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CHAPTER - 3

NECESSITY OF PROFESSIONAL ETHICS AND EMERGING


CHALLENGES

I. Introduction
Throughout history, humanity h a s struggled with those aspects of
our values and beliefs that concern the morality of our conduct - what is
right and wrong, good and bad, acceptable and unacceptable behavior.
Questions of personal accountability and public obligation in all spheres
of life are vastly more complex today t h a n they were j u s t few years ago.
As values change and society attempts to cope with a myriad of
problems, m a n y prompted by development in science and technology,
new ethical issues emerge and old ethical issues m u s t be revisited. The
profession of law is the only profession which is generally described a s a
learned and noble profession by the world for several centuries. It is a
learned profession par excellence. No other profession touches h u m a n
life at so m a n y points than law. The people engaged in this profession
while performing their professional duties not only earn their livelihood,
b u t also influence t h e lives a n d conditions of life of many. A lawyer while
lawyering, an advocate while doing advocacy is no doubt making his own
fortune, b u t in addition to that his art of lawyering, his techniques of
advocacy, his skills of argument, his scientific treatment to the law and
the facts in h a n d cast definite shadows on the conditions in society,
lawyers make the most significant contribution to the final outcome of
justice system that is the court verdicts and judgment which ultimately
shape the future path of our society. The role of the lawyer is very central
to the very vital organ of the state that is judiciary. On the stage of
administration of justice, his contribution is of immense importance. The
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wheels of system of administration of justice are j a m m e d when he is


absent from the stage. Law is not a mere profession to keep the pot
boiling but it is a noble profession. Though it is generally believed that
lawyers are people who thrive on feuds, it cannot be said t h a t the legal
profession is anti-social. Legal profession is closely dovetailed with the
ever constant changing society and the profession of the lawyer can be
elevated into a sublime of vocation if he becomes the real saviour to
ameliorate the suffering of the people, i There have been m a n y shrewd,
able, eminent, upright and conscientious advocates, b u t it can hardly be
said t h a t there are settled traditions to inspire the young m a n who is at
the threshold of profession. Yet young men are choosing a most ancient
and exalted profession of the world, a profession which is to have a s its
members lawyers whom Mr. Justice Maugham (later the Lord Chancellor)
described a s the 'custodian of civilization' t h a n which there can be no
higher aim and no nobler duty - a profession demanding the cardinal
virtues in its members which would make the order "as one of the
means most proper to maintain the propriety, delicacy,

disinterestedness, desire of conciliation, move of t r u t h and justice and


enlightened regard for the weak and the oppressed."^
The lawyers a s the social thinker have to play a special role for the
solidarity, unity, integrity, welfare and good of the society. A profession
which is performing such vital service to the society m u s t also be
expected to conduct itself to come upto the expectations of the society.
His professional conduct m u s t be above board. A deviance on the part of
the individual members of the legal profession h a s a bearing on the
interest, lives and conditions of the life of the m e m b e r s of the society.
Therefore, the society h a s an interest in the m a n n e r of regulation of the
deviations, deviances and delinquencies in the profession conduct of this

1 C. Rama Swamy Sarma, Lawyer's Role in Present Society, Andhra Law Times 1987
(Journal Section), p. 14
2 Radha Binod Pal, "Professional Ethics," AIR 1961 (Journal Section), p. 6 5
104

profession. To meet this interest, the s t a n d a r d s of profession conduct


called the legal ethics serve a s i n s t r u m e n t s to regulate the professional
conduct. Law's nobility as a profession lasts only so long as the members
maintain their commitment to integrity and service to the community.
*Indeed the monopoly conferred on the legal profession by Parliament is
coupled with a responsibility towards the people, especially the poor.
Viewed from this angle, every delinquent who deceives his common
client, deserves to be frowned upon.
The profession of lawyers ordains a high level of ethics as m u c h a s
in the m e a n s a s in the ends. Justice cannot be attained without the
stream being pellucid throughout its course and this is of great public
concern, not merely profession care, the s t a n d a r d s of professional
conduct, that is the legal ethics not only serve the interest of the society
but they also help the legal profession to maintain the honour and
dignity of the profession as well as the system of administration of justice
prevailing in the society. Further, to secure a spirit of friendly
cooperation between the bench and the Bar in promotion of highest
s t a n d a r d s of justice. It also establish honourable and fair dealings of the
counsel with the client, opponent and witnesses. Above all the lawyers
discharge their responsibilities to community at large.

II. Meaning of Ethics


The word 'ethics' is derived from the Greek word 'Ethos' meaning
custom or a habitual mode of conduct. Ethics is essentially a moral
science. It is the branch of philosophy which is only concerned with
h u m a n character and conduct.^ Though generally 'ethics; is treated to be
the same a s moral philosophy, yet it is convenient to distinguish between
'ethics' which refers to systematic general science of right and wrong

3 Sunil Deshta and Kiran Deshta, Practical Advocacy of Law 109 (2006); see also
Justice Ismail, "Profession Ethics and Etiquette," The Law Weekly, 17 J u n e , 1978,
Vol. XCI (91), p. 77
105

conduct, and morals or morality which refers to the actual p a t t e r n s of


conduct and direct working rules of moral action. Generally speaking,
ethics can be said to be the study of h u m a n actions in respect of they
being right or wrong actions of individuals and social groups with which
we are now concerned is the one belonging to the profession of law.
Different people have evolved theories of what constitutes 'ethics'. In
everyone of them, the basic question h a s always been what will be
conducive to the welfare a n d good of all, in other words, the greatest
common good, whether it is with refference to particular group,
community or society a s a whole. When the mind gets broadened and the
notions of group get expanded distinctions based on a particular social
group, community or society disappear, and we are ultimately left with
the test of what is good for the h u m a n i t y a s a whole."^
In matters of ethics, several questions and aspects are involved.
But the broad and basic question with which all theories of ethics are
concerned, is," what ought men to aim at; and how ought they to live" as
distinguished from what men's aims and purposes. The answer to the
question, what are men's actual aims and purposes, may not be
complimentary a n d flattering to m a n y of u s . But the answer to the
question, "what ought men to aim at; how ought they to live" will always
be enlightening an elevating. Unless we have our eyes fixed on, "what
ought men to aim at, and how ought they to live," progress will be
impossible, because we lose sight of the distinction between 'what is' and
'what ought to be'. 'What ought to be' h a s always been the noble aim of
every person with reference to his or her activity, while 'what is' is the
result of a compromise, which a person h a s convinced himself to be
inevitable in the practical h u m d r u m world.^ In order to be slip further, it
is always desirable to have the goal before one's mind and view, a s an

4 Justice Ismail, op. cit. at 77


5 Ibid
106

ideal so t h a t even when he falters, fails or falls down, he will be able to


get u p with a renewed determination to walk towards that ideal.
Ethics is present in every h u m a n society. Ethics are born in
h u m a n civilization since the beginning. Every religion preaches morals
and ethics to every person to that entire society. Ethics have no statutory
force. It is something that maintains the moral integrity of a community.
Ethics embodies a set of n o r m s and principles which govern the moral
conduct of a member of the community. It is essential because h u m a n
n a t u r e tends to choose the easier path that often does not lead to good.^
Ethical n o r m s are therefore meant to chastise and reform a person and
not to s u p p r e s s desire. There is need to chastisement and straightening
of the crooked will so a s to enable it to cooperate with reason. Unlike
other sciences which are more on the theoretical since, ethics is highly
practical in its approach. It seeks to guide man's action by indicating
which is good and which is bad or what is right and what is wrong. From
this point of view, ethics is the noblest science. When we speak of ethics
we are at once led to think or four key concept which are truly the
cornerstones of ethical evaluation, they are 'good' and its opposite 'bad,
'right' and its opposite 'wrong'. If we are to remove these concept from
dictionary of ethics then we would have altogether destroyed ethics.
There is a need to examine what does the term 'good' imply. A
thing is generally said to be good when it is valuable for some end.^ Not
to m i s u n d e r s t a n d this term, one should remember that there are three
divisions of 'good', namely metaphysical good - the goodness of a thing or
action in its very self; physical good - something that is related to
conduciveness and suitability of a thing or the desirability of a thing;
and lastly moral good - which applies only to acts of rational beings. One

6 G. Spiller, Ethical Discipline in Encyclopedia of Religion and Ethics 4 0 5 (1937),


Vol.V
7 J . Mackenzie, A Manual of Ethics 2 (1980)
107

can term it a s real good or apparent good.^ Real good is t h a t which is


seen or judged a s good for a thing and is really so. Apparent good is that
which seems to be good but is actually not good for a being.
Similarly, the term 'right' which comes from the Latin root rectus,
meaning straight or according to rule 'right' applies only to conduct and
not to things. The term 'right' h a s been generally accepted as a better
term in determining the ethical n a t u r e of an action rather t h a n the term
'good'. An action is right if it conforms to the n o r m s of morality. For
example, "I speak the truth", is a right action because it is conformity
with the ethical law which says "speak the truth."
These concepts of 'good' and 'bad', 'right' and 'wrong' are most
universal concepts. They are present in every society and are inherent in
every man. A person does not need to go to school to learn from them.
These are termed a s the voice of conscience which h a s endowed on
h u m a n being by God. However, ethical evaluation of conduct varies from
place to place. Certain types of conduct may be considered morally
acceptable in one society while in other societies they may be morally
prohibited.
Etymologically, the word 'ethics' denotes a location, a place where
people lived together. With the passage of time, the word h a s acquired
other meanings, including custom, temperament, character, and a way of
thinking. In ancient philosophy it possessed a terminological meaning
denoting the n a t u r e or permanent character of a physical or social
phenomenon.
The history of the word 'ethics' is similar in the Latin of Ancient
Rome. The Latin word for ethos is, roughly, mos, which can be translated
as mores, custom, character, behaviour; property inner n a t u r e ; law,
regulation, fashion, style of clothing. Relying on the Greek precedent and
making a direct reference to Aristotle, Cicero formed the adjective moralis

8 Ibid.
108

(that which pertains to character, customs), and later, in the 4*^ century
A.D., Romans coined the term moralitas. Etymologically, the Greek
ethica, and the Latin moralitas are the same; they did not evolve inside
popular consciousness but are artificial terms coined to give a n a m e to a
certain field of research. The two terms, ethics and morality, gained
currency throughout Europe, diverging in meaning as cultural
development progressed. The term ethics h a s retained its original
meaning still denotes a scientific discipline, while morality is the
phenomenon study by this discipline - i.e. its subject - matter.
Ethics is the discipline which studies morality. This definition
outlines the field of research into morality but does not pinpoint its
subject. The latter is liable to historical change; it conveys a certain
interpretation of morality and registers a qualitative stage in cognition of
its essence.
In nutshell, ethics are morals. It is the science of morals and
duties. There are the first stage in a society and are seen in every kind of
h u m a n life. In other words, these are inherent in every m a n . Generally
these are found in religions. Ethics are a bundle of habits a n d morals
and are necessary to control and regulate every h u m a n being. If ethics
are violated, there can be no punishment. There shall be no external
enquiry, but only internal regret and confession. The person, who
violates ethics, cannot be expelled from the society or profession. Ethics
have their source from the tradition, culture and heritage. These guard
the society at large and guide the person individually.

Ill Nature of Ethics


Ethics is far from being purely a natural science which seeks only
to explain things a s they are, their n a t u r e and essence b u t it is a
109

normative or critical science.^ It is concerned not only with things and


actions b u t our j u d g m e n t s upon t h e m as well. Ethics deals with h u m a n
acts. H u m a n acts are done voluntarily with knowledge and free will.
Ethics is not a practical science unlike other sciences. Sciences of
medicine a n d engineering perfect the practitioner. The student who
studies t h e m becomes a n expert in those fields. On the other h a n d , the
study of ethics does not necessarily perfect a person. The person who
knows all about ethics need not be a saint. Knowledge of ethics does not
make him or her a better person, lo Even though ethics may not make
better people yet we should not be forgetful of the valuable service it
renders to humanity.
Ethics is essentially concerned with "Right and wrong". How do we
judge whether an action is right or wrong? This h a s been a perplexing
question for mankind. Different groups of people have different
approaches of criteria in judging the moral quality of a n action. In
general there seems to be three accepted tests for judging an action,
these are:

(a) Judging by the consequence of an action for happiness


This is utilitarian approach to ethics. Utilitarianism judges the
rightness of an action in terms of its utility of happiness a s it is usually
understood. ^^ The universally accepted principle of utilitarianism is
therefore "the greatest h a p p i n e s s of the greatest number." T h u s the
a d h e r e n t s of utilitarianism hold that an action is morally right when it
maximized utility or happiness and a morally good person is one who
seeks to promote h a p p i n e s s in society. ^^

9 J. H. Muirhead, "Ethics" in Encyclopaedia of Religion and Ethics 414 (1974), Vol.


11
10 Mackenzie, A Manual of Ethics 5 (1980
11 M . J . Longford, The Good and the True : An Introduction to Christian Ethics 9 (1985)
12 Ibid
no

(b) Judging by the principles of universalization


This is based on the Kantian moral philosophy. According to this
approach the principle for right and wrong is based on the golden rule of
Christ "do u n t o others a s you would like others do to you" or negatively it
would be "do not do u n t o others what you would not have done to you."
Therefore the proponents of this principle of universal norm, hold t h a t an
action is morally right when it adheres to this universal norm.i^
However, this principle cannot be applied to actions in any
circumstances, for the same action in different circumstances does not
produce the same consequence. This principle therefore can be effectively
applied when one is able to judge the circumstances in which an action
takes place

(c) Treating persons as ends in t h e m s e l v e s


This is another Kantian ethical proposition. As Kant himself opines
this is not distinct from the second principle. This is reformulation of the
previous principle. It is evident t h a t when we want to universalize a
principle of action, we need to respect and consider every person involved
a n d grant t h e m the basic dignity. ^'^ This principle of moral judgement
says t h a t an action is morally right and j u s t if it contributes, directly or
indirectly, to the realization of every person's well being and does not
treat them as m e a n s to achieve some ends either for an individual or a
group, however, noble that goal may be.
Ethics is of vital necessity to people. It regulates a person's life, his
or her speech and conduct. It is our moral behavior which m a k e s u s
either acceptable to society or rejected by it. In our day to day life we
perform many actions and it is necessary that we should be guided by
sound ethical norms.

13 Id. At 12
14 J a m e s F. Drane, Religion and Ethics 26 (1976)
Ill

The Nature of Ethics - Ethics is a Normative Science


The fact that ethics is concerned with an end or ideal or standard
serves at once to distinguish it from most of special sciences. Most of the
sciences are concerned with certain uniformities of our experience with
the ways in which certain classes of objects (such as rocks or plants) are
found to exist, or with the ways in which certain classes of events (such
a s the p h e n o m e n a or sound or electricity) are found to occur. Such
sciences have no direct reference to any to end that is to be achieved or
to any ideal by reference to which the facts are judged. The knowledge
which they communicate may, indeed, be useful for certain purposes.
The study of ethics is also distinguished from the n a t u r a l sciences,
inasmuch as it h a s a direct reference to an end t h a t men desire to attain,
or a type of which they wish to approximate. It is not by any m e a n s that
only scientific study, however, which h a s such a reference. There are at
least two other subjects, commonly recognized a s scientific, t h a t are in a
similar position - viz. logic and esthetics. These are concerned,
respectively, with the general conditions involved in the pursuit of t r u t h
and in the creation and appreciation of beauty, j u s t a s ethics is
concerned with what is good and right in h u m a n purposes and actions.
Such studies are sometimes said to be normative. They are concerned
with s t a n d a r d s of value, rather t h a n with the simple apprehension and
analysis of what exists or occurs. It may be pertinent to note that there
appear to be three supreme values in our h u m a n experience - truth,
beauty and goodness. They correspond somewhat closely to the three
main aspects of our conscious life - knowing, feeling and acting. We
learn by degrees to know what is true, to appreciate what is beautiful
and to do what is right; and logic, esthetics and ethics deal, as
thoroughly a s they can with the general conditions that are involved in
those three modes of experience.

The Nature of Ethics - Ethics is not a Practical Science


112

Ethics is concerned with action, it has sometimes been


charactrised as a practical science; but that is, on the whole, misleading.
There are some scientific studies, t h a t may rightly be characterized as
practical, such a s medicine, engineering or architecture. Such studies
are directed onwards the realization of a definite result. The study of
moral culture might be classed with these; b u t it would seem to be a part
of the general study of education. Ethics, a s a theoretical study, differs
from this, j u s t a s logic and esthetics do. Logic deals with general
conditions involved in the discovery a n d apprehension of truth; and
esthetics deals with the general conditions involved in the Tightness and
goodness of conduct.
In all these cases it is true that reflection on the principles involved
may be expected to help u s in the application of them. On who h a s
studied logic may be expected to think more accurately t h a n he
otherwise would. One who h a s studied esthetics may be expected to have
a finer appreciation of beauty in n a t u r e and art t h a n he would otherwise
possess and to be more careful in artistic production. So also one who
studies ethics ought to have a finer moral discernment and a more
zealous and discriminating pursuit of what is right and good t h a n he
would otherwise have had.

The Nature of Ethics - Ethics is not t h e Art of Conduct


It is now generally recognized t h a t truth, beauty and goodness are
ultimate ends for h u m a n beings. It appears to be a b s u r d to ask why we
should want to know, to apprehend what is beautiful or to do what is
right; but it is not immediately apparent what the exact n a t u r e of these
great ends is, or what are the conditions that have to be observed for the
attainment of them. The application of these conditions may be said to be
an art; and in that sense we may say that there is an art of thinking and
an art of conduct, j u s t a s there are arts of painting, music and poetry by
which beautiful objects are created; but logic is not properly to be called
113

the art of thinking, nor is the esthetic to be identified with any of the
particular a r t s by which beautiful objects are called into being. In the
same way, it does not appear to be right to describe ethics a s the art of
conduct. It is, one the whole, even somewhat misleading to describe it as
a science, thought this is p e r h a p s little more than a verbal question. In
studying a science we are seeking to acquire knowledge about some
particular mode of existence. In studying an art we are acquiring the
power of dealing with some particular class of objects. The history of
ethics is a history of views that are more or less erroneous; b u t the errors
cannot be treated a s due merely to h u m a n perversity. They are due
rather to certain difficulties that are inherent in the n a t u r e of the
subject; and it seems well to indicate at the outset the general n a t u r e of
these difficulties.

IV. Meaning of Legal Ethics


The expression 'legal ethics' is made u p of n o u n 'ethics' qualified
by the adjective 'legal'. Ethics is broadly a sense of duty. In other words,
it is the s u m of aggregate of the rules of right living. The term 'legal'
m e a n s 'according to law'. 'Legal ethics' is that branch of moral science
which lays down certain duties for observance which an advocate owes to
the society; to the court; to the profession; to his opponent; to his clients
and to himself. Legal ethics h a s their source from tradition. On regular
practice after some generations, they become usages, from u s a g e s to
customs, and from customs to statutory rules, i.e. etiquette. Dean J o h n
H. Wigmore, one of America's great legal writers, once said, "this living
spirit of the profession, which limits it yet uplifts it as a livelihood, h a s
been customarily known by the vague term 'legal ethics' . . . An
apprentice m u s t hope and expect to make full acquaintance with this
body of traditions, a s his m a n u a l of equipment, without which he cannot
114

do his part to keep the law on the level of profession."is The term legal
ethics h a s been defined as "that branch of moral science which treats of
the duties which a member of the legal profession owes to the people, the
court, his professional brethren and his client . . ."i^
Generally speaking, legal ethics denotes that body of principles by
which the conduct of members of legal profession is controlled, more
specifically and practically considered. More specifically and practically
considered, legal ethics may be defined a s that branch of moral science
which treats of duties which an attorney-at-law owes to his clients, to the
courts, to the bar, and to the public, i'^
Legal ethics m e a n s the ethics of the legal profession. It is the body
of rules and practices which determine the profession conduct of the
members of the Bar and of the Bench. The p h r a s e 'legal ethics' shows the
existence of a set of professional n o r m s for lawyers a p a r t from the moral
rules which regulate the conduct of men in general. Legal ethics m e a n s
"usages and c u s t o m s among members of the legal profession involving
their moral and professional duties towards one another, towards clients
and towards the courts; that branch of moral science which treats of the
duties which a member of legal profession owes to the public, to the
court, to his professional brethren, and to his client." ^^ Legal ethics are
not exclusively rules-based. The c u s t o m s and cultures of lawyers, to the
extent that they have some effect on the delivery of legal services should
also be included within an extended definition. ^^ Lawyers allegiance to
these ethical values and canons of conduct have been shaped through
ages. The ethics of the profession developed as the profession grew in the
stature and a s s u m e d its dignified s t a t u s a s a strong arm of our judicial
system. Such canons of conduct serve as a guide to u n d e r s t a n d the

15 Albert P. Blaustein, et al, The American Lawyers 240 (1954)


16 Fransis Rawle, ed., Bouvier's Law Dictionary (1914)
17 Henry Wynans J e s s u p , The Professional Ideals of Lawyer 4( 1986).
18 Henry Campbell {ed.), Black's Law Dictionary 894 (1990)
19 Stephen Parker and Charles Sampford [eds.) Legal Ethic and Legal Practice
Contemporary Issues 11 (1995).
115

social a s well as professional responsibilities of a lawyer. There were


certain traditional ethics at one time. Later, they were formulated into
statutory rules, i.e. into law, by certain Act a n d Rules made there u n d e r
viz. the Legal Practitioners Act, 1879; Bar Councils Act, 1926, Letters
Patent of several High Courts, etc. These rules are now incorporated in
the Bar Council of India Rules. Therefore, these ethics have become
statutory rules now by virtue of legislation, i.e. these ethics had become
etiquette.
The four interwoven ethics or conceptions of what a lawyer ought
to do can be discovered in lawyers ethical debates, treatises, and judicial
pronouncements. They arer^o
(i) The ideal of devoted service to clients in a legal system where
citizens need advice and representation to u s e the legal system
(the advocacy ideal),
(ii) The ideal of fidelity to the law and justice if the system is not to
be sabotaged by clients who will pay a lawyer to anything (the
social responsibility ideal),
(iii) An ideal of willingness to work for people and c a u s e s that are
usually excluded from the legal system (the j u s t ideal)
(iv) The ideal of courtesy, collegiality, and m u t u a l self-regulation
amongst members of the profession (the ideal of collegiality).
These four basic ideals can be found in the U. S. Code of Legal
Ethics. The American bar Association's Model Rules of Professional
Conduct, 1983 include : (1) Rules to e n s u r e that lawyers zealously serve
and represent their clients (the advocacy ideal), (2) Rules to ensure that
they show candour to tribunals, fairness to opposing parties, and are
allowed to reveal information to prevent a client committing a criminal
act (the social responsibility ideal), (3) Rules regulating the way public
service are given and encouraging lawyers to do pro bono work (the

20 Christine Parker (ed.), Just Lawyers 87 (1999)


116

justice ideal) and (4) Rules governing relationship between lawyers within
firms and upholding the integrity of the profession as a whole by
reporting misconduct (the ideal of collegiality). In India u n d e r Section
49(1)(C) of the Advocates Act, 1961 prescribe the Standards of
Professional Conduct and Etiquette of Advocates.21 The violation of these
s t a n d a r d s of conduct will affect the prestigious image of the profession
and hence treated a s professional misconduct. Section 35 of the
Advocates Act, 1961 provides for punishment of advocates for
professional or other misconduct. The relevant rules appear under
Chapter II with the heading S t a n d a r d s of Professional Conduct and
Etiquette u n d e r Part VI of the Bar Council of India Rules. The preamble
of this Code of Conduct clarifies t h a t the standard included in this are
not exhaustive. The other canons of conduct which are equally
imperative but not specifically mentioned are also deemed to be included
in these rules. The Code does not, however, specify in explicit terms a s to
how far these rules are enforceable or a s to how far they are directives
without justiciability. This so because some of the rules are in n a t u r e of
s u m m o n s . Rule 46 describes the obligation to provide legal aid to the
indigent a n d the oppressed, a s the highest obligation of the advocates to
the society. Professor Upendra Baxi, and eminent jurist compares such
directives with the directive Principles of the State Policy meaning
thereby that the obligation is subject to 'economic condition' of the
advocate himself hence not a binding rule, that is an unenforceable
rule. 22 It is revealed from different studies that even the superstar
lawyers, whose economic condition is unconsciously affluent, even refuse
summarily to see and indigent person with urgent need for legal
assistance. It is also seen that most senior lawyers stay away from legal
aid programmes of the State

21 See S. 1 and Rule 1 to 10 under Section 49(C) of the Advocates Act, 1961
22 Upendra Baxi, "The Pathology of Indian Legal Profession," Indian Bar Review 1986,
Vol. 13, pp. 455-457.
117

An advocate enrolled u n d e r any State Bar Council h a s to strictly


follow the S t a n d a r d s of Profession Conduct and Etiquette. As they are
statutory rules, they are mandatory in n a t u r e and violation of any rule
by any advocate attracts disciplinary enquiry by the State Bar Council
competent to s u s p e n d him from practice for a period of some years and if
the offence is very grave which renders him unfit to continue to practice
law, then he can be permanently struck off from the roll a s an advocate.
Such power is exercised through the machinery of Disciplinary
Committee of the State Bar Council. The legal ethics is normally
concerned with the conduct of lawyers in their professional capacity,
members of the Bar are required to conform to high moral s t a n d a r d s
even outside the sphere of their professional activities. If, for example, by
reason of his criminal or dishonest conduct, an Advocate becomes an
unworthy member of the society, that may also justify forfeiting his right
to remain in the profession a s well. This provision is clearly deal in
Section 35(1) of the Advocates Act, 1961.
Knowledge of legal ethics is an indispensible part of the intellectual
equipment of every legal practitioner. A junior advocate, being a public
functionary taking to practice at the bar should have the correct
knowledge of privileges as well as the ethical obligations of the m e m b e r s
of the profession. He should be able to distinguish between right and
wrong in m a t t e r s of professional conduct without difficulty or hesitation.
This is important and necessary for the satisfaction of his own
conscience, for the honour and good name of the profession, for the
protection of the client and other concerned with litigation and for the
welfare of general public.
Truly admitting that a lawyer is at times faced with considerable
difficulty in determining what is right or wrong in matters of professional
conduct. The researcher finds no settled traditions as yet, which may
guide the younger entrants. There are so many temptations in the p a t h
to serve from the line of integrity in which so many delicate and difficult
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questions of duty are constantly arising. There are m a n y pitfalls and


m a n t r a p s at every step, and the younger lawyer at the outset of his
career, needs often the prudence and self-denial, as well a s the moral
courage which belong to riper years. Knowledge of legal ethics will inspire
respect for its ideals. The rules framed by bar Associations, statutory
rules made by the Court and the rules framed by Bar Council of India lay
down the S t a n d a r d s of Profession Conduct and Etiquette for Advocates.
Knowledge of high ideals of Bar will create in the young advocate
satisfaction and pride in his calling.

