PROFESSIONAL ETHICS

MODULE 1

1.1 Enrolment of lawyers: qualification prescribed u/s 24 of the Advocates Act, 1961 procedure
INTRODUCTION
The legal profession plays a pivotal role in upholding justice, defending the rights of
individuals and ensuring the proper functioning of a democratic society. In India, advocates,
often referred to as lawyers or attorneys, are individuals who represent clients in various legal
matters, from civil disputes to criminal cases.
To become an advocate in India, one must undergo a rigorous process of admission and
enrolment, governed by the Advocates Act, 1961 and the rules set forth by the Bar Council of
India and State Bar Councils.

THE ADVOCATES ACT, 1961: THE LEGAL FRAMEWORK ON ADMISSION AND

ENROLMENT OF ADVOCATES IN INDIA
The admission and enrolment of advocates in India are primarily governed by the Advocates
Act of 1961. This legislation sets out the rules and regulations that govern the legal
profession in India and establishes the framework for becoming a practising advocate.
Under the Advocates Act, the Bar Council of India (BCI) and the State Bar Councils are
responsible for overseeing the admission and enrolment of advocates. The BCI is the apex
regulatory body for the legal profession in India and lays down the standards for legal
education and professional conduct. Each state in India has its own State Bar Council,
responsible for enrolling advocates within its jurisdiction.

ELIGIBILITY CRITERIA FOR ADMISSION AS AN ADVOCATE

In the case of Sudeer v. Bar Council of India and Anr (AIR 1999 SC 11167), in 1999, the
Supreme Court discussed whether the Bar Council of India has any authority to make rules
for those entering into the legal profession. The Court ruled that a person who meets all the
conditions mentioned in the statutory provisions of Section 24 of the Advocates Act, 1961, is
automatically eligible for practice in any court, including the Supreme Court and BCI cannot
make any rules prescribing qualification for enrolment. The court also held that BCI Rule
prescribing one-year pre-enrolment apprenticeship after the degree is ultra vires.
The Advocates Act, 1961 and its associated rules define the eligibility criteria for individuals
seeking admission and enrolment as advocates in India. These eligibility criteria include the
following:
Citizenship: The applicant must be a citizen of India. This requirement ensures that only
Indian nationals are eligible to practice law in the country.
Age: The applicant must have attained the age of 21 years. There is no upper age limit for
admission as an advocate, as affirmed by the Supreme Court in the case of Indian Council of
Legal Aid and Advice vs. Bar Council of India (AIR 1995 Supreme Court 691).
Educational Qualifications: To be eligible for admission, an applicant must possess a law
degree from a recognised university. The law degree can be obtained through various routes:
a) Completing a 3-year law course after graduation (regular university studies).
b) Completing a 5-year integrated law course after 10+2.
c) Completing a law degree from a foreign university recognised by the Bar Council of India.
Additional Conditions: Applicants must meet any other conditions specified by the State
Bar Council through their rules.
Enrolment Fee: Applicants are required to pay an enrolment fee to both the State Bar
Council and the Bar Council of India.

PROCEDURE FOR ADMISSION AND ENROLMENT OF ADVOCATES IN INDIA

The process of admission and enrolment as an advocate involves the following steps:
 Educational Qualification: The applicant must first obtain the necessary educational
qualifications by completing the prescribed law degree program.
 Application: After fulfilling the educational criteria, the candidate must submit an
application for enrolment to the State Bar Council in the jurisdiction where they
intend to practice.
 Payment: Along with the application, the candidate must submit the prescribed
enrolment fee through a bank draft drawn in favour of the respective Bar Council.
 Verification: The State Bar Council will verify the application and eligibility of the
candidate.
 Enrolment: Once the application is approved, the candidate’s name is entered into the
State Bar Council’s roll of advocates. The candidate is now eligible to practice law in
the jurisdiction of that State Bar Council.
 Bar Council of India: The State Bar Council forwards the enrolled advocate’s details
to the Bar Council of India for inclusion in the All India Bar Council.
 Practice: The enrolled advocate can then begin practising law, representing clients in
various legal matters and appearing in courts of law

EXCEPTIONS AND SPECIAL PROVISIONS ON ADMISSION AND ENROLMENT

OF ADVOCATES IN INDIA
The Advocates Act, 1961, also includes certain exceptions and provisions for individuals with
specific qualifications or experience:
  Vakils and Pleaders: Those who were practising as Vakils, Pleaders or Mukhtars for
at least three years are eligible for admission as advocates.
 Former Public Servants: Individuals who were entitled to practice law but were in
public service on a particular date may still be eligible for admission.
 Qualifications by Experience: The Bar Council of India may specify qualifications
by experience for admission as an advocate.
 Judges: Former judges of any High Court in India may be admitted as advocates
upon retirement.
DISQUALIFICATION FOR ADMISSION AND ENROLMENT OF ADVOCATES IN
INDIA
Section 24A of the Advocates Act defines disqualifications for enrolment, including
individuals who are ineligible to become advocates:
 Those convicted of moral turpitude offenses.
 Individuals convicted under the Untouchability (Offenses) Act of 1955.
 Those dismissed from government employment due to allegations of moral turpitude.
The disqualification is lifted two years after their release from prison or dismissal
from service.
 However, if someone found guilty under the above conditions is benefiting from
the Probation of Offenders Act, 1958, they are not disqualified.
In cases of denial of enrolment due to disqualification, the State Bar Council must inform all
other State Bar Councils, providing the applicant’s name, address and reasons for denial and
the applicant will be prohibited from reapplying.
In legal precedents, it has been established that individuals with legal degrees cannot practice
other professions concurrently. Therefore, a person with a legal degree working in a different
field cannot become an advocate. Similarly, full-time law professors receiving regular
salaries are prohibited from practising as advocates and full-time salaried law officers cannot
enrol as advocates.

CONCLUSION
The admission and enrolment of advocates in India is a well-regulated process designed to
ensure that only qualified individuals with the requisite educational background and
eligibility criteria can practice law.
The Advocates Act, 1961 and the rules set by the Bar Council of India and State Bar Councils
govern this process. Aspiring advocates must fulfil these requirements, submit their
applications and pay the necessary fees to embark on a fulfilling and challenging career in the
legal profession, upholding justice and the rule of law in India.
1.2. Common Terminology
 Solicitor
In India, a solicitor is a legal professional who primarily provides legal advice, drafts
legal documents, and conducts preparatory work for cases. The role is distinct from that
of an advocate, who represents clients in court.
Key Points about Solicitors in India:
 Specialization: Solicitors typically specialize in areas such as corporate law, real
estate, taxation, and intellectual property.
 Limited Practice Rights: Unlike advocates, solicitors do not have the right to appear
and plead in court unless they are also registered as advocates.
 Solicitor Examination: To become a solicitor in India, one must pass the
examination conducted by the Bombay Incorporated Law Society (BILS). This
society primarily regulates solicitors in the states of Maharashtra and Gujarat.
 Work Environment: Solicitors usually work in large law firms or corporate legal
departments, handling transactional work and advisory services.
Path to Becoming a Solicitor:
1. Educational Qualification: Obtain a law degree (LL.B.).
2. Training: Complete a period of articleship (apprenticeship) under a practicing
solicitor.
3. Examination: Pass the solicitors' examination conducted by BILS.
Difference from Advocates:
 Advocate: Represents clients in court.
 Solicitor: Provides specialized legal advice and handles pre-litigation work but may
not represent clients in court.
In India, the term "solicitor" is more prominent in Maharashtra and Gujarat due to the
historical influence of British legal traditions.

