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Analysis Of Misconduct Under Chapter 5 Of The Advocates Act In The Light Of The Case Of NG Dastane v/s Srikant S Shivde

The following research paper aims at explaining the various provisions mentioned under chapter 5 of the Advocates Act, 1961 which are related to misconduct. the research paper elucidates the punishment stated law for lawyers who engage in misconduct and other provisions like appeal in the supreme court, bar council of India and state bar council.

The states the relevance between the limitations act 193 and the Advocates act 1961. In conclusion, the famous landmark case of NG Dastane v Srikant S. Shivde AIR 2001 SC 2018 is elaborated in detail.

Every country of the world requires certain systems that exclusively and solely work for the purpose of that country's development on every front. Certain examples of these systems can be political, social, or administrative, moreover, legal system also forms an integral part of the list. A political system includes a structure of legislature that has the core purpose of formulating laws, rules, and regulations for the smooth functioning of a country and for maintaining equality and harmony among the people of the nation.

However, it is also obvious that in a geographical area occupied with so many people, there are bound to be disputes, differences and the worst, crimes. Therefore, along with structures like legislature, there is also a need of a properly laid down legal system. The legal system, also known as the third pillar of a democracy, the judiciary, does not only have the work of punishing people in case of crimes and disputes but it also plays a pivotal role in keeping the whole system up to date by bringing necessary amendments in the already existing laws and formulating such laws which are competent with the current societal conditions and needs.

The court of law is the first place that is approached by people of a country in case of any type of dispute. Now, on an average, in a country like India, where hundreds and thousands of cases are recorded on a daily or weekly basis, it is impossible for these many people to come to court and represent themselves one by one. Therefore, for this purpose, people have the option of hiring a lawyer. Lawyers are one of the most important part of a legal system performing the most important duties and responsibilities.

Along with such important roles to play, they are also given their fair share of rights enlisted under the advocates act, 1961 like the right to pre-audience (section 23), right to practice (section 30) etc. However, rights are never exclusive, discretionary, or limitless and it is in the best interest of the whole system for them to be like this.

A lawyer must conduct himself in such a way that his behavior does not deviate from a set code of conduct of lawyers under the statutes. This is given in detail under chapter 5, section 35- 44 of the advocates act, 1961.

Right To Practice

Right to practice- the fist and the most basic right of a lawyer is laid under section 29 and 30 of the advocates Act, 1961. the section speaks volumes about the basic criteria and eligibility to become a lawyer as well as the exclusive right given to them. It states that only those people who are enrolled as lawyers in a state roll shall be allowed to practice. Once a lawyer is enrolled under the state roll then he/she shall have all the rights to practice in any part of the country including all the courts, tribunals, or any other authority as far as the advocates act, 1961 applies to that area.

An Advocate's Obligations Towards The Court

In the most layman scenario, under an employee-employer relationship, the employer being the highest authority requires respect, profits, new ideas etc. Such requirements can also be considered as obligations, duties, or responsibilities of an employee towards the employer. Similarly, in the legal field, lawyers have certain responsibilities towards the court of law, which is their highest authority.

Some of these obligations are as follows:
  1. The first and the most important duty of advocates towards the court is maintaining the dignity and respect of the court and not conduct themselves in such a manner that it jeopardizes its proper functioning. If the functioning of the court is jeopardized, then it would cause a threat to the free and fair functioning of the democratic legal framework of the country.
  2. All advocates in India are prescribed a proper uniform exclusively for them. It is their duty to always enter the court in that uniform and to wear the band and gown only in the premises of the court and not outside it.
  3. Justice and equality form the soul of not just the legal system but also the preamble of the country. Therefore, in its best interest, an advocate who acts as a representative of his/her client has the duty towards the whole legal system of not intentionally convict an innocent person. It is one of the most important duties of an advocate towards the court because if any innocent person is convicted and punished then it would lift the faith of common people of the country from the judicial system and create fear which would in turn stop them from voicing their opinions against the wrong.

Punishment For Misconduct- Section 35 Of Advocates Act,1961

Professional misconduct can be defined as such behavior by an employee which is unacceptable and practically against the code of conduct of the organization that he is working with. In the legal profession, the advocates act 1961 contains in chapter 5 under section 35, the punishment to the lawyers for misconduct. Moreover, the section makes it clear that it not only deals with professional misconduct but also other types of misconduct.

Other misconducts include those that may not be related to the legal profession. A lawyer should conduct himself professionally so that the functioning of the court is smooth and, the court's decorum and dignity is maintained. Section 49 of the Advocates act, 1961 gives the Bar Council of India the power to formulate such standard of professional conduct as it may deem fit.