V Duties of Lawyers
The Bar Council of India h a s framed a Charter of S t a n d a r d s of
Professional Conduct and Etiquette, containing broadly five t5qDes of
duties to be observed by the advocates : duty to court,^3 duty to client,^^
duty to opponent,25 duty to colleague^^ and miscellaneous duties.^^ It is
essential that every advocate on the roll of a Bar Council follows the
s t a n d a r d s strictly. As a member of the bar, a certain code of conduct is
expected from an advocate a s the public views him with a sense of t r u s t
which he should try to fulfill at all times. The ideals expected from
lawyers are high especially in society where more t h a n half of the
population is ignorant of their rights a n d is dependent on others for the
protection of their own rights.
Unlike United States, India does not have a separate Code of
Conduct to regulate the conduct of lawyers. The Bar Council of India
Rules by virtue of Section 49(1)(C) of the Advocates Act, 1961 prescribes
the canons of conduct and etiquette for advocates. So far, no attempt h a s
yet been made to codify the rules in an authoritative form. It is not

23 Chapter II, Section I, Rule 1 to 10


24 Chapter II, Section II, Rule 11 to 33
25 Chapter II, Section III, Rule 34 and 35
26 Chapter II, Section IV, Rule 36 to 39
27 Chapter II, Section IV-A- Advocates Welfare Fund, Section IV - duty to render legal
aid (Rule 46), Section VII - Restriction on other employment (Rule 47 - 52).
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disputable that codification of professional ethics is a difficult task. At


the same time, it is not impracticable. This is evident from the successful
attempts made by the American Bar Association and the bar
Associations of other nations.
An advocate shall, at all times, conduct himself in a m a n n e r
befitting his s t a t u s a s an officer of the court, a privileged member of the
community; and a gentleman, bearing in mind that what may be lawful
and a moral for a person who is not a member of the bar, or for a
member of the Bar in his non-professional capacity may still be improper
for an advocate. Without prejudice to the generality of the foregoing
obligations, an advocate shall fearless uphold the interests of his client
and in his conduct conform to the rules hereinafter mentioned both in
letter and in spirit. The rules hereinafter mentioned contain canons of
conduct and etiquette adopted a s general guides; yet the specific mention
thereof shall not be construed a s a denial of existence of other equally
imperative though not specifically mentioned. The Rules in the Code of
Professional Legal Ethics can be classified a s under:

(i) Duty to Court


Three are ten rules (Rule 1 to 10) u n d e r Section I of Chapter II,
enlisting the duties of an advocate to the court. Advocate is described a s
an officer of court. He is Minister of Justice and friend of court. It is the
duty of an advocate to maintain the honour and dignity of the court is
essential for the survival of free community. An advocate owes certain
duties to the court and to the presiding judge irrespective of his success
or failure in the case. The Bar Council of India h a s framed a Charter of
S t a n d a r d s of Professional Conduct and Etiquette toward court which are
enlisted as under:
(1) An advocate shall, during the presentation of his case and while
otherwise acting before a court, conduct himself with dignity and
self-respect. He shall not be servile and whenever there is proper
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ground for serious complaint against a judicial officer, it shall be


his right a n d duty to submit his grievance to property authorities.
(2) An advocate shall maintain towards the courts a respectful
attitude, bearing in mind that the dignity of the judicial officer is
essential for the survival of a free community.
(3) An advocate shall not influence the decision of a court by any
illegal or improper m e a n s . Private communications with a judge
relating to a pending case are forbidden.
(4) An advocate shall u s e his best efforts to restrain and prevent his
client from resorting to sharp or unfair practices or from doing
anything in relation to the court, opposing counsel or parties
which the advocate himself ought not to do. An advocate shall
refuse to represent the client who persists in such improper
conduct. He shall not consider himself a mere mouth-piece of the
client, and shall exercise his own judgement in the u s e of
restrained language in correspondence avoiding scurrilous attacks
in pleadings, a n d using intemperate language during a r g u m e n t s in
court.
(5) An advocate shall appear in court at all times only in the
prescribed dress, and his appearance shall always be presentable,
(6) An advocate shall not enter appearance, act, plead or practice in
any way before a court, tribunal or authority mentioned in Section
30 of the Act, if the sole of any member thereof is related to the
advocate a s father, grandfather, son, grand son, uncle, brother,
nephew, first cousin, h u s b a n d , wife, mother, daughter, sister,
aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-
law , daughter-in-law or sister-in-law.
For the purpose of this rule, court shall mean a court. Bench a
tribunal in which above mentioned relation of the advocate is a
judge, member or the Presiding Officer.
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(7) An advocate shall not wear b a n d s or gown in public places other


t h a n in courts except on such ceremonial occasions and at such
places a s the Bar Council of India or the court may prescribe.
(8) An advocate shall not appear in or before any court or tribunal or
any other authority for or against an organization or an institution,
society or corporation, if he is a member of the Executive
Committee of such organization or institution or society or
corporation. Executive Committee, by whatever n a m e it may be
called, shall include any Committee or body of persons, which, for
the time being, is vested with the general management of the
affairs of the organisation or institution, society or corporation;
Provided that this rule shall not apply to such a member appearing
as amicus curiae or without a fee on behalf of a bar Council,
Incorporated Law Society or a Bar Association.
(9) An advocate should not act or plead in any m a n n e r in which he is
himself peculiarly interested.
Illustration
I. He should not act in a bankruptcy petition when he himself
is also a creditor of the b a n k r u p t .
II. He should not accept a brief from a company in which he is
Director.
(10) An advocate shall not stand as a surety, or certify the s o u n d n e s s of
a surety for his client required for the purpose of any legal
proceedings.
The first and foremost duty of an advocate is to be always
respectful to the court. The advocate m u s t be bold, fearless and
independent in the court and at the same time he m u s t not be
disrespectful to the court and the judge. He m u s t maintain a respectful
attitude towards the court, even if he is convinced that a particular
ruling given by a court is erroneous or irregular. He m u s t respectfully
accept it and may invoke his remedy by appear to a higher court.
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Another duty of an advocate is to attend the hearing of the case


throughout. He should not leave the court without the permission of the
court to do so. Further, he h a s the duty to receive judgment. If he cannot
be present personally to receive the judgment when it is being
pronounced, he m u s t at least arrange his representation in the court.
Another duty of the advocate is towards the judge. The judge is the
presiding deity in the temple of justice. He may be maintained in dignity
and strength so that the rule assigned to him for the benefit of the people
may be effectively discharged. In his judgment he is bound to agree with
one side and to disagree with the other, but this is no ground for
attributing motives. Further the advocate m u s t not unnecessarily waste
the time of the court for his own convenience and should not mislead the
court by citing a ruling which h a s been overruled or a statute already
repealed. His duty is to assist the court so that the judge may come to a
right finding. The advocate should not loose temper in and outside the
court in restoration of an adverse ruling or a decision pronounced by the
judge. Further, the advocate should not malign the great office of a judge
directly or indirectly. The advocate also should not exhibit friendship
even if the judge h a p p e n s to be his friend. He should not take u n d u e
advantage of his personal relationship. Such facts not only bring
discredit to the lawyer but impair the dignity and impartiality of the
judge. Further, the lawyer should not communicate or argue privately
with the judges as to merit of a pending case.
The majesty of law and dignity of courts cannot be maintained
u n l e s s there i ^ m u t u a l respect between the Bench and the Bar and the
counsel act in full realization of their duty to the court alongside their
duty to their clients and have the grace to reconcile themselves when
their pleas and arguments do not find acceptance with the court . . .
Neither rhetoric nor tempestuous a r g u m e n t s can constitute the sine qua
non for persuasive arguments.
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Advocate appearing before the court should maintain dignity and


decorum of court. He should not indulge in writing in pleadings, the
scurrilous allegations or sandalisation against judge or court.
When an advocate or a party appearing before the court requires to
conduct himself in a m a n n e r befitting to the dignity and decorum of the
court, he cannot have a free license to indulge in writing in the
pleadings, the scurrilous accusations or scandalisation against the judge
or the court. It is reputation a n d dignity of the judge, who decides the
case are allowed to be prescribed in the pleadings, the respect for the
court would quickly disappear and independence of the judiciary would
be a thing of the past.
The n a t u r e of the duties discharged by an advocate is in the n a t u r e
of a public duty. Effective working of the judicial system is absolutely
essential for proper functioning of the administration of justice in a
democratic polity. In such a system, lawyers and judges work as
complimentary for each other. They are the two limbs of the system. J u s t
as the need of highly competent, honest and devoted judiciary is a m u s t
for the protection of the rule of law, competent, honest and devoted bar is
also a must. In a country like ours, where the majority of the advocates
are not in a position to acquire necessary tools or facilities required by
them for effective discharge of their professional duties, a duty is cast on
the State to provide minimum facilities.
An advocate is an officer of the court. He is not merely a mouth-
piece of the client. He m u s t apply his own reasoning and judgment in
presenting m a t t e r s before the court. It is his duty to behave with
decorum and respect to the court. He should zealously guard its
privilege, and never show any resentment even if an order goes against
him. He shall not do anything calculated to influence the decision of the
court by illegal or unfair means. He shall not forget that he owes a duty
to the court.
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(ii) Duty to the Client


Undoubtedly, the duty to the client is an important duty. As a
matter of fact, the entire professional work commences with the
acceptance of a brief from a client. In that capacity a lawyer undoubtedly
h a s to discharge his duty to the client with all e a r n e s t n e s s and industry
he is capable of, in view of the t r u s t and confidence the client reposed in
him, of which t r u s t the confidence he m u s t be worthy of. It is the duty of
an advocate to welcome his client's presence in the chamber. The
advocate m u s t give patient hearing to the client and where necessary
m u s t make inquiries. The bulk of Bar Council of India Rules (Rule 11 to
33) u n d e r Section II enlist the different duties an advocate owes to the
client:
11. An advocate is bound to accept any brief in the courts or tribunals
or before any other authority in or before which he proposes to
practice at a fee consistent with his standing at the Bar a n d the
n a t u r e of the case. Special circumstances may justify his refusal to
accept a particular brief.
12. An advocate shall not ordinarily withdraw from engagements, once
accepted, without sufficient cause and u n l e s s reasonable and
sufficient notice is given to the client. Upon his withdrawal from a
case he shall refund such part of the fee as h a s not been earned.
13. An advocate shall not accept a brief or appear in a case in which
he h a s reason to believe t h a t he will be a witness, and if being
engaged in a case, it becomes apparent that he is a witness on a
material question of fact, he should not continue to appear a s an
advocate if he can retire without jeopardizing his client's interests.
14. An advocate shall, at the commencement of his engagement and
during the continuance thereof, make all such full and frank
disclosures to his client relating to his connection with the parties
and any interest in or about the controversy a s are likely to affect
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his client's judgment in either engaging him or continuing the


engagement.
15. It shall be the duty of an advocate fearlessly to uphold the interests
of his client by all fair and honourable m e a n s without regard to
any u n p l e a s a n t consequences to himself or any other. He shall
defend a person accused of a crime regardless of his personal
opinion a s to the guilt of the accused, bearing in mind t h a t his
loyalty is to the law which requires t h a t no m a n should be
convicted without adequate evidence.
16. An advocate appearing for the prosecution of a criminal trial shall
so conduct the prosecution that it does not lead to conviction of
the innocent. The suppression of material capable of establishing
the innocence of the accused shall be scrupulously avoided.
17. An advocate shall not, directly or indirectly, commit a breach of the
obligations imposed by Section 126 of the Indian Evidence Act,
deals with professional communications. Under this section, no
barrister, attorney, pleader or vakil shall be permitted to disclose
any communication made to him in the course a n d for the purpose
of his employment a s such barrister etc., by his client except with
the client's express consent.
18. An advocate shall not, any time, be a party to fomenting litigation.
19. An advocate shall not act on the instructions of any person other
t h a n his client or his authorized agent.
20. An advocate shall not stipulate for a fee contingent on the results
of litigation or agree to share the proceeds thereof.
21. An advocate shall not by or traffic in or stipulate for or agree to
receive any share or interest in any actionable claim. Nothing in
this rule shall apply to stock, shares and debentures of
government securities, or to any i n s t r u m e n t s which are, for the
time being, by law or custom, negotiable or to any mercantile
document of title to goods.
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22. An advocate shall not, directly or indirectly, bid for or purchase,


either in his own name or in any other name, for his own benefit or
for the benefit of any other person, any property sold in the
execution of decree or order in any suit, appeal or other proceeding
in which he was in any way professionally engaged. This
prohibition, however, does not prevent an advocate from bidding
for or purchasing for his client any property which his client may
himself legally bid for or purchase, provided the advocate is
expressly authorized in writing in this behalf.
23. An advocate shall not adjust fee payable to him by his client
against his own personal liability to the client, which liability does
not arise in the course of his employment a s an advocate.
When an advocate is entrusted with a brief, he is expected to follow
n o r m s of professional ethics and try to protect the interests of his client
in relation to whom he occupies a position of trust. The relationship
between an advocate an his client is dependent primarily on the principle
of contract. The agreement between the counsel and his client bring
them in a position of agent and principal. Advocate h a s right to
remuneration in lieu of services rendered in the court of law by him on
behalf of his client.
24. An advocate shall not do anything whereby he a b u s e s or takes
advantage of the confidence reposed in him by his client.
25. An advocate should keep accounts of the client's money entrusted
to him, and the accounts should show the a m o u n t s received from
the client or on his behalf, the expenses incurred for him and the
debits made on account of fees with respective dates and all other
necessary particulars.
26. Where moneys are received from or on account of a client, the
entries in the accounts should contain a reference a s to whether
the a m o u n t s have been received for fees or expenses, and during
the course of the proceedings, no advocate shall, except with the
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consent in writing of the client concerned, be at liberty to divert


any portion of the expenses towards fees.
27. Where any a m o u n t is received or given to him on behalf of his
client, the fact of such receipt m u s t be intimated to the client, as
early as possible.
28. After the termination of the proceedings, the advocate shall be at
liberty to appropriate towards the settled fee due to him, any s u m
remaining unexpended out of the a m o u n t paid or sent to him for
expenses, or any a m o u n t t h a t h a s come into his h a n d s in that
proceeding.
29. Where the fee h a s been left unsettled, the advocate shall be
entitled to deduct, out of any moneys of the client remaining in his
h a n d s , at the termination of the proceeding for which he had been
engaged., the fee payable u n d e r the rules of the Court, in force for
the time being, or by then settled and the balance, if any, shall be
refunded to the client.
30. A copy of the client's account shall be furnished to him on demand
provided the necessary cop5dng charge is paid.
31. An advocate shall not enter into arrangements whereby funds in
his h a n d s are concerned into loans.
32. An advocate shall not lend money to his client for the purpose of
any action or legal proceedings in which he is engaged by such
client.
Explanation - An advocate shall not be held guilty for a breach of this
rule, if in the course a pending suit or proceedings, and without any
arrangement with the client in respect of the same, the advocate feels
compelled by reason of the rule of the court to make a payment to the
court on account of the client for the progress of the suit or proceedings.
33. An advocate who h a s , at any time, advised in connection with the
institution of a suit, appeal or other matter or h a s drawn
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pleadings, or acted for a party, shall not act, appear or plead for
the opposite party.
The appointment of a pleader u n d e r Order III, Rule 4(2) of the Code
of Civil Procedure shall be deemed to be in force until determined with
the leave of the court by a writing, signed by the client or the pleader, as
the case may be, and filed in court or until the client or the pleader dies,
or until all proceeding in the suit are ended so far a s regard the client.
Absence of advocate from the court without informing the client,
on the ground t h a t members of the Bar decided to stay away from
appearing in court, a m o u n t s to negligence of duty towards the client. The
accusing finger of negligence would stand pointed at them if they
deliberately keep away from court a n d allow their party's interest to
suffer by their default.
There is no legal sanctity behind resolution passed by the bar
Association calling u p o n the lawyers to abstain from appearing in Court.
Lawyers have been granted right of audience in courts u n d e r the
Advocates Act and to conduct cases of their clients on getting
remuneration for the same. If they consciously, intentionally and
deliberately abstain from conducting the cases in the courts on behalf of
the clients, they would be committing breach of contract a n d subjecting
themselves to consequences flowing from a breach.
Breach of duty to client renders the counsel open to a charge of
negligence which is actionable tort.
"If a counsel does not want to appear in a particular court, that
too for justifiable reasons, professional decorum and etiquette require
him to give u p his engagement in that court so that the party can
engage another counsel. But retaining the brief of his client and at the
same time abstaining from appearing in that court, that too not on any
particular day on account of some personal inconvenience of the counsel,
but as a p e r m a n e n t feature, is unprofessional a s also unbecoming of the
s t a t u s of an advocate. No court is obliged to adjourn a c a u s e because of
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the strike call given by any Association of Advocates or a decision to


boycott the courts either in general or any particular court. It is the
solemn duty of every court to proceed with the judicial b u s i n e s s during
court h o u r s . No court should yield to pressure tactics or boycotts calls or
any kind of brow beating."
Counsel's p a r a m o u n t duty is to the client. When a person consults
a lawyer for his advice, he relies upon his requisite experience, skill and
knowledge as a lawyer and the lawyer is expected to give proper and
dispassionate legal advice to the client for the protection of his interests.
An advocate s t a n d s in a loco parentis towards the litigants and it
therefore follows that the client is entitled to receive disinterested,
sincere and honest treatment especially where the client approaches the
advocate for succour in times of need. The m e m b e r s of the legal
profession should stand free from suspicion.
For an advocate to act towards his client otherwise t h a n with
u t m o s t good faith is unprofessional. It is against the professional
etiquette for a lawyer to give improper legal advice with an ulterior motive
or object. It is unworthy that an advocate should accept employment
with such motive, or so long a s his client h a s such u n d e r s t a n d i n g of his
purpose. It is professionally improper for a member of the Bar to prepare
false documents or to draw pleadings knowingly that the allegations
made are u n t r u e to his knowledge. T h u s the giving of improper legal
advice may a m o u n t to professional misconduct.
An advocate is not a mere agent of a client, for duties of the
advocate are far greater and far more sublime t h a n that of a mere agent.
But there can be functions which an advocate may have to perform for
his client which may fall within the amplitude of principal and agent
relationship.
An advocate is not the mouthpiece of the client. He is not his
client's delegate, but only a representative. He only represents the fact
and law for his client to assist the court in finding out the truth. What he
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gives to his client is the benefit of his learning, talents and reasoning. He
shall not misstate the law or fact for his client's benefit for rescue. It is
true that he is retained and remunerated by the client, b u t he shall never
forget that he is primarily and permanently retained by t r u t h and justice.
It is the duty of an advocate to place their client's case before the
court fearlessly and uphold the lawful interest of his client. This m u s t be
done only by fair and honourable m e a n s .
The advocate shall bear in mind t h a t his loyalty is to the law which
requires that no m a n should be convicted without adequate evidence.
Despite his own personal opinion, it is his duty to protect his client's
interest. T h u s for example, he shall defend a person accused of a crime
regardless of his personal opinion a s to the guilt of the accused. "No
advocate h a s the right still less is it his duty to set himself u p a s his
client's judge and determine whether he is or he is not guilty. To do so
would be to u s u r p the functions of the judge and jury a n d without
having heard all the evidence."

(iii) Duty of Opponent


An advocate and his opponent, both of them are brothers in the
profession, but representing the interests of different clients. Clients
come and go, but the advocates adhere to the court. They meet
frequently. Advocates are the part and parcel of the administration of
justice. They fight for justice. They struggle for the welfare and good of
their clients. It does not mean that the advocate and the opponent
advocate are enemies with each other. There is a controversy and
discrimination on the issue but not between them.
It is the duty of an advocate that he should be fair to his
professional opponent counsel and to his client. The advocate is required
to give due respect and importance to the opposite side's advocate. He
should not mislead the opposing counsel by concealing or withholding
the facts. The code of conduct contains the rules regarding the duties of
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advocate to the opponent (Rule 35 and 35) u n d e r Section III which are as
under:
34. An advocate shall not in any way communicate or negotiate upon
the subject matter of controversy with any party represented by an
advocate except through t h a t advocate.
35. An advocate shall do his best to carry out all legitimate promises
made to the opposite party even though not reduced to writing or
enforceable u n d e r the rules of the court.
Every advocate h a s a right to cross-examination, arguments,
verification of documents, etc. while doing so, h e shall not be interrupted
unnecessarily, a s one would not like to be interrupted, and so one
should not interrupt his opposing counsel. The advocate should not
derogate the performance of the opposing counsel in the presence of the
client. One should not laugh at argument of the opposing counsel. The
advocate should do his best to carry out all legitimate promises made to
the opposite party even though not reduced to writing or enforceable
u n d e r the rules of the court.
An advocate shall not use unfair and malicious tactics, methods or
devices against the opponents. He shall not a b u s e the rules of evidence
and processes of the court in order to injure the opponent or to benefit
himself. He shall not make such allegations which he does not intend to
support by evidence. He m u s t not deliberately convey to the judge
information not admissible in evidence, nor make needless attacks on
the reputation of the opponent or his witnesses, nor otherwise unduly
h a r a s s them. When they are in the witness box, the advocate shall not
make it an opportunity to gratify the anger or malice of his client. An
advocate may make concessions to the convenience of the opponent and
his lawyer. He shall not take advantage of errors that can be cured,
where it will only cause delay or increased costs to the opponents. But
without the client's consent he shall not overlook such errors that are
fatal to the opponents, or that will assist his own client's case.
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(iv) Duty to Colleagues


All advocates are part and parcel of the administration of justice.
They are the officers of the court. Their primary aim m u s t be the welfare
of the people. An advocate should respect all his colleagues, t h a t is
m e m b e r s of Bar Association. He should not criticize any co-advocate.
Section IV of the Bar Council of India Rules, describes the duties of an
Advocate towards his colleagues. Under Rules 36, 37 a n d 39, these
duties of an advocate, have been enumerated.
36. An advocate shall not solicit work or advertise, either directly or
indirectly, whether by circulars, advertisements, touts, personal
communications, interviews not warranted by personal relations,
furnishing or inspiring newspaper comments or producing his
photograph to be published in connection with cases in which he
h a s been engaged or concerned. His signboard or nameplate or
stationery should not indicate t h a t he is or h a s been associated
with any person or organization or with any particular c a u s e or
matter or that he specializes in any particular type of work or t h a t
he h a s been a judge or an Advocate General.
37. An advocate shall not permit his professional services or his n a m e
to be used in aid, or to make possible, the unauthorized practice of
law by any agency.
38. An advocate shall not accept a fee less t h a n the fee taxable u n d e r
the rules when the client is able to pay the same.
39. An advocate shall not enter appearance in any case in which there
is already vakalat or memo of appearance filed by an advocate
engaged for a party except with his consent; in case s u c h consent
is not produced he shall apply to the court stating reasons why the
said consent should not be produced and he shall appear only
after obtaining the permission of the court.
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The conduct of a lawyer to his brothers in the profession m u s t be


characterized by candour and frankness. He m u s t keep faith with fellow
members of the Bar.
Advocates, in spite of their perpetual controversies and contentions
in the Bar have to maintain love and affection among them. The conduct
of an advocate towards the colleagues should be characterized by
courtesy and good faith. Even in provoking circumstances, their conduct
a n d demeanour shall never be influenced by ill-feeling between the
parties. An advocate shall not deny the request to suit the convenience of
his colleagues without affecting the interest of his own client. He shall
fulfill all the legitimate promises he h a s made, b u t m u s t be careful not to
give promises which cannot be fulfilled. He shall not take advantage of
any slip or omission or technical error of the opposing counsel. He shall
never 'snatch briefs' of his colleagues.
The advertisement or soliciting by a lawyer may affect the prospect
of the engagement of another lawyer and may encourage u n h e a l t h y
competition for getting the clients. Hence, advertising in any form by a n
advocate is highly objectionable. Advocate should not seek b u s i n e s s by
advertisement or otherwise. The lawyers in India are averse to advertising
their profession even if there is no restriction imposed by the Advocates
Act, 1961. A lawyer thinks it below dignity, nobility a n d erudition a n d
legal professional ethics. India is vehemently against lawyer advertising
and seeks the protection of the International Bar Association to stop
such advertisement and corrupt practices so that the image of the Bar of
the World remains in highest esteem of entire humanity.

(v) Duty in Imparting Training


The Bench and the senior advocates owe a duty to the juniors in
the Bar. They should be given all encouragements. They are, in fact, a
trust in the h a n d s of the seniors. Senior lawyers have the duty to impart
all necessary training to the junior m e m b e r s in the profession. The
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juniors can come u p only with proper direction, training and help of the
seniors. Further the professional prestige hitherto enjoyed can be
perpetuated only through the junior Bar. Hence, senior lawyers, in all
age, have to discharge the duty of imparting training to the junior
members of the profession. They are obligated u n d e r Rule 45 provided in
Section V of the S t a n d a r d s of Professional Conduct and Etiquette as
provided by the Bar Council of India. The rule is a s under:
45. It is improper for an advocate to d e m a n d or accept fees or any
premium from any person a s a consideration for imparting training
in law u n d e r the rules prescribed by a State Bar Council to enable
such person to qualify for enrolment u n d e r the Advocates Act,
1961.
In Ram Mohan v. Jayakrishnan, 28 the High Court of Kerala
observed: "the Bench and the senior advocates owe a duty to the junior
in the bar. They should be given all encouragements. They are, in fact, a
trust in the h a n d s of the seniors. A junior is often elated when he files a
joint vakalat with the senior. He gets justifiable satisfaction when his
n a m e a p p e a r s in the law reports with his senior. Encouragement to the
juniors by allowing them to handle cases will, to a large extend, help
courts to cut down the pendency of cases. Most of the juniors are
competent and will prove their mettle if opportunities are given. That will
help to mould their career and creation of an effective second line of
offence and defence in the bar."
In P. D. Khandekar v. Bar Council of Maharashtra, ^^ the
Supreme Court observed : "It is the solemn duty of the Bar Council of
India and the State Bar Councils to frame proper schemes for the
training of the junior members of the bar, for entrusting of work to them,
and for their proper guidance so t h a t eventually we have new generation
of efficiently trained lawyers."

