide
means to join a membership of any association or
true and honest guidance to his client. At that time honesty
organization. The lawyer must have a member of different
play an important role to increase his practice areas.
associations like local bar association, state bar, the bar
council of India, as well as organizations or company which
An advocate should know themself that illegal practice is one connected to the society and nation.
kind of professional misconduct, that way they avoid doing
an illegal practice which is maybe causation the result of
While there are discussions regarding the fellowship, it is the
professional misconduct in later stages.
most effective and Powerful among the seven lamps.
Through that fellowship, the advocate can connect with a
(2) Courage:- Courage is the second most important quality, large community of his profession. Being a fellowship, he
which enables an advocate to covered up any type of critical might be able to develop a good and healthy relationship
situation and control fear in danger. Because of this ability, with other advocates.
an advocate can stay away from all of the fear like danger,
pain, loss, etc.
Q. Difference between ledger and balance sheet.?
People and society give special attention to an advocate due
Ans.- There are a number of differences between the general
to this ability of courage. Of course, to build that ability, he
ledger (ledger) and trial balance(balance sheet), which are as
must be become fearless, who never sits on the last bench,
follows:
but always sit on the first bench. Due to that ability of
courage and knowledge with self-confidence. he can protect
•Amount of information. The general ledger contains the
his client, and he can able handle all kinds of critical
detailed transactions comprising all accounts, while the trial
situations on behalf of his client..
balance only contains the ending balance in each of those
accounts. Thus, the general ledger may be several hundred
(3) Industry:- The life of an advocate is an industry. According
pages long, while the trial balance covers only a few pages.
to that, we can say that only a well trained advocate
becomes successful in his profession. He must be deeply
•Usage. The general ledger is used as the main source of
studied in brief like an actor who studies for the best
information by financial accountants when they are
performing of his part and dedicates his best qualities with
investigating accounts. The trial balance has a much more
passion and hard work.
limited use, where the totals of all debits and credits are
compared to verify that the books are in balance.
The advocate must know that there is no shortcut key in the
way of success. He must do hard work to get that
•Auditor usage. The auditors request a copy of the trial
achievement. He should always aware of the legal subjects
balance as part of their year end audit, so that they have final
and the latest update, for that he needs to deep research the
balances for all accounts. They use the general ledger for a
laws according to his practice areas.
different purpose, which is to trace balances back to
individual transactions.
Remember, that lack of knowledge of the laws can destroy
his future as an advocate. He must be updated with the
•Nature of information. The general ledger is considered to
be a database of information about accounting transactions,
while the trial balance is really just a report that is derived
from the general ledger.
Q. What are the defences available for contempt of court in
either civil or criminal contempt? Explain fully. What are the
remedies available for punishment for contempt of court?
Ans.- Defenses in Civil Contempt:- A person charged with
civil contempt of court can take the following defences
No knowledge of order
The general principle is that a person cannot be held guilty of
contempt in respect of an order of which he claims to be
unaware. Law casts a duty upon a successful party to serve
the certified copy of the order on the other side either
personally or by registered speed post. Notwithstanding the
fact that the order has been passed in presence of both the
parties or their counsels.
Disobedience or breach was not willful
It can be pleaded that although disobedience or breach of
the order has taken place but it was due to accidental,
administrative or other reasons beyond the control of the
party concerned. This plea can be successful only when the
order has been complied with and a reasonable explanation
has been given for non- compliance thereof.
Order disobeyed is vague or ambiguous
If the order passed by court is vague or ambiguous or its not
specific or complete, it would be a defense in the contempt
or alleged contemnor can raise a plea in defense that the
order whose contempt is alleged cannot be complied with as
the same is impossible.
Order involves more than on reasonable interpretation.
If the order whose contempt is alleged involves more than
one reasonable and rational interpretation and the
respondent adopts one of them and acts in accordance with
one such interpretation, he cannot be held liable for
contempt of court. However, this defense is available only
when a bonafide question of interpretation arises. The
intention of bonafide interpretation can be gathered from
the fact that the order has been complied with by adopting
one such interpretation.
Compliance of the order is impossible.
In proceedings for civil contempt, it would be a valid defense
that the compliance of the order is impossible. However, the
cases of impossibility must be distinguished from the cases of
mere difficulty.
The order has been passed without jurisdiction.
If the order whose contempt is alleged, has been passed by a
court which had no jurisdiction to pass it, the disobedience or
violation would not amount to contempt of court for the
reason that the order passed without jurisdiction is a void
order and binds nobody.
Defenses against Criminal contempt
Innocent publication and distribution of matter.
S.3 deals with this defense. If a criminal contempt is initiated
against a person on the ground that he is responsible for
publication or for distribution of publication which prejudices
or interferes with the pending proceedings, the contemner
may take the following steps:
(a) he may plead under S. 3(1) that at the time of publication,
he had no reasonable ground for believing that the
proceeding was pending.
(b) he may plead under S.3(2) that at the time of publication,
no such proceeding was pending.
(c) he may plead under S.3(3) that at the time of distribution
of publication, he had no reasonable ground for believing
that the matter (published or distributed by him) contained
or was likely to contain any material which interfered or
obstructed the pending proceeding or administration of
justice.
Fair and accurate report of judicial proceedings S.4 of the Act
provides that a person should not be held guilty of Contempt
of Court for publishing a fair and accurate report of any
judicial proceedings or any stage thereof.
Fair criticism of judicial act
S.5 provides that a person shall not be guilty of criminal
contempt for publishing any fair comment on the merits of
any case which has been finally decided. A defense can be
taken that the statement complained of respect of
publication of which criminal contempt has been initiated)
must be respect of a case which has been finally decided and
not in respect of pending proceedings. Moreover, the
statement should come from the mouth of a knowledgeable
person in the field of law and not from a litigating party
which has lost the case.
Bona fide complain against the presiding officer of a
subordinate court.
S.6 provides that a person shall not be guilty of contempt of
court in respect of any statement made by him by way of
complaint in good faith concerning the presiding officer of
any sub-ordinate court to the High Court or to the Court to
which he is sub ordinate. The protection of this section will
be available only when it is proved that the complaint was
made in good faith.
No substantial interference with due course of justice.
By the Contempt of Courts (Amendment) Act, 2006, a new
Section 13 has been substituted in place of existing S.13. This
new S. 13 provides that notwithstanding anything contained
in any law for the time being in force, no Court should
impose at sentence for Contempt of Court unless it is
satisfied that the Contempt is of such a nature that it
substantially interferes or tends to interfere with the due
course of justice.
Justification by truth.
The amended S.13(2) provides that the Court may permit
justification by truth as a valid defense in any proceeding for
criminal contempt if it is satisfied that it is in public interest.
Thus, truth is now a defense if it is in the public interest and
bonafide.
The statement complained of is open to different
interpretations.
If the words complained of are open to two different
interpretations and one of them indicates contempt while
the other does not, the contemner cannot be punished for
non compliance of one interpretation. But, in order to
succeed in this defense, it is necessary to prove that the
order was complied with in respect of one interpretation. If
the order is not complied with at all, it cannot be proved that
there was a reasonable doubt as to the interpretation of the
order. On the other hand, it will be presumed that a doubt is
deliberately sought to be created so as to avoid the
compliance of the order.
Defamation of the judge personally.
If the publication or other act is merely a defamatory attack
on the judge and is not intended to interfere with the
administration of justice, it will not be taken as contempt of
court.
Remedy Against The Order of Punishment
Following remedies are available against the punishment
order under Contempt of Court Act:
1. Apology: The contemner may under apology to the court
and the court may remit the punishment awarded for
contempt, if the court is satisfied that the apology has been
made with real sense of repentance.
2. Appeal: Contempt of court Act, 1971 has provided for the
statutory right of appeal against the orders of High Court
passed in the exercise of its jurisdiction to punish for the
contempt of the court. Prior to this act there was no
statutory right of appeal but even at that point of time the
person punished under the Contempt of Court Act was not
remediless. The High Court itself could grant the certificate
under Article 134 of the Indian Constitution and where the
High Court refused to grant such certificate, the Supreme
Court could entertain the appeal by granting special leave
under Article 136 of the Constitution of India.
Q. What is Rule 50 of the Bar Council of India?
Ans.- Restriction on Advocates to take up other employments
A lawyer, according to Black's Law Dictionary, is "a person
learned in the law; as an attorney, counsel or solicitor; a
person licensed to practice law." The profession of law is
called a noble profession. It does not remain noble merely by
calling it as such unless there is a continued, corresponding
and expected performance of a noble profession. Its nobility
has to be preserved, protected and promoted. An institution
cannot survive in its name or on its past glory alone. The
glory and greatness dignity. The profession of law of an
institution depends on its useful and continued and
meaningful performance with grace and being noble and
honourable one, it has to continue its meaningful, purposeful
performance inspired by and keeping in view the high and
rich traditions consistent with its grace, dignity, utility and
prestige. Hence the provisions of the Advocates Act and
Rules made there under inter alia aimed at to achieve the
same ought to be given effect to in their true spirit and letter
to maintain clean and efficient Bar in the country to serve
cause of justice which again is noble one.
Rule 50 provides that 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 descended to him by survivorship or
inheritance or by will, provided he does not personally
participate in the management thereof. As the purpose of
these restrictions is to preserve the dignity and nobility of the
legal profession, holding of share with others in any business
which he inherited is not prohibited provided he is not
participating in the management of the business there by
compromising on the dedication and attention to the
profession.
Q. What are the powers of Disciplinary Committee under
section 36 of the Advocates Act?
Ans.- Section 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
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, 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
before the disciplinary committee of the Bar Council of India
the State Bar Council concerned shall give effect to any such
order.
 4) Legal profession in India after independence -All India Bar questions raised by the lower court's opinion, by the parties
Committee, 1951:- on appeal, or by the nature of the case.