Section 35 of the Advocates Act, 1961 explicates the punishment that an advocate shall be given in case of professional or other type of misconduct. If an advocate is accused of misconduct, then such information must be either provided to the State Bar Council (SBC) in the form of a complaint by a person holding an interest or the SBC can also take up a matter of such sort on its own i.e., Suo motu. However, even after the complaint is received by the council, action shall be taken on it only if the state bar council has the reasons to believe that the accused advocate is guilty for professional or any other type of misconduct.

The state bar council however, only because of presence of reasons to believe, cannot take any action against the advocate. The state Bar council shall refer the case to a disciplinary committee that will in turn dispose it off and bring a conclusion. An advocate accused of professional or other misconduct has all the rights to defend himself before the committee, in this way, the supremacy of justice and equality is maintained, and his basic rights are also protected.

The disciplinary committee, to proceed with the case of misconduct filed or taken up Suo Motu must first finalize a date of hearing, after which, a formalized notice is sent to the advocate accused of misconduct and the advocate general of the state or the additional solicitor general of India in case of a Union Territory. The advocate general is given the option of appearing before the court either by himself or through a representative who shall also be an advocate. This is an important step because it uplifts the core nature of Indian legal system that provides all the people the right to be heard.

After hearing the part of the accused, the disciplinary committee can make the following orders under sub section 3:
  1. Dismissal
  2. Reprimanding the advocate- which means reproving someone officially
  3. Suspending the advocate- once an advocate is suspended by the order of the disciplinary committee, he/she shall not practice legal profession anywhere in the country, not in the court, for a person or any other authority.
  4. Removing the name of the advocate from the state roll. This type of order from the disciplinary committee is however rare and mostly not used.
    Section 41 can be read along with section 35 as it provides for the alterations which shall take place in the roll of advocates. It states that the following alterations should take place:
    1. If an advocate is reprimanded or suspended as a punishment for misconduct, then it should be specifically mentioned in the record in front of his name.
    2. If, as a punishment for misconduct, an advocate is barred from practicing then his name shall altogether be removed from the roll of advocates. Moreover, the certificate of practice delivered to him under section 22 of the act shall also be recalled.
Illustration- 'x' and 'y' are two advocates, plaintiff and defendant respectively handling a civil case. 'y' after the hearing of the court was seen taking money outside the premises of the court. The people giving money were x's clients. 'x', being an honest lawyer rendering his services for the upliftment of the banner of justice, decided to complain to the state bar council. The compliant could be filed because advocate 'y' held a clear interest in the case. Therefore, only that person who holds an interest can complain formisconduct, otherwise the court can take up a matter Suo- Motu.

The Disciplinary Committee Of The Bar Council Of India And Its Powers- Section 36

Section 35 exclusively deals with cases of misconduct taken up by the state bar council. However, under section 36, another category of cases is stated. This section elucidates such cases in which the advocate accused does not have his name enrolled in any state roll. The procedure mentioned under section 35 shall apply to section 36 as well.

The only difference is that in section 35, the state bar council must have reasons to believe that an advocate is guilty of misconduct and then refer the case to a disciplinary committee and under section 36, the bar council of India must have reasons to believe the same. In both the cases, compliant can be made Suo Motu. Another difference between the two is that under section 35, the state bar council has the power to withdraw the enquiry of a pending case from one disciplinary committee and prescribe it to another.

However, under section 36, the bar council of India has the power to withdraw any disciplinary enquiry that is still pending before the state bar council's disciplinary committee and dispose it off on its own. In section 35(2) talks about notifying the advocate general of India and under 36, the same provision shall apply to Attorney General of India.

Even the orders that can be made by the state bar shall remain the same for bar council as well. Furthermore, under section 44 of the act, the disciplinary committee of the bar council of India has the right to review any order on its own or after receiving an application for the same. However, for the committee to be able to exercise this power, has to have the permission of the Bar council of India itself.

Section 36A:
Just after the procedure to be followed by the state bar council and the bar council of India is stated under sections 35 and 36 of the advocates acts 1961, section 36A states that when both the bars exercise their powers of either withdrawing and assigning another disciplinary committee or when a committee is succeeded by a new committee then such a committee does not have to begin the proceeding from the start and can carry it forward from the point where it was left.

Section 36B (1) lays down that as soon as a compliant is received by the state bar council against an advocate for misconduct, the disciplinary committee has the task of disposing off the case and passing an order within one year from the date of receipt of the case or the beginning of the proceedings. If the disciplinary committee fails to dispose off the case in the stipulated amount of time, then the proceedings as per the provisions of this section shall pass to the bar council of India and such proceedings shall be treated as the transferred proceedings under clause 2 of section 36 of the advocates act, 1961.

Similarly, 36B (2) states that if there are any cases already existing and pending on the commencement of the advocates amendment act of 1973 then such cases have to be disposed off withing 6 months of commencement or 1 year from the date of receipt otherwise they shall be transferred to the bar council of India for final disposal.