28 1981 KLT745
29 AIR 1984 SCI 10
135

(vi) Duty to Render Legal Aid30


46. Every advocate shall in the practice of the profession of law bear in
mind t h a t any one genuinely in need of a lawyer is entitled to legal
assistance even though he cannot pay for it fully or adequately and
that within the limits of an Advocate's economic condition, free
legal assistance to the indigent and oppressed is one of the highest
obligations of an advocate owes to society.

(vii) Restriction o n other Employments - Prohibition


47. An advocate shall not personally engage in any business; but he
may be a sleeping partner in a firm doing business provided that,
in the opinion of the appropriate State Bar Council, the n a t u r e of
the b u s i n e s s is not inconsistent with the dignity of the profession.
48. An advocate may be Director or Chairman of the Board of Directors
of a company with or without any ordinary sitting fee, provided
none of his duties are of an executive character. An advocate shall
not be a Managing Director or a Secretary of any company.
49. An advocate shall not be a full-time salaried employee of any
person, government, firm, corporation or concern, so long as he
continue to practice, and shall, on taking u p any employment,
intimate the fact to the Bar Council on whose roll his n a m e
appears, and shall thereupon cease to practice a s an advocate so
long as he continues in such employment.
An advocate appointed during the period of service as a
Government Pleader or Public prosecutor or Attorney will be deemed to
be practicing as an advocate.^i But a Public Prosecutor appointed u n d e r
the provisions of the Code of criminal Procedure cannot be permitted to
add the period of serving a s such to the period of standing at the bar.32

30 Section VI
31 Mukhtiar Singh v. State of Punjab & others, AIR 1991 P & H 20
32 Akhilesh Kumar Misra v. High Court of J u d i c a t u r e , Allahabad, AIR 1995 All 148
136

An advocate's position a s Honorary Director will not in any way militate


against his being an advocate.^^
Nothing in this rule shall apply to a Law Officer of the Central
Government of a State or of any Public Corporation or body constituted
by statute who is entitled to be enrolled u n d e r the rules of his State Bar
Council made u n d e r Section 28(2)(d) read with Section 24(l)(e) of the Act
despite his being a full time salaried employee.
Law officer for the purpose of this rule m e a n s a person who is so
designated by the term appointment and who, by the said terms, is
required to act a n d / o r plead in courts on behalf of his employer.
50. An advocate who h a s inherited, or succeeded by survivorship to, a
family business may continue it, but may not personally
participate in the management thereof. He may continue to hold a
share with others in any b u s i n e s s which h a s descended to him by
survivorship or inheritance or by will, provided he does not
personally participate in the management thereof.
51. An advocate may review Parliament Bills for a remuneration, edit
legal text books at a salary, do press-vetting for newspapers, coach
pupils for legal examination, set and examine question; an subject
to the rules against advertising and full time emplo)mient, engage
in broadcasting journalism, lecturing and teaching subjects, both
legal and non-legal.
52. Nothing in these rules shall prevent an advocate from accepting,
after obtaining the consent of the State Bar Council part-time
employment provided that in the opinion of the State bar Council
the nature of the employment does not conflict with his
professional work and is not inconsistent with the dignity of the
profession. This rule shall be subject to such directives if any as
may be issued by the Bar Council of India from time to time.

33 Satheesan K. P. v. Advocate General, Kerala High Court, AIR 1993 Ker 22


137

Besides the code of conduct also contains other duties of the


advocates including the duty to state, public, law profession and to self.
These are referred to in as follows:

(viii) Duty to State


Lawyers in every country have played a vital role in the progress of
their nation and they have been in the vanguard in the struggle of
freedom. None as a class or profession h a s done more; none h a s done as
m u c h to define, to develop and to defend the liberties of the country.34
Lawyers are the servants of the society, officers of the court of justice.
They should be ready to give expert advice to those who propose progress
and readjustment of the frontiers of justice. The lawyers have the duty to
maintain the integrity of the State. In any society it is the elite which
have to provide leadership. Undoubtedly the community of lawyers
constitutes a significant segment of the elitist society. The lawyers also
h a s to face the dilemma which the nation h a s to face, i.e., the
reconciliation of the individual liberty with socio-economic justice. On
the one hand, the lawyer h a s to defend the client against the onslaught
of the government, his liberty and freedom by the legislative and
executive b r a n c h e s and on the other h a n d he h a s to show his legal
consciousness and political maturity in promoting and defending socially
beneficial legislation by creating public opinion to implement the
directive enshrined in the Constitution for the establishment of the
socialistic society. Further, the lawyers have to work a practical solution
tentatively to reconcile the individual freedoms and the inevitable
curtailment of the same in bringing socio-economic reforms by using
laws a s an instrument of social change.
The lawyers being the elite in the sense of the section of society
possessing great consciousness of the dynamic and dimensions of life

34 AIR 1960 (Journal Section), p. 60


138

and familiar with all sections of society should provide effective


leadership for the realization of the goals and ideals enshrined in our
Constitution, for the establishment of a new society free from
exploitation, ignorance, illiteracy and securing liberty with economic
justice. For this purpose there m u s t be a strong and independent
judiciary. Judiciary can be strong only if there is a strong Bar. It is the
judiciary which analyses and interprets the laws made by the legislature
in their proper application in the administration of justice which is the
main function of a State.. It is also a wrong belief t h a t the lawyers
promote disputes and differences in the society. The work of legal
profession is not to create a n d promiote differences, but settle the
disputes whenever, arise. In fact, lawyers are harbingers of peace in the
society.

(ix) Duty to Public


A duty which an advocate owes to the general public can be given
utmost importance in the list of his duties which the professional ethics
impose on him. It is to be remembered t h a t lawyers in every country have
played highly significant role essential to the establishment, existence
and progress of the nation.
Practice of law is an ideal of unselfish public service and of great
utility, the promotion of administration of justice and the establishment
and maintenance of a welfare society being its main function. The welfare
of the society d e m a n d s protection of the law of the land. Lawyers are
looked upon a s protectors, preservers, saviours and ministers of justice
aimed at the maintenance of a welfare society. Legal profession is a noble
one where the lawyers have to deal with a variety of h u m a n relations. It
is not merely a m e a n s to livelihood, which is only incidental thereto.
139

In Krishnankutty Menon v. Malathuy,^^ the High Court of Kerala


observed: "it is impossible to acceded to the contentions that a member
of the legal profession is carrying on a trade or a business, to eke out his
livelihood from the business, of the practice of the profession. To equate
a member of the learned profession a s a b u s i n e s s m a n making out his
livelihood from his profession would be to completely ignore the history
and glory of a noble profession. A concept that a member of the
profession is depending for his livelihood on the profession is supremely
inapposite to the context of a profession which holds a high and hoary
tradition."
In a case of professional activity, an individual h a s to apply his
professional skill. Categorising the profession of a lawyer as a
commercial activity is absolutely illegal, irrational and arbitrary and is
therefore ultra vires of Article 14 of the Constitution of India.^6
By their learning and skill, lawyers help in finding out the t r u t h of
dispute between the contending litigants, who are heard by an impartial
judge. Lawyers have a duty to render their services available to the
public generally without any discrimination. They are not free to choose
those whom they will serve and avoid others merely on the basis of
selfish interests and inclinations. They m u s t remember t h a t every cause
whether small or big, simple or complex, is equally important as far a s
the interest of each client is concerned. Lawyers shall not reject or refuse
to accept briefs except where special circumstances may justify the
refusal to accept a particular brief. They m u s t be ready and willing to
render legal aid to the poor and weak and also in m a t t e r s involving
public interest.

35 1985 KLT 6; see also Kishore Chand v. State of H. P., AIR 1990 SC 2140
36 Shiv Narayan v. M. P. Electricity Board, AIR 1999 MP 246
140

The n a t u r e of the duties discharged by an Advocate is in the


n a t u r e of public duty.^?

(x) Duty to Law


Persons into the profession of law by swearing t h a t they shall
faithfully show allegiance, loyalty and respect to their country and its
laws, and render by all m e a n s , assistance to its enforcement. Lawyers
shall not either involve themselves or advise their clients for the violation
of the laws. When a lawyer advises the client to do something which
involves the breach of any law, such lawyer becomes equally involved in
t h a t client's guilt, as if it is done by him. No plea of privilege to advise the
client will be available to the lawyer in such cases. Therefore no lawyer is
privileged to assist in a breach of the law either for his own sake, or for
the private interest of the client. Strictly speaking, a reputable lawyer is
not even entitled to adopt the dishonourable attitude of finding out any
loopholes of the law in order to defeat its purpose and policy even though
he is free to find out the defects in statute and advise the clients how to
avoid any burden resulting therefrom.

(xi) Duty to Profession


Every person owes an obligation to uplift the profession to which
he belongs. This obligation is one of the important features that
distinguishes his profession from a trade or business. An advocate m u s t
avoid any conduct that may tend to lower down the s t a n d a r d s of his
profession He shall never forget t h a t he belongs to a noble profession. A
lawyer's profession is not a kind of profession which can be said to be
carried on a s a profession of commercial nature.^s Similarly, the office of

37 Advocates Association, Bangalore v. Chief Minister, Government of Karnataka, AIR


1997 Kant. 18
38 Sakharam Narayan v. City of Nagpur Corporation, AIR 1964 Bom 200
141

a lawyer or of a firm of lawyers is not a commercial establishment.^^ Law


is no trade, briefs no merchandise a n d so he leaven of commercial
competition or procurement should not vulgarise the legal profession."^^ A
lawyers is an officer of the court and is a participant in the
administration of justice which is a legal function of the State. The
success of a lawyer is dependent on his personal skill, intelligence,
intellect, competence, separate the legal profession from the commercial
activity, which is primarily dependent upon the cooperation of labour
and capital."^1 An advocate m u s t stick to the profession and try to elevate
it. In fact all the ethical regulations including those suggested or felt by
the moral and collective conscience will help to rise the standard of the
profession.
Every lawyer owes duty to his professional brethren in particular
and to the community of legal profession in general. A lawyer h a s to keep
the best traditions of the Bar and should not be a party in lowering the
s t a n d a r d s maintained by the Bar. It is bad of a lawyer to p u r s u e legal
profession in a spirit of competition, vengeance and rivalry with
professional brethren. It should always be kept in mind that the interest
of the profession is higher t h a n his personal interest. Always one should
be respectful to his seniors and seniors should show sympathy and
kindness to juniors. Advocate should always behave himself in a m a n n e r
befitting his s t a t u s as an officer of the court, a privileged member of the
community, a s honourable member of an exalted profession and a fine
gentleman. Overall, the advocate should engrace the profession and m u s t
not disgrace it. As far as the legal professionals are concerned, they
should follow the pancsheel of the Bar. These punchsheel are the five
qualities which Mr. Ram Keshave Rannade, former District and Session
J u d g e pointed out in his presidential a d d r e s s in a Judicial Conference

39 V. Sasidharan v. M / S Peter and K a r u n a k a r a n , AIR 1984 SC 1700


40 AIR 1976 SC 242
41 P 86 H High Court Bar Association v. Chandigarh Admn., AIR 1987 P & H 238
142

held at Aurangabad on 25 April, 1960. "^^ These five qualities are a s


follows:

(A) Honesty
The first prerequisite of a lawyer is that he should be imbued with
honesty. Honesty is the most important quality that an advocate should
possess. He follows a noble profession, which is not in the n a t u r e of a
trade. His thoughts, words a n d deeds should have sincere co-relation to
each other with their origin from genuineness. An advocate should be
dependable and reliable to everyone who seeks his advices and services.
Then only the clients will believe him with confidence. The uprightness,
integrity and honesty of an advocate will accelerate his reputability and
respectability. He m u s t be honest to the cause of his client which he is
espousing before the court. If he is not sincere enough in his effort, the
result would be disastrous. But the honesty of purpose has a
multipronged facet. He m u s t be honest to the cause of his clients. He
m u s t be sincere a n d honest to the court before he practices. Meaning
thereby, he can't deliberately mislead the court.

(B) Industry
Industry denotes the quality of hard working. This quality is
absolutely necessary on the part of an advocate. His knowledge of law
should be upto date. Law changes according to the changing needs of the
society. Changes of law are effected by a m e n d m e n t s of the existing laws,
new legislations and precedents. An advocate shall never be ignorant of
the current law in force. He should get acquainted with the present law
by systematic study a n d word directed to that object. This is the reason
for quoting Edison in relation to the talents of an advocate that "extra
ordinary talent is nothing but two per cent inspiration and ninety eight

42 AIR I960 J o u r n a l Section at 59


143

per cent perspiration." If one ignores the law, the law is also apt to ignore
him. That is why it is said that "law is a jealous mistress." It requires
regular, constant and systematic care and attention. Lord Eldon
emphasized the need of hard work for a lawyer. He stated t h a t "a lawyer
m u s t live like a hermit and work like a horse." It requires regular,
constant and systematic care and attention. Lawyers will do well to
enshrine in their h e a r t s the well-known maxim, "Industry in fortune's
right-hand." Without industry the armoury of the advocate will lack
weapons on the day of battle.

(C) J u s t i c e
An advocate is an officer of the Court. He should help the judge in
finding out the t r u t h and arriving at the right decision. For this purpose,
he shall point out and submit the proper position of law, facts and
evidence in the case.
Truly speaking, he h a s to protect the interests of the client, but at
the same time he m u s t realize that he is not a mere mouthpiece of the
client. He should be fair to his clients b u t at the same time he should be
fair to the court a n d his predominant business m u s t be to advance the
cause of justice. The most remarkable words of Lord Chief Justice
Cockburn are t h a t the a r m s which a lawyer wields are to be the a r m s of
a warrior and not of the assassin, that his duty is to strive to accomplish
the interest of his client.

(D) Service
No profession can hope to exist in the world u n l e s s it serves the
real needs of the society. Employment in any walk of life, if rightly
understood, is a m e a n s to serve humanity and lawyers are to try their
level best to carry on their profession in a spirit of service to society.
Lawyers shall be willing to protect the defenceless and oppressed. They
shall render their best legal services to such needy litigants. Law and
144

legal profession are mainly concerned with the promotion of


administration of justice and the establishment of a welfare society.

(E) Philosophy
It is suggested that lawyers should have some philosophical
outlook. An advocate h a s to deal with a variety of h u m a n relations in
their conduct, disputes, rights and duties in different causes and
circumstances both favourable and unfavourable. As Plato h a s stated "all
evils of the world would end when lawyers become philosophers and
philosophers become lawyers."
It is, therefore, necessary that lawyers should be guided by some
philosophical principles suitable to his life and profession. The lawyers
should have required capacity and mental fitness to adjust and
accommodate changes. It is, therefore, necessary that lawyers should be
guided by some philosophical principles suitable to his life and
profession.

(F) Duty t o Self


Legal profession is noble, valuable and respectable. The degree of
standard expected from a lawyer with respect to his knowledge, skill and
ability is so high that people repose confidence in his competence. He
m u s t obey and observe his multifarious duties as provided in the rules
relating to the professional etiquette and conduct. Violation of those
rules will expose him to disciplinary proceedings against misconduct. He
m u s t bear in mind that his profession is a noble profession a n d a s such
he h a s to maintain its dignity. An advocate m u s t follow regular habits of
systematic acquisition of knowledge of law and maintain the same upto
date. Law is not a fixed body of rules, but ever changing with the
changing needs of the society. It is also desirable that an advocate
should acquire some special knowledge in certain b r a n c h e s of law.
145

An advocate shall exercise prudence, diligence and judiciousness


in all his activities including those relating to professional a n d financial
matters.
An advocate shall never be a party or privy to anything which he
knows to be wrong. "Cleanliness and purity of thought, words and deeds
are as m u c h necessary in the legal sphere a s in the other spheres."^^
A lawyer owes many obligations to the Court; and so also he owes
duties to himself.
(i) The iirst duty he owes to himself is the duty of self-respect and
independence which are by far the most important,
(ii) An advocate owes duty not to produce in the court, what he
knows to be a false document or tender knowing a false
witness,
(iii) He should not fight a cause which is false to his knowledge,
(iv) It is also advisable not to take u p a case in which he is likely to
be called as a witness,
(v) A lawyer should never make a difference between a small and a
big case, equal attention and care should be given to the cases
irrespective of their n a t u r e . This difference may be to the
advocate and not the client.
Chief Justice Cockburn while emphasizing on the 'fearlessness'
as a quality of a lawyer in carrying out the interests of his
client, h a s said that, "the a r m s which he wields are to be the
a r m s of the warrior and not of the assassin."
(vi) Never b u r s t into laughter in the court, b u t give a gentle smile
only whenever occasion d e m a n d s . It is bad etiquette to b u r s t
into wide or noisy laughter in Court,
(vii) Never answer a question to the presiding judge while sitting,
(viii) A lawyer should maintain a book of accounts.

43 AIR 1962 J o u r n a l Section at 42


146

(ix) J u d g e s are entitled to be addressed as 'My Lord', Your


Lordship', Your Honour or Your Worship', a s the case may be,
only when they act a s J u d g e s ,
(x) Keep u p regular habits of systematic study of law. Remember
law is a jealous mistress,
(xi) Avoid the 'easy come, easy go' method with your finances. Bank
on no fee until received.
Law is nothing but 'applied morality'. It is truly said, "we are slaves
of law, so that we may be free."
The following are generally accepted rules of duty of a lawyer to
himself:
(i) In order to be a good lawyer one m u s t first be a good man. He
should develop a high sense of morality that would thwart him
from doing anything he knows to be wrong. Cleanliness and
purity of thought, words and deeds are a s m u c h necessary in
the legal sphere as in other spheres,
(ii) The lawyer should stick to his profession and seek to elevate it.
It is a profession and not a trade for making money,
(iii) It is a profession requiring for is mastery great and prolonged
labour, intense study and concentration. It involves a profound
and continued study of m a n . Law is not a fixed body of
dogmatic rule; it is changing with the requirements of a
progressive civilization. The lawyer should be alive to all the
mutation or he will fall to meet the needs of his client,
(iv) Above all, the institution d e m a n d s character.
(v) By his training the lawyer is better equipped t h a n any other
person to u n d e r s t a n d the proposed legislation, which casts on
him the duty to share his responsibility in public affairs. Legal
profession is the preparation of the ideal of unselfish public
service.
147

Dr. Anajwala in his book, "Law Relating to Advocates" h a s stated


some words of advice to a lawyer. The first advice is quoted from
Abraham Lincoln's speech:
(i) Discourage Litigation: Persuade your neighbours to compromise
whenever you can. Point out to them how the nominal winner is
often the real loser in fees, expenses and waste of time. Never
stir u p litigation. A worse m a n can never be found t h a t one who
does this.
A French proverb says that a doctor never prescribes for himself;
nor should a lawyer be foolish enough to go to law. There is nothing
certain about a law-suit except the expense of it.
(ii) Social service, not personal profit, is the aim of your profession,
(iii) Exalt and loyalty, magnify the prestige and power of the court,
so t h a t the administration of law may be made efficient for the
attainment of justice,
(iv) Other lawyers should be regarded a s fellow soldier in the
common cause of justice and their honour as sacred to you a s
your own.
(v) Value your services to your client as above all price. Service is
the right of the client; self is sold to none. '
(vi) Follow the highest of the p a t h s morally permissible, b u t a s
between two courses not so sanctioned, select none,
(vii) Cumulative character, no smartness, is your aid to success;
instinct for t r u t h is a sure guide. Self-interest cannot be
mislead.

VI Rights of Lawyers
The m e m b e r s of legal profession, by virtue of law and usage, enjoy
certain rights and privileges. Rights and privileges of advocates in India
are not different from those of Barristers in England. There the advocate
h a s the rights of audience as an Advocate in all the superior and most of
148

the inferior courts. The advocate h a s the right to draw or prepare for or
in expectation of fee or reward i n s t r u m e n t s relating to real or personal
estate or any legal proceeding. Further the advocate h a s the right to
advise on questions of law. The advocate h a s the right of authenticating
by his n a m e the report of case decided in court.
In India too, the researcher find that the advocates have the
following rights provided by law and usage.

(i) Right to Freedom of Speech and Expression


Article 19(l)(a) of the Constitution of India provided the right to
freedom of speech and expression to all citizens. An advocate need not
fear about police, bureaucrats, legislators and even the judiciary. But the
should oblige the reasonable restriction imposed on this right in the
interest of the sovereignty and integrity of India, the security of the state,
friendly relations with foreign states, public order, decency or morality,
or in relation to contempt of court, defamation or incitement of an
offence. He should not h u r t the religious feelings of one sect. He should
speak in decent language and should not u s e intemperate language.

(ii) Right to practice and audience


Before enacting the Advocates Act, 1961 there were different
classes of Legal Practitioners viz.. Barristers, Advocates, Valiks, Pleaders,
Mukhtars, Agents etc. The Act of 1961 made several important changes
and brought this profession into uniformity. Now there is only one class
of legal practitioners, viz., Advocates. Chapter IV containing Section 29 to
34 of the Advocates Act, 1961 explains the legal provisions about the
right to practise. Section 29 of the Act imposes strict restriction that
advocates are the only one class of persons to practice the profession of
law. The right to practice is authorized only to the advocates, who have
enrolled their n a m e s in the Roll of a State Bar Council. According to
Section 30 of Act of 1961, every advocate, whose n a m e is entered in the
149

State roll is entitled as of right to practice throughout the territories to


which this Act extends, subject to the provisions of this Act -
(a) In all courts including the Supreme Court;
(b) Before any tribunal or person legally authorized to take evidence;
and
(c) Before any other authority or person before whom such advocate
by or u n d e r any law for the time being in force entitled to practise.
Only advocates have monopoly right to represent clients in courts.

(iii) Right for Welfare Fund


States have enacted Advocates Welfare Fund Act and every
advocate practicing in any court in the State become a member of the
fund. A member of the fund shall, on cessation of practice, be entitled to
receive from and out of the fund an a m o u n t at the rate specified in the
schedule after five years of service at the rate of one t h o u s a n d for a
completed year.

(iv) Right of Fee


An advocate h a s right to his fee. This right is absolute and not
conditional. It does not depend u p o n winning or losing of the case. The
advocate can insist upon the payment of their fees in advance or rely on
their lien on the clients papers and on the fruits of the litigation a s well
as on their right to sue for their fees. Rule 11 of Chapter II of Part VI of
the Bar Council of India Rules provides that the advocate h a s a right for
a fee consistent with his standing at the bar and the n a t u r e of the case.
Sometimes advocates do take u p cases without any fees, then it will not
be their right.
150

(v) To Enter t h e Bar


An advocate h a s a right to sit in the seats provided for advocates,
whether he is having a case o not and observe the proceedings of the
court.

(vi) Advocate's Right to Refuse a Brief


According to section 29 of the Advocates Act, 1961 the only one
class of persons entitled to practice the profession of law, namely
advocates.
As per Rule 11 of Chapter II of Part VI, and advocate is bound to
accept any brief in the Courts or Tribunals or before any authority in or
before which he professes to practice at a fee consistent with his
standing at the bar a n d the n a t u r e of the case. Special circumstances
may justify his refusal to accept a particular brief.
Defending a client known to be guilty neither involves violation of
law nor ethics. No person is guilty u n l e s s otherwise proved. Any guilty
person h a s the right to defend himself in court. A client approaches a
particular advocate after satisfying that he h a s sufficient experience,
knowledge a n d ability to safeguard his interests. No advocate refuses a
brief. But in situation where he could not appear before court lawfully,
then he h a s a right to refuse a brief and it is his duty also.
The following are the circumstances where a s advocate should not
plead in a Court a n d where he h a s to refuse a brief:
According to Rule 4 of Section I of Chapter III of Part VI of the
Rules of the Bar Council of India, a n advocate shall refuse to represent
the client who persists in unfair practices and improper conduct.
According to Rule 6 of Chapter II of Part VI of the Bar Council of
India rules, an advocate shall not enter appearance, act, plead or
practice in any way before a court, tribunal or authority mentioned in
Section 30 of the Act, if the sole or any member thereof is related to the
advocate a s father, grandfather, son, grandson, uncle, brother, nephew,
151

first cousin, h u s b a n d , wife, mother, daughter, sister, a u n t , niece, father-


in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law, or
sister-in-law.
For the purpose of this rule. Court shall ban a Court, Bench or
Tribunal in which above mentioned relation of the advocate is a Judge,
Member or Presiding Officer.
According to Rule 8 of Chapter II of Part VI of the Bar Council of
India Rules, an advocate shall not appear in or before any Court or
tribunal or any other authority for or against any organization or any
institution, society or corporation, if he is a member of the Executive
Committee of such organization or an institution, society of corporation,
if he is a member of the Executive Committee of such organisation or
institution or society or corporation. "Executive Committee" by whatever
n a m e it may be called, shall include any Committee or body of persons
which, for the time being is vested with the general management of the
affairs of the organisation or institution, society or corporation:
Provided that this rule shall not apply to such a member appearing
a s 'amicus curiae' or without a fee on behalf of a Bar Council,
Incorporated Law Society or a Bar Association.
According to Rule 9 of Chapter II of Part VI of the Bar Council of
India Rules, an advocate should not act or plead in any matter in which
is himself pecuniary interested.
(i) He should not act in a bankruptcy petition when he himself is
also a creditor of the bankrupt;
(ii) He should not accept a brief from a company of which he is a
Director.
According to Rule 13 of Chapter II of Part VI of the Bar Council of
India Rules, an advocate should not accept a brief or appear in a case in
which he h a s reason to believe that he will be a witness and if being
engaged in a case, it becomes apparent that he is a witness of a material
152

question of fact, he should not continue to appear as an advocate if he


can retire without jeopardizing his client's interests.
In the case, Allahabad Bank Ltd., Fyzabad v. Thakur Bakshi
Singh, the Privy Council held, "if a client conies to them with proper
instructions and prepared to pay a fair and proper fee and invites them
to undertake a case of a kind which they are accustomed to do a n d they
refuse, such refusal a m o u n t s to professional misconduct, a n d should be
punished a s such. That is to say, nor h a s a lawyer any right to reject a
brief when offered to him on payment of fee agreed upon the ground of
partisanship for a party to the litigation."
No advocate should accept a fee less t h a n the fee taxable u n d e r the
rules when the client is able to pay the same. At the same time, Article
39-A of the Indian Constitution provides that if the arrested person is
poor, free legal aid and equal justice shall be provided to him. Hence no
advocate h a s right to refuse a brief on the basis of fee;
If an advocate refuses to appear on the ground that the fee offered
is not adequate enough for him, it is violation of professional ethics of a
lawyer. An advocate should not bargain for higher fee a n d refuse a brief
on that basis.
In India, there is no provision to refuse a brief legally. But it is the
general opinion that defending a client known to be guilty neither
involves violation of law nor ethics, a n d such client m u s t be defended,
irrespective of the personal opinion of the advocate. But, as the advocacy
is a noble profession an advocate should not counsel or maintain any
suit or proceeding which is unjust and dishonest.