Q. Discuss the development of legal profession in India. Is
there any regulation governing the enrolment and practice of
an Advocate? If so, what are the regulations? Examine.
Ans.- In society, people occupy different occupations for their
livelihood or for their satisfaction. The occupations may be
broadly divided as productive occupation and service
occupations. The occupations which require advanced
education and special training are called professions. LAW,
teaching, architecture, medicine, etc are related to
professions. They are intended to serve mankind..
What is the legal profession? The profession of law is one of
the oldest and noblest professions. The person in the legal
profession is called an advocate or lawyer. An advocate is an
officer of justice and a friend of the court. He has to accept a
brief for any man who comes before the courts and do what
one can do honorably on behalf of his client. He has to collect
legal material relating to the case of his client had argue in
the courts to help the judges to deliver judgments. The
central function that the legal profession must perform is
nothing less than the administration of Justice.
In 1951, the All India Bar committee was constituted under
the chairmanship of justice S.R.Das. The committee in its
report recommended the establishment of an All India Bar
Councils and State Bar Councils. It recommended the powers
of enrollment, suspension or the removal of advocates to the
Bar Council. It recommended the common role of advocates
should be maintained and they should be authorized to
practice in all courts in the country.
Advocate Act 1961 :-As a result of the report of the All India
Bar Committee Act, 1961, the central government enacted
the Advocate Act 1961.This Act has been in Force In entire
India. It brought Revolutionary changes in the legal
profession in India. It was set out to achieve the utility and
dignity of the profession of law on an all India basis. The
Preamble of The Act says that the Act amends as well as
consolidates the law relating to legal practitioners.
Regulation governing enrolment and practice of an Advocate
The Advocate Act, 1961 is the principle Act which governs the
enrolment and practice of an advocate which contains 60
Sections set out in 7 chapters.
Constitutional cases frequently involve multiple issues, some
of interest only to litigants and lawyers, others of broader
and enduring significant to citizens and officials alike. Be sure
you have included both.
When noting issues, it may help to phrase them in terms of
questions that can be answered with a precise "yes" or "no."
Decisions:- The decision, or holding, is the court's answer to a
question presented to it for answer by the parties involved or
raised by the court itself in its own reading of the case. There
are narrow procedural holdings, for example, "case reversed
and remanded," broader substantive holdings which deal
with the interpretation of the Constitution, statutes, or
judicial doctrines. If the issues have been drawn precisely,
the holdings can be stated in simple "yes" or "no" answers or
in short statements taken from the language used by the
court.
Reasoning:-The reasoning, or rationale, is the chain of
argument which led the judges in either a majority or a
dissenting opinion to rule as they did. This should be outlined
point by point in numbered sentences or paragraphs.