 Advocate
An advocate is a person who has registered with a Bar Council of the State. Advocates are
entitled to speak for their clients in court. This is the crucial difference between a lawyer and
an advocate. A lawyer becomes an advocate when he/she joins a bar council/association.
An advocate is a person having a professional certification, i.e. LLB certificate from an
accredited law university/college and a licence to practise law from a Bar Council in India.
As soon as an advocate passes the Bar Council of India exam, he/she is granted the licence to
practise in courts.
Thus, advocates are legal experts having specialised experience/training in the law who are
trained to represent their clients in court. An advocate can be a person or entity representing
clients in court, such as a law firm, company, etc.
(refer to enrolment answer)

 Lawyer
A person who has completed a law degree, i.e. having an LLB degree certificate, is known as
a lawyer. However, having a law degree will not qualify a lawyer to represent clients in court.
After completing a law degree in LLB, a lawyer must pass the All-India Bar Examination
(AIBE) to practise in a court of law and take up cases of clients.
When the lawyer passes the AIBE, he/she can be referred to as an advocate. A lawyer is a
legal professional who has studied law and has the ability to thoroughly understand the laws
of the country. One of the most essential duties of a lawyer is to advise clients on their rights
and responsibilities in legal matters. They can also draft legal documents for individuals and
businesses.
Legal professionals who work in the corporate sector are also known as lawyers. Lawyers
must give up their bar council licence to work in the corporate sector. Thus, lawyers who
have passed the AIBE and are working in corporate fields are ineligible to represent clients in
court. They cannot be known as advocates. However, when they leave the corporate job, they
can activate the status of bar council licence to practise in a court of law and be known as
advocates.
The difference between a lawyer and an advocate is that the advocate is a licensed legal
professional having the right to practise in courts in India. Lawyers can only give legal
assistance to clients, while advocates represent them in court and fight for their rights by
providing evidence on behalf of the clients and arguing to get the best judgement for their
clients.

 Senior Counsel
In India, a Senior Counsel (often called a Senior Advocate) is a distinguished lawyer
recognized for their expertise, experience, and contribution to the legal field. This
designation is an honour conferred by the judiciary, primarily the Supreme Court and High
Court.

Key Characteristics of Senior Advocates:

1. Recognition of Eminence:
o Senior Advocates are selected based on their exemplary knowledge,
experience, and integrity.
 o The designation is a mark of professional excellence and respect in the legal
community.
2. Limited Practice Rules:
o Senior Advocates cannot accept briefs directly from clients.
o They must work with an Advocate-on-Record (in the Supreme Court) or a
junior advocate who handles the preparatory work.
o They focus primarily on presenting cases in court and providing strategic
advice.
3. Special Rights and Duties:
o Senior Advocates are expected to adhere to a higher standard of professional
ethics.
o They play a pivotal role in mentoring junior lawyers and contributing to the
development of the legal system.

Process of Designation:
1. Application or Nomination:
o Lawyers can apply or be nominated for the designation by judges or peers.
2. Evaluation:
o The court evaluates the lawyer’s professional achievements, reputation, and
conduct.
3. Voting:
o The full bench of the Supreme Court or the concerned High Court votes on
whether to confer the title.
o A majority vote is typically required.

Notable Senior Advocates in India:

Prominent figures such as Fali S. Nariman, Harish Salve, and Indira Jaising have held
this distinction, representing some of the most complex and significant cases in Indian legal
history.

Difference from Advocates:

 Advocate: Can directly accept briefs from clients and conduct all aspects of litigation.
 Senior Advocate: Provides specialized representation and counsel in higher courts
but cannot directly engage with clients.
 The title of Senior Advocate symbolizes the highest level of legal proficiency and
professional integrity in India’s judicial system.

 Junior Counsel
In India, a Junior Counsel is a lawyer who assists a Senior Advocate or more experienced
lawyers in preparing and presenting cases. Junior counsels typically work in the early stages
of their legal careers and play a critical role in supporting senior lawyers by handling the
groundwork necessary for legal proceedings.

Role and Responsibilities:

1. Research and Drafting:
o Conducting legal research on case laws, statutes, and precedents.
o Drafting legal documents such as petitions, written submissions, and
affidavits.
2. Case Preparation:
o Preparing briefs and summarizing key facts and issues for senior advocates.
o Analysing evidence and assisting in the development of case strategies.
3. Client Interaction:
o Meeting clients to understand their cases and gather information.
o Acting as a liaison between clients and senior advocates.
4. Court Appearances:
o Representing clients in lower courts or tribunals under the supervision of
senior lawyers.
o Assisting senior counsels during court proceedings by taking notes and
managing documents.
5. Administrative Support:
o Managing case files and coordinating with other legal professionals.

Path to Becoming a Junior Counsel:

1. Educational Qualification:
o Obtain an LL.B. degree from a recognized university.
o Pass the All India Bar Examination (AIBE) to be eligible to practice law.
2. Work Experience:
 o Join a law firm, legal chamber, or court practice as a junior associate.
o Often, junior counsels start their careers by working under senior lawyers to
gain practical experience.
3. Specialization:
o Over time, junior counsels may specialize in specific areas such as criminal
law, civil law, or corporate law.
o As they gain experience and build their reputation, they may eventually apply
for or be designated as Senior Advocates.

Importance in the Legal System:

 Training Ground: Provides new lawyers with an opportunity to learn from
experienced practitioners.
 Foundation Building: Builds essential skills such as legal research, courtroom
decorum, and client handling.
 Support System: Ensures that complex cases handled by senior advocates are
thoroughly prepared.

Junior counsels are vital to the legal ecosystem, laying the groundwork for successful case
outcomes and contributing to the development of the next generation of legal leaders.

 Legal Practitioners
In India, legal practitioners refer to individuals who are legally qualified to practice law and
offer legal services. This term encompasses various categories of professionals within the
legal field, each playing a distinct role in the justice system.

Categories of Legal Practitioners:

1. Advocates:
o Role: Represent clients in courts and tribunals.
o Registration: Must be enrolled with a State Bar Council and pass the All
India Bar Examination (AIBE) to practice law.
o Types:
 Advocates-on-Record (AOR): Specially designated to file cases in
the Supreme Court.
  Senior Advocates: Eminent lawyers recognized for their expertise and
experience.
2. Solicitors:
o Role: Provide legal advice, draft documents, and handle non-litigious matters
but generally do not represent clients in court.
o Regulation: Primarily recognized in Maharashtra and Gujarat, solicitors must
pass an examination conducted by the Bombay Incorporated Law Society.
3. Notaries:
o Role: Authenticate documents, administer oaths, and perform other statutory
functions.
o Appointment: Appointed under the Notaries Act, 1952.
4. Legal Consultants:
o Role: Provide specialized legal advice, often in corporate or international law
contexts.
o Practice: Typically work in law firms or corporate legal departments.
5. Law Officers:
o Role: Represent and advise government departments or public sector
organizations.
o Examples: Attorney General of India, Solicitor General of India, and
Advocate Generals in states.
6. Public Prosecutors:
o Role: Represent the state in criminal cases.
o Appointment: Appointed by the government under the Criminal Procedure
Code (CrPC).
7. Paralegals:
o Role: Assist advocates and law firms with research, documentation, and
administrative tasks.
o Note: They cannot represent clients independently in court.

Legal Framework Governing Legal Practitioners:

 The Advocates Act, 1961:
Regulates the practice of law in India, setting standards for legal education, conduct,
and the profession's structure.
  Bar Council of India (BCI):
The apex body is responsible for maintaining professional standards and regulating
the conduct of advocates.

Requirements to Become a Legal Practitioner:

1. Educational Qualification:
o Obtain an LL.B. degree (3-year or 5-year course) from a recognized
university.
2. Bar Examination:
o Pass the All India Bar Examination (AIBE) conducted by the BCI.
3. Enrollment:
o Enroll with a State Bar Council to practice law.

Role in Society:
Legal practitioners uphold the rule of law, ensure access to justice, and play a crucial role
in maintaining the integrity of the legal system. They serve as advisors, advocates, and
intermediaries between individuals and the judicial system.

 Advocate-On-Record

An Advocate-on-Record (AOR) is a special designation in the Supreme Court of India. Only

an AOR is authorised to file cases and documents directly before the Supreme Court. This
distinction ensures that only qualified and experienced lawyers handle matters in the apex
court, maintaining high standards of legal practice.

