What are the functions of State Bar Councils?

Bar and Bench is the spinal cord of this legal system. Only a coordinated activity of these entities can produce a smooth functioning of the legal system. Eminent lawyers at the Bar receive almost the same respect as Judges. And only the cooperation and unity among lawyers can make this system move forward.

Since the Legislature was already aware of this fact, it enacted the Advocate's Act, 1961 to regulate the legal profession.

The Act provided for the constitution of Bar Council of India, State Bar Councils, their powers, enrolment, qualification, disqualification of Advocates etc.

Section 3 of the Advocates Act mandates that there shall be a Bar Council for every state, and it shall be called as Bar Council of that state.

As per Section 5 of the Act, every Bar Council shall be a body corporate with perpetual succession and common seal. It can acquire and hold properties. It can sue or be sued.

There shall be a Chairman and Vice Chairman of each Bar Council elected by the Council. The Advocate – General of a state shall be ex-officio member of that State Bar Council.

Section 6 of the Act lays down the important functions of a State Bar Council. They are:

• To admit persons as Advocates on its roll.
• To prepare and maintain such roll.
• To entertain and determine cases of misconduct against Advocates on its roll.
• To safeguard the rights, privileges, and interests of Advocates on its roll.
• To promote and support law reform.
• To conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest.
• To organise legal aid to the poor.
• To manage and invest the funds of the Bar Council.
• To provide for the election of its members.
• To visit and inspect Universities in accordance with the rules for imparting legal education.
• To promote the growth of Bar Associations for the purpose of effective implementation of welfare schemes introduced by the Council.
• To perform any other functions as prescribed by the Act.
• The time within which and form in which an Advocate shall express his intention for the entry of his name in the roll of State Bar Council.
• The form in which an application shall be made to the Bar Council for admission as an Advocate on its roll.
• The conditions subject to which a person may be admitted as an Advocate on any such roll.
• The instalments in which the enrolment fee may be paid.

The Council may constitute funds for the purpose of:

• Giving financial assistance to organise welfare schemes for the indigent, disabled or other Advocates.
• Giving legal aid or advice in accordance with the rules.

The State Bar Council may receive gifts, donations or any grants for the purposes mentioned above and such amount may be credited to the welfare funds constituted accordingly.

What are the functions of the Bar Council of India?

The Bar Council of India is a statutory body created by Parliament to regulate and represent the Indian bar.

It performs the regulatory function by prescribing standards of professional conduct and etiquette and by exercising disciplinary jurisdiction over the bar.

It also sets standards for legal education and grants recognition to Universities whose degree in law will serve as qualification for enrolment as an advocate.

In addition, it performs certain representative functions by protecting the rights, privileges, and interests of advocates and through the creation of funds for providing financial assistance to organise welfare schemes for them.

The Bar Council of India was established by Parliament under the Advocates Act, 1961.

The following statutory functions under Section 7 cover the Bar Council's regulatory and representative mandate for the legal profession and legal education in India:

• To lay down standards of professional conduct and etiquette for advocates.
• To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council.
• To safeguard the rights, privileges and interests of advocates.
• To promote and support law reform.
• To deal with and dispose of any matter which may be referred to it by a State Bar Council.
• To promote legal education and to lay down standards of legal education. This is done in consultation with the Universities in India imparting legal education and the State Bar Councils.
• To recognise Universities whose degree in law shall be a qualification for enrolment as an advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and inspect Universities for this purpose.
• To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest.
• To organise legal aid to the poor.
• To recognise on a reciprocal basis, the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.
• To manage and invest the funds of the Bar Council.
• To provide for the election of its members who shall run the Bar Councils. The Bar Council of India can also constitute funds for the following purposes:
  • Giving financial assistance to organise welfare schemes for poor, disabled or other advocates.
  • Giving legal aid.
  • Establishing law libraries.

The Bar Council of India can also receive grants, donations, and gifts for any of these purposes.

All India Bar Examination tests an advocate's ability to practice law. It is required for an advocate to pass this examination to practice law. This examination is held biannually and tests advocates on substantive and procedural law. The exam is conducted by the bar council and is mandatory for all students to be enrolled as an advocates.

Contempt of Court.
Definition:
The offence of contempt of court is committed when a person either disobeys a court order (civil contempt), or when a person says or does anything that scandalizes, prejudices, or interferes with judicial proceedings and the administration of justice (criminal contempt)

History:
The offence of contempt of courts was established in common law, and can also be traced to colonial legislation.

Courts established in India under colonial rule followed the common law principle that all 'courts of record' had the inherent power to punish for contempt. High Courts established in Bombay, Calcutta, and Madras as courts of record subsequently exercised the power of contempt to penalise persons for interfering with the administration of justice.

The Constitution of India, enacted in 1950, specifically established the Supreme Court of India as well as High Courts in the states of India as courts of record with the power to punish for acts of contempt.

Contempt of court is also a ground on which the right to freedom of speech in India can be restricted.

In 1961, a committee headed by H.N. Sanyal, an Additional Solicitor General for the Government of India, was appointed to examine the application of contempt laws in India. The Sanyal Committee recommended that contempt proceedings should be initiated not by the courts themselves, but on the recommendation of a law officer of the government.

These recommendations were incorporated in the Contempt of Courts Act 1971, enacted by the Parliament of India, which is the current legislation governing contempt of courts in India.