(vii) Right to Lien


Once a lawyer h a s filed a uakalatnama in a case it is his privilege
that no one else can step in without his consent. Earlier the law was t h a t
a lawyer had a lien, for any upaid fee, upon such papers of the client as
were in h a n d s . This lien was possessory. Even, courts could not grant
153

leave to appear in the case if he remained unpaid when he had a right of


lien upon the briefs and papers in his possession. Unless satisfactory
arrangements for the payment of his fees h a s been made and the judge is
satisfied on that account, even the judge cannot make a n order to h a n d
over the brief either to another advocate or to the client. Recently two-
J u d g e bench of the Supreme Court consisting of S. N. Variava and Dr. A.
R. Lakshmanan, J J . While considering the issue of returning of files by
an advocate to his client between whom a dispute had arisen, took the
position that the right of the litigant to have the files returned to him is a
corresponding counterpart of the professional duty of the advocate and
the dispute regarding fees is an issue to be decided in an appropriate
proceedings. Whenever or not the fees were payable to the advocate, the
court refused to consider that question and observed t h a t the entitlement
of the advocate to the fee would also be open for consideration in
appropriate proceedings for recovery of his fees. The court h a s curtly
observed that in order to claim the u n p a i d remuneration from a client,
advocates cannot retain the papers of their clients against his will.^^

(viii) Right to have a c c e s s t o Judge


It is the right of a lawyer to have access to the judge in urgent
judicially matter at any time during day or night, and the J u d g e cannot
refuse to give audience to him.
Of course, when such urgent matters are taken after the working
h o u r s of the court, the convenience of the judge h a s to be looked into.
Though, it looks bitter and odd yet it is the right of the advocate to refuse
to recognize and appear before a presiding officer/judge who is not in the
prescribed robe of a judge in the court. Similarly, a J u d g e can also refuse
to give an audience to the lawyer who is not in the prescribed dress.

44 New India Insurance Company Ltd. v. A. K. Saxena 2003 (9) SCALE 531
154

VII. Functions of an Advocate


Arthur T. Vanderbilt states the functions of a great advocate in the
following terms:
(1) A truly great advocate is a wise counselor to all m a n n e r of men in
the varied crises of their lives when they most need disinterested
advice. Counselling calls for a wide and deep knowledge of h u m a n
n a t u r e a n d of modern society and most difficult of all, truly great
counseling calls for an ability to forecast the trends of the law.
(2) An able advocate is a skilled and trained one in the art of
prosecuting and defending the legal rights of men both in the trial
courts a n d on appeal. Advocacy is not a gift of God. It is trail as
well as in its appellate aspects it involves several distinct arts, each
of which m u s t be studied and mastered. Unless an advocate h a s
had experience, it is difficult to see how he can be a thoroughly
competent counselor for he will not be able to evaluate his clients'
cause in terms of the realities of the court room.
(3) An advocate is to do his part individually and a member of the
organized Bar to improve his profession, the Court and the law.
(4) In a free-society every advocate h a s a responsibility that of acting
as an intelligent, unselfish leader of public opinion.
(5) Every advocate m u s t be prepared, not necessarily to seek public
office b u t to answer the call for public service when it comes.
These five - (i) Counselling; (ii) advocacy; (iii) improving his
profession, the courts and law; (iv) leadership in moulding public
opinion; and (v) the unselfish holding of public office at the essential
functions of the great advocate.

VIII. Privileges of Lawyers


The profession of law is a noble calling with serious
responsibilities. The notability of it consists in this fact that the lawyers
have to act a s w a t c h m a n in order to protect the rights of the people.
155

Hence, they are looked upon a s the protectors and defenders of life,
liberty and property - off course at price. They are expected to act in
honest and upright manner because they have the privilege of
discharging all those duties which those who are not members, of the
legal profession cannot do. Mukherjee, J. in Emperor v. Rajani Kanta
Bose and others,'*^ h a s rightly observed t h a t "the practice of law is not a
b u s i n e s s open to all who wish to engage in it; it is a personal right or
privilege . . . it is the n a t u r e of a franchise from the state . . ." All rights
attached to the office of advocate by virtue of law and usage are in a
sense, his privileges,. The lawyer is given an absolute privilege and this
absolute privilege carried with it a special responsibility t h a t should not
be abused, "that you are a member of the legal profession is your
privilege; t h a t you and represent clients is your privilege; t h a t you can in
t h a t capacity claim audience in courts is your privilege. Yours is a n
exalted profession in which your privilege is your duty a n d your duty is
your privilege. They both coincide.'"^^ The lawyer have the privileges of
audience in the court and he can insist on his right to be heard without
any hindrance, so long a s he act decorously and with due respect to the
court.
It is pertinent to state here t h a t a two day national seminar on
"Privileges, Court Fee and Access to Justice" was held at Hyderabad on
11-12 December, 1982 u n d e r the joint auspices of the Bar Council of
India trust and the Bar Council of Andhra Pradesh. The seminar was
attended by over 300 lawyers from District and Taluka Bars of Andhra
Pradesh besides members of the Bar Council of India and representatives
of State Bar Councils was inaugurated by the then Vice-President of
India Hon'ble Mr. M. HidayatuUah. The speaker u n a n i m o u s l y felt t h a t
the subject was of p a r a m o u n t importance. In his inaugural address, Mr.

45 ILR 49 Cal 804


46 Justice Mukherjee quoted by K. Gururaja Chari, Advocacy and Professional Ethics
125 (2013)
156

Hidayatullah stated that there was a duty owed by advocates to the court
on the one h a n d and their clientele on the other and pointed out that
their privileges did not extend beyond the ends of justice.
On the occasion Mr. Justice P. Rama Rao of the Andhra Pradesh
High Court said that "brilliant advocates contributed to correct
judgement. Advocates had unfettered right in the presentation of the
cases. Arrest of advocates and employment of force against them by the
executive are a sad situation." Learned Counsel F. S. Nariman said that
"law is a profession and not a business. One h a s to be efficient and
honest." He cautioned that mere honesty without efficiency was useless.
He deprecated boycott of courts. He pointed out t h a t advocates privileges
are service oriented." The speaker u n a n i m o u s l y felt t h a t the advocates
are limbs of the administration of justice. Any attempt to interfere with
the freedom of advocates constituted an act of contempt of court. There
was near unanimity on all the following points : (i) Freedom of advocacy
is the most important privilege and any attempt aimed at to curb it will
have to be deprecated; (ii) Amount the Bench and Bar there m u s t be an
element of mutuality in the matter of extending respect an courtesy; and
(iii) cases of professional misconduct have to be examined only by the
statutory Bar Council and should not rest with the courts.
There was difference of opinion surfaced at the seminar as to
whether the privileges of advocates should or should not be codified. The
question h a s been solved by a Joint Conference of Bar Council of India
with the State Bar Councils held at Bangalore on 25'^ and 26'^ February,
1984. "All the State Bar Councils were of the opinion that not only
privileges but rights and interests of the Advocates shall be considered
together according to sub-sections 6(l)(d) and 7(l)(d) of the Advocates
Act, 1961. These State Bar Councils were of the opinion that the
following privileges should be enjoyed by the advocates : (i) The freedom
of advocacy in the courts so long that advocate think it necessary for
pleading the case of his client; (ii) the judges should not interfere at the
157

time of argument. If the judge interferes or a s k s the advocate to take his


seat and if the advocate does not comply with the order of the judge for
the best interest of his client and feels necessary to continue the
argument and place the case of his client then that will not a m o u n t to
contempt; (iii) fair treatment from courts and the advocates should be
strictly treated a s officers of courts; (iv) immunity from penal action with
regard to any communication made by an advocate on behalf of his
clients on instructions; (v) immunity from arrest while going in courts for
performing professional duties, returning from courts after performing
professional duties, performing duties by orders of courts and practicing
the profession of law; (vi) immunity from arrest for custody of documents,
paper, etc. of clients for the purpose of opinion and cases; (vii) taking full
instructions from clients with regard to trial in cameras; (viii) taking
notes from records a n d / o r documents, papers, etc. filed in courts and
quasi-judicial authorities even if the same are prohibited by law; (ix)
immunity from legal actions for expressions used at the time of
advocates and clients; (xi) immunity from proceedings for contempt
and/or defamation for expressions used in courts during a r g u m e n t s
u n d e r instructions from client."
As a member of legal profession, the lawyer enjoys certain
exclusive privileges. These are as follows:
(i) The right to hold himself out a s a lawyer
(ii) The right to advise clients and to represent them.
(iii) The right to appear for them in judicial proceedings.

(i) Privilege to Claim Audience


In India licensing of legal practitioner was a judicial function and
the judges had the power to debar them, b u t now by the Advocates Act,
1961, the power is vested in the Bar Council of India. In any court and in
any proceedings the litigant h a s a right to appear in person but he does
not choose to avail of t h a t privilege and he law allows him to be
158

represented by a counsel then he m u s t choose for his advocate someone


from the r a n k s of the Bar. In India, there is no common law right of the
litigants to be represented by Counsel. Under the Bar Council Act, the
advocates' right of audience depended on Section 14 of the Act which
r u n s a s follows: "An advocate shall be entitled as of right to practice - (a)
subject to the provisions of sub-section 4 of Section 9 of the High Court
of which he is an advocate, and (b) save a s otherwise provided by sub=-
section (2) or by or u n d e r any other law for the time being in force in any
other court in British India and before any other Tribunal or person
legally authorized to take evidence."
The right of advocates to practice is now regulated by Section 30 of
the Advocates Act, 1961. It lays down that subject to the provisions of
the Act every advocate in common roll shall be entitled a s of right to
practice throughout the territories to which the Act extends (i) in all
courts including the Supreme Court; (ii) before any tribunal or person
legally authorized to take evidence; and (iii) before any other authority or
person before whom such advocate is by or u n d e r any law entitled to
practice.
Although the advocates enrolled u n d e r the Advocates Act have
been conferred a n absolute right u n d e r Section 30 to practice before all
courts and tribunals, but Section 30 h a s not yet been brought into force.
Consequently at present the right of an advocate brought on the rolls to
practice is what is conferred by Section 14(1)(a), (b) and (c) of the Bar
Council Act, 1926.
Advocates have the privilege to practise and pleading before the
court and nobody else. In Jaymal Thakore v. Gujarat State Charity
Commissioner, Ahmedabad,'*'^ Gujarat High Court ruled t h a t the right
of pleading an practising is monopolized by registered advocates. A
chartered a c c o u n t a n t holding power of attorney could not appear, file an

47 AIR 2001 Guj.270


159

application or act on behalf of the party in the proceedings a s a


recognized agent, b u t he could no plead or practice as a pleader or an
advocate.
It is privilege of a person who fulfills the prescribed qualification to
become a member of the Bar; it is privilege to represent his clients in the
courts of law; it is his privilege to claim audience in courts so long he
acts decorously; this is an exalted profession in which privilege is duty
a n d duty is privilege. They both coincide. Words spoken by lawyer in his
professional capacity in the course of a judicial inquiry or in the
examination of witnesses are privileged. The advocate can insist on his
right to be heard without any hindrance.
Bench and Bar are the two main limbs of judiciary a n d one
without the other cannot function. It is, therefore, necessary that the
harmony between the two m u s t be maintained. Bench a n d Bar should
give due respect to each other. In T. Venkata v. The Hon'ble High
Court of Mysore,"*^ the court held that when an advocate a p p e a r s before
the court a s a litigant in person, he is not exercising any right u n d e r
Section 30 of the Act. So, he cannot be permitted to argue with his robes
on from the advocates table.

(ii) Privileges of Exemption from Arrest


Common law doctrine of absolute privilege does not apply to the
criminal law of defamation in India. Privilege of the advocate is analogous
to t h a t of the clients. A lawyer while going to the court to attend the
matter or while returning from court is exempt from arrest u n d e r Section
135(2) of the Civil Procedure Code, 1908 which states a s under:
"Where any matter is pending before a tribunal having jurisdiction
therein, or believing in good faith that it h a s such jurisdiction, the
parties thereto, their pleaders, m u k h t a r s , revenue-agents, and their

48 AIR 1973 Mys. 127


160

witnesses acting in obedience to a s u m m o n s , shall be exempt from arrest


u n d e r civil process other t h a n process issued by such tribunal for
contempt of Court while going to or attending such tribunal for the
purpose of such matter, and while returning from such tribunal."
This privilege also does not appear to be his personal one because
it is in furtherance of public interest and for the promotion of
administration of justice. In other words, in civil process, other t h a n
process for contempt of court, while going to the court or attending the
court or returning from court, a lawyer is exempted from arrest.

(iii) Privilege under the Code of Criminal Procedure


An advocate is exempted from serving as juror or a s assessor
u n d e r the Criminal Procedure Code.

(iv) Liability of Negligence


No action can be taken against the advocate if he does any
negligence, which an ordinary and a reasonable m a n does. Such mere
negligent acts are privileged u n d e r the Act.

(v) Privilege of being offered judgeship and several other offices


under the statute

It is the privilege of a lawyer that he is made eligible for holding


several offices u n d e r the statutes, e.g. an advocate is eligible for
appointment as a District Judge, Additional District Judge, Magistrate,
Session Judge, Additional Session J u d g e , etc. An advocate of a High
Court with 10 years standing is eligible for appointment as Advocate
General or a J u d g e of a High Court. He h a s also the privilege to become
Munsifs, official Assignee, Official Receiver, Public Prosecutor, Govt.
Pleader and Liquidator u n d e r administrative rules.
161

(vi) Privilege of Public and Political Life


An advocate can enter public or political life without any fear, and
play his part therein. He can be a Member of Parliament or Legislature.
He enjoys overall privileged position in society at public places.

(vii) Privilege of Independence


It is the privilege of an advocate that he is frank, fearless and
independent. It is his privilege that he is subordinate to none except God,
because he s t a n d s for justice and fights for justice alone and that makes
him a leader of the society. It is the privilege of the advocate to exercise
independent judgement in determining how he will conduct the case. So
strong is the practice the etiquettes of the profession require t h a t counsel
in this respect will nt be guided even by the advice of the court. Thus, if
the court tells him t h a t the evidence already recorded was sufficient to
support his client's case t h a t will not by itself justify the counsel not
producing further evidence.

(viii) Words Spoken in Professional Capacity of Privileged


The words spoken by an advocate in his professional capacity in
the course of a judicial inquiry or examination of witnesses are
privileged.

(ix) It is an advocate's privilege to ensure that the forms and


requirements of the law are strictly observed and carried out and to
defend an accused person towards that end even though the advocate
may have knowledge or reason to believe that he is guilty.

(x) It is also the advocate's privilege, resulting from the credit due to
the honour and prestige of the profession, to make, on occasions,
statements from your place in the Bar and without being sworn. For
example, it appears sometimes in cases where advocate takes part in
162

settling compromise of pending litigations that disputes occur when the


matter is brought before the J u d g e for being made an order of the court.
The extent of advocate authority or any mistake he may have made or
some other like question might be mooted. It is then advocate's privilege
to make a statement from the Bar on matter that have transpired
without making a n affidavit. Lord Esher once said that they would never
admit an affidavit in such cases but trusted to the h o n o u r of lawyer. In
Hickman v. Berens, a dispute arose a s to the extent of the authority
given by the client to his advocate and the court accepted the statement
of advocate made from his place in the Bar without requiring it to be
made on oath. On the same principle a barrister in England enjoys a
peculiar privilege. He h a s the right to authenticate by his n a m e the
report of a case decided in court. As soon as the report is published of
any case with the n a m e of a barrister annexed to it, the report is
accredited and may be cited a s an authority before any tribunal. That
m a r k s the limit of the reliance placed on the integrity of the profession.

IX. Disabilities of Lawyers


A lawyer is an officer of the court - a minister in the temple of
justice and h a s a double character so far a s his duties are concerned. On
the one hand, he h a s to save the interest of his client with courage,
candour and fairness. On the other h a n d he is to assist the court or
tribunal so that it may arrive at correct conclusion and justice is done.
Frankly admitting that a lawyer should not only be well versed with his
rights and privileges as an advocate, b u t also should be thorough with
his ethical obligations, his responsibilities to abide by the legal ethics. An
advocate should be able to distinguish between right and wrongs in
matters of professional conduct without difficulty or hesitation. He
should not indulge in abusive and reckless charges of fraud, dishonesty
and criminality. He is not allowed to take u p a brief where his position
m a k e s him a party to the cause, and destroys his independence. He
163

cannot appear, for instance for or against a local authority of which he is


a member. He should not accept brief on behalf of a society of whose
executive he is a member. Further, he cannot accept brief for a company
of which he is a Director. If he is instructed by a private person to
prosecute in any court in a case of which the public prosecutor is in
charge, the public prosecutor shall conduct the prosecution a n d he shall
act therein, u n d e r the latter's direction. He m u s t not divulge his client's
communications. These disabilities are elaborated u n d e r the following
heads:

(i) Advertising oneself and soliciting client


The duty of an advocate not to advertise or solicit is based, not
only on history, but also on practical utility. Historically, the profession
of law is developed more in the spirit of public service t h a n a s a m e a n s of
earning livelihood. Hence, it is n a t u r a l that he lawyer m u s t impose on
himself the duty of neither advertising nor soliciting. Even from the
practical utilitarian point of view, advertising, solicitation or
encroachment on the practice of others do not tend to benefit either the
public or the lawyer. On the other h a n d , extensive advertising on the
part of the lawyer might increase litigation which of course is definitely
against public policy. Hence, advertising in any form by a n advocate is
highly objectionable. It is aimed at drawing attention of the public and is
a device for obtaining public favour of notoriety. Advocate should not
seek b u s i n e s s by advertisement or otherwise. As advocacy is not a
business it can be said t h a t the advocate is liable for misconduct if he is
advertises. It was held in Kannepath Kaur v. Kasi Prasad Singh,"*^ that
it is a well recognized rule of etiquette in legal profession t h a t no attempt
should be made to advertise oneself directly or indirectly. Such conduct
is unprofessional on the part of an advocate to solicit directly or

49 AIR 1934 All 106


164

indirectly to advertise through various methods - crude or subtle. Such a


course of action tends to lower the dignity of the honourable profession
and is akin to touting. An advocate should remember t h a t attaining
excellence in the profession and earning his reputation in the Bar and
the Bench of being a devoted, diligent, hard working, learned and honest
advocate is the most effective advertisement and he does not need
inspired news items in the column of l a w Court' in the newspapers
displaying his n a m e or sometimes his photographs.
It is an axiom of the profession t h a t any form of self-advertisement
by a practicing member of the Bar is contrary to etiquette, and a m o u n t to
seeking unfair advantage over other m e m b e r s of the Bar. In England, it is
unprofessional for a barrister to do anything for touting directly or
indirectly. Therefore, no barrister is allowed to write to solicitor or even to
brother practitioner on circuit, extolling his service, experience, ability or
work. Advertisements of all forms are considered to be highly improper.
The Canon 27 of American Bar Association also states that "it is
unprofessional to solicit professional employment by circulars,
advertisements, through touters or by personal communications or
interviews not warranted by personal relations." It may be noted t h a t the
rules framed by the Bar Council of India are also similarly worded.
Section 49(1) of the Advocates Act, 1961 confers power on the Bar
Council of India to make rules for discharging its functions. Rule 36 in
Chapter II of the S t a n d a r d s of Professional Conduct and Etiquette of the
Bar Council of India Rules, 1975 lays down t h a t an advocate shall not
solicit work of advertise either directly or indirectly, whether by circulars,
advertisements, touts, personal communications, interviews not
warranted by personal relations, furnishing or inspiring newspaper
comments or procuring his photograph to be published in connection
with cases in which he h a s been engaged or concerned. His signboard or
n a m e plate or stationary should not indicate that he is or h a s been
president or member of a bar Council or of any Association or that he
165

h a s been associated with person or organisation or with any particular


cause or matter or t h a t he specialises in any particular type of work or
t h a t he h a s been a J u d g e or an Advocate-General. In re Thirteen
Advocates of Allahabad,^^ it was held t h a t advertising in any form, by
extolling of services, experience, ability or work in any b r a n c h of law on
the part of a lawyer is highly improper and a m o u n t s to a gross breach of
professional etiquette.
An advocate should not seek business by advertisement or
otherwise. An advocacy is not a b u s i n e s s it can be said that he advocate
is liable for misconduct if he advertises. In re A, an Advocate,^i the
Supreme Court held t h a t the writing letters for a brief by advocate,
stating his achievements and his knowledge in some specialized subjects
a m o u n t to professional misconduct, m a k e s him unfit to be a member of
the Bar. In this case, an advocate on record of the Supreme Court wrote
a letter to the Minister, Law, M a h a r a s h t r a and in the letter, he wrote,
"you might have got a n advocate on record in this court but I would like
to place my services at your disposal if you so wish and agree." The
Supreme Court through Shah, J. held:^^ «it was in utter disregard of
truth. He h a s in this court, condemned himself as a liar and one who is
either ignorant of the elementary rules of professional ethics or h a s no
regard for them. In our opinion the Advocate h a s mischosen his
profession. Apparently, he is a m a n of weak moral fibre. If he is ignorant
of the elementary rules of professional ethics he had demonstrated the
inadequacy of training and education befitting a member of the
profession of law. If he knew t h a t it was highly improper to solicit brief
and even then he wrote the postcard in question, he is very unworthy
member of the legal profession."

50 AIR 1934 All. 1067; also see C. D. Sekkizhar v. Secy. Bar Council, AIR 1967 Mad.
35.
51 AIR 1962 SC 1337
52 Id. at 1340
166

The advocate was punished and was suspended from practice for
five years.
In a landmark case of Bar Council of Maharashtra v. M. V.
Dabholkar,^^ allegation of misconduct against over a dozen advocates
according to the testimony recorded by the State Disciplinary Committee
were t h a t the respondents positioned themselves at the entrance of the
Magistrate's Court, watchful of the arrival of potential litigants. They
snatched away briefs from litigant, fought with each other and even tore
cloths in grim competition, and in various ways showed grave
misconducts in soliciting business. The matters were taken u p in appeal
before the Supreme Court and were considered together. V. R. Krishna
Iyer, J., on behalf of himself and three other J u d g e s (R. S. Sarkaria, A. C.
G u p t a a n d S. Murtaza Fazal Ali, J J ) on the Bench observed "with deep
sorrow" t h a t a lawyer should scrupulously observe the n o r m s of
professional conduct and etiquette provided in Rule 36 of the Bar
Council of India Rules made in this behalf and be worthy of the
confidence of the community and not behave with doubtful scruples and
strive to thrive on litigation. The court also regretted the low standard of
enquiry conducted by the State Council prolonged for 8 years by
clubbing together 16 cases and trying them together though the charges
in each case were different and by misconstruing Rules 36 (which
prohibits soliciting work by circulars, advertisement, touts, etc.) a s
rendering advocates amenable to disciplinary jurisdiction of they have :
(i) solicited work (ii) from a particular person (iii) with respect to a case,
and holding that "mere attempts to solicit is nothing." Considering fully
well, the available evidence, circumstances, assurances, undertakings
and unconditional regrets in each case separately, their Lordship took a
lenient and sympathetic view against the respondents. Justice V. R.
Krishna Iyer noted for his unconventional approach and iconoclastic

53 AIR 1976 SC 242


167

spirit speaking about the profession of law said, "the c a n o n s of ethics


and propriety for legal profession totally taboo conduct by way of
soliciting, advertising, scrambling and other obnoxious practices, subtle
or clumsy, for betterment of legal business. Law is no trade, briefs no
merchandise and so the leaven of commercial competition or
procurement should not vulgarise the legal profession." Convassing for
professional work in any m a n n e r is prohibited by Rule 34 of the Bar
Council of India Rules. Even a signboard or a n a m e plate should be of a
moderate size.
The Apex Court in P. D. Khandekar v. Bar Council of
Maharashtra,^"^ h a s made curt observations and held that touting or
appointing touts are inconsistent with the rules framed u n d e r the
Advocates Act, 1961 and such practice would be considered as
professional misconduct. The underlying principle behind prohibiting
advertising and touting is t h a t lawyer's profession is entirely different
from trade of business. It is well recognized rule of conduct t h a t no
attempt should be made to advertise oneself directly or indirectly. But in
practice there are indirect advertising like publishing the n a m e of
advocate who appeared in a case through the media, websites created by
lawyers, taking part in radio-television programmes, engaging legal aid
programmes, and engagement in public activities, etc.
Hence, the lawyers in India are averse to advertising their
profession even if there is no restriction imposed by the Advocates Act. A
lawyer thinks it below dignity, nobility and erudition and legal profession
ethics. India is vehemently against lawyer advertising and seeks the
protection of the International Bar Association to stop such
advertisement and corrupt practices so that the image of the Bar of the
world remains in highest esteem of entire humanity.