About Advocate-on-Record (AoR):

 The concept of AoR was introduced by the SC with the power given to it under
Article 145(1) of the Indian Constitution, which states that the SC may, from time to
time, make rules for regulating the practices and procedures in the court.
 Authorized Representation in SC: An advocate, entitled under the Supreme Court
Rules, 2013 to act/plead for a party in the SC.
 Exclusive Right: No advocate other than an Advocate-on-Record is entitled to file an
appearance or act for a party in the Supreme Court.
 “Advocates-on-Record” replaced the system of “Agents”.
  Eligibility Criteria: An Advocate of 7 years standing is entitled to get him/herself
registered as an ‘Advocate-on-Record’, provided he/ she fulfils the conditions
prescribed.
 1959 Amendment: Introduced the ‘Advocate-on-Record’ examination conducted by
the Supreme Court.
 The Registry of the Supreme Court conducts the Advocate on Record Examination
periodically with the approval of the Examination Committee and under the
supervision of the Secretary, Board of Examiners, appointed by the Chief Justice of
India.
 Training Requirements: An Advocate is ineligible to participate in the examination
unless they have received training from an Advocate-on-Record with at least ten years
of standing. This training must be continuous for a period of one year, starting from
the end of the fourth year after the Advocate’s enrollment.
 Order IV Rule 5 of the Supreme Court Rules, 2013 lays down the requirements to be
fulfilled to become an AoR. They are as follows:
o The Advocate is required to be enrolled with any State Bar Council.
o The Advocate is required to have a prior experience of at least 4 years.
o The Advocate has undergone training of 1 year under a senior AoR.
o The Advocate has appeared for the examination conducted by the SC.
o The Advocate is required to have an office in Delhi within a radius of 10 miles
from the SC house and give an undertaking to employ a clerk, who shall be a
registered clerk, within one month of being registered as an advocate on
record.
 Once registered, an AOR is issued a unique identification number that must be used
on all documents filed in the SC.

 Amicus curiae
The concept of Amicus Curiae (friend of the court) is a pivotal aspect of judicial systems
worldwide, including India. An amicus curiae is an impartial adviser, often a legal
professional or an organisation, appointed to assist the court in complex legal matters. Their
role is important in ensuring justice is served, especially in cases involving intricate legal
questions or significant public interest. This article explores the role, appointment and impact
of amicus curiae in the Indian judicial system, supported by notable case examples.

Definition of Amicus Curiae in India

The term “amicus curiae” originates from Latin, meaning “friend of the court.” It refers to
someone who is not a party to a case but offers information, expertise or insight that bears on
the issues in the case. The primary function of an amicus curiae is to provide a court with a
broader perspective, often bringing in arguments and information that the direct parties in the
case might overlook.
In India, the role of amicus curiae has evolved significantly, becoming a vital part of the
judiciary’s endeavour to uphold justice. Historical cases have seen amici curiae assist in
matters ranging from constitutional interpretation to human rights issues, underscoring their
importance in the legal landscape.

Appointment and Procedure

The appointment of an amicus curiae in India can occur in various ways. The court may
appoint an amicus curiae when it feels the need for an expert legal opinion or when a party is
unrepresented. Sometimes, individuals or organisations volunteer to act as amici curiae. The
Supreme Court and High Courts in India often appoint senior advocates with substantial
experience and expertise as amici curiae.

Procedure for Appointment:

1. Court’s Discretion: The court has the discretion to appoint an amicus curiae. This
appointment is typically made through an official order.
2. Selection Criteria: The selected individual is usually a senior advocate or a person
with significant expertise in the relevant field of law.
3. Fee Structure: The appointed amicus curiae is entitled to a fee, which varies
depending on the stage of the case. For instance, an advocate appointed as amicus
curiae may receive ₹6000 at the admission hearing stage and ₹10000 at the final
disposal stage or regular hearing stage. These fees are determined by the chief justice
or the court.

Role and Functions of Amicus Curiae in India

The amicus curiae serves several essential functions in the Indian judicial system:
1. Advising the Court
The primary role of an amicus curiae is to advise the court on legal matters. They provide
unbiased opinions, helping the court navigate complex legal issues. For instance, in
constitutional matters, amici curiae often present interpretations that ensure the protection of
fundamental rights.
2. Representing Unrepresented Parties
In cases where a party is unrepresented, the court may appoint an amicus curiae to ensure fair
representation. This practice ensures that the unrepresented party’s interests are adequately
protected and that the court has a comprehensive understanding of the case.
3. Providing Expertise and Insight
Amici curiae bring specialised knowledge and expertise to the court. In cases involving
technical or specialised fields, their input can be invaluable. For example, in environmental
cases, an amicus curiae with expertise in environmental law can provide important insights
that aid the court’s decision-making process.

Notable Case Examples of Amicus Curiae in India

1. Md. Sukur Ali v. State of Assam
In this case, the counsel for the accused did not appear before the court. The question was
whether the court could appoint an amicus curiae to defend the accused.
Emphasising Articles 21 and 22(1) of the Indian Constitution, which guarantees the right to
life and personal liberty and the right to be defended by a legal practitioner, the court
appointed an amicus curiae to ensure the accused’s fair trial. This case highlighted the
judiciary’s commitment to upholding constitutional rights.
2. Ali Ibrahim v. State of Kerala
This case involved a significant financial fraud, where unknown persons defrauded the
plaintiff of ₹63 lakhs. Given the grave nature of the case, the court-appointed an amicus
curiae to assist in the investigation. The amicus curiae’s recommendations on involving the
Central Bureau of Investigation (CBI) and excluding the National Investigation Agency
(NIA) were accepted, demonstrating the role’s impact in complex investigations.
3. Manoj Narula v. Union of India
In this case, the court addressed the legality of appointing individuals with criminal
backgrounds as ministers. The appointed amicus curiae provided insights on this matter of
significant public importance. Their recommendations led to the Union Government being
asked to file an affidavit, showing the role’s influence in matters affecting public governance
and ethics.
4. Public Union for Civil Liberties v. State of T.N.
This case dealt with the issue of bonded labour. The court appointed Kapil Sibal as amicus
curiae to assist in implementing the Bonded Labour System (Abolition) Act, 1976. The
amicus curiae’s role involved coordinating with states to organise surveys and ensuring
compliance with legal provisions, highlighting their role in social justice cases.

Impact of Amicus Curiae on Indian Jurisprudence

The involvement of amici curiae has significantly impacted Indian jurisprudence,
contributing to more informed and balanced judicial decisions. Their expertise and
impartiality help courts in several ways:
 Enhancing Judicial Understanding: Amici curiae provide courts with
comprehensive legal and factual analyses, enhancing the judiciary’s understanding of
complex issues. Their input is particularly valuable in cases involving intricate legal
principles or significant public interest.
  Ensuring Fair Trials: By representing unrepresented parties, amici curiae help
ensure that all parties receive fair trials. This practice upholds the principles of natural
justice and equality before the law.
 Influencing Public Policy: In cases with broader social implications, the
recommendations of amici curiae can influence public policy. Their input can lead to
legal reforms and changes in administrative practices, reflecting the judiciary’s
proactive role in governance.

Challenges and Criticisms

Despite their benefits, the role of amicus curiae is not without challenges and criticisms:
 Potential Bias: While amici curiae are expected to be impartial, there is always a risk
of bias, especially if the individual has prior affiliations or interests related to the case.
 Resource Constraints: The involvement of amici curiae can increase the time and
resources required to resolve a case. Courts must balance the need for thorough legal
analysis with the need for timely justice.
 Overreliance: There is a risk of overreliance on amici curiae, which can undermine
the role of the actual parties in the litigation. Courts must ensure that amici curiae
supplement, rather than overshadow, the arguments presented by the litigants.

Conclusion
The concept of amicus curiae in India plays an important role in the judicial process, offering
expert legal opinions and ensuring fair representation. Through their impartial advice and
specialised knowledge, amici curiae contribute to the judiciary’s goal of delivering justice.
While there are challenges and criticisms associated with their role, the overall impact of
amici curiae on Indian jurisprudence has been positive, fostering a more informed and
equitable legal system.
As the legal landscape evolves, the role of amicus curiae will continue to be vital in
addressing complex legal issues and upholding the principles of justice and fairness. The
judiciary’s ability to adapt and effectively utilise this institution will be key to its success in
navigating future legal challenges.