Development of legal profession in India - Development of
legal profession in India can be divided into three phases are
as follows -
1) Legal profession in ancient India - 2) Legal profession in
medieval India -3) Legal profession in British India -4) Legal
profession in India after independence -
1) Legal profession in ancient India -
In India during the earlier period, people live in small groups.
The heads of these groups or tribes delivered justice under
open sky before all the members. Open arguments were
made. There were no specialist like a lawyer during those
days. When Kingships was established in the society, Kings
delivered justice. In King's Court, the king was advised by his
councilors. The law of those days was a rooted in Hindu
religion and custom. Dharma was protected by the king.
Though there was no Institution of a lawyer, some
intellectual people served justice.
Chapter 1- deals with primary issues such as short title,
extent and commencement and definitions.
Chapter II Section 3 to 15 deals with the bar councils.
Chapter III Section 16 to 28 deals with admission and
enrolment of advocates.
Chapter IV deals with the right to practice chapter.
Chapter V Section 35 To 44 deals with the conduct of
advocate.
Chapter VI Miscellaneous issues.
Chapter VII deals with the temporary and transitional
provisions.
The Advocate Act 1961 repeals the Indian Bar Council Act,
1926 and all other laws on the subject.
Separate Opinions:- Both concurring and dissenting opinions
should be subjected to the same depth of analysis to bring
out the major points of agreement or disagreement with the
majority opinion. Make a note of how each justice voted and
how they lined up. Knowledge of how judges of a particular
court normally line up on particular issues is essential to
anticipating how they will vote in future cases involving
similar issues.
Analysis:- Here the student should evaluate the significance
of the case, its relationship to other cases, its place in history,
and what is shows about the Court, its members, its decision
making processes, or the impact it has on litigants,
government, or society. It is here that the implicit
assumptions and values of the Justices should be probed, the
"rightness" of the decision debated, and the logic of the
reasoning considered.