54 AIR 1984 SC 110


168

The proponents of advertising by lawyers raise a n u m b e r of


arguments to justify their stand. Proponents argue that advertising will
serve the fundamental purpose of providing information to the public.
They argue that advertising will provide clients with inexpensive
information about the attributes of professionals, if the ban on
advertising is lifted and the same is required to be regulated. In case it is
not monitored and regulated, then there would be lot of malpractices or
misrepresentation deceptiveness and false advertisements which would
affect the society a n d degrade the nobility of this learned profession. All
the existing laws to regulate the advertising can be used to control in
flow of advertising. Self regulation is the best regulation.

(ii) Restriction on other e m p l o y m e n t s


An advocate h a s a duty to stick on to the profession and elevate it.
Rule 42 of the Bar Council of India provides t h a t an advocate shall not
engage himself in any business. Advocates shall not carry on any other
profession or business or be active p a r t n e r s or salaried servants in
connection with any business. But he may be sleeping partner in a firm
doing business provided that, in the opinion of the Bar Council the
n a t u r e of business is not inconsistent with the dignity of the profession.
A lawyer may be a Director of a Company with or without any ordinary
sitting fee, provided none of his duties are of an executive character b u t
he should not be its Managing Director or Secretary. Further, an
advocate who h a s inherited or succeeded by survivorship to a family
business may continue it but may not personally participate in the
management thereof. He may continue to hold a share with others in any
business which h a s descended on him by survivorship or inheritance or
by will, provided he does not personally participate in the management.
There is also a restriction that no lawyer shall be entitled to practice if in
the opinion of the Bar Council he is suffering from such contagious
disease as makes his practice of law a hazard to the health of others.
169

This restriction shall last for such period a s the Bar Council directs from
time to time. Hence, restriction on other employment h a s been imposed
with a view that the advocate should devote his whole time and energy to
the learned profession of law which affords vast opportunities for service,
and he should not join vocations in which the principles of conduct may
be contrary to the rules of etiquette at the Bar and there is a possibility
of ethical s t a n d a r d s of the Bar getting lowered by the simultaneous
p u r s u i t s of collateral occupation. The Supreme Court in Haniraj L.
Chulani v. Bar Council of Maharashtra and Goa,^^ h a s observed t h a t
legal profession requires full time attention and would not countenance
an advocate riding two horses or more at a time. The Court further said
t h a t such a restriction is for ensuring the full time attention of law
practitioners toward their profession a n d with a view to bringing out
their best so t h a t they can fulfill their role as an officer of the court and
give their best in the administration of justice.
In Satish Kumar Sharma v. Bar Council of H. P.,^^ a three
J u d g e s Bench of the Supreme Court speaking through Justice Shivraj V.
Patil held that a law graduate working a s a full time salaried employee in
any organization cannot continue a s a n advocate on the rolls of a State
Bar council. The court, in the instant case upheld the decision of the Bar
Council of Himachal Pradesh withdrawing the enrolment of one Satish
Kumar Sharma, who joined the H. P. State Electricity Board as an
Assistant (Legal) and who was later promoted a s Deputy Secretary
(Legal)-cum-Law Officer on adhoc basis. The court observed t h a t the
profession of law is called a noble profession and it does not remain,
noble merely by calling it a s such u n l e s s there is a continued,
corresponding and expected performance of a noble profession. Its
nobility h a s to be preserved, protected and promoted. An institution
cannot survive in its n a m e or on its past glory alone.

55 (1996) 3 s e c 342
56 (2001) 2 s e c 365; AIR 2001 SC 509
170

(iii) Restriction on taking up a brief where his position m a k e s him a


party to the cause and destroys his independence
An advocate cannot accept brief for a company of which he is a
Director. He cannot appear for or against a local authority of which he is
a member. He should not accept brief in which he h a s acted in a judicial
or quasi-judicial character, e.g., as a Commissioner or Arbitrator. He
should not accept brief on behalf of a society, of whose executive he is a
member. Further, a lawyer should not appear in a case in which he h a s
to give testimony. This is not on account of conflict between interest and
duty, b u t is based on a different principle, namely, "it might tend to
throw suspicion on the lawyer's character which may entail loss of
respect for the profession as a whole and diminish public confidence in
the purity of the administration of justice."

(iv) Advocate cannot buy or contract for any share off interest in an
actionable claim

The duty of the counsel is to discourage dishonest or dubious


litigation. Almost a s a corollary to this duty not to stir u p litigation, it is
enjoined on a lawyer not to traffic in litigation. Section 136 of the
Transfer of Property Act provides that no legal practitioner shall b u t or
traffic in or stipulate or agree to receive any share of, or interest in any
actionable claim a n d no court of justice shall enforce, at his instance, of
any person claiming by or through him, any actionable claim, so dealt
with by him a s aforesaid. It is not proper for a lawyer to contract for a
share in the fruits of litigation. Detachment and objectivity are indeed the
basis of the strength of the Bar and when a lawyer agrees to share in its
profits of litigation, he can never retain due detachment a n d objectivity
while advocating the cause.
171

(v) Advocate must not divulge client's c o m m u n i c a t i o n s


It is a duty of a lawyer to preserve his client's confidence. He
should represent his client with fidelity and not divulge his secrets or
confidences. Hence, the relation between the advocate and his client is of
trust and confidence. Section 126 of the Indian Evidence Act lays down
t h a t a n advocate is not permitted at any time, u n l e s s with his client's
express consent, to disclose any communication made to him in the
course and for the purpose of his employment by or on behalf of the
client, or to state the contents of any document with which he h a s
become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the
course and for the purpose of such employment. Protection from
disclosure, however, does not extend to : (a) any such communication
made in furtherance of an illegal purpose; (b) any fact observed by an
advocate in the course of his employment showing t h a t any crime or
fraud h a s been committee since the commencement of his employment.
The privilege extend to the documents of the client also which are
entrusted to the advocate. The advocate shall not disclose the n a t u r e and
condition of the documents entrusted to him by his clients a s long a s the
client does not expressly permit. He is also debarred from disclosing the
contents of the documents with him. He is the custodian of the
documents of his clients. Further, a communication of document which
is "once privileged is always privileged." The obligation continues after
the employment in which the communication was made h a s ceased. It is
not affected even if the party ceases to engage the same after the
engagement and takes away the brief to some other counsel. Even if the
relationship between the client and the counsel is changed the obligation
remains unaltered. The obligations continue even where the advocate
ceases to be an advocate by virtue of his employment in some other
m a n n e r or his suspension or removal from rolls. Even if the advocate
becomes personally interested in the property of the title of which the
172

communication relates, the obligation continues. Lastly, even the death


of the party does not p u t an end to the obligation. It is, therefore, the
reason why it is called "once privileged is always privileged."
The privilege is the privilege of the client, and not of the advocate
or other professional advisors. It may be waived by the client, b u t never
ceases u n l e s s waived by the client or his successor in title. Privilege is
not waived by referring a document in a pleading, affidavit or list of
d o c u m e n t s b u t it is waived when a document is disclosed to the other
party in the course of litigation. Hence, the privilege can be claimed only
in respect of communication made to the advocate in his professional
capacity. It cannot be claimed if the statement is not made to him in the
course and for the purpose of his employment a s a pleader. The reason
for the rule is t h a t if such communications are not privileged, the client
might desist from fully disclosing his case, so a s to be able to obtain
proper professional aid. The rule protects both the advocate and the
client.

X. Legal Ethics : How far are t h e s e Practised and Enforced


The Code of S t a n d a r d s of Professional Conduct and Etiquette or
the legal ethics, as one may call it is m e a n t for being observed and
practiced by the members of legal profession in their practice. Not only
this, they are to practice these codes of conduct in their real life
situations. For this they are to be conversant with legal ethics. A lawyer
should not only be well versed with his rights and privileges a s an
advocate, but also should be thorough with his ethical obligations, his
responsibilities to abide by the legal ethics. He is expected always to
exercise a reasonable degree of care. A lawyer need not be always 'right'
or 'correct' he m u s t exercise reasonable care to provide the best possible
advice or service to a client. An advocate, should be able to distinguish
between right and wrong in matter of professional conduct without any
difficulty or hesitation. This is necessary for the satisfaction of his own
173

conscience, for the honour and good n a m e of the profession, for the
protection of the client and other concerned with litigation and for the
welfare of the general public.
A lawyer is at times faced with considerable difficulty in
determining what is right or what is wrong in matters of professional
conduct. It is crystal clear that there is not settled traditions as yet,
which may guide the younger e n t r a n t s . The researcher find that there
are n u m e r o u s temptations in the path to swerve from the line of integrity
in which so m a n y delicate and difficult questions of duty are constantly
arising.57 There are n u m b e r of pitfalls a n d m a n t r a p s at the very step,
and the young lawyer at the outset of his career, needs often, the
prudence and self-denial, a s well as the moral courage which belong to
riper years. Knowledge of legal ethics will inspire respect for its ideals.
Knowledge of high ideals of Bar will create in young advocates
satisfaction and pride in his calling.^s
Generally speaking the profession being a noble profession, a
profession of learned persons, noble persons and one would be expected
that the knowledge of these ethics m u s t have been inculcated in them
m u c h before they enter the legal profession. But that ideal situation h a s
never arisen, nor it would arise. The researcher finds t h a t in the present
times lawyers do not come from aristocratic background a s they did
before independence. They are comparable with businessmen of various
sorts who rub shoulders with clients belonging to different sections of
society. However, the top ranking lawyers derive power mainly from their
professional esteem and income. The lawyers at middle a n d lower level
derive power from their hard work, sincerity and professional knowledge.
It is also a fact that some of the lawyers are mediocre, but enjoy power
due to their connections with some professional dons and persons in

57 A. S. Khan Afridi, "Legal Ethics : Traditions and Perspectives," Indian Bar Review,
Vol. 13 (1986), p. 79 at 83
58 Ibid.
174

position of power. Legal professionalism is also linked with political


problems; hence relations between lawyers and politicians. Lawyers have
a great deal of u n d e r s t a n d i n g of the problems of people, a n d they take
full advantage of this for extracting monetary gains. The Bar Councils do
not have any effective control over such extortions by lawyers. The
lawyers take full advantage of the professional autonomy for indulging in
such unprofessional activities.^^
With the passage of time the researcher find that there is growing
commercialization in the delivery of professional services. By and large,
new e n t r a n t s to the profession are seldom trained according to the
s t a n d a r d s of ethical conduct and they carry poor impressions of their
own profession. ^^ The new e n t r a n t s have no opportunity to learn
professional ethics. The lack of knowledge on the part of lawyers of the
ethical obligations and their significance to the society a s well a s to the
profession does result in some deviance on the part of lawyers in
observance of these legal ethics. Sometimes, proper enforcement of the
laws also does result in spread of knowledge about the laws. If these legal
ethics are properly a n d effectively enforced with sanctions, that would
also add to the dissemination of knowledge about the laws. If these legal
ethics are properly and effectively enforce with sanctions, t h a t would also
add to the dissemination of knowledge about the existence and
importance of these ethics.
We find provision in the Advocates Act that the Bar Councils of the
respective states helped by the Disciplinary Committees and the Bar
Council of India are the agencies to enforce these legal ethics by applying
appropriate sanctions to proved deviance form the s t a n d a r d s of conduct.
The Bar Councils of the States and the Bar Council of India are the
elected bodies. These are elected by individual members figuring on the

59 K. L. Sharma, "Sociology of law and legal Profession : A Cross-Cultural Theoretical


Perspective," Journal of Indian Law Institute 1982, Vol. 24, p. 528 at 545
60 N. R. Madhava Menon, "Professional Ethics Education, The Law School
Experience," L £ J (Ja) 1989, p. 8 at 9
175

roll of the respective State Bars. Out of the elected m e m b e r s by the State
Bar Council one is sent to Bar Council of India. These m e m b e r s are
entrusted with the task of disciplining the individual m e m b e r s of the
legal profession. The Councils are also entrusted with the job of
protecting the rights, interests and privileges of the m e m b e r s of the legal
profession u n d e r Sections 6(l)(d) and 7(l)(d) of the Advocates Act, 1961.
It becomes very tricky job to enforce the sanctions for deviance in
professional conduct. Some soft corner does develop among the m e m b e r s
of the Bar Councils to the members of legal profession. There, do come
certain areas, when the two roles, the Bar Councils are entrusted to play,
come into conflict with one another and pull in different directions, if not
in the opposite directions. Such situations are bound to result in
leniency in the enforcement of the legal ethics.
The Bar Councils may be impeded to effectively perform the role of
adjudicatory bodies. The researcher in the following pages tried to
analyse the reported cases of professional deviance and the verdict given
by the Bar Councils or the Bar Council of India.^i

61 Similar kind of analysis h a s also been made by Professor Upendra Baxi in the
"Pathology of the Indian Legal Profession" reported in Indian Bar Review 1986, Vol.
13, p. 455 at 457. The analysis h a s been made between 1979-1989.
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194

XI. Professional or other Misconduct

An advocate is the most responsible, learned and honoured person


of the society. His conduct is always expected to be an ideal model for the
society. He h a s always to conform to professional s t a n d a r d s of conduct.
If he fails to do so, he is guilty of professional misconduct. The bar
Council of India u n d e r powers vested in it vide Section 49(l)(c) of the
Advocates Act formulated certain rules relating to standards of
professional conduct and etiquette. They relate to the duties of the
person practicing the profession which he owes to the public, to the
court, to his client, to his opponent advocate and to his professional
brethren. The Advocate Act provides power to the bar Council to inquire
into cases of misconduct and the Bar Council of India h a s framed rules
for such disciplinary proceedings. The State Bar Council on the roll of
which an advocate is enrolled h a s the jurisdiction and the power to act
on receipt of a complaint or otherwise. Section 35 of the Advocates Act
refers to two types of misconducts : professional or other misconduct.
Clause (1) of Section 35 reads : "Where on receipt of a complaint or
otherwise a State Bar Council h a s reason to believe that any advocate on
its roll h a s been guilty of professional or other misconduct it shall refer
the case for its disciplinary Committee."

Meaning of Misconduct

What a m o u n t s to misconduct is a matter of interpretation. Black's


Law Dictionary defines it to mean, a transgression of some established
and definite rule of action, a forbidden act, a dereliction from duty,
unlawful behavior, willful in character, improper or wrong behavior. It is
said to the synonymous of misdemeanor, misdeed, misbehavior,
delinquency, impropriety, mismanagement, offence, etc. Even the
incompetence of a lawyer h a s come to be treated, in some countries as
misconduct.
195

Section 35 of the Advocates Act u s e s the expression, "misconduct,


a professional or otherwise." The word "misconduct" is a relative term. It
h a s to be considered with reference to the subject - matter and the
context wherein in such term occurs. In literal sense it m e a n s wrong
conduct or improper conduct. Professional misconduct may consist in
betraying the confidence of a client, in attempting by any m e a n s to
practice a fraud or impose on or deceive the court or the adverse party or
his counsel, and in fact in any conduct which tends to bring reproach on
the legal profession or to alienate the favourable opinion which the public
should entertain concerning it.^^
The above definitions cannot be fully accepted a s a lawyer is liable
for his negligence and carelessness also. Misconduct itself is sufficiently
wide expression, it is not necessary for instance that it should involve
moral turpitude. The court h a s a right to expect a higher standard of
loyalty to the court u n d e r cooperation from those who practice profession
of law.

Legal Provisions
It is not doubtful that unless and until there is enforcement
machinery, the canons of conduct for disciplining lawyers are fruitless.
The enforcement of regulatory controls for the legal profession may be
divided into many categories : (i) Disciplinary controls (traditional self-
regulation); (ii) liability controls (negligence etc.); (iii) Institutional
controls (enforced by courts and state administrative agencies on lawyers
who practice before them); and (iv) Legislative controls (enforced by a
special independent regulator or commission or even by the
Government). The foregoing study concentrates on the question whether
self-regulation through the disciplinary Committees of the Bar Councils
is sufficient to meet the public policy goals.

62 Corpus Juris Secundum, Vol. 7 at 740.


196

In India, prior to the enactment of the Advocates Act, 1961,^3 the


disciplinary control was vested in the High Courts.^"* There existed a
tribunal^^ of the Bar Council for the purpose of conducting inquiry into
the misbehavior of advocates. The High Courts h a d discretion to refer the
matter either to the tribunal or to a District J u d g e for the purpose of
inquiry. The Tribunal was only a fact finding body and did not have any
power to impose punishment. It is only with the enactment of the
Advocates Act, 1961, a self-regulatory mechanism is provided for the
maintenance of the ethics and standard of legal profession. Hence, the
sole authority to take disciplinary action against advocates is the
Disciplinary Committees of the Bar Councils. ^^ The High Courts a n d
District Courts do not have primary jurisdiction in disciplining lawyers
except the jurisdiction of the courts by way of contempt proceedings. The
Supreme Court exercises only an appellate jurisdiction over the lawyers
conduct by virtue of Section 38 of the Advocates Act, 1961. Section 38
reads: "any person aggrieved by an order made by the disciplinary
committee of the Bar Council of India u n d e r Section 36 or Section 37 (or
the Attorney-General of India or the Advocate-General of the State
concerned a s the case may be), may within sixty days of the date on
which the order is communicated to him, prefer an appeal to the
Supreme Court and the Supreme Court may p a s s such order including
an order varying the p u n i s h m e n t awarded by the disciplinary committee
of the Bar Council of India thereon as it deems fit." In addition to it, it
may exercise jurisdiction by virtue of Article 142 of the Constitution of
India also. Apart from matters connected with complaints and discipline,
the regulatory function referred to are now performed by the bar
Councils either as a matter of self-regulation or in the exercise of powers

63 Prior to the Advocates Act, 1961, the Indian Bar Councils Act, 1926 was in force.
64 Id; Section 10
65 Id; Section 11
66 Id; Sections 35 and 36
197

conferred by the Act. In addition to self-regulation, there is institutional


regulation of lawyers by courts.^^^
Section 35 of the Advocates Act, 1961 clearly states t h a t "where on
receipt of a complaint or otherwise a State Bar Council h a s reason to
believe that any advocate on its roll h a s been guilty of professional or
other misconduct, it shall refer the case for disposal to its disciplinary
committee. The State Bar Council may, either of its own motion or on
application made to it by person interested, withdraw a proceedings
pending before its disciplinary and direct the enquiry to be made by any
other disciplinary committee of that State Bar Council. The Disciplinary
Committee of the State Bar Council shall fix a date for the hearing of the
case and shall cause a notice thereof to be given to the advocate
concerned and to the Advocate General of the State.
The Disciplinary Committee of a State Bar Council, after giving the
advocate concerned and the Advocate-General an opportunity of being
herd may make any of the following orders, namely : -
(a) Dismiss the complaint or, where the proceedings were initiated at
the instance of the State Bar Council, direct t h a t the proceedings
be filed;
(b) Reprimand the advocate;
(c) Suspend the advocate from practice for such period a s it may deem
fit;
(d) Remove the n a m e of the advocate from the roll of advocates.
Where an advocate is suspended form practice u n d e r clause (c) of
sub-section (3) he shall, during the period of suspension, be debarred
from practicing in any court or before any authority or person in India.
Section 35 of the Advocates Act, 1961 prescribes p u n i s h m e n t for
an advocate who is guilty of "professional or other misconduct." The term

67 The Kerala High Court Rules, Rule 11 : whereby a n advocate who h a s been
punished for contempt of court is prohibited from practicing unless he h a s
purged himself of the contempt.
198

"other misconduct" is not ejusdemgeneris with professional misconduct,


and covers cases other t h a n those of professional misconduct in the
ordinary sense, as for instance, conviction for a crime, involving
dishonesty or moral turpitude, or gross and habitual contempt of court.
However, the expression does not cover only moral turpitude; it is wide
enough to cover any defect in the character of a legal practitioner which
render him unfit to be a member of the honourable profession to which
he belongs.

Judicial Attitude on Misconduct


The test to determine professional misconduct within the meaning
of Section 35(1) is whether the proved misconduct of the advocate is
such that he m u s t be regarded a s unworthy to remain a member of the
honourable profession to which be h a s been admitted and unfit to be
entrusted with the responsible duties t h a t an advocate is called upon to
perform. ^^ The Bar Councils of the respective states helped by their
disciplinary committees, and the Bar Council of India are the agencies to
enforce these legal ethics by applying appropriate sanctions to proved
deviances form the s t a n d a r d s of conduct. If an advocate compromises
with the opponent party without authorisation from his client, it
a m o u n t s to professional misconduct. ^^ In D. P. C h a d h a ' s case, the
appellant advocate compromised with the opponent party without
informing to his client. On complaint, the Disciplinary Committee
enquired and punished him for five years. The Bar Council confirmed it.
On appeal the Supreme Court upheld the punishment. While disposing
the case, the Supreme Court laid down the following principles -
(i) It h a s been a saying as old as the profession itself that the court
and counsel are two wheels of the chariot of justice. In adversial
system, it will be more appropriate to say that while the judge

68 P. D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110


69 D. P. C h a d h a v.Triyugi Narain Mishra, (2001) 2 SCC 221
199

holds the reigns, the two opponent counsel are the wheels of the
chariot. While the direction of the movement is controlled by the
judge holding the reigns, the movement itself is facilitated by
the wheels without which the chariot of justice may not move
and may even collapse. Mutual confidence in the discharge of
duties and cordial relations between Bench and Bar smoothen
the movement of the chariot. As responsible officer of the court,
as they are called - and rightly, the counsel have an overall
obligation of assisting the courts in a j u s t and proper m a n n e r in
a just and proper administration of justice. Zeal and
enthusiasm are the traits of success in profession but
overzealousness a n d misguided e n t h u s i a s m have no place in
the personality of a professional.
(ii) A counsel, in his zeal to earn success for a client, need not step
over the well-defined limits or propriety, repute and j u s t n e s s .
Independence and fearlessness are not licences of liberty to do
an)^hing in the court and to earn success to a client whatever
be the cost and whatever be the sacrifice of professional n o r m s .
(iii) A lawyer m u s t not hesitate in telling the court the correct
position of law when it is undisputed and admits of no
exception. A view of the law settled by the ruling of a superior
court or a binding precedent even if it does not serve the cause
of his client, must be brought to the notice of court
unhesitatingly. This obligation of a counsel flows from the
confidence reposed by the court in the counsel appearing for
any of the two sides. A counsel, being an office of court, shall
apprise the judge with the correct position of law whether for or
against either party.
(iv) A charge of misconduct is a serious matter for a practicing
advocate. Therefore, an allegation of misconduct h a s to be
proved to the hilt. The evidence adduced should enable a
200

finding being recorded without any element of reasonable


doubt,
(v) In the present case, the involvement of the appellant in creating
a situation resulting in recording of a false and fabricated
compromise, obviously detrimental to the interest of his client,
is clearly spelt out by a findings concurrently arrived at with
which there is no reason to interfere.
In Ramasrey v. Dy. Director Consolidation, ^o the Court h a s
categorically held that where an advocate is not authorized to
compromise, if he compromises with the opponent party, without
consulting his client, his act a m o u n t s to professional misconduct.
In Brajendra Nath Bhargave v. Ramchandra Kasliwal and
another,•^i the respondents were advocates. They played active part in
getting the suit property transferred in the n a m e s of their relatives by
paying the consideration form their own fund while representing the
landlord's suit for standard rent against tenant-complainant (appellant).
The Disciplinary Committee of State Bar Council imposed p u n i s h m e n t of
Rs. 3 0 0 / - against each of the respondents. On appeal, the Bar Council of
India confirmed the decision of the Disciplinary Committee. On appeal,
the Supreme Court gave judgement in favour of the appellant-applicant,
a n d criticized the attitude of the Bar Councils, a n d imposed severe
p u n i s h m e n t against the respondents.
In Prahlad Saran Gupta v. Bar Council of India and another,^^
the facts of the case, were that the appellant-advocate wrongfully
retained an a m o u n t of Rs. 1 5 0 0 / - which was kept with him in
connection with settlement of an execution proceedings. Even after the
notice from the client, he did not return the amount. The apex Court
seriously condemned the appellant-advocate for not paying the said

70 (1998) 6 sec 480


71 (1998) 9 sec 169
72 (1997) 3 see 585
201

a m o u n t to the decree-holder inspite of demand, and imposed the penalty


of reprimand on the appellant for the said misconduct.
In N. K. Jagannivasa Rao v. N. Shivananda Rao,^^ ^^g appellant
advocate obtained stipend by making a false statement about income.
The Disciplinary Committee of the Karnataka Bar Council gave decision
t h a t advocate's act was a professional misconduct and suspended him
for one year. The Bar Council of Indi a n d the Supreme Court upheld the
decision of the Disciplinary Committee.
In Prem Nath v. Kapildeo Singh,'^'^ an advocate obtained Rs.
2000/-from the client to file a writ petition, b u t did not file the writ
petition. It is clearly professional misconduct and the advocate was
debarred by the Bar Council of India from practicing for a period of six
months. The p u n i s h m e n t was upheld by the Supreme Court.
In J o h n D'Souza v. Edward Ani,75 the advocate did not return the
original document to the client even after repeated requests. After
enquiry, the Disciplinary Committee gave decision for the suspension of
the advocate for one year. On appeal the Supreme Court confirmed the
punishment. In another case. New India Insurance Co. Ltd. v. A. K.
Saxena,'^^ two-Judge Bench of the Supreme Court consisting of S. N.
Variava and Dr. A. R. Lakshmanan, J J while considering the issue of
returning the filed by an advocate to his client between whom a dispute
had arisen, took the position that the right of the litigant to have the files
returned to him is a corresponding counterpart of the professional duty
of the advocate and the dispute regarding fee is an issue to be decided in
an appropriate proceedings. Whether or not the fees were payable to the
advocate, the court refused to consider that question and observed t h a t
the entitlement of the advocate to the fee would also be open for
consideration in appropriate proceedings for recovery of his fees. The

73 (1997) 1 s e c 100
74 (1995) Suppl. 3 s e c 717
75 (1994) 2 s e e 64; AIR 1994 SC 975
76 (2003) 9 SCALE 531
202

court h a s curtly observed that in order to claim unpaid remuneration


from a client, advocate cannot retain the papers of their clients against
their will. They may at the most resort to legal remedies for the purpose.
It is the common procedure that client e n t r u s t s certain documents
to the advocate for the purpose of advice or filing a suit or defending a
suit. It is the duty of such advocate to return those documents when the
client d e m a n d s . If he does not return the documents, it a m o u n t s to
professional misconduct.
In J. S. Jadhav v. Mustafa Haji Yosuf,^^ appellant - advocate
withdrew Rs. 50,379 from Court Receiver for handing over the same to
his client-respondent (who did not know English) in terms of compromise
decree, b u t paid only 18,000 to the respondent. On complaint, the
Disciplinary Committee found the advocate guilty of professional ethics
and etiquette, and gave decision for suspending him for two years and
directing him to pay Rs. 500 to respondent. On appeal, the Supreme
Court severely condemned the professional misconduct of the appellant-
advocate, and enhanced the p u n i s h m e n t i.e. a further sum of Rs. 10,000
to be paid by the appellant to the respondent-client, further balance s u m
of Rs. 22,379 together with interest of 9% per a n n u m from the date of
complaint till the date of payment be paid to the respondent; and in
addition to this, the appellant's n a m e should be removed from the Roll of
State Bar Council.
The client engaged a lawyer for personal reasons and is at liberty
to leave him also, for the same reasons. When an advocate accepts a
brief, it is his least duty to appear the case regularly and conduct the
proceedings. If he is busy with other cases, he can delegate any case or
part of the proceedings to one of his colleagues. If he wants to withdraw
from appearance, he is at liberty to do so. However, he can withdraw
from appearance only 'after' giving notice to the client, writing 'no

77 AIR 1993 SC 1535


203

objection' and sign on the file, and then he h a s to handover the file to the
concerned client. If an advocate withdraws from the appearance V i t h o u t
giving any notice' to the client, it will certainly a m o u n t to 'professional
misconduct'.
While disposing Tahil Ram Isardas Sadarangani v. Ramchand
Issardas Sadarangani,'^^ the Supreme Court held, "the legal profession is
degrading decade by decade. The general impression which the
profession gives today is t h a t the element of service is disappearing and
the profession is being commercialised. It is for the m e m b e r s of the Bar
to act and take positive steps to remove this impression before it is too
late."
In D. S. Dalai v. State Bank of India,^^ appellant advocate and
his friend advocate established a firm of advocates. State Bank of India
appointed t h e m a s their standing counsel. In one occasion the b a n k
entrusted a case, a n d also handed over the necessary fees amounting to
Rs. 11,475 a n d connected records of the firm. One of the advocates of the
firm h a d filed the case. It was returned by the Court pointing out certain
defects a n d with instructions to correct them and then file. The appellant
received the file duly acknowledging in the court records. Neither he nor
his friend corrected the defects and informed the same to the bank.
After some time the b a n k authorities came to know this. Bank
authorities cancelled their vakalatnama and appointed another advocate
for t h a t case. Further they filed a complaint to the State Bar Council
against the Firm of Advocates.
After enquiry, the Disciplinary Committee gave decision that
m e m b e r s of the firm did professional misconduct, and thereby ordered
for the removal of their n a m e s from the Roll of State Bar Council. They
appealed to the Supreme Court. The Supreme Court upheld the decision
of the Disciplinary Committee.