1.3. Seven Lamps of Advocacy

INTRODUCTION
According to former Chief Justice of India S H Kapadia, to succeed as a lawyer, one must
work like a horse and live like a hermit. A great legal practitioner is said to be a Jack of all
trades, a master of none.
These qualities, along with legal ethics rooted in the Seven Lamps of Advocacy book
authored by Justice Abbott Parry, including honesty, courage, wit, proficiency, competency,
bravery, articulacy and rationality, are essential skills for every legal professional.
HONESTY
Lawyers are often labelled as liars, but honesty is a crucial quality for a legal professional.
They have a fiduciary duty to act in their client’s best interests and this honesty should reflect
in every aspect of their work.
Honesty and straightforwardness entail not relying on deceit, dishonesty, cheating or any
other unethical or criminal behaviour. Professional misconduct can harm their growth, so
lawyers should be pioneers of justice, providing proper legal guidance to their clients.
COURAGE
The nexus between courage and honesty is irrefutable. Refined legal knowledge, skills and
truthfulness enhance the ability to remain fearless under pressure and pain. Courage is a
defined quality of great lawyers attributable to eloquent speech, persuasive writing and
critical thinking. They combine extraordinary work ethics with compassion and this quality is
necessary to be an expert in the field. Lawyers should not back down from dissenting actions
out of fear or danger and should uphold their clients in front of the bench.
WIT
Wit denotes the capacity to think clearly and express thoughts concisely and cleverly. Wit is
one of the seven lamps of advocacy. It is the keen perception of connections between ideas
that awaken amusement and pleasure. Wit lightens the darkness of advocacy and it is an
essential quality for advocates to possess.
Quick-wittedness is crucial in court as a planned and prepared speech will not help an
advocate. It is pertinent to note that law is often compared to a spider web because it
entangles and holds the poor and weak, while the rich and powerful break through them
easily. An advocate must possess sufficient wit to bridge this gap.
INDUSTRY
Industry recommends that advocates excel at all the required skill sets to sustain or succeed in
the field of law. Law is not static but dynamic, evolving with the needs of society and
adapting to the changing status quo.
Pursuant to this, an advocate should update themselves in compliance with the adage “There
is no alternative to hard work.” Law is like a language that develops with the life of people
and as such, it grows and strengthens with the people. Thus, if the law gets amended in
compliance with societal needs, lawyers should also be acquainted with the latest law.
ELOQUENCE
Eloquence is the art of speaking and plays a pivotal role in assessing the abilities of an
advocate and determining their career success rate. An eloquent speech holds a long-lasting
effect on the bench, clients and listeners. Eloquence is one of the seven lamps of advocacy.
Eloquence is not about delivering grandiloquent speeches that sound better than reality, but
rather error-free fluent communication that has a persuasive effect. Fluency of speech can be
developed through acquired knowledge and constant practice. To bring off this skill, one must
notice other parties’ faults, have a presence of mind and be efficient in argumentation with
justification.
LEGAL JUDGEMENT
The most important quality that an advocate should possess is a legal judgement. This skill
involves the ability to analyse and evaluate the strengths and weaknesses of a case, anticipate
potential counterarguments and identify the turning points of the case.
The legal judgement also entails the responsibility of informing clients of the true legal status
of their case and making the best decisions based on all possible contingencies.

PROFESSIONAL FELLOWSHIP
While advocates may represent opposing sides in a legal dispute, they should not allow their
professional differences to hinder their ability to maintain a cordial and respectful
relationship.
As a result, bar associations require advocates to obtain membership to encourage
professional fellowship and facilitate positive relationships among legal professionals.
Hence, professional fellowship is also one of the seven lamps of advocacy.

CONCLUSION
The Seven Lamps of Advocacy is a set of essential qualities that every legal person needs to
be a master of. These seven lamps are honesty, courage, wit, industry, eloquence, legal
judgment and fellowship.

1.4. The Bar Council of India and the State Bar Council – Constitution, Powers and Functions
Introduction
The Bar Council of India, established by Parliament, is a statutory body tasked with
regulating and representing the Indian legal profession. It oversees professional conduct, sets
standards for legal education, and grants recognition to universities whose law degrees
qualify for advocate enrolment. Additionally, it exercises disciplinary authority over
advocates.
Establishment of the Bar Council of India
 Statutory, an autonomous body established under the Advocates Act, 1961.
 All India Bar Committee under Justice S.R. Das (1951): recommended the
establishment of All India Bar Councils and State Bar Councils.
  Law Commission of India (1958): Recommended establishment of All India Bar
Councils and State Bar Councils
 Nodal ministry: Ministry of Law and Justice ( Department of Legal Affairs) .
Composition of Bar Council of India
 Consists of both the elected as well as the ex-officio members.
 One member is elected by each SBC from amongst its members.
 Ex-Officio Members: The Attorney-General of India and the Solicitor-General of
India are the ex-officio members.
 Chairman and Vice-Chairman: These are elected by the Council from amongst its
members (tenure 2 years).
 Tenure: Members elected by an SBC shall be for the period for which he/she holds
office as a member of that SBC.
o The members from the State Bar Councils are elected for five years.
 Committees of The BCI: Consists of Disciplinary Committee (one or more); Legal
Aid Committee (one or more); Executive Committee; Legal Education
Committee and Other Committees (if necessary)

Functions of the Bar Council of India

 Lay Standards: of professional conduct for advocates;
 Lay Procedure: to be followed by its disciplinary committee and the disciplinary
committee of each SBC; safeguard rights, privileges, and interests of advocates;
promote and support law reform.
 Deal/ dispose of any matter which is referred to by a SBC.
 Supervision and Control: Exercise general supervision and control over SBCs.
 Promote Legal Education: And lay down standards of legal education. [UPSC
2022]
 Recognised Universities: Whose degree in law shall be a qualification for enrolment
as an advocate.
 Conduct seminars and organize talks on legal topics.
 Recognise (on a reciprocal basis) foreign qualifications in law obtained outside
India.
 Aid to Poor: 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 who shall run the Bar Councils.
  Perform all other functions conferred on it under the act.

Funds and Grants of Bar Council of India

 BCl may establish funds for the following purposes:
o Financial assistance to organize welfare schemes.
o Giving legal aid or advice.
o Establishing law libraries.
 The BCl may also receive grants, donations, gifts, and benefactions for the above
purposes.
 The BCl can become a member of international legal bodies such as
the International Bar Association or the International Legal Aid Association.

State Bar Councils

 Establishment: The Advocates Act, of 1961 provides for the establishment of
an SBC for each state or a common SBC for two or more states/state/union territories.
At present, there are 24 SBCs.
 Composition: Consists of both the elected as well as the ex-officio members.
o SBC with an electorate of 5000: 15 members;
o SBC with an electorate of 5k-10k: 20 members;
o SBC with an electorate of >10k: 25 members.
 Electoral Process: Elected by the system of proportional representation by means of
the single transferable vote from amongst advocates on the electoral roll of the SBC.
 Qualification: One-half of such elected members should have been advocates on a
state roll for 10 years.
 Ex-officio Member: The Advocate-General of the state is the ex-officio member. In
the case of a common SSC, the Advocate-General of each of the states is the ex-
officio member. In the case of the SBC of Delhi, the Additional Solicitor-General of
India is the ex-officio member.
 Chairman and Vice·Chairman: Each SBC shall have a Chairman and
Vice·Chairman, elected by the Council amongst its members.
 Term: The term of office of an elected member is 5 years. If any SBC fails to provide
for the election of its members before the expiry of a said term, then BCI may extend
the said term for 6 months.
  Committees: The SBC consists of the following committees: Disciplinary
Committee (one or more); Legal Aid Committee (one or more); Executive
Committee; Enrolment Committee; Other Committees (if necessary)

Functions of State Bar Councils

 Admit persons as advocates on its roll; Prepare and maintain such roll; Entertain
and determine cases of misconduct against advocates on its roll.
 Safeguard rights/privileges/interests of advocates on roll,
 Promote growth of bar association; Promote and support law firm;
 Conduct seminars and organize talks;
 Organize legal aid to the poor.
 Manage and invest its funds.
 Provide for the election of its members; visit and inspect universities by BCI
directions.
 Perform all other functions conferred on it under this act and do all other things
necessary for discharging the above functions.
Funds and Grants of State Bar Councils
 Purpose of Funds: SBC may establish funds for the following purposes: Financial
assistance to organize welfare schemes; Give legal aid or advice; Establish law
libraries.
 Sources of Funding: SBC may also
receive grants, donations, gifts and benefactions for the above purposes.