2) Legal profession in medieval India - During the Muslim

period, there was no Institution of the legal profession. But
both the parties of the litigation appoints their Vakils. This
body decides the case and they were paid a percentage of
the amount in the suit. The Court has the power to decide
who should be allowed to appear as Vakils. They act as agent
for principals but not as lawyers.
3) Legal profession in British India:-During the British period,
the model legal system was developed in India. Before 1726,
the courts derived their power not from the British crown but
from the East India Company. The charter of 1661 has
already described the English law. During the British period
various Charters were in force for regulating the legal
profession. They are
i) Charter of 1726
The Advocate Act, 1961 provides for an autonomous bar
council in each state and All India Bar Council consisting
mainly of the representatives of the state bar councils. Under
the act, a state bar council is to enroll the qualified person as
advocates and a prepare a roll of advocates practicing in the
state and thereafter a comment roll of advocates for the
whole of India is to be prepared by the bar council of India.
The Advocates whose Names are entered in the common roll
would be entitled as of right to practice in all courts in India
including the Supreme Court.
Q. Preparation of case brief by an advocate ?
Ans.- Following are the various stages in preparation of a
case brief by an advocate

ii) Charter of 1753 Title and Citation:- The title of the case shows who is
opposing whom. The name of the person who initiated legal
iii) Charter of 1774 action in that particular court will always appear first. Since
the losers often appeal to a higher court, this can get
iv) The Bengal Regulation Act of 1793 confusing. The first section of this guide shows you how to
identify the players without a scorecard.

v) The Legal Practitioners Act, 1846

Facts of the Case:- A good advocate's brief will include a
summary of the pertinent facts and legal points raised in the
vi) Indian High Court Act, 1861
case. It will show the nature of the litigation, who sued
whom, based on what occurrences, and what happened in
vii) Legal Practitioners Act 1879 the lower court/s.

viii) Indian bar committee 1923
Indian Bar Council Act 1926:- In 1926, the Indian bar council
of India Act was enacted to provide a bar council for each
High Court. The Bombay High Court and Calcutta High Court
allowed non-barrister advocates to practice. Thus the
distinction between Barristers and advocates was abolished.
The pleaders and in Mufusil Courts were not within the scope
of the Indian bar council act 1926.
The facts are often conveniently summarized at the
beginning of the court's published opinion. Sometimes, the
best statement of the facts will be found in a dissenting or
concurring opinion.
Issues:- The issues or questions of law raised by the facts
peculiar to the case are often stated explicitly by the court.
Again, watch out for the occasional judge who misstates the