Case Law:
Suresh Shiva Rao v.N.D. Upadhyaya through secretary, bar council of Maharashtra (1998)
In this case, the disciplinary committee of the Bar Council of India passed an order against Suresh Shiva Rao for misconduct on 27th June 1998. After the proceedings began, the disciplinary committee began with its examination and investigation on the matter through documents and witnesses. After the examination ended, all the evidence were against Suresh and the committee held him guilty and as a part of punishment for misconduct, his license was withdrawn for a period of 2 years. However, Suresh was unsatisfied by the order of the court and by exercising the rights given to him under the Indian statutes, preferred an appeal against the same. Thereafter, an order of stay was issued on this order of the committee.

On the other hand, while the case was still going on and according to the previous order on which the stay had been put, Suresh's license was withdrawn, he continued to practice legal profession by working with a company named m/s Vulcan level ltd. The type of employment he was under was full time. Besides being employed with the company, he was also practicing in the court of Maharashtra and Goa. As per the norms, the accused for misconduct should have told about the company and the employment offered to the court of law but he failed to do so.

Consequently, Shri N.D. Upadhyaya made a complained to the Bar council of the state that he was practicing in i.e., Bar council of Maharashtra but interpreting the text of section 36-B, the bar council of India was unable to take any step because the proceedings has exceeded the period prescribed which is 1 year. After the expiration period is over, the matter was transferred to the Bar council of India.

Relation Between The Advocates Act, 1961and The Limitations Act, 1963

Section 37 and 38 of the Advocates act, 1961
The Indian judicial system under all its statutes analyses every situation and form such laws which accelerate the process of justice and takes away the slightest chance of injustice. One such way in which the judiciary uplifts justice is by the system of appeals. This provision is laid down under section 37 of the advocates act also. Appeal is one of the biggest rights provided to people of a country because it increases the accountability of the justice system towards the people.

Moreover, it also keeps an open window for amends if the person punished is not convinced with the decision of the court and wants the higher court to interfere and give the decision again after considering all the facts of the case. Section 37 of the advocates act, 1961 lays down the same thing and states that if an advocate is not satisfied by an order passed by the state bar council's disciplinary committee or the Advocate General of the state, then he/she can appeal the same to the bar council of India.

However, to exercise this right it is important to prefer an appeal withing 60 days from the pass of the order by the disciplinary committee of the state bar council. After the appeal has been made to the bar council of India, it shall be obliged to hear the appeal and pass such order which is the most appropriate according to them and the order of the state bar council can also be uplifted.

The most important question that arises after interpreting section 37 is, what provisions shall apply if an advocate is not convinced with order passed by the Bar council of India's disciplinary committee? To make the whole system more accountable and just for the people section 37 of the advocates act, 1961 provides for the provision of appeal to the supreme court of India if an advocate believes that he is aggrieved by the order passed by the bar council of India's disciplinary council under section 36 and 37. The time limit to prefer an appeal is the same as mentioned under section 37, i.e., withing 6 months from the date on which the order of the Bar council of India was communicated to the parties.

Section 5 and 12 of the limitations Act, 1963
It is evident by various sections mentioned under various statutes of the Indian legal system that the judiciary is not very rigid and provides correct amount of flexibility exactly where it is needed. One such example is the 5th section of the limitations act, 1963. The court of law never rules out the possibility of genuine causes that might lead to a delay in the filing or initiation of proceedings.

Therefore, in this section it is provided that if any of the parties to the case had actual reasons for not preferring an appeal or filing an application in the stipulated period and those reasons can satisfy the court then there can be an extension to the limitation period prescribed in the acts. However, it is also stated that if the cases belong the category of execution of a decree after it has attained it's final judgement without any pending stay orders(order 21, CPC, 1908) , this section shall not apply.

Similarly, section 12 of the limitations act lays down such provisions which helps in the interpretation f various statues. For example, it computes the limitation period for an appeal and elucidates that such time that shall take place between the pronouncement of the judgement and the court receiving the official decree against which the appeal has been raised and the time taken by the court to interpret it shall be excluded from the limitation time.

Relevance between the two acts of 1961 and 1962- section 39 of the advocates act states that for cases of appeal under section 37 and 38, the provisions given under section 5 and 12 of the limitations act shall apply.

Order Of Stay

A stay order means a temporary stay on the judicial proceedings. Such a stay can only be put by an official order of the court. However, if read along with the provisions of appeal mentioned under section 37 and 38 of the advocatesact1961, it is stated under section 40 of the act that even if an appeal has been preferred, it does not mean that the a stay has been put on the previous order issued by the bar council of India or the Supreme court.

However, the Supreme court or the Bar council of India's disciplinary committee should by themselves order a stay on their previous order even if theapplication for stay is made before the expiration of the time allowed, till the time a new order is passed or the last one is uplifted.