1.5. Privileges of a lawyer – Salient features of advocates act, 1961

Certain privileges enjoyed by advocates are mentioned below:
 An advocate has the privilege of exemption from civil arrest. It means an advocate
cannot be arrested in case of civil matters while going to the court or returning from
the court and during the proceedings of the court. The same is not applicable in case
of arrest for criminal offences and contempt of court.
 In case an advocate does any negligence then no action is taken against him/her.
 An exclusive privilege to represent the client in a particular case is given to the
advocate if the client signs Vakalatnama.
 An advocate has the privilege to review Parliamentary bills for remuneration. It
means advocates can also suggest amendments concerning a particular bill.
1.6. Right to Practice
Introduction
In the legal profession, the right to practice law is an important right that grants advocates the
authority to represent clients in legal matters. This right also allows the advocates to
contribute to the administration of justice. The right to practice is only enjoyed by advocates
who are enrolled under the Bar Council as per the Advocates Act, 1961. This Act was enacted
in 1961 with the aim “to amend and consolidate the law relating to legal practitioners and to
provide for the constitution of the Bar Councils and an All-India Bar.” There are
multiple rights and duties of Advocates but the Right to Practice is the most prominent.
According to Article 19(1)(g) of the Constitution of India, “All citizens shall have the right to
practice any profession, or to carry on any occupation, trade or business,” therefore, any
person, entitled as an Advocate, in the realm of law has full right to practice in the Supreme
Court, High Courts, other judicial courts, quasi-judicial courts or before any individual or
group. In this article, we will discuss the Advocates' right to practice law along with certain
privileges enjoyed by Advocates.

Right to Practice Law

In the Advocates Act of 1961, the provisions related to the right to practice are mentioned
under Chapter IV which are illustrated as follows:
Section 29: Advocates to be the only recognized class of persons entitled to practice law
According to Section 29 of the Advocates Act, 1961, Advocates (enrolled in the Bar Council
of India) are the only recognized class of persons with the power to practice the law in the
court. It states “Subject to the provisions of this Act and any rules made thereunder, there
shall, as from the appointed day, be only one class of persons entitled to practice the
profession of law, namely, advocates.” This Section makes the advocate’s right to practice an
exclusive right permitting only the advocates to practice law than any other person.

Section 30: Right of Advocates to practice

Every advocate whose name is entered in the registers of State Bar Councils should be
entitled to the right to practice before any court of India such as the Supreme Court, High
Courts, and Tribunal Courts. Section 30 of the Advocates Act states that “Subject to the
provisions of this Act, every advocate whose name is entered in the [State roll] shall be
entitled as of right to practice throughout the territories to which this Act extends-
 in all courts including the Supreme Court;
 before any tribunal or person legally authorized to take evidence; and
 before any other authority or person before whom such advocate is by or under any
law for the time being in force entitled to practice.”
Section 32: Power of court to permit appearances in particular cases
It states that “Notwithstanding anything contained in this Chapter, any court, authority, or
person may permit any person, not enrolled as an advocate under this Act, to appear before it
or him in any particular case.” In short, this provision of the Act gives authority to any court,
authority, or person to permit the appearance of any person who is not enrolled as an
Advocate to appear before them in any specific case.

Section 33: Advocate alone entitled to practice

As per Section 33 of the Advocates Act, 1961, “Except as otherwise provided in this Act or in
any other law for the time being in force, no person shall, on or after the appointed day, be
entitled to practice in any court or before any authority or person unless he is enrolled as an
advocate under this Act.” It means that no person other than an advocate, who is enrolled
under this Act, is entitled to practice in any court or before any authority or person.

Section 34: Power of High Courts to make rules

This Section allows the High Court to make rules laying down the conditions subject to
which an advocate should be permitted to practice in the HC and the subordinate courts.
Moreover as per Section 34(1A) of the Advocates Act, 1961, “The High Court shall make
rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party
in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in
any Court subordinate thereto.”
In case, a person practices in any court or before any authority or person, whom he/she is not
entitled to practice under the provisions of the Advocates Act then as per Section 45 of the
Act, he/she should be punished with imprisonment for a term extending to 6 months.
The "Right to Practice" is the most fundamental right granted to every advocate practising
law in India. The right to practice is a comprehensive term that includes the right to appear in
all sorts of courts (including the Supreme Court of India), all tribunals, and other such law
forums.
Further, the right to practice is given by section 30 of the Advocates Act, 1961, which states
that
every advocate whose name is entered in the [State roll] shall be entitled as of right to
practice throughout the territories to which this Act extends, −
 in all courts including the Supreme Court;
 before any tribunal or person legally authorised to take evidence; and
 before any other authority or person before whom such advocate is by or under any
law for the time being in force entitled to practice.

Right to Freedom of Speech and Expression

Though the “right to freedom of speech and expression” enshrined under part III and Article
19 (1)(a) of the Indian Constitution, is not specific to lawyers and advocates only but rather
applied to all citizens of India in the same manner as it applies to advocates. However, as the
advocates play a crucial role while pleading or advocating the rights and interests of their
clients, the right to freedom of speech and expression gives confidence and apt to perform
their duty efficiently. They can suggest, comment, give opinions, and criticize about the
matter related to their case in particular and related to respective laws and case laws in
general.

Right to Legal Representation and Defend their Clients

The “Right to Legal Representation and Defending Clients” is another noticeable right that
defines one of the most essential roles of advocates. This right involves the client’s freedom
to be represented by an advocate of their choice during the legal proceedings and advocates
have the right to defend their clients freely and diligently. This right ensures a fair trial and
access to justice and is hence fundamental to the adversarial legal system.

Right to Maintain Client’s Confidentiality

The "Right to Reserve Client’s Confidentiality" is an imperative and ethical principle that
safeguards privacy and builds trust between advocates and their clients. This right ensures
clients that the information shared by them with their advocate remains confidential and
protected. Advocates are bound by professional and ethical duty not to disclose any
confidential information without the client's consent. It develops an environment of trust
essential for effective legal representation. Likewise, the "Right to Client Confidentiality" is
foundational in maintaining the integrity of the attorney-client relationship, promoting open
communication, and upholding ethical standards within the legal profession.

Right to Participate in Bar Associations

The "Right to Participate in Bar Associations" upholds the advocate's entitlement to engage
actively in legal communities and professional organizations, such as Bar Associations.
Advocates have the right as well as mandatory to join these associations, where they can
collaborate, share knowledge, and collectively address matters concerning the legal
profession. This right promotes professional solidarity, facilitates networking, and allows
advocates to contribute to the development and improvement of legal practices.

Right to Charge Fee

Advocates have the right to charge reasonable fees against the services that they intend to
provide or already provided to their clients. This right gives them a means of subsistence and
also encourages them to practice their legal profession efficiently.
Right to Meet with the Accused-cum Client
Meeting with the client is one of the fundamental needs of an advocate to start legal
proceedings. Especially in criminal cases, when a person accused of any crime is arrested and
kept in police lock-up or jail, the advocate has the right to meet with that person/accused in
police lock-up or jail. It is the Police Station-in-charge’s or jailor’s (whatever the case may
be) responsibility to arrange such a meeting in a quiet place without any interference and
disturbance.

Right to Refuse the Case

Right “Right to Refuse the Case” is another fundamental right of an advocate, which means
advocates are not bound to accept, argue, and fight every case that comes their way. In other
words, advocates have the right to accept the case as well as refuse to accept the case.

Conclusion
The Advocates Act of 1961, provides various rights to advocates to ensure the smooth
functioning of the legal system thus promoting a harmonious balance within the law realm.
Among different rights, the Advocate’s right to practice is the most important as it allows the
advocate alone to practice the law before the court or any other authority or person. Despite
the privileges and rights entitled to advocates, if they misuse their power then they are liable
to punishment which is also illustrated under the provisions of this Act. Therefore, to
administer justice in society, advocates should appropriately use their rights.