78 (1993) Supp. 3 SCC 256


79 AIR 1993 SC 1608
204

In V. C. Rangadurai v. D. Gopalan, ^o an advocate who was


engaged to file 2 suits one for Rs. 1 5 , 0 0 0 / - and another for Rs. 5 , 0 0 0 / -
filed the suit for Rs. 15,000/-. He did not file the other suit. The plaint
for the suit for Rs. 15,000/- was returned; but it was not represented.
The advocate falsely gave some dates of the suits and later told his client
t h a t the suits were decreed. He received the money from his client. On
initiation of disciplinary proceedings the advocate returned the money.
The advocate was found guilty of misappropriation of client's money,
false representation, fraud and deceit.
In E. S. Reddy v. The Chief Secretary, Govt, of A. P. and
another,81 a dispute arose between the petitioner, a n d I.A.S. and the
respondent. It led to the appeal to the apex Court. Here we are not
concerned with the original suit or problem. The problem concerned to
u s in the context is that the petitioner filed a review petition before the
Supreme Court, when the Supreme Court dismissed the appeal. The
petitioner appointed a Senior Advocate, who drafted the Review Petition
for Petitioner. In that application, seeking review of the earlier orders
passed by the Supreme Court, the applicant, a very senior member of the
I.A.S., made reckless allegations and cast aspersions on the Supreme
Court. This caused annoyance to the Supreme Court. The Supreme
Court dismissed the application for review petition, a n d made certain
bitter dicta against the professional misconduct and contempt of court
relating to drafting by the advocate. The principles involved were a s
under:
(i) By virtue of pre-eminence which senior counsel enjoy in the
profession, they not only carry greater responsibilities b u t they
also act a s a model to the junior members of the profession. A
senior counsel more or less occupies a position akin to a
Queen's Counsel in England next after the Attorney General and

80 AIR 1979 SDC 281 at 288


81 AIR 1987 SC 1550
205

the Solicitor General. It is an honour and privilege conferred on


advocates of standing and experience by the Chief Justice and
the J u d g e s of the Supreme Court. They t h u s become leading
counsel and take precedence on all counsel not having t h a t
rank. A senior counsel though he cannot draw u p pleadings of
the party, can nevertheless be engaged to settle i.e. to put the
pleadings into 'proper and satisfactory form' and hence a senior
counsel settling pleadings h a s a more onerous responsibility a s
otherwise the blame for improper pleadings will be laid at his
door.
(ii) The Supreme Court observed that the averments were highly
objectionable and the applicant, a senior member of the Indian
Administrative Service should have shown greater responsibility
before making such unfounded and uncalled for aspersions.
(iii) The Supreme Court expressed its disapproval of the m a n n e r in
which the arguments were advanced before u s on behalf of the
applicant. Not only were the a r g u m e n t s advanced with the
undue vehemence and unwarranted passion, reflecting
identification of interests beyond established conventions b u t
were of degree not u s u a l of enlightened senior counsel to adopt.
The majesty of law and the dignity of courts cannot be
maintained u n l e s s there is m u t u a l respect between Bench and
Bar and the counsel act in full realisation of their duty to the
Court alongside their duty to their clients and have the grace to
reconcile themselves when their pleas and a r g u m e n t s do not
find acceptance with the court. Neither rhetoric nor t e m p e s t u o u s
arguments can constitute the sine qua non for persuasive
arguments. The counsels are expected to keep the sense of
detachment and non-identification with the causes espoused by
them.
206

In this case-law the Senior advocate is not punished by the


Supreme Court. However, it made adverse r e m a r k s against the Senior
Advocate and present trend of advocacy, filing, drafting and a r g u m e n t s .
These adverse r e m a r k s can be treated a s obiter dicta.
In Harish Chandra Tiwari v. Baiju,^^ the advocate h a s withdrawn
a m o u n t of compensation in land acquisition proceedings from court and
not paid the same to the client. Amount of compensation was Rs. 8 1 1 8 / -
The Supreme Court dealt with an appeal from an advocate who was
suspended from practice for three years for misappropriating the a m o u n t
of compensation payable to client. The Supreme Court held his removal
from the rolls of advocates by observing a s under:
"Among the different types of misconduct envisaged for a legal
practitioner misappropriation of client's money m u s t be regarded as one
of the gravest."
The Court further held that "by retaining such advocate on the roll
of legal profession, it would be unsafe to the professional. The situation
in this case t h u s warranted the p u n i s h m e n t of removal of his n a m e from
the roll of advocates."
In Shamburan Yadav v. Hanuman Das Khatry,^^ the advocate
had written a letter to his client to send Rs. 1 0 , 0 0 0 / - to bribe the judge.
The Supreme Court took the serious view of the order of the Disciplinary
Committee in review proceedings and observed as under:
"The respondent was indeed guilty of a serious misconduct by
writing to his client the letter. The n a m e of the advocate be struck off
from the roll of advocates, t h u s debarring him permanently from the
practice."
In Sardool Singh v. Pritam Singh,S'* a person enrolled himself a s
an advocate, by suppressing material facts about his earlier conviction

82 AIR 2002 SC 548


83 AIR 2001 SC 2509
84 AIR 1999 SC 1704
207

by a criminal court. On detection thereof, he was suspended from


practice, by the Bar Council of India for three years.
However, he continued to practise during the period of suspension
and sought review of his suspension. The Supreme Court held t h a t the
misconduct on the part of the advocate was very grave and directed t h a t
a fresh order of prohibition of three years from practice should be issued
by the Bar Council of Delhi.
In R. D. Saxena v. Balaram Prasad Sharma,^^ the main issue
posed in an appeal before the Supreme Court was sequential importance
for m e m b e r s of the legal profession. The issue was whether the advocate
h a s a lien for his fees of the client's papers.
The Court held t h a t the refusal to return the files to the client
when he demanded the same, a m o u n t to misconduct u n d e r Sec. 35 of
the Advocates Act.
In N. G. Dastane v. Srikant S. Shivde.s^ the Supreme Court held
t h a t advocate abusing the process of court is guilty of misconduct. When
witnesses are present in court for examination, the advocate concerned
h a s a duty to see that their examination is conducted.
Seeking adjournments for postponing the examination of witnesses
who are present in court even without making other a r r a n g e m e n t s for
examining such witnesses is a dereliction of advocate's duty to the court
a s t h a t would c a u s e m u c h h a r a s s m e n t and h a r d s h i p to the witnesses.
Such dereliction is repeated would a m o u n t to misconduct of the advocate
concerned.
Besides above stated case, some instances of misconduct are as
follows:
(i) Offering bribes, giving bribes or taking money from client for
giving bribe a m o u n t s to gross misconduct.^'^

85 AIR 2000 SC 2912


86 AIR 2001 SC 2028
87 C h a n d r a Shekhar Soni v. Bar Council, AIR 1983 SC 1012
208

(ii) An advocate is stooping to bribe a judge to get an order in


favour of his client is guilty of professional misconduct.^^
(iii) A pleader who attempted to influence the judge through the
judge's relative is guilty of misconduct.^^
(iv) A suggestion by a Vakil that he can influence the judge is a
serious misconduct.^^
(v) A pleader speared in court in a d r u n k e n state u n a b l e to
conduct the case. He behaved in similar m a n n e r on two
subsequent occasions. He was held to be guilty of misconduct
and his n a m e was struck off the roU.^i
(vi) An advocate m u s t uphold the dignity and decorum of the court
and m u s t not do an}rthing to bring the court itself to disrepute.
Advocate overstepped his limit when he made imputation of
partiality and unfairness against the Munsif in open court.
Scandalising the court in s u c h m a n n e r is polluting the very
fount of justice and the conduct of the advocate was held to be
highly reprehensible.^2
(vii) An advocate doing something regarded a s disgraceful and
dishonourable by professional brethren of good repute and
competency is guilty of infamous conduct in professional
respect. ^3
(viii) The advocates positioned themselves at the entrance of the
Magistrate's Courts watchful of arrival of litigants. At sight they
r u s h towards the client in ugly scrimmage to snatch the briefs
to lay claim to engagement even by physical fight, to u n d e r c u t
fees and by this unedifying exhibition sometimes carried even to

88 In the matter of U, an Advocate, AIR 1935 Rang 178


89 Emperor v. G. a. Pleader, AIR 1936 Lah. 732
90 President, Vakil's Assn. v. A. Vakil, AIR 1914 Mad. 635
91 In the matter of a Lower Grade Pleader, AIR 1934 Rang 156
92 Lalit Mohan v. Advocate General, AIR 1957 SC 250
93 In re. P, an advocate, AIR 1963 SC 1313
209

the Bar Library solicited and secured work for themselves; such
conducts are serious misconduct.^'*
(ix) An advocate was charged t h a t in a trial for rape he attempted to
put to the prosecutrix some indecent and unnecessary
questions which were disallowed by the court. On appeal the
Supreme Court held t h a t the advocate exceeded his privilege to
some extent. The advocate was let off with a warning. ^^
(x) The failure to a pleader to appear to conduct the case before he
h a s discharged himself in the m a n n e r prescribed by law unless
such an act can be justified, renders him liable to disciplinary
action. The advocate cannot justify for his action of his absence
on the ground t h a t his presence at the time of recording the
statement of the accused was not necessary. This action is not
mere negligence b u t dereliction of or deviation from duty. The
absence of necessary remuneration does not absolve the legal
adviser from his obligation u n l e s s the matter is brought to the
notice of the client.^^
(xi) An advocate filed a writ petition, knowingly suppressing the fact
that earlier and identical writ petition was dismissed before
another Bench. Conduct of the advocate deserves stern
condemnation. The matter was referred to the State Bar Council
for disciplinary action.^"^
(xii) Advocate retaining client's money inspite of d e m a n d s of guilty of
misconduct.5^
(xiii) An advocate not returning the will which was entrusted to his
custody by his client (the testatrix), despite d e m a n d s from the

94 B. C. of Maharashtra v. M. V. Debholkar, AIR 1976 SC 242


95 Shiv Narayan J a g a v. Allahabad H. C. , AIR 1953 SC 368
96 In the matter of Maabat Ali Khan, AIR 1958 AP 116 (FB)
97 Chandrika Prasad v. State of M. P., AIR 1985 MP 254
98 In Re. an Advocate, AIR 1961 Ker 209 (FB); In the matter of P. J. Ratnnam, AIR
1962 AP 201 (FB)
210

testatrix, her new advocate and the legal representative, was


held to be guilty of misconduct.^^
(xiv) An advocate taking advantage of the client's illiteracy and
ignorance demanded and received money on false
representation t h a t it was necessary for court purpose was held
guilty of professional misconduct. i°°
(xv) An advocate received full a m o u n t of court fee from his client.
But filed the suit with deficit court fee and prayed for time
before the court on the plea that he did not have entire court
fee. The advocate was held guilty of misconduct, i^i
(xvi) An advocate entering into engagement with his client for
sharing the decretal a m o u n t is guilty of misconduct, calling for
disciplinary action. ^^^
(xvii) An advocate who becomes a party to a forged document so a s to
facilitate commission of fraud is guilty of professional
misconduct. ^^^
(xviii) An advocate of the Supreme Court addressed a letter to the
Government of M a h a r a s h t r a soliciting their briefs. At an
informal inquiry m a d e by the Registrar of the Supreme Court
deputed for t h a t purpose, the advocate admitted that he had
written the post-card and other such post-cards to other
parties. When an enquiry was held into the alleged misconduct
before the Tribunal, he flatly denied that he had written he
letter or that he h a d admitted its authorship to the Registrar.
He however, maintained that there was nothing unprofessional
even if he had written the letter. Before the Supreme Court the
advocate first took u p the same attitude as he had adopted

99 J o h n D'soza v. Edward Ani, 1994 (2) SCC 64


100 N. B. Mirzan v. D. C. Bar Council, AIR 1972 SC 46, 1972 (4) SC 412
101 State V. Abani Kanta Roy, AIR 1959 Orissa 69 (SB)
102 In the matter of G. AIR 1954 SC 557
103 M. Veerabhadra Rao v. Tek Chand, AIR 1985 SC 29
211

before the Tribunal but ultimately he admitted the t r u t h that he


had written the letter and had admitted the fact before the
Registrar. The Supreme Court gave judgement against the
advocate, and confirmed the Tribunal's order suspending him
for a period of five years.

Principles: The advocate was guilty of professional misconduct and


deserved the p u n i s h m e n t of suspension from practice for a period of
five years. He condemned himself as a liar and a s one who is either
ignorant of the elementary rules of professional ethics or h a w s no
regard for them. If he knew that it was highly improper to solicit a
brief an even then wrote the postcard in question, he is a very
unworthy member of the learned profession. In any view of the
matter, he does not appear to be possessed of a high moral caliber,
which is essential for a member of the legal profession. If anything, by
adopting the attitude of denial which h a s been demonstrated to be
false in the court of the proceedings before the Tribunal, he h a s not
deserved will of the court even in the matter of a m o u n t of p u n i s h m e n t
to be meted to him for his proved misconduct. lO'*
In "In the matter of *G' Senior Advocate, lo^ a Senior Advocate
entered into an agreement with his client for sharing 50 : 50 after
winning the case. The Supreme Court severely condemned this attitude,
a n d expressed a s under:
(i) An advocate of the Supreme Court is bound to conduct himself
in a m a n n e r befitting the high an honourable profession to
whose privileges he h a s so long been admitted, and if he
departs from the high s t a n d a r d s which that profession h a s set
for itself and d e m a n d s of him in professional matters, he is
liable to disciplinary action.

104 In the matter of 'A' an Advocate, AIR 1962 SC 1337


105 AIR 1954 SC 557
212

(ii) It is highly reprehensible for an advocate to stipulate for, or


receive a remuneration proportioned to the results of litigation
or a claim whether in the form of a share in the subject matter,
a percentage or otherwise. He will, by so acting offend the rules
of his profession and so render himself liable to the disciplinary
jurisdiction of the court. The rule applied to all Advocates,
whether Barristers or otherwise.
(iii) A contract of this kind would be legally unobjectionable if no
lawyer was involved. The rigid English rules of champerty and
maintenance did not apply in India, so if this agreement had
been between third parties, it would have been legally
enforceable and good. As G was an Advocate, such an
engagement on his part amounted to 'professional misconduct'
calling for disciplinary action.
It may, therefore, be summed u p that the effectiveness of a legal
system largely depends on the integrity and competence of the lawyer.
Negligence on the part of a lawyer is a challenge to his integrity a n d
competence. In countries like England and Australia, disciplinary
offences are investigated and prosecuted by self-regulatory legal
professional associations and enforced in specialist tribunals dominated
by practicing lawyers. But in India, there is no investigation of
disciplinary offences. The Bar Council conduct only a preliminary inquiry
either suo moto or on receipt of a complaint. The main disciplinary
sanction is the removal of the name of the advocate from the State Roll of
advocates and thereby preventing him from appearing a s a lawyer. In
addition lesser p u n i s h m e n t s like reprimands, suspending the advocate
from practice for a period of time are also given. Further, a careful
scrutiny of the cases reveals that in majority of the cases, the Bar
Council of India h a s reduced the p u n i s h m e n t on proved guilt of
professional misconduct. Exceptions are very less where it h a s enhanced
the punishment.
213

The foregoing discussion leads u s to conclude that all is not well


with the enforcement machinery for the legal ethics. It h a s fallen in
public esteem. The time h a s come when legal profession m u s t think of
active involvement of talents from other disciplines and participative
cooperation from the consumers of justice to help the legal profession to
tide over its problem, which are not exclusively legal, b u t are the product
of complex modern realities. Such a change does not necessarily require
the law-reforms a s condition precedent. The need of the hour is t h a t the
Bar Council of India and the legal profession to aptly and adequately
respond to new realities and face the surroundings with confidence. The
need is to tune ourselves according to the system with dynamism and
with a foresight on the future.
In Hikmat Ali Khan v. Ishwar Prasad Arya^^^ the concerned
advocate assaulted his opponents with a knife. He was prosecuted and
found guilty of commission of an offence u n d e r Section 307 of the IPC. In
the aforementioned situation, it was held that the advocate deserves the
extraordinary p u n i s h m e n t of removal of his n a m e from the state rolls of
advocates.
In N. G. Dastane v. Shrikant S. Shivde & Anr.io^ an advocate in
order to defend one of the accused persons before a magistrate sought for
adjournments repeatedly and on 4.12.1993 a n adjournment was sought
on the premise that he was unable to speak on account of a throat
infection and continuous cough but the complainant came across the
said advocate "forcefully and fluently" arguing a matter before another
court situated in the same building. Thereafter a complaint was lodged
wherein a prime facie case was found to have been made out.
In H. Syama Sundara Rao v. Union of India and Ors. ^"^ the
petitioner levelled a series of allegations against the counsel for the

106 1997 (3) SC 131


107 2001 (6) SC 135
108 2007 CriLJ 2626
214

respondent a n d cast aspersions on him. The notice issued by the


petitioner states that the counsel h a s made a mockery of the judiciary
and the High Court; h a s indulged in grave professional misconduct and
h a s deliberately misled the High Court. In the last p a r a of the notice, the
petitioner h a s stated that he gives three days' time to the counsel to take
corrective steps, failing which the petitioner shall initiate appropriate
action against the counsel before the High Court or before the Bar
Council of Delhi. On perusal of the aforementioned notice issued by the
petitioner, this Court issued a notice to the petitioner to show cause a s to
why he should not be punished for contempt of court proceedings for
violation of and obstruction of the Courts of Justice. In this case the
High Court of Delhi observed that "we are of the view that the petitioner
h a s brought himself within the ambit of contempt of Court and he is
accordingly found guilty of criminal contempt of the court. As regards the
q u a n t u m of punishment, we have taken into consideration certain
relevant factors. The apology tendered by the petitioner is not
unconditional nor is it supported by bona fide. In fact, it a p p e a r s to be a
sheer afterthought and such an apology from which the petitioner
resoled during the course of arguments, is a clear indication of the trend
of his mind. As the petitioner is neither penitent nor sincere in tendering
the apology, such a hollow apology serves no useful purpose. However, in
view of the fact that the petitioner h a s pleaded that his wife is a heart
patient and needs medical care, by erring on the side of leniency, we
award the contemner p u n i s h m e n t of simple imprisonment for a period of
three days and impose a fine of Rs. 1,000/- on him.
D. Saibaba v. Bar Council of India & anr. ^^^ the wife of an
advocate filed a complaint u n d e r Section 35 of the Act complaining of
professional misconduct committed by the appellant, alleging that in
spite of his being a duly enrolled advocate, he was running a telephone

109 (2003) 6 s e c 186; AIR 2003 SC 2502


215

booth allotted to him in the handicapped person's quota. After hearing


the appellant's response the State Bar Council of India, vide its order
dated 6.11.1999, directed the complaint to be dropped forming an
opinion t h a t no case for proceeding against the appellant was made out.
On 30.12.1999, the wife lodged yet another complaint making almost
identical averments. The appellant filed a detailed reply. He submitted
that the complaint was malicious, originating from a disgruntled wife
who h a s even lodged criminal case against him and was out to h a r a s s
the appellant. The appellant's defence was that he is a handicapped
person. Pressed by family circumstances, including financial stringency,
he applied for a STD booth being licensed to him in the handicapped
persons quota, which, on consideration of the merits of the prayer, was
allowed to him. He did operate the STD booth. On 4.12.1997 he was
married to the respondent n o . l . Thereafter, sometime in mid-1998, he
applied for his enrolment a s an advocate and commenced apprenticeship
u n d e r a senior lawyer. Ever since t h a t day he stopped sitting at the
telephone booth which was thenceforth operated by his parents. His
father h a d retired by that time.
By order dated 20.2.2001, the Bar Council of India directed the
appellant to surrender the STD booth, presumably forming an opinion
t h a t whosoever might be conducting the STD booth actually, yet the
booth was allotted in the name of the appellant and the surrender would
bring to an end the controversy so far as the appellant's conduct a s an
advocate is concerned. The appellant sought some time for surrendering
the licence of telephone booth because certain dues were to be realised
from customers which would be difficult to do in the event of the
business being suddenly discontinued. As the appellant failed to
surrender the STD booth, the Bar Council of India passed an order dated
31.3.2001 advising the State Bar Council to delete the n a m e of the
appellant from the rolls of advocates. On 26.4.2001, the appellant
surrendered the booth. The appellant sought for a review of the order of
216

the Bar Council of India based on the subsequent event of the telephone
booth having been surrendered. Vide order dated 2 6 . 8 . 2 0 0 1 , the Bar
Council of India h a s rejected the petition for review on the ground that
the same was barred by time. As against the order dated 26.8.2001 the
appellant h a s filed appeal by special leave. As against the order dated
31.3.2001 the appellant h a s filed a statutory appeal u n d e r Section 38 of
the Advocates Act, 1961 and also a n appeal by special leave. The
Supreme Court after due examination set aside the orders of the Bar
Council and restored the enrolment of the advocate.
In Re: Bineet Kumar Singh.no while dealing with a case dealing
with the case of false or misleading or a wrong statement deliberately and
willfully made by the advocate the Supreme Court held a s under:
"....The sole object of the court wielding its power to p u n i s h for
contempt is always for the course of administration of justice. Nothing
is more incumbent upon the courts of justice t h a n to preserve their
proceedings from being misrepresented, nor is there an5Athing more
pernicious when the order of the court is forged a n d produced to gain
u n d u e advantage. Criminal contempt h a s been defined in Section 2(c) to
mean interference with the administration of justice in any manner. A
false or misleading or a wrong statement deliberately and willfully made
by a party to the proceedings to obtain a favourable order would
undoubtedly t a n t a m o u n t to interference with the due course of judicial
proceedings. When a person is found to have utilised an order of a court
which he or she knows to be incorrect for conferring benefit on persons
who are not entitled to the same, the very utilisation of the fabricated
order by the person concerned would be sufficient to hold h i m / h e r guilty
of contempt, irrespective of the fact whether he or she himself or herself
is the author of fabrication "