Powers Of The Disciplinary Committee

The disciplinary committee is the only way by which an advocate can be punished for misconduct. Apart from the provisions of appeal mentioned in various sections of chapter 5, there are some powers exclusive to the disciplinary committee.

Section 42 of the act states that a disciplinary committee shall have the same rights as those given to a civil court under the Code of Civil procedure and such rights, under section 42A also apply to the Bar council of India.

These powers are as follows:
  1. The committee can summon any person it sees as directly or indirectly connected to the case or for any such reasons as it deems fit for examination and it can also issue commissions for the purpose of such examinations of documents or witnesses.
  2. The committee has the power to command for production of relevant documents before it.
  3. It has the power to receive evidence on affidavits
  4. It has the power to demand for any public record from any court to dispose of the case.
However, there are two cases in which a disciplinary committee does not have discretionary power of demanding presence of a person before it. first, if the committee wants the presence of any presiding officer of a court, then it musttake permission from the high court in advance. That officer shall not appear at the comfort of the committee. Second, if the committee wants the presence of a revenue officer for any case of misconduct, then it shall summon him/her only if the committee has a valid sanction or permission of the state government.

NG Dastane v/s Srikant S. Shivde Air  2001 SC 2018
This court is a landmark case because the court analyzed section 35 of the advocates act, 1961 and stated that the phrase used, 'reason to believe' is unnecessary and can act as a barrier against the initiation of the proceedings because it is one of the procedural requirements. Moreover, this phrase also violates rule 11 of the Bar council of India chapter-II.

The bench of judges included Honorable justice KT Thomas, honorable justice R.P. Sethi and honorable justiceS.N. Phukan
Appellant- Advocate P.H. Parekh and advocate Amit Dhingra
Respondents- Advocate Shakil Ahmed Syed and senior advocate Vijay S. Kotwal

The case is related to the defendants knowingly, for the purpose of cross examining a witness, repeatedly demanding adjournments. This repeated act of adjournments caused inconvenience to the witness as most of his time got wasted in the court and he had to commute whenever he must be examined on his own expense. It was further found out that the two advocates continuously postponed the cross examination just to delay the process.

After suffering, the aggrieved witness decided to complain against the advocates for misconduct and consequently moved to the state bar council which shut off his complaint on the pretext that there was no strong case of misconduct against the lawyers. Similarly, thing happened when he put a review mechanism to the bar council of India. Thereafter, seeking justice, he filled a case in the apex court.

The appellant was an agricultural scientist working in the United Nations organizations and while the case was going on, he had retired. He had filed a case against a person for the crime of theft of electricity. The two advocates, Shri Shivdeand Kulkarni were from the side of the accused and were jointly arguing in the court of law in his favor. Thereafter, the case had officially begun in 1993 and the appellant was examined in chief.

The real problem of the appellant began when he started facing inconvenience because of the advocates. He was called all the way from New York for cross examination on 30.07.1993 but upon his coming, the two advocates decided to postpone the cross examination stating that all the witnesses in the list were not present in the court and examination can only be dome once all the witness are together in the court room. The date of cross examination was shifted to 23.08.1993.

However, on 23.08.1993 also the two advocates decided to postpone the cross examination stating another reason that one of them had work outside the court which could not be postponed and the other has to leave as his friend's father has died. The magistrate again decided to postpone the date for cross examination. The new date set was 13.09.1993 but following the previous pattern, the advocates again postponed the cross-examination date.

This time however, the other party raised an objection against the postponement, but the magistrate again decided to assign a new date which was 16.10.1993 but again on the pretext that one of the advocates were out of station, the date was postponed to 20.11.1993after which yet again another date was given by the magistrate which was 4.12.1993.

On the prescribed date, the two advocates submitted a written statement to the court that one of the advocates was severely affected by throat infection and could not carry forward the cross examination as the doctor had advised him complete rest for at least 2 weeks. However, the aggrieved witness decided to complain against the advocates when on the same date he found the same advocate who according to the written statement was suffering from throat infection arguing in another court room.

The aggrieved appellant filed a complaint to the state bar council and after that to the Bar council of India but both of them did not take up the case stating that there is no misconduct, but the appellant did not put down his arms and preferred an appeal to the Supreme Court of India.

The court held that the two advocates were guilty of misconduct under section 35 of the Advocates Act, 1961 and stated that if and whenever a witness is present in the court of law for cross examination then such examination shall be conducted on that very day and cannot be postponed without appropriate reasons because otherwise it can be misused and can cause unnecessary plight for the witness and just a phrase used in the statue of advocates act 1961 (section 35), 'reason to believe' cannot act as a roadblock or barrier against notorious or frivolous activities. Written By: Ashna Sharma, BA LLB (H)

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