1.7. Designation as Senior Counsel: Indira Jaising v SC Of India (SC 2017)

Court: Supreme Court of India

Judgment Date: 23 October 2017
Citation: (2017) 9 SCC 766

Background:
The case of Indira Jaising v. Supreme Court of India centred around the criteria and process
for designating advocates as "Senior Counsel" under Section 16(2) of the Advocates Act,
1961. Indira Jaising, a noted senior advocate and human rights activist, filed a writ petition
challenging the lack of transparency and the subjective nature of the procedure employed by
the Supreme Court and High Courts in conferring the designation of Senior Advocates.

Key Issues:
 1. Lack of Transparency: The petitioner argued that the existing system was opaque
and arbitrary, often influenced by favouritism and lacking clear criteria or an objective
evaluation framework.
2. Constitutional Validity: Whether the process adhered to Articles 14 (Right to
Equality) and 21 (Right to Life and Personal Liberty) of the Indian Constitution.
3. Need for Structured Guidelines: Whether the Supreme Court should establish
uniform guidelines and criteria to standardize the designation process across all
courts.

Judgment:
The Supreme Court, in a landmark decision, acknowledged the need for reform in the
designation process and laid down comprehensive guidelines to bring transparency,
objectivity, and fairness to the system. The key directives included:
1. Permanent Committee for Designation:
The Court mandated the establishment of a Permanent Committee in both the
Supreme Court and High Courts. This committee would consist of:
o The Chief Justice of India or the Chief Justice of the respective High Court (as
Chairperson).
o Two senior judges of the court.
o The Attorney General (for the Supreme Court) or the Advocate General (for
High Courts).
o A designated Senior Advocate nominated by the committee.
2. Criteria for Evaluation:
The judgment outlined several factors to be considered, including:
o Legal acumen and domain expertise.
o Number of years of practice (minimum of 10 years).
o Reported judgments where the advocate appeared.
o Publications, academic contributions, and professional achievements.
o Social or public service contributions.
3. Point-based System:
A point-based assessment method was introduced, with specific weightage given to
different criteria. This system aimed to ensure that the designation process would be
more merit-based and free from subjective bias.
4. Transparency and Public Involvement:
The Court emphasized the need to make the process transparent by inviting
applications and publishing the names of applicants and their credentials for public
scrutiny.
Significance:
This judgment marked a pivotal shift towards ensuring greater transparency and
accountability in the legal profession's hierarchical structure. By institutionalizing objective
criteria and involving multiple stakeholders, the Court aimed to uphold the principles of
fairness and meritocracy.
This case set a precedent for judicial reforms, addressing long-standing concerns within the
legal community and strengthening the credibility of the Senior Advocate designation
process.

MODULE 3

3.4 Review by the State Bar Council of its own

Section 44 confers powers of review on the disciplinary committee of a Bar Council by its
own motion or otherwise. However, no order or review of the disciplinary committee of the
state Bar Council shall have effect unless it has been approved by the Bar Council of India.
In O.N. Mahindroo v. Dist. Judge, Delhi[14], the Supreme Court upheld the view of the Bar
Council of India that the Bar Council of India has no power to review an order made by its
disciplinary committee on appeal. But the Bar Council can refer to the disciplinary committee
matters for its reconsideration.

As already stated the power of revision is expressly granted to the disciplinary committee of
the Bar Council which may on its own motion or otherwise review any order passed by it.
The word otherwise is wide enough to include a case referred by the Bar Council for review.
The court was of the view that since disciplinary proceedings against a lawyer will not only
involve the particular lawyer but the prestige of the legal profession as such, the powers of
review of the disciplinary committees should be interpreted widely so as to enable them to
exercise such powers in a suitable case for or against a lawyer even after the matter had been
examined by them. The analogy of the powers of review by the courts under the Civil
Procedure Code or that of the autrefois convict or outrefo is acquit under the Code of
Criminal Procedure should not be made applicable.

3.6. Disciplinary Committee of the Bar Council of India -Organisation and powers and
procedure
Introduction
The Disciplinary Committee of the Bar Council of India is a body responsible for addressing
cases of professional misconduct among advocates. Comprising three members, including
two elected by the Bar Council and one co-opted advocate, it investigates complaints, gathers
evidence, and holds hearings to determine disciplinary action.
Empowered by the Advocates Act, 1961, it has authority akin to a civil court, including
summoning witnesses and receiving evidence. The committee ensures fair proceedings,
adhering to legal principles and procedural safeguards, and may review its own orders. Its
role is vital in upholding ethical standards within the legal profession and maintaining public
trust in the justice system.

Composition of the Disciplinary Committee of the Bar Council of India

The disciplinary committee of the Bar Council of India is constituted in accordance with
Section 9 of the Advocates Act, 1961. This section mandates the formation of one or more
disciplinary committees, each comprising three members. The composition of the committee
is as follows:
 Elected Members: Two members are elected by the Bar Council of India from
among its own members. These elected members play a crucial role in ensuring that
the disciplinary committee reflects the diversity and expertise present within the Bar
Council.
 Co-opted Member: The third member of the disciplinary committee is co-opted by
the Bar Council from among advocates who possess the qualifications specified in
Section 3(2) of the Advocates Act, 1961, but are not members of the Council. This
ensures representation from the wider legal community and brings diverse
perspectives to the disciplinary process.
 Chairmanship: The senior-most advocate among the members of the disciplinary
committee serves as its Chairman. This ensures effective leadership and impartiality
in the proceedings.

Functioning and Powers of the Disciplinary Committee of the Bar Council of India
The disciplinary committee of the Bar Council of India is vested with extensive powers to
inquire into allegations of professional misconduct and take appropriate disciplinary action.
These powers are enumerated under Section 42 of the Advocates Act, 1961, and include the
following:
 Summoning and Examination: The committee has the authority to summon and
enforce the attendance of any person and examine them on oath. This enables
thorough investigation and gathering of evidence during disciplinary proceedings.
 Discovery and Production of Documents: The committee can require the discovery
and production of any documents relevant to the inquiry. This ensures transparency
and access to evidence necessary for a fair decision.
 Receiving Evidence on Affidavits: Evidence can be submitted to the committee in
the form of affidavits, facilitating a streamlined process of evidence presentation.
  Requisitioning Public Records: The committee is empowered to requisition any
public record or copies thereof from any court or office. This authority aids in
accessing official records pertinent to the inquiry.
 Issuing Commissions: The committee can issue commissions for the examination of
witnesses or documents, allowing for a comprehensive investigation into the
allegations.
 Miscellaneous Powers: The committee may exercise any other powers as may be
prescribed, enabling it to adapt to the evolving needs of disciplinary proceedings.

Restricted Powers and Procedural Safeguards

While the disciplinary committee possesses significant powers, certain restrictions and
procedural safeguards are in place to ensure fairness and adherence to legal principles. These
include:
 Prior Approval for Certain Actions: Certain actions of the committee, such as
summoning presiding officers of courts or officers of revenue courts, require prior
approval from the respective authorities. This safeguards against misuse of power and
ensures respect for the judicial hierarchy.
 Deemed Judicial Proceedings: Proceedings before the disciplinary committee are
deemed to be judicial proceedings, ensuring that they are conducted with the requisite
diligence and adherence to legal norms.
 Review of Orders: The committee has the power to review its own orders under
Section 44 of the Advocates Act, 1961. This allows for the correction of any errors or
miscarriage of justice that may have occurred during the disciplinary process.
 Quorum and Decision-Making: In the event of the unavailability of the Chairman or
any member of the committee, proceedings may still continue, provided that the final
decision is deferred until the required quorum is met. Additionally, if the committee is
unable to reach a majority decision, the matter is referred to the Chairman of the Bar
Council for resolution.