110 (2001) 5 s e c 501


217

In B. N. Shivanna v. Advanta India Ltd. & a n r m the appellant


was enrolled a s an advocate on 14.8.1998 and since then he h a s been
practicing in the High Court of Karnataka at Bangalore. Prior to joining
the Bar, he had been working for the respondent company as Marketing
Executive. Being well known to the officials of the company, he was
engaged a s Retainer for the Company and t h u s , the appellant used to
report to the company's officials about the progress of its cases pending
in various courts in Karnataka. However, on receiving some orders
purported to have been passed by the High Court of Karnataka, the
officials of the company became suspicious and verified from the original
record, and then submitted a complaint to the High Court that the
appellant had furnished to the company copies of fabricated and forged
orders purported to have been passed by the Karnataka High Court. On
the basis of the same, criminal contempt proceedings were initiated suo
moto by the High Court against the appellant by registering a case
CCC(Crl.) No. 12 of 2002, whereas CCC(Crl.) No. 7 of 2002 was initiated
at the instance of the respondent company. The High Court took
cognizance u n d e r the provisions of the Contempt of Court Act, 1971
(hereinafter referred to as 'Act 1971') against the appellant. The court
proceeded with the allegations t h a t the appellant had taken advantage of
his position telling the said company's officials falsely that criminal cases
have been launched in various courts in Karnataka against various
p u r c h a s e r s and distributors of seeds u n d e r the Seeds Act for the alleged
producing and selling of the spurious/sub-standard seeds by the
agriculturists. The appellant made the officials of the respondent
company believe that a large n u m b e r of criminal cases had been filed
against the company and its officials in various courts in Karnataka. The
Supreme Court held that "it is a case of betrayal of faith by a lawyer of
his clients, in a case of professional engagement. Considering the gravity

111 AIR 2005 SC 396


218

of the charges, s u c h a course is not warranted and no lenient view is


permissible in the facts and circumstances of the cases."
In the case of Supreme Court Bar Association v. Union of
Indiaii2 it h a s been held t h a t professional misconduct may also a m o u n t
to Contempt of Court. It h a s further been held that "an advocate who is
found guilty of Contempt of Court may also, as already noticed, be guilty
of professional misconduct in a given case but it is for the Bar Council of
the State or Bar Council of India to punish that advocate by either
debarring him from practice or suspending his licence, a s may be
warranted, in the facts and circumstances of each case. The learned
Solicitor General informed the Court t h a t there have been cases where
the Bar Council of India taking note of the contumacious and
objectionable conduct of an advocate, had initiated disciplinary
proceedings against him and even punished him for "professional
misconduct", on the basis of his having been found guilty of committing
Contempt of Court. We do not entertain any doubt that the Bar Council
of the State or Bar Council of India, as the case may be, when apprised
of the established contumacious conduct of an advocate by the High
Court or by this Court, would rise to the occasion, and take appropriate
action against such a n advocate. Under Article 144 of the Constitution
all authorities, civil and judicial, in the territory of India shall act in aid
of the Supreme Court". The Bar Council which performs a public duty
and is charged with the obligation to protect the dignity of the profession
and maintain professional s t a n d a r d s and etiquette is also obliged to act
"in aid of the Supreme Court". It must, whenever facts warrant, rise to
the occasion and discharge its duties uninfluenced by the position of the
contemner advocate. It m u s t act in accordance with the prescribed
procedure, whenever its attention is drawn by this Court to the
contumacious and unbecoming conduct of an advocate which h a s the

112 (1998) 4 s e c 409 (1998 AIR SCW 1706 : AIR 1998 SC 1995)
219

tendency to interfere with due administration of justice. It is possible for


the High Courts also to draw the attention of the Bar Council of the State
to a case of professional misconduct of a contemner advocate to enable
the State Bar Council to proceed in the m a n n e r prescribed by the Act
a n d the Rules framed thereunder. There is no justification to a s s u m e
t h a t the Bar Councils would not rise to the occasion, a s they are equally
responsible to uphold the dignity of the Courts and the majesty of law
a n d prevent any interference in the administration justice. Learned
counsel for the parties present before u s do not dispute and rightly so
t h a t whenever a Court of record records its findings about the conduct of
an advocate while finding him guilty of committing Contempt of Court
and desires or refers the matter to be considered by the Bar Council
concerned, appropriate action should be initiated by the Bar Council
concerned in accordance with law with a view to maintain the dignity of
the Courts and to uphold the majesty of law and professional s t a n d a r d s
a n d etiquette. Nothing is more destructive of public confidence in the
administration of justice than incivility, rudeness of disrespectful
conduct on the part of a counsel towards the Court or disregard by the
Court of the privileges of the Bar. In case the Bar Council, even after
receiving "reference" from the Court, falls to take action against the
advocate concerned, this Court might consider invoking its powers u n d e r
Section 38 of the Act by sending for the record of the proceedings from
the Bar Council and passing appropriate orders. Of course, the appellate
powers u n d e r Section 38 would be available to this Court only and not to
the High Courts."
In Pravin C Shah v. K. A. Mohd. Ali and another, ^^ the Supreme
Court considered the case of a lawyer who was found guilty of contempt
of court and a s a consequence was sought to be debarred from appearing
in courts till he purged himself of contempt. Kerala High Court h a s

113 (2001) 8 s e c 650


220

framed Rules u n d e r section 34 of the Advocates Act and rule 11 reads


thus:
"No advocate who h a s been found guilty of contempt of court shall
be permitted to appear, act or plead in any court u n l e s s he h a s
purged himself of the contempt."
An Advocate, notwithstanding his conviction for contempt of Court
by the Kerala High Court continued to freely appear before the courts. A
complaint was made to the Kerala State Bar Council on which a
disciplinary proceeding was initiated against the advocate concerned and
finally the State Bar Council imposed a p u n i s h m e n t on him debarring
him from acting or pleading in any court till he got himself purged of the
contempt of court by an order of the appropriate court. The concerned
advocate challenged the order of the State Bar Council in appeal before
the Bar Council of India. The Bar Council of India allowed the appeal and
set aside the interdict imposed on the advocate. The matter was brought
in appeal before the Supreme Court and a two judges' Bench hearing the
appeal framed the question arising for consideration a s follows:
"When an advocate was punished for contempt of court can he
appear thereafter as a counsel in the courts, u n l e s s he purges
himself of such contempt? If he cannot, then what is the way he
can purge himself of such contempt?"
The Court answered the question in the judgment a s follows:
"We cannot therefore approve the view that merely undergoing the
penalty imposed on a contemner is sufficient to complete the process of
purging himself of the contempt, particularly in a case where the
contemnor is convicted of criminal contempt. The danger in giving accord
to the said view of the learned Single J u d g e in the aforesaid decision is
t h a t if a contemnor is sentenced to a fine he can immediately pay it and
continue to commit contempt in the same court, and then again pay the
fine and persist with his contemptuous conduct. There m u s t be
221

something more to be done to get oneself purged of the contempt when it


is a case of criminal contempt."
"The Disciplinary Committee of the Bar Council of India
highlighted the absence of any mode of purging oneself of the guilt in any
of the Rules a s a reason for not following the interdict contained in Rule
11. Merely because the Rules did not prescribe the mode of purging
oneself of the guilt it does not mean t h a t one cannot purge the guilt at
all. The first thing to be done in that direction when a contemnor is
found guilty of a criminal contempt is to implant or infuse in his own
mind real remorse about his conduct which the court found to have
amounted to contempt of court. Next step is to seek pardon from the
court concerned for what he did on the ground that he really and
genuinely repented and that he h a s resolved not to commit any such act
in future. It is not enough t h a t he tenders a n apology. The apology
tendered should impress the court to be genuine and sincere. If the
court, on being impressed of his genuineness, accepts the apology then it
could be said the contemnor h a s purged himself of the guilt."
R. K. Anand v. Registrar Delhi High Court H"* a criminal trial
arising from a hit a n d r u n accident in Delhi in which a car travelling at
reckless speed crashed through a police check post and crushed to death
six people, including three policemen. Facing the trial, as the main
accused, was a young person called Sanjeev Nanda coming from a very
wealthy b u s i n e s s family. According to the prosecution, the accident was
caused by Sanjeev Nanda who, in an inebriated state, was driving a
black BMW car at very high speed. The trial, commonly called as the
BMW case, was meandering endlessly even after eight years of the
accident and in the year 2007, it was not proceeding very satisfactorily at
all from the point of view of the prosecution. The s t a t u s of the main
accused coupled with the flip flop of the prosecution witnesses evoked

114 J T 2 0 0 9 (10) SC 1; (2010) 5MLJ 1377 (SC); 2009 (10) SCALE 164; (2009) 8 SCC
106
222

considerable media attention and public interest. To the people who


watch TV and read newspapers it was yet another case t h a t was destined
to end u p in a fiasco. It was in this background that a well known
English language news channel called New Delhi Television (NDTV)
telecast a programme on May 30, 2007 in which one Sunil Kulkarni was
shown meeting with lU Khan, the Special Public Prosecutor a n d RK
Anand, the Senior Defence Counsel (and two others) and negotiating for
his sell out in favour of the defence for a very high price. Kulkarni was at
one time considered the most valuable witness for the prosecution b u t
afterwards, at an early stage in the trial, he was dropped by the
prosecution a s one of its witnesses. Nearly eight years later, the trial
court had summoned him to appear a n d give his testimony a s a court
witness.
After hearing the parties the Delhi High Court expressed its
displeasure over the role of Bhagwan S h a r m a but acquitted him of the
charge of contempt of court. As regards RK Anand and lU Khan,
however, the High Court found and held that their acts squarely fell
within the definition of contempt u n d e r clauses (ii) 86 (iii) of section 2(c) of
the Contempt of Courts Act. It, accordingly, held them guilty of
committing contempt of Court vide judgment and order dated August 2 1 ,
2008 and in exercise of power u n d e r Article 215 of the Constitution of
India prohibited them, by way of punishment, from appearing in the
Delhi High Court and the courts subordinate to it for a period of four
m o n t h s from the date of the judgment. It, however, left them free to carry
on their other professional work, e. g., 'consultations, advises,
conferences, opinion etc'. It also held that RK Anand and lU Khan had
forfeited their right to be designated as Senior Advocates and
recommended to the Full Court to divest them of the honour. In addition
to this the High Court also sentenced them to fine of rupees two
t h o u s a n d each.
223

The Supreme Court in the case observed that "every High Court
should have rules framed u n d e r section 34 of the Advocates Act in order
to meet with such eventualities b u t even in the absence of the Rule the
High Court cannot be held to be helpless against such threats. In a
matter a s fundamental and grave as preserving the purity of judicial
proceedings, the High Court would be free to exercise the powers vested
in it u n d e r section 34 of the Advocates Act notwithstanding the fact that
Rules prescribing the m a n n e r of exercise of power have not been framed.
But in the absence of statutory Rules providing for such a course an
advocate facing the charge of contempt would normally think of only the
p u n i s h m e n t s specified u n d e r section 12 of the Contempt of Courts Act.
He may not even imagine that at the end of the proceeding he might end
u p being debarred from appearing before the court. The rules of n a t u r a l
justice, therefore, demand that before passing an order debarring an
advocate from appearing in courts he m u s t be clearly told t h a t his
alleged conduct or actions are such that if found guilty he might be
debarred from appearing in courts for a specific period. The warning may
be given in the initial notice of contempt issued u n d e r section 14 or
section 17 (as the case may be) of the Contempt of Courts Act. Or such a
notice may be given after the proceedee is held guilty of criminal
contempt before dealing with the question of punishment."
In Supreme Court Bar Association v. Union of
India, 115 regarding professional misconduct the Supreme Court observed
and held as under:
"In a given case, an advocate found guilty of committing contempt
of court may also be guilty of committing "professional misconduct",
depending upon the gravity or n a t u r e of his contumacious conduct, b u t
the two jurisdictions are separate and distinct and exercisable by
different forums by following separate and distinct procedures. The

115 (1998) 4 S S C 4 0 9
224

power to p u n i s h an advocate by suspending his licence or by removal of


his n a m e from the roll of the State Bar Council for proven professional
misconduct vests exclusively in the statutory authorities created u n d e r
the Advocates Act, 1961, while the jurisdiction to p u n i s h him for
committing contempt of court vests exclusively in the courts."
The Court further observed that "in a given case it may be possible
for this Court or the High Court, to prevent the contemnor advocate to
appear before it till he purges himself of the contempt but t h a t is m u c h
different from suspending or revoking his licence or debarring him to
practise as an advocate. In a case of contemptuous, contumacious,
unbecoming or blameworthy conduct of an Advocate-on-Record, this
Court possesses jurisdiction, u n d e r the Supreme Court Rules, itself, to
withdraw his privilege to practice as a n Advocate-on- Record because
that privilege is conferred by this Court and the power to grant the
privilege includes the power to revoke or s u s p e n d it. The withdrawal of
that privilege, however, does not a m o u n t to suspending or revoking his
licence to practice a s an advocate in other courts or tribunals."

XII. Legality of Lawyer's Strike


Lawyers occupy a specially privileged position in society and that
t h r u s t s great responsibilities on lawyers. At the same time it gives them
immense opportunities to mould the life and thought of the nation. The
researcher find that with the passage of time, the lawyers have changed.
The lawyers who fought for social causes a n d took pride in fighting
challenges to constitionalism and broader principles of democracy and
democratic values in India are fast becoming a rare species. The legal
profession is one of the oldest professions. It h a s its traditions of love and
service to the country. Its contribution to national leadership and the
freedom struggle h a s been significant. People have high hopes from legal
profession. Lawyers are expected to be not only learned people b u t a
highly responsible, upright and dignified section of the society. Today,
225

however, the situation is otherwise. Resorting to strikes by the lawyers is


not altogether a new phenomenon. Not a single day p a s s e s without a
strike by professionals in some part of the country or the other. Lawyers
boycotting the courts on one ground or the other, h a s become a common
phenomenon. No doubt protests are essential in a democratic country
like India, b u t it should not be on flimsy grounds.

Historical Perspective of Lawyer's Strike


Lawyers have a long history of supporting and helping in
organisation of society. The concept of boycott h a s its origin in
satyagraha philosophy. M a h a t a m a Gandhi, father of the nation, adopted
it as purification of the soul and for achieving the political independence
of India. Boycott is a form of satyagraha. It is adopted by a group or a
person to remind another person or a society or institution or even a
Nation t h a t injustice is being done and it may be redressed, n^ During
the struggle for independence Gandhiji gave a call to boycott the British
rule and many lawyers plunged into by giving u p their lucrative practice
and joined the freedom movement. A galaxy of stalwart of lawyers such
a s Mahatma Gandhi, Moti Lai Nehru, C. R. Dass, Rajendra Prasad, Pt.
Jawaharlal MNehru, Sardar Patel, Lala Lajpat Rai, Sir Pherozshah
Mehta, Madan Mohan Malviya a n d so on resorted to strike a n u m b e r of
times, sometimes on the arrest of senior national leaders, sometimes on
other popular causes and thereby contributed their might to the national
cause. 11'' These lawyers always come to the forefront whenever it h a s
appeared that justice h a s been murdered. The legal profession and
individual members participating in such strikes did earn a series of

116 R.K. Mahajan, "Boycott of Courts by Lawyers - Legitimacy and Alternatives,"


Supreme Court Journal, 1989 (Journal Section), VoL 1, p. 1
117 Ibid; see also Sunil Deshta a n d Kiran Deshta, Practical Advocacy of Law 156
(2006)
226

adverse court j u d g e m e n t s in a n u m b e r of cases ^^^ that came before


different High Courts during the British Raj. They were convicted of
professional misconduct in almost all the cases. But at the same time the
legal profession, which did not enjoy a very high esteem and respect in
the Indian society started becoming dear to the m a s s e s . Its honour,
respect, esteem and s t a t u s touched new heights in the eyes of public
with their openly coming out to join the national freedom struggle. Apart
from the calls given during the freedom struggle to boycott all
institutions of the British, including courts, boycott of courts were
u n h e a r e d of. In 1973, Mrs. Indira Gandhi's Government superseded
three senior judges of the Supreme Court and appointed Justice Ray a s
Chief Justice. In most p a r t s of India the bar abstained from work for one
day. Protest is essential to a democracy. Like other forms of protest, the
right to strike places pressure on those in power to recognize dissent and
respond to j u s t d e m a n d s . In the year 1986, the lawyers of Allahabad
High Court went on a long strike for about 50 days because of differences
within the bar as to whether a bench of High Court should be established
in Western Uttar Pradesh, a n d if so, where. No one was allowed to enter
the court premises. The court offices remained closed throughout the
strike period. Litigants were not even allowed to seek relief from judges at
their residences. The largest, so far, was the strike by Delhi Lawyers in
the case, which is popularly known a s Kiran Bedi's case. The agitation
took 99 days wherein the issue remained personalized i.e. the
suspension of Kiran Bedi. By this strike the backlog of arrears of pending
cases in Delhi Courts increased by over 10,202 cases. Even today, the
common m a s s e s resort to lawyers in case of legal crisis.

118 In re Jivan Lai Desai, AIR 1920 Bom 168; In the matter of a Second Grade Pleader
of R a m a c h a n d r a Nagar, AIR 1924 Mad 129; Emperor v. Rajani Kanta Bose, AIR
1922 Cal 515; and Emperor v. Kishori Mai, AIR 1923 Cal 853.
227

Causes of Lawyers' Strike


Strike is a method that had been resorted to by our freedom
fighters to fulfill their d e m a n d s and fight the war of liberty. But the strike
by lawyers can be said to shackle the liberty and the right of the people
to receive justice. The opinions are many and many j u r i s t s as well legal
experts have given their respective perspective on the matter.
Undoubtedly lawyer's strike r e m a i n s one of the most contentious and
debatable topic in legal arena for which there can be n u m b e r of causes,
for example : boycott of courts took place over arrest of lawyers by he
police; proposal of repeating the anticipatory bail provisions; misbehavior
of the police with the lawyers; shifting of High Court bench from one
place to another; shifting of venue of the courts; protests against transfer
of judges; ill-treatment of a member of the profession by the executive;
irregular appointment of judges; involvement of certain High Court
J u d g e s in recruitment scan and so on. Mr. Dipankar the learned Amicus
Curie, in Supreme Court submitted that the reasons why strikes have
been called by the Bar Associations a n d / o r Bar Councils are (a)
confrontation with the police a n d / o r the legal administration; (b)
grievances against the Presiding Officer, (c) grievances against judgement
of courts; (d) clash of interest between groups of lawyers and (e)
grievances against the legislature or a legislation.
Besides this, the extracts of the joint meeting of the Chairpersons
of various State Bar Councils and members of the Bar Council of India,
held on 28'^'^ and 29'^ September, 2002 have set out some of the causes
which result in lawyers abstaining from work are as follows:
(A) Local Issues
(i) Disputes between lawyer/Lawyers and the police and other
authorities.
(ii) Issues regarding corruption, misbehavior of judicial officers
and other authorities.
228

(iii) Non filling of vacancies arising in courts or non appointment


of judicial officers for a long period,
(iv) Absence of infrastructure in courts.

(B) Issues relating to one section of the bar and another section:
(i) Withdrawal of jurisdiction and conferring it to other courts
(both pecuniary and territorial)
(ii) Constitution of Benches of High Courts. Disputes between
the competing District and other Bar Associations.
(C) Issues involving dignity, integrity, independence of the Bar and
Judiciary.
(d) Legislation without consultation with the Bar Councils
(E) National issues and regional issues affecting the public at large.
On July 25, 2003 t h o u s a n d s of litigants h a d to r e t u r n home
without their cases heard at Delhi High Court a s their lawyers abstained
from Courts in protest against e n h a n c e m e n t of the pecuniary jurisdiction
of High Court from Rs. 5 lakhs to Rs. 20 lakhs. The call for abstaining
from courts was given by the Delhi High Court bar Association in protest
against the Union Government's J u l y 16, notification enhancing the
pecuniary jurisdiction of the High Court. Following the increase in the
pecuniary jurisdiction, t h o u s a n d s of civil cases of the value of upto Rs.
20 lakhs will now had to be transferred to three lower courts - Tis hazari,
Patiala House and Karkardooma. i ^^ Further, the lawyers have protested
against the Delhi Government's move of setting u p for Permanent Lok
Adalats in the capital, the Bar Associations at Patiala House, a n d Tis
Hazari announced one day strike, ^^o fj-^g Vice-President (Civil, Delhi Bar
Association h a s said that the provision of the Lok Adalats are being
grossly misused by Magistrate to get an extra unit. The fact is that the
cases that go to the Lok Adalat can be compounded and decided by the

119 Hindu, July 26, 2003 at p. 4


120 Hindustan Times, August 6, 2003 (New Delhi ed.)
229

Magistrate Courts themselves. The government is not trying to


strengthen the system that is best suited in the country. An impression
is being given that cases are being sent to Lok Adalats a s the present
system delays dispensation of justice, ^^i
In the chart below the researcher h a s tried to collate the
information u n d e r different head pertaining to lawyer's strike during the
period 1984-2015.

121 Ibid.
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Chart Analysis and Public Reactions


The analysis of the above chart abundantly reveals t h a t the c a u s e s
of lawyers' strike have been varied and with few exceptions these strikes
have been made not with the view to serve the public cause but got
agitating against any action, any governmental agency or officer allegedly
affecting t h e m personally or in their profession. It h a s also been noticed
that the decisions to go on strike or to prolong the strike have not been
the outcome of cool, deliberate, calm and composed mind. In most of the
cases these strikes appear to have been u n d e r t a k e n in excited moods in
the emotionally charged atmosphere even without considering other
strategies for the resolution of matters. Such extreme decisions are taken
in undemocratic m a n n e r without following any voting procedure. Reports
also indicate that the rowdy elements have also crept into the legal
profession. The incident of snatching the ballot boxes are also witnessed
in the Supreme Court when voters in favour or against were being
polled. 122 The President of the Supreme Court Bar Association w a s
m a n h a n d l e d during the strike in front of Chief J u s t i c e Court. The
agitated lawyers heckled and roughed u p even some of their colleagues
including senior counsels who attempted to get inside the courtroom to
argue their cases. These included senior advocates, K. K. Venugopal,
Ram J e t h m a l a n i , O. P. S h a r m a and Murli Bhandari.i23 Such an uncalled
for behavior of the lawyers h a s been strongly decried by the media. ^^^
There have been mixed reactions about lawyers' strike. Soli J.
Sorabjee h a s observed that lawyers resorting to indefinite strike are
striking at the heart of the Constitution. He h a s pointed out t h a t lawyers
may adopt any other remedy, judicial or extra-judicial, for remedying
their grievances, if any, but they should not go on indefinite strike. It is
not the right method to adopt because the public h a s become ultimate

122 Hindustan Times, March 9, 1988, also see Times of India, March 8, 1988
123 Times of India, March 8, 1988
124 Ibid
243

target. 125 H . M . Seervai h a s also forcefully criticized lawyers for


participating in strike. In Kiran Bedi's case he stated t h a t the Supreme
Court and Delhi High Court m u s t indicate t h a t they will not tolerate
interference with the day-to-day administration of justice, no matter from
what quarter t h a t interference comes. He further stated t h a t if it is
conceded that lawyers are above the law a n d the law courts, there can be
no limit to lawyers taking the law into their h a n d s and paralyse the
working of the court. 126 Ram J e t h m a l a n i supported it in the famous
handcuffing case. However, he condemned the lawyers' strike on the
proposed a m e n d m e n t s in the Civil Procedure Code to effect the radical
changes in the procedural hindrance which cause delay of justice in civil
litigation, when he was the Union Minister of Law.
The idea is not to blame the whole legal profession. This was an
activity of a limited section of lawyers only, which shocked not only the
public in general b u t also the majority of legal professionals themselves.
They also do feel anguish and betrayed by such incidents. Number of
good lawyers within the legal profession is not small. But the only thing
is t h a t their view point seldom surface because they rarely take public
positions on issues concerning the legal profession. ^27 But when the
blame comes, the entire legal profession is p u t to public scrutiny. The
role which the legal profession is supposed to perform is to help in the
administration of justice, maintenance of rule of law a n d assist in the
enforcement of fundamental rights of the people. So any deviance in
their conduct in he performance of their duties in soon noticed with the
scrutinising eyes of the society. Hence, litigants are not the only
sufferers. The non-affluent sections of the Bar too suffer silently. The
judges are handicapped in disposing the cases without the assistance of

125 Asha S. Joshi, 'Lawyers Strike - Abortive Quest for Dignity', 3 Lex Et Juris 30
(1988)
126 P. P. Rao, "Boycott of Courts by Lawyers" in K. Gururaja Chari, Advocacy and
Professional Ethics, 699 (2000)
127 Upendra Baxi, "Professional Terrorism : Lawyers Strike," Lex Et Juris, August
1986, pp. 10-11
244

lawyers. It involves t r e m e n d o u s loss on the clients, wastage of time of the


courts and their energy. Therefore, lawyers are an integral part of the
machinery of administration of justice, when they go on strike, the whole
process of administration of justice gets paralysed. They exist essentially
to serve the interests of their clients. If a boycott prevents the making of
urgent application so t h a t a m a n remains in jail, or his property is
demolished, he h a r m to the client is incalculable. There are others who
suffer by the lawyers strike. There are the public interests, the people's
faith or confidence in the administration and last but not the least the
legal profession itself, due o its fallen esteem, which is also ultimately a
loss to the society.
The present discussion would be incomplete if the researcher do
not take note of the view points of lawyers and others in favour of
lawyers strike. Unfortunately, the material on this front is very little
published in the legal periodicals and journals. S. P. J a i n mentions
that: 128 "Not all strikes by the professionals, however, can be tarnished
with the same b r u s h . Some of these involve the basic features of h u m a n
dignity in a democratic society, such a s the freedom of press, the
independence of judiciary, the larger interests of the people, the nation,
the profession itself and so on. Striking work in such situations not
merely carries justification : it may be the n a t u r e of a compelling duty."
Justice R. K. Mahajan h a s suggested that if the lawyers want to redress
their grievances they can do so possibly after the court work is over for
limited time. They can make their voice heard by organising peaceful
procession or other non-violent methods as permissible u n d e r Article 19
of the constitution of India. 1^9 Atul Setalvad h a s stated that the mode of
organising protests which the bar should adopt m u s t be consistent with
its position in society and duties to the litigating public. He further

128 S. P. J a i n , "Strikes by Professionals : J u s t and Unjust Causes," Times of India,


D e c , 15, 1986
129 R. K. Mahajan, op. cit, at 3
245

stated t h a t there can be resolutions; there can be silent and dignified


processions outside court hours; there can be symbolic gestures such a s
wearing protest a r m b a n d s , i^*^
Dipankar G u p t a points out that the Supreme Court h a s declared
the strikes illegal and h e submitted that even a call for strike is bade. He
further submitted t h a t it is the time that the Bar Council of India as well
as various State Bar Councils to monitor strikes within their jurisdiction
and ensure t h a t there are no call for strikes a n d / o r boycotts. Prashant
B h u s h a n , Senior Advocate submitted that the court should also declare
t h a t lawyers who do not want to participate in a strike should not be
coerced by other lawyers or committee members. He submitted that such
coercion a m o u n t s to interference with the administration of justice and
is, therefore, clearly contempt of court.
Hence, one can think of many methods which are dignified and
consistent without duty to the courts and out clients. Such orderly
methods may be less dramatic and, perhaps less effective. Even so, what
is wrong r e m a i n s wrong. And the bar, which lives in and for the law,
cannot a s a body, flout the rules of an orderly society to achieve an end,
however, desirable the end may be. We never had lawyer's strike for
bringing out any reform in the law or legal reforms in general; in
repealing and ambiguous, unjust or the undemocratic laws; we have
never seen lawyers agitating for better services of speedy trials to the
clients and litigants. Lawyers never resorted to strike, demanding
simplification of the so called complex laws. Had it been so it would have
really been a very positive development in our system of administration
of justice. It m u s t be remembered that an advocate is an officer of the
court, a minister in the temple of justice and enjoys special s t a t u s in
society. Advocates have obligations and duties to ensure smooth
functioning of the court. They owe to their client. Strikes interfere with

130 Atul Shetalvad, "Courts Boycotts : Are they Proper?" Lex Ext Juris, April 1987,
p. 13
246

administration of justice. Hence, they cannot disrupt court proceedings


and p u t interest of their client in jeopardy. It is no doubt true t h a t the
Bar should be strong, fearless and independent and should be in a
position to lead the society.