Powers:
The Contempt of Courts Act 1971 defines civil and criminal contempt, and lays down the powers and procedures by which courts can penalise contempt, as well as the penalties that can be given for the offence of contempt.

The Act was amended in 2006, to limit the power of courts to punish for contempt, only when such contempt "interfered with the due course of justice," and to allow truth as a defence to contempt.

The Act specifies that High Courts and the Supreme Court of India have the power to try and punish the offence of contempt, and High Courts have the power to punish acts of contempt against courts subordinate to them; however, the Supreme Court of India has clarified that any court of record has the inherent power to punish for contempt.

In addition to these courts, certain administrative tribunals also have been given the power to punish for contempt, in their governing statutes.

Defence:
The Contempt of Courts Act allows three defences to charges of contempt. It allows an exemption for those:

1. who innocently publish or commit acts that would otherwise amount to contempt,
2. if they reasonably believed that there were no ongoing judicial proceedings regarding these acts,
3. or if they reasonably believe that the content of their words or actions did not contain anything contemptuous.

The Act also specifically exempts fair and accurate reporting on judicial proceedings, and fair criticism of the judiciary.

Punishment and Sentencing:
Both civil and criminal contempt share the same punishment under the Contempt of Courts Act 1971. The Act allows for a maximum term of imprisonment for six months, and this can be supplemented with a fine of up to ₹2000.

The Contempt of Courts Act 1971 also specifically allows courts to forgo the punishment if an apology is made to the court, and may use their discretion to determine whether the apology has been sufficient.

What is professional misconduct?
Professional misconduct refers to disgraceful or dishonourable conduct not befitting an advocate. Chapter V of the Advocate Act, deals with the conduct of Advocates.

It describes provisions relating to punishment for professional and other misconducts. Section 35(1) of the Advocate Act, 1961, says, where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to it disciplinary committee.

Generally legal profession is not a trade or business, it's a gracious, noble, and decontaminated profession of the society.

Members belonging to this profession should not encourage deceitfulness and corruption, but they have to strive to secure justice to their clients.

The credibility and reputation of the profession depends upon the manner in which the members of the profession conduct themselves. It's a symbol of healthy relationship between Bar and Bench.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for professional misconduct because of its wide scope.

Though under Advocates Act, to take disciplinary action, punishments are prescribed when the credibility and reputation on the profession comes under a clout on account of acts of omission and commission by any member of the profession.

Who has the power to punish an advocate for misconduct?
Various Committees are constituted by the State Bar Councils and the Bar Council of India for discharging certain duties. One of these committees is the disciplinary committee and it has the power to punish advocates for misconduct.

Disciplinary committee means a person or a group of people who are empowered to hear cases and proceedings involving professional misconduct of an advocate upon a complaint, revision or suo motu.

The disciplinary committee is mainly formed to ensure that the members of the bar council of India or the bar council of any state are maintaining professional ethics and standards.

The Bar Council shall constitute a disciplinary committee as per Section 9 of the Advocates Act. This section provides that the one or more disciplinary committee are required to be formed and each of these disciplinary committee shall consist of three members.

The election of two from the three members of the disciplinary committee shall be done by the Council from the members of the Bar Council of India itself.

The third member shall be co-elected by the Council outside of the members of the Bar Council but who shall be an advocate and possess qualifications as prescribed in Section 3(2) of the Advocates Act, 1961. The section further states that the senior most advocate shall be the chairman of the committee.

The term of members of this committee shall be not more than 3 years.

The disciplinary committee can exercise these powers only with a prior approval of certain authorities. These are as follows:

• Attendance of any presiding officer of a court shall be allowed only with a prior approval of the High Court to which such court is subordinate.
• Attendance of any officer of revenue court shall be allowed only with prior approval of the State Government.

The committee also has the powers to summon and enforce the attendance of any person and examine him under oath, require discovery and production of any documents, receive evidence on affidavits, requisition any public record or copies thereof from any court or office and issue commission for the examination of witness or documents.

Whether an appeal can be filed in cases of professional misconduct? If yes, then explain procedures.
If a lawyer's conduct is unprofessional owing to which the State Bar Council withdraws the license of that concerned lawyer or awards some other punishment, he still has a chance to take the matter to the Bar Council of India if he thinks injustice is done to him.

After an order is passed against an advocate, the Advocate-General of the State may prefer an appeal to the Bar Council of India within 60 days from the date of the communication of the order.

The appeal to the Council shall be made in the form of a memorandum in writing.

Later, the Registrar of the Bar Council of India shall issue a notice to the State Bar Council for the complete records to be sent to the Council.

The disciplinary committee of the Bar Council of India then shall hear such appeal and may pass an order as it deems fit.

It has the power to even vary the punishment that was awarded by the disciplinary committee of the State Bar Council.

The committee of the Bar Council of India shall exercise all the powers that are exercised by the Civil Court or Court of Appeal under C.P.C.

The order that is passed is then communicated to the parties and the Secretary of the State Bar Council Concerned.

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 or the concerned state.

However 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.

But, no provision of appeal is provided in the act in respective High courts, hence power of bar Council of the State is equated with that of High court.

In ordinary course it is difficult for an advocate to approach the Supreme Court and get the case admitted from an aggrieved order of the Bar Council of India.