Important Case Laws

Allahabad Bank Vs. Girish Prasad Verma
In this case, Allahabad Bank filed a complaint against its advocate, Girish Verma, alleging
misappropriation of court fees paid for two suits. The Uttar Pradesh Bar Council’s
disciplinary committee found Verma guilty and ordered his removal from the state bar
council’s roll, emphasizing the noble conduct expected from legal professionals.
V. C. Rangadurai Vs. D. Gopalan
Advocate V.C. Rangadurai concealed conflicting interests from his client, resulting in
deception. The disciplinary committee suspended Rangadurai for six years, a decision upheld
by the Supreme Court, albeit reducing the punishment to one year due to no doubt about the
advocate’s misconduct.
Rajendra Pai Vs. Alex Fernandes
Advocate Alex Fernandes, involved in a land acquisition case, was found guilty of
withdrawing compensation funds under false pretences. The disciplinary committee initially
ordered his permanent removal from the bar council rolls, later modified by the Supreme
Court to a seven-year suspension, citing disproportionality of punishment.
Joginder Singh vs Bar Council of India
Joginder Singh, convicted under IPC Section 473, concealed criminal proceedings while
transferring his bar council membership. The disciplinary committee barred him from
practising and removed his name from the roll, a decision upheld by the Delhi High Court for
being in line with the evidence and circumstances.
John D’Souza vs Edward Ani 1994 AIR 975
Advocate John D’Souza withheld a client’s will despite requests, leading to its loss upon the
client’s death. The Bar Council of India suspended D’Souza for a year, a decision upheld by
the Supreme Court due to his failure to return the will entrusted to him, affirming the duty of
advocates to uphold client trust.

Conclusion
The disciplinary committee of the Bar Council of India plays a crucial role in upholding the
integrity and ethical standards of the legal profession. By conducting fair and impartial
inquiries into allegations of professional misconduct, the committee ensures accountability
among advocates and maintains public trust in the legal system.
Through its composition, powers, and procedural safeguards, the disciplinary committee
seeks to strike a balance between effective regulation and the protection of advocates’ rights.
As a cornerstone of legal regulation, the disciplinary committee embodies the commitment of
the legal profession to uphold justice, integrity, and ethical conduct.

MODULE 4

4.1. The Contempt Law and Practice – Articles 129 and 215 of the Constitution of India,
Contempt of Court Act, 1971
INTRODUCTION
According to the Oxford Dictionary, contempt is the state of being despised or dishonoured;
disgrace. Any conduct that tends to bring the authority and administration of law into
disrespect or disregard or to interfere with or prejudice parties or their witness during
litigation is contempt of court, says Oswald. Contempt is defined by Halsbury, as consisting
of words spoken or written which obstruct or tends to obstruct the administration of justice.
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 court 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 wilful
disobedience to any judgement, decree, direction, order, writ or other process of a court or
wilful breach of an undertaking given to a court.
Thus, from the abovementioned definition it can be ascertained that there are two important
essentials to constitute civil contempt:
1. Disobedience of any judgement, decree, direction, order, writ or other process of a
court or an undertaking given to the court.
There should be disobedience of a valid order to constitute contempt of court. An order
includes all kinds of judgements, orders-final, preliminary, ex-parte, contempt order.
Disobedience of a decree, direction, writ or other process of a court, or an undertaking
given to the court, will also amount to contempt of court. It was held by the Supreme
Court, in the case of H.Puninder v. K. K. Sethi,[2] that in absence of the stay order in
appeal or revision of higher court, the order appealed against should be complied with,
subject to any order passed at later stage, otherwise it is open for the contempt court to
proceed further on merit of the contempt case
A different view was upheld by the Supreme Court in case of interim relief/stay order.
The Supreme Court, in the case of State of Jammu and Kashmir v. Mohammad Yakub
Khan,[3] held that where stay vacation application has been promptly filed by the
respondent against whom the stay order has been passed and the same is pending for
disposal the court shouldn't proceed in the contempt case unless and until the stay
vacation application has been decided.
So far as the breach of undertaking as contempt of court is concerned, the basis behind
this is that the contempter obtains a beneficial order for himself from the court, by giving
an undertaking and if he fails to honor the undertaking at a later stage, he plays a serious
fraud on the court and thereby interferes with the administration of justice by bringing the
court into disrespect.
An undertaking can be given to the court in two ways:
· By moving an application or filing an affidavit before the court clearly stating the terms
of the undertaking.
· By giving s clear and express oral undertaking which is incorporated by the court in the
order.
A willful breach of an undertaking, given according to the abovementioned ways, would
amount to contempt of court.

2. The Disobedience or breach must be willful, deliberate and intentional.

Mere disobedience or breach of the court’s order by the person is not sufficient to
constitute civil contempt. Such a disobedience or breach must be willful, deliberate and
intentional. In order to exercise its power to punish the contemnor the court has to be
satisfied beyond reasonable doubt that the contemnor has willfully, deliberately and
intentionally violated the court’s order.
No court including contempt court is entitled to take trivialities and technicalities into
account while finding fault with the conduct of the person against whom contempt
proceeding is taken.
Where the order has been substantially complied with and a reasonable explanation has
been provided for the delay in compliance with the order, the contempt will not lie as the
violation is not willful and deliberate.

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, or
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.
Thus, from the abovementioned definition, it can be ascertained that there are four
essentials to constitute criminal contempt:
1. Publication of any matter.
The word publication has been given a very wide meaning so far as contempt of court is
concerned. It includes words (spoken/written), signs and visible representation. It also
includes the publication of any material in the newspaper and magazines, the
broadcasting of any material on the radio and the exhibition of anything in cinemas,
theatres and television.
If these materials contain anything which scandalizes or lowers or tends to scandalize or
lower the authority of any court, prejudices or interferes with the due course of any
judicial proceeding or interferes or tends to interfere with the administration of justice, it
will amount to criminal contempt of the court.

2. Scandalizing or lowering the authority of the court.

Scandalizing might manifest itself in various ways but in substance, it is an attack on
individual judges in particular or the court as a whole, with or without reference to a
particular case, by casting unwarranted and defamatory aspersions upon the character or
the ability of the judges. Such conduct is punished as criminal contempt for the reason
that it tends to create distrust in the minds of common people and thereby shatters
confidence of the people in the judiciary.
The Supreme Court made it clear, in the case of Arundhati Roy, that criticism which
undermines the dignity of the court can't be said to be fair criticism and does not fall
under the ambit of freedom of speech and expression as is guaranteed by Article 19 (1)(a)
of Constitution of India. Thus prosecution of persons for scandalizing the court is not
prohibited by constitutional right of freedom of speech and expression under Article 19
(1)(a).
Writing/drafting in pleading or petition by which defamatory allegations have been
levelled against a judge in particular or court as a whole, would amount to criminal
contempt, held the Supreme Court.[4] In case of U.P Residential Employee Cooperative
Society v. New Okhla Industrial Development Authority[5], the Supreme Court held that
filing a false affidavit in the court with a view to mislead the court will amount to
criminal contempt.

3. Prejudice or interference with the due course of any judicial proceeding.

Any publication that prejudices or interferes with the due course of any judicial
proceeding would amount to criminal contempt of court. Media trial or trial by newspaper
is not considered proper because it affects the fairness of the trial and is likely to cause
interference with the administration of justice.
The knowledge of the pendency of the case and reasonable grounds to believe that the
case in pending is sufficient to make out criminal contempt and the intention and motive
of the publisher behind the content of the publication is not relevant for the purpose of
criminal contempt. If it lowers the authority of the court and causes interference with the
due course of judicial proceedings it would amount to criminal contempt.
In civil cases, the pendency starts with the filing of the plaint and in criminal cases, with
the filing of a charge sheet or the issuance of summons or warrants. The pendency
continues till the case is decided. In case an appeal/revision is filed, the pendency
continues till the appeal or revision is decided. If an appeal/revision is not filed, the
pendency continues till the period of limitation for filing the same has not expired. Once
it expires, the pendency is over.

4. Interference/Obstruction with the administration of justice in any other manner.

The publication or doing of any act which interferes or obstructs or tends to interfere and
obstruct in the administration of justice in any other manner would amount to criminal
contempt of court. This clause is residuary, covering those cases of criminal contempt
which are not expressly covered by section 2(c) of the Contempt of Court Act.
The term 'administration of justice' is much wider than the term 'course of judicial
proceedings'. Every person in India is entitled to approach the court to secure justice and
for the redressal of his grievances and the court has to decide disputes between the parties
as per law and equity.
Any conduct which tends to prevent or prevents a party from approaching the court,
amounts to criminal contempt of court, for eg. writing a threatening letter to litigate the
party or his counsel preventing him from attending the court, writing a letter to the judge
or approaching him to influence his judicial conscience or approaching a counsel for
undue favour are all examples of interference with the administration of justice and are
contempt of court.
An advocate is an officer of the court and undue interference with the advocate in the
discharge of his professional functions amounts to contempt of court. Casting aspersions
on counsel or approaching him for not defending a particular person amounts to criminal
contempt of court.
It was held by the Supreme Court in the case of J. R Parashar v. Prashant Bhushan[6], that
holding a dharma or resorting to strike by itself may not amount to contempt of court but
if in doing so the presiding officer of the court, its staff, the police personnel and the
litigating parties are prevented from approaching the court, it will amount to interference
in the administration of justice and will be criminal contempt of the court.

Punishment Under The Contempt of Court Act

Section 12 of the act deals with the punishment for contempt of court. It provides as
follows
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: -(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 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. Explanation.-For the purposes
of sub-sections (4) and (5),-
(a) “company” means any body corporate and includes a firm or other association of
individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
Provided that, nothing contained in this sub-section shall render any such person liable to
punishment, if he proves that the contempt was committed without his knowledge or that
he exercised all due diligence to prevent its commission.
Period of Limitation
Section 20 deals with the period of limitation for initiating contempt proceedings. Section
20 provides that no court shall initiate contempt proceedings either on its own notions or
otherwise after the expiry of one year from the date on which contempt is alleged to have
been committed. The period of limitation is applicable both in civil as well as criminal
contempt. Contempt proceedings can be initiated either by applying or by the court itself
suo moto. In both cases, contempt proceedings must be initiated within one year from the
date on which contempt is alleged to have been committed.
In criminal contempt, contempt is alleged to have been committed the moment
scandalization of court or interference with the administration of justice takes place.
Consequently, the period of limitation immediately starts running. But, in case of civil
contempt, the period of limitation does not start from the date of the order. It starts
running after the expiry of the period mentioned in the order after the service of a
certified copy of the order upon the other side. If no time limit is mentioned in the order,
the order should be complied with within a reasonable period. The term “reasonable
period” has been interpreted to be three months from the date of service of the certified
copy.

Defences 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. The 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. Even though the order has been passed in the presence of both the parties or
their counsels. So, it can be successfully pleaded in defence that the certified copy of the
order was not formally served on the alleged contemnor.

· Disobedience or breach was not willful

It can be pleaded that although disobedience or breach of the order has taken place 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.
The Court may assess the intention of the party from the act done in the same way as a
reasonable prudent man would assess in the given circumstances.

· Order disobeyed is vague or ambiguous

If the order passed by the court is vague or ambiguous or is not specific or complete, it
would be a defence in the contempt or the alleged contemnor can raise a plea in defence
that the order whose contempt is alleged cannot be complied with as the same is
impossible. In the case of R.N.Ramaul vs. State of Himachal Pradesh[7] the Supreme
Court directed the respondent corporation to restore the promotion of the petitioner in
service from a particular date.
This direction was complied with by the respondent corporation by treating him as
promoted from that particular date which was given in the order. However, the monetary
benefits for that period were not paid by the respondent corporation and as such the
contempt petition was filed. Respondent Corporation took a defence that monetary
benefits were not paid to the petitioner because there was no direction in the order for
payment of monetary benefit and they cannot be held liable for contempt.
In the case of Bharat Coking Coal Ltd. vs. State of Bihar[8], the Supreme Court clarified
the legal position by holding that where the order is incomplete and ambiguous, the
parties should approach the original court and get the order clarified by getting the
ambiguity removed.

· 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 defence
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. In the case of T.M.A. Pai Foundation vs. State
of Karnataka[9] it was held that this defence won’t be allowed if a doubt about the order
has been deliberately created when actually there is no doubt at all.

· Compliance with the order is impossible.

In proceedings for civil contempt, it would be a valid defence that compliance with the
order is impossible. However, the cases of impossibility must be distinguished from the
cases of mere difficulty. In the case of Amar Singh v. K.P.Geetakrishnan, the court
granted certain pensioner benefits to a large number of retired employees with effect from
a particular back date. The plea of impossibility was taken on the ground that the
implementation of the order would result in a heavy financial burden on the exchequer.
However, the plea of impossibility was rejected by the court with the observation that
although it’s difficult to comply with the order it’s not impossible to comply and
therefore, it should be complied with.

· 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. In case of Krishna Devi Malchand V. Bombay Environmental Action Group[10],
the Supreme Court clarified the legal position and held that if the order is void, it cannot
be ignored by the party aggrieved by it. The litigating party cannot assume the role of
Appellate or Provisional authority in order to say that the order is not binding upon them.
Consequently, if any party feels that the order has been passed by a court which had no
jurisdiction to pass it, he should approach the same court to seek such a declaration by
moving an application for recall of the order. If the application is rejected, the Appellate
Court can be approached for such declaration. In the case of the State of Jammu and
Kashmir vs. Mohd. Yaqub Khan[11], the Supreme Court has held that where a stay
petition application is pending, the Contempt Court should not proceed with the contempt
case till the stay vacation application is decided. So, in case of an interim order having
been passed by a court which has no jurisdiction, a stay vacation application can be
promptly filed, raising the plea of lack of jurisdiction.
In Dr. H. Puninder Singh vs. K.K. Sethi[12], the Supreme Court has held that if there is
any stay order passed by the Appellate Court, the contempt court cannot proceed.
However, if no interim order application is passed by the Appellate Court, the court can
proceed and the order of the original court should be complied with subject to any order
passed by the Appellate Court at the final stage.

Defences Against Criminal Contempt

· Innocent publication and distribution of matter.

S.3 deals with this defence. 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 contemptner 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 with 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. S. 7
of the Act provides an Exception to the general principle that justice should be
administered in public. Subsections (1) and (2) of S.7 provide that a person shall not be
guilty of Contempt of Court for publishing the text or for publishing a fair and accurate
summary of the whole or any part of the order made by the court in camera (in Chamber)
unless the court has expressly prohibited the publication of the proceedings on the
grounds of:
a) Public Policy
b) Public Order
c) Security of the State
d) Information relating to a secret process, discovery or invention, or, in the exercise of
the power vested in it.

· 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 defence can be
taken that the statement complained of (in respect of the publication of which criminal
contempt has been initiated) must be in 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. In short, fair criticism means that criticism which while criticizing the
act of a Judge does not impute any ulterior motive to him. In the case of Arundhati Roy,
the Supreme Court has held that judicial criticism cannot be invoked under the garb of
Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India.
The Supreme Court further clarified that fair criticism of the judiciary as a whole or the
conduct of a Judge in particular may not amount to contempt if it is made in good faith
and in the public interest. To ascertain the 'good faith' and 'public interest' the Courts have
to take into consideration all the surrounding circumstances including the person's
knowledge in the field of law, the intention behind the comment and the purpose sought
to be achieved. A common citizen cannot be permitted to comment upon the Courts in the
name of criticism by seeking the help of Freedom of speech and expression for the reason
that if it is not checked, it would destroy the judicial institution itself.
In the present case, Arundhati Roy was not found to have knowledge or study regarding
the working of the Supreme Court or judiciary of the country and so the defence of fair
comment in good faith and public interest taken by her was rejected and she was punished
for criminal contempt.

· Bonafide complaint 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 subordinate. The protection
of this section will be available only when it is proved that the complaint was made in
good faith.
In ascertaining the 'good faith' the intention and the purpose sought to be achieved by the
complaint will be taken into consideration and it will be ensured that the same was not
made with ulterior motives.

· 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 a
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
defence in any proceeding for criminal contempt if it is satisfied that it is in the public
interest. Thus, truth is now a defence 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 contemptner cannot be punished for non-
compliance of one interpretation. But, to succeed in this defence, 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.
The publication or other Act amounts to Contempt of Court only when it has nexus with
the functioning of a judge. The statement complained of may 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 remediless and he has the
same remedies available which are available to a common man. A defamatory attack on a
judge may be Libel or Slander and he has a discretion to proceed for Defamation in civil,
criminal or simultaneous proceedings against the person concerned but he cannot be
punished summarily under criminal contempt of court. The object of 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. So, any personal
attack upon the judge unconnected with the office he holds, is dealt with under the
ordinary rules of Libel and Slander.