Legal Position Relating to Lawyers' Strike


The lawyers are part and parcel of the court and they are
designated a s officers of the court. Administration of justice cannot be
carried out without their active participation. The lawyers are considered
to be the exploiters by some eminent philosophers and jurists. On the
other hand, some eminent men treat the legal profession a s a noble one.
Lawyers are looked upon a s protectors and defenders of life, liberty and
property - of course at a price. They are also termed a s harbinger of
peace. They are also called friends of the court when their services are
engaged a s amis curie at the request of the court. Now the point for
discussion is that how to view the legality of the lawyer's strike in the
context of the statutory provision. In 1961, the control of the High Court
over the lawyers discipline was taken away and in independent body was
created u n d e r Advocates Act, 1961 i.e.. Bar Council at the State level.
The Bar Council of India Rules, 1975, Section II of the Chapter VI of
these rules lays down the s t a n d a r d s of professional conduct and
etiquettes. The Bar Council of India and the Barr Council of the States
are the authorities to strictly observe these rules and impose sanctions in
case of deviance. It is surprising to see that the member of the Bar
Council of India h a s been party to agitation and have itself adopted
resolution in support of some strikes.
Neither the Advocates Act, 1961 nor in the Bar Council of India
Rules, there is any specific provisions or rule which imposes a restriction
on boycotting the courts by advocates. But the absence of any specific
rule precluding an advocate from boycotting the court does not simply
mean permission to do so. The codes of conduct are not m e a n t to be rigid
247

rules. These are not exhaustive also. No mention of any rule, which is
equally imperative does not mean, that it is not applicable to advocates.
The Preamble of the Chapter on S t a n d a r d s of Professional Conduct and
Etiquette clearly mention this: "an advocate shall, at all times, comfort
himself in a m a n n e r befitting his s t a t u s a s an officer of the court, a
privileged member of the community, a n d a gentleman, bearing in mind
that what may be lawful and moral for a person who is not a member of
the Bar, or for a member of the Bar in his non-professional capacity may
still be improper for an Advocate."
Without prejudice to the generality of the foregoing obligation, a
lawyer owes duty to client to defend his case fearlessly in the court and
simultaneously, he m u s t bear in mind that the dignity of the judicial
office is essential for the survival of a free community. In India, the
counsel's relations with his client are primarily a matter of contract. The
relation is in n a t u r e of agent and principal. In other words, the advocate
enters into a contract with a client on payment of fee to defend his
client's case. An advocate occupies a position of t r u s t in relation to his
client. He is to protect the interest of his client. The relation between
them is highly fiduciary in its n a t u r e , and of a very delicate, exacting and
confidential character requiring a high degree of fidelity a n d good faith.
An advocate is not permitted to withdraw from an engagement once he
h a s accepted without sufficient notice is given to the client. Absence of
Advocate from the court without informing the client, on the ground that
members of the Bar decided to stay away from appearing in court,
a m o u n t s to negligence to duty towards the client. There is no legal
sanctity behind the resolution passed by the Bar Association calling
upon the lawyers to abstain from appearing in court. Lawyers have been
granted right of audience in courts u n d e r the Advocates Act and to
conduct cases of their clients on getting remuneration for the same. If
they consciously, intentionally and deliberately abstain from conducting
the cases in the courts on behalf of the clients, they would be committing
248

a breach of contract and subjecting themselves to the consequences


flowing from such a breach.

Judicial Response t o Lawyers Strike


Right from more t h a n half a century lawyers strike is being
disapproved and reprehended by the Supreme Court and various High
Courts. In 1923, the full Bench of Calcutta High Court in Tarini Mohan
Barai's case,^^! deprecated the pleaders act of boycotting the court a n d
abstaining from attending the court deliberately. Similarly, the Division
Bench of Rangoon High Court in case of re. Pleader 1^2 held the
abstaining of pleader from court without client's consent and leaving him
undefended amounted to professional misconduct. Further, in Bar
Council of Maharashtra v. M. V. Dabholkar, 1^3 their Lordships of the
Supreme Court observed that the central function of the legal profession
is to promote the administration of justice and the bar cannot behave
with doubtful scruples or strive to thrive on litigation. Canons of conduct
cannot be crystalised into right rules b u t felt by collective conscience of
the practitioners a s right.
In Pandurang Dattaraya v. Bar Council of Maharashtra, ^^"^ the
court observed t h a t the Advocates are expected to follow norms of
professional ethics and try to protect the interest of their clients. Thus, it
would be against professional ethics for a lawyer to abstain from the
court when the cause of his client is called for hearing.
Further, the Supreme Court reminded in a case,i35 ^h^t a lawyer is
under obligation to do nothing that shall detract from the dignity of the
court, of which he is himself a sworn officer and assistant. He should all
times pay differential respect to the Judge, and scrupulously observe the

131 AIR 1923 C a l 2 1 2


132 AIR 1924 Rangoon 320
133 AIR 1976 SC 242
134 AIR 1984 SC 110
135 A. J . Chaudhary v. State (Delhi Administration), AIR 1984 SC 618
249

decorum of the courtroom. The court further observed that having


accepted the brief, if the advocate abstains from attending the court then
he will be committing a breach of his professional duty.
The Punjab and Haryana High Court in the case of Maharaj Singh
V. Smt. Charan Kaur,i36 relied on Karam Singh v. State of Punjab, i37
where it ruled that the profession of law enjoys a high and respected
s t a t u s and reputation in our Republic, but this s t a t u s also carries with it
a corresponding necessary obligation which to an extent partakes of
fiduciary character. The client places in his lawyer full and implicit faith
for representing the former and looking after and protecting his interest
in the litigation in the court. The court added that counsel abstaining
from appearing in court cannot, therefore, but be construed a s being
contrary to the m a n n e r and n o r m s of this great and noble profession as
Justice Holmes h a s aptly p u t it a s "a calling of thinkers."
In State of Haryana v. Rai Sahib, ^^^ the court taking a strict view
held that only due to advocate's abstaining from court work, courts
should not strike their responsibility by not deciding cases in accordance
with law. Similarly, in Rajendra Singh v. Union of India, 1^9 the court
held that in case of lawyer's strike judges can dispose of cases
themselves even when unaided by lawyers. Further, in Common Causes,
A Society v. Union of India, 1^*0 the Supreme Court held t h a t the cases
m u s t proceed when they appear on board and should not originally be
adjourned on account of the absence of lawyers u n l e s s there are reasons
to do son. In Mahabir Prasad v. Jack Aviation,i"*! the Supreme Court
considered various aspects on the matter. The court h a s severely
criticized the Delhi High Court for failing to protect the lower judiciary

136 1984 SC 618


137 AIR 1987 P&H 213
138 ILR (1966) 2 Punjab 609
139 1993 CrLJ 1968
140 (1994) 5 s e c 557; Also see K. J o h n Koshy v. Tarakeshwar Prasad (1998) 8 SCC
624
141 AIR 1999 SC 287
250

from pressure tactics of advocates who had boycotted the court of a


Additional District J u d g e . The Division Bench comprising of S. Saghir
Ahmad a n d K. T. Thomas J J . Has held t h a t if any counsel does not w a n t
to appear in a particular court, that too for justifiable reasons,
professional decorum and etiquette require him to give u p his
engagement in that court so that the party can engage another counsel.
But retaining the brief of his client and at the same time abstaining from
appearing in t h a t court, t h a t too not on any particular day on account of
some personal inconvenience of the counsel, b u t a s p e r m a n e n t feature,
is unprofessional a s also unbecoming of the s t a t u s of an Advocate. No
court is obliged to adjourn a case because of the strike call given by a n
Association of Advocates or a decision to boycott the court either in
general or any particular court. It is the solemn duty of every court to
proceed with the judicial b u s i n e s s during court h o u r s . The court further
observed that judicial function cannot and should not be stonewalled by
browbeating or bullying methodology, whether it is by the litigants or by
counsel. Judicial process m u s t r u n its even course unrbiddled by any
boycott call of the Bar, or tactics adopted by any member.
In B. L. Wadhera v. State (N.C.T. of Delhi), 1^2 the Delhi High
Court held that strike by lawyers is illegal, unethical a n d a m o u n t s to
professional misconduct. It is a breach of contract, breach of trust, and
breach of professional duty. The court further held t h a t preventing a
lawyer from discharging this duty is a criminal offence. It is interference
with the administration of justice and hence a m o u n t s to contempt of
court. The Supreme Court held in Ramon Services Pvt. Ltd. v.
Subhash Kapoor, ^'^^ that when a court passed ex-parte decree d u e to the
absence of an Advocate in p u r s u a n c e of strike, and subsequently when
the ex-parte decree is set aside on conditions of payment of cost, the
party is entitled to realise the a m o u n t of the cost from the Advocate

142 AIR 2000 Delhi 266


143 AIR 2001 SC 207
251

concerned. The court added that the litigant who suffers entirely on
account of his advocate's non-appearance in court, he h a s also the
remedy to sue the Advocate for damages.
This judgement of the Supreme Court is a milestone and clear
m a n d a t e in the matter and the subordinate judiciary in case of lawyers
strike h a s now no option b u t to proceed with the case u n l e s s there are
some cogent and justifiable reasons to adjom the case.
Five-members Constitution bench of the Supreme Court in Ex
Capt. Harish Uppal v. Union of India, i'^'* h a s expressed serious concern
a n d anguish over lawyers going on strike in different p a r t s of the country
and held that strike by lawyers are illegal and they have no right to go on
strike or give a call for boycott, not even on a token strike. The protest, if
any is required, can only be by giving p r e s s statements, T. V. interviews,
carrying out on court premises b a n n e r s a n d / o r placards, wearing black
or white or any colour arm b a n d s , peaceful protest m a r c h e s outside and
away from court premises, going on dhamas or rally, fast etc. It is held
t h a t lawyers holding vakalats on behalf of their clients cannot attend
courts in p u r s u a n c e to a call for strike or boycott. All lawyers m u s t
boldly refuse to abide by any call for strike or boycott. No lawyer can be
visited with any adverse consequences by the Association or the Council
a n d no threat or coercion of any n a t u r e including that of expulsion can
be held out. It is held that no Bar Council or bar Association can permit
calling of a meeting for purpose of considering a call for strike or boycott
and requisition, if any, fur such meeting m u s t be ignored. But this
prohibition is not absolute. In the rarest of rare cases where the dignity,
integrity and independence of the Bar or the Bench are at stake, court
may ignore (turn blind eye) to a protect abstention from work for not
more t h a n one day is permissible. In such cases the President of the bar

144 2002 (9) SCALE 357 (the Five member Constitution Bench comprised of Justice
G.B. Pattanaik,. Justice M. B. Sood, Justice Doraiswamy Raju, Justice S. N.
Variava and J u s t i c e D. M. Dharmadhikari).
252

m u s t consult the Chief J u s t i c e or the District J u d g e before Advocates


decide to absent themselves from court. The decision of the Chief Justice
or the District J u d g e would be final and have to be abided by the Bar. It
is held t h a t courts are u n d e r no obligation to adjourn m a t e r s because
lawyers are on strike. On the contrary, it is the duty of all courts to go on
with m a t t e r s on their boards even in the absence of lawyers. In other
words, courts m u s t not be privy to strikes or call for boycotts. The court
further held t h a t if a lawyer, holding a vakalat of a client, a b s t a i n s from
attending court due to a strike call, he shall be personally liable to pay
costs which shall be addition to damages which he might have to pay to
his client for loss suffered by him. The underlying rationale of the
judgement is that m e m b e r s of the legal profession are officers of the
court. They are obliged by the very n a t u r e of their calling to assist in the
dispensation to justice. Strike impair the administration of justice and
are t h u s inconsistent with their calling as lawyers. Lawyers more t h a n
others should grasp his essential fact. It behoves them to abide by the
law laid down by the apex court if their commitment to the rule of law is
genuine. The issue of whether lawyers can go on strike was dealt with by
the Supreme Court in Common Cause v. Union of India. ^^^^ The court
held t h a t "it is unprofessional for a lawyer to strike or boycott the court.
The bar associations should not permit meetings calling for such strikes
or boycotts and such requisitions should be ignored. It is the duty of the
State and National Bar Councils to take action against striking bar
associations and sponsors of boycotts. The courts m u s t hear m a t e r s
posted before them undeterred by boycotts. It is only in the rarest of rare
cases that abstention from court is justified, such as dignity, integrity
and independence of the Bar and Bench, and that m u s t be decided by
the judge heading the court, and even this m u s t be only for one day."

145 AIR 2005 SC 4442


253

On 2 November, 2014 in a stern warning to lawyers, the Bombay


High Court, while hearing a Public Interest Litigation filed by Manoj
Laxman Shhirsatthe, a lawyer registered with the Bar Council of
Maharashtra, said t h a t those who partake in any sort of strike or other
disruptive activities t h a t affect the judiciary's day-to-day affairs are likely
to face contempt charges. The Chief Justice Mohit Shah lead High Court
bench bearing the case also said that the Bar Council of M a h a r a s h t r a
with whom the advocates are registered, may also choose to action
against s u c h lawyers. In the PIL, the complainant alleged that the strike
observed on appeals by the District Bar Associations on August 29, 2013
and by the Bar Council of India on March 11, 2013 were totally illegal.
In Akash Pratap Singh @ Sunny v. The State of Madhya
Pradesh, 1'^^ petition was listed u n d e r caption "Top of the List" in terms of
order dated 21.04.2015, however, none appears for the petitioner when
the matter was called out. Presumably, the Advocates on record have
chosen not to appear because of the call given by the Madhya Pradesh
High Court Bar Association in its meeting dated 24'^ April, 2015 to
boycott Court work. The Supreme Court observed that, "we, prima facie,
find that the Advocates have chosen not to appear on account of illegal
call given by the Bar Association, have committed professional
misconduct, for which, they m u s t be noticed and called u p o n to explain
a s to why appropriate action should not be taken including to impose
cost." The case is finally to be decided by the Hon'ble Supreme Court.
In Anand Trust v. The Bar Council of India, 1"^^ was listed before
the Supreme Court on 27 April, 2015 an application h a s been filed by
the petitioners bringing to the notice of the Supreme Court the
resolutions of the High Court Bar Association, J a b a l p u r and the District
Bar Association, J a b a l p u r in the matter of calling for a one day token
strike and boycott of the Courts. Petitioners submitted that the

146 W.P. No. 3965 of 2015


147 W.P. No. 3809 of 2015
254

grievances of the District Bar Association in the matter does not fall in
the exception to the general rule as indicated by the Supreme Court in
the case of Ex-Capt. Harish Uppal v. Union of India and others, 2003(2)
s e c 45. The action is contrary to the dictum of the Supreme Court a s
indicated in para 35 of the judgment in the case of Ex-Capt. Harish
Uppal (supra). Petitioner also points out that the Court h a s already taken
cognizance of the original prayer made in this writ petition a n d inspite of
notice again a call for strike is given. The Supreme Court observed that,
"the action of the Bar Associations being in violation to the law laid down
by the Supreme Court, the same prima facie a m o u n t s to contempt of
Court, violation of Supreme Court m a n d a t e and a case for taking action
against the office bearers. Not only they are rendered themselves liable to
be proceeded against for contempt b u t also to pay the cost a n d daraiages
to the litigants, who have suffered because of non hearing of their cases
today. However, the principles of n a t u r a l justice and process of law
requires t h a t before taking any action as indicated by u s herein above,
the law m a n d a t e s u s to issue notice to all concerned a n d thereafter
proceed in accordance with law. Accordingly, we direct the office to issue
notice to all the office bearers of M.P. High Court Bar Association and the
District Bar Association, along with a copy of this order directing t h e m to
show cause a s to why action a s contemplated by the Supreme Court in
the case of Ex-Capt. Harish Uppal (supra) should not be taken against
them. That apart, a copy of the order be also forwarded to the Chairman
of M.P. State Bar Council and the Chairman of Bar Council of India
asking them to show cause on the next date and to indicate as to why
further action should not be taken as prayed for by the petitioners in the
matter of frequent call for boycott being given by the Bar Association in
the State of M.P. and any action to be taken for restraining them and
prohibiting them from doing so. The case is yet to be decided by the
HonTDle Supreme Court.
255

Constitutional Protection
The Constitution of India recognized the importance of advocates
in protecting the life and liberties of individuals. The fundamental right
to be defended by a legal practitioner is one's choice guaranteed u n d e r
Article 22(1) is a clear testimony to this. But the important point is that
whether the Constitution provides any safeguards to an accused person,
so far a s criminal jurisprudence is concerned. When a lawyer is engaged
by an accused person, in concert with others, boycotts the court a n d
adds to his misery by his increased incarceration. The Constitution of
India appears to be silent on this. But the Constitution a s prescribed and
inerpreted by the apex Court of the land does show some hope. There is
no fundamental rights, righter u n d e r Article 21 of the Constitution,
which permits or authorizes a lawyer to abstain from appearing in court
in a case in which he holds a vakalat for a party in t h a t case. On the
other hand, a litigant h a s a fundamental right of speedy trial of his case,
because, speedy trial, a s held by the Supreme Court in Hussainara
Khatoon v. Home Secretary, State of Bihar, I'^s is an integral part of
the fundamental right to life and liberty enshrined in Article 21 of the
Constitution. Strike by lawyers will infringe the above mentioned
fundamental right of the litigants a n d such infringement cannot be
permitted. Assuming that the lawyers are trying to convey heir feelings of
sentiments and ideas through the strike in exercise of their fundamental
right to freedom of speech and expression guaranteed by Article 19(1)(a)
of the Constitution. It is crystal clear t h a t the exercise of the right u n d e r
Article 19(1)(a) will come to an end when such exercise threatens to
infringe the fundamental right of another. Such a limitation is inherent
in the exercise of the right u n d e r Article 19(1)(a). Hence, the lawyers
cannot go on strike infringing the fundamental right of the litigants for
speedy trial. The right to practice any profession or to carry on any

148 AIR 1979 SC 1360


256

occupation guaranteed by Article 19(l)(g) may include the right to


discontinue such profession or occupation but it will not include any
right to abstain from appearing in court while holding a vakalat in the
case. Similarly, the exercise of the right to protest by the lawyers cannot
be allowed to infract the litigant's fundamental right for speedy trial or to
interfere with the administration of justice.
There is no doubt that the legal profession is an independent and
serious profession, it is not u n d e r the subjugation of the State. State
cannot be asked to direct the lawyers concerned in a given case not to
come in the way of speedy trial a s a result of the strike. But we should
not forget t h a t the Bar Councils which are disciplining authorities with
respect to lawyers, are 'state' within the meaning of Article 12 of the
Constitution of India. These Councils are u n d e r a constitutional m a n d a t e
to ensure that speedy trial in criminal justice is ensured, it is not allowed
to be hampered by the strikes of the lawyers, which is a breach of duty to
the client, and hence actionable u n d e r Bar Council of India Rules, 1975.

Lawyer's Strike - The Real Picture


The strike by lawyers h a s a deep impact on the justice delivery
system. It h a m p e r s an individual as a litigant, at large. Also it leads in
diminishing the reputation of the court a s well as the faith of the general
public in the judiciary also declines. T h o u s a n d s of litigants have to wait
for their messiahs of justice to resume the work. The people, t h u s , face a
lot of h a r a s s m e n t at a personal or in a more simple way have to face a
mental and financial turmoil when such boycott h a p p e n s . It is usually
believed that the lawyers or the judges resorted to strike in unison. The
view of the general m a s s is that the lawyers resort to strike even on small
issues when they are expected to act in a rational way in such matters as
part of their daily dealings. It is also commonly believed t h a t even the
judges do not exercise their authority to stop these strikes j u s t to enjoy a
'holiday'. But the situation is far more different than what it seems to be.
257

Most lawyers are opposed to boycotts, and do not support stoppage


of work in courts except in the extreme case where it seems that there
might be threat to the legal profession or the independence of the
judiciary. However, they prefer to keep silent in front of the powerful
minority who command the proceedings at Bar Association meetings,
and t h u s this submission becomes common. J u d g e s are forced to
adjourn cases when lawyers do not appear; lawyers who wish to appear
in reality fear the obstructive and even violent behavior from those who
are on boycott a n d cannot risk their life a s well as their career in some
instances. The judiciary h a s n ' t been able to crack down on those who are
responsible for these stoppages. The situation h a s worsened over the
years. Inaction of the authorities sent out the opposite signal and with
each succeeding episode it becomes more difficult to apply corrective
measures.
Those who benefit from such strikes are the ones who call for the
boycott. It becomes stage a stage to demonstrate their power since they
believe in the connotation that if you can bring the entire system to a
halt, you m u s t be a force to reckon with. This gives rise to the
phenomenon of competitive boycotting. This also m e a n s t h a t no group
wants to be seen as being against the boycott. Some boycotts have
nothing to do with issues of lawyers, b u t are aligned to political causes.
It is ironic t h a t the harbingers of justice in the society hold the
justice at hostage a n d ransom their d e m a n d s in the m a n n e r t h a t does
not suit especially the people on whom the t r u s t of maintaining the
justice and upholding law is reposed.
Thus, the lawyers' strike become like an arena where the 'display
of strength' is displayed and the ones who face the bruise of such power
display are the common m a s s e s as litigants and even lawyers and judges
who are bound in the shackles of the system of which they are a part.
258

XIII Sum-Up
The foregoing study leads the researcher to conclude t h a t all is not
well with the enforcement machinery for the legal ethics. It h a s definitely
fallen in public esteem. The time h a s come when legal profession m u s t
think of active involvement of talents from other disciplines and
participative cooperation from the c o n s u m e r s of justice to help the legal
profession to tide over its problem, which are not exclusively legal, but
are the product of complex modern realities. Such a change does not
necessarily require the law reforms as condition precedent. There is a
need to t u n e ourselves according to the system with dynamism and with
a foresight on the future.
The study reveals that the Advocates Act, 1961 is not free from
infirmities. It contains major defects and contradictory provisions which
require immediate amendment. For example, the Bar Council of India is
given power to receive a complaint about an advocate whose n a m e is not
entered on any state rolls. But such a person is not an advocate a s per
Section 2(1)(a) of the Act and is outside the disciplinary jurisdiction of
the Bar Council. The ignorance of the public regarding the duties of
advocates and the indifference and fear of the clients have only
contributed to taking the system further away from the people and to
deterioration of the standard of performance of the advocates. It is only
when the public become aware of their legal rights and d e m a n d better
performance from the advocates that we can even think of raising the
standard of the legal profession and transforming it into an i n s t r u m e n t of
justice.
The foregoing study further indicates t h a t frequent and prolonged
strikes by lawyers directly hit the public interest, the people's faith or
confidence in the administration and last but not the least, the legal
profession itself The abstention of courts should be a desperate step of
last resort, even if justified. The legal implications of abstention of
lawyers is that it is reprehensible for an advocate a s an officer of the
259

court, who is to assist the administration of justice, boycott courts of law


and thereby impede, obstruct or prevent administration of law. Such
conduct of the lawyers constitutes ground for disbarment or suspension.
Therefore, he m u s t be honest in espousing the cause of clients before the
court. It he is not sincere enough in his effort, the result would be
disastrous. Hence, before going on strike the lawyers should ask
themselves the following questions:
(a) Is the strike in public interest?
(b) Does the cause deserve so m u c h sacrifice on the part of the Bar
and so m u c h suffering to the clients?
(c) Is it conductive to administration of justice?
(d) Is it going to add to the credibility of the profession and improve its
image?
(e) Is it unavoidable?
It is crystal clear from the foregoing study t h a t the strikes by
lawyers is one of the main causes a s to why there h a s been a growing
distrust amongst the people on the judiciary a s a whole. The Indian
judiciary h a s adopted a silent stance on this issue. No doubt, the causes
for such strikes are many. Lawyers have explored the path of strike when
it h a s been an apprehension that the legal profession is in crisis or there
is some atrocity being inflicted upon the m e m b e r s of legal profession. The
study reveals that recently is in crisis or there is some atrocity being
inflicted upon the member of legal profession. The study reveals that
recently lawyers resorted to strike to m a r k a protest on the killing of an
advocate by a police official in Allahabad High Court. Lawyers all over the
country demanded immediate inquiry and justice to the aggrieved. But
there is other side of the story a s well. It is a h a r s h reality that most of
these strikes are due to a worthless issue. Most of the lawyers do not
want to join but are apprehended of their strength and power. J u d g e s too
have no option to dismiss the cases due to non-appearances of advocates
and the same resulted in huge pendency of cases. The need off the hour
260

is that lawyers should abstain from such strikes. Strike is never a good
solution in any profession. When a lawyer resorts to strike he commits
the greatest injustice towards his client who sets all his hopes upon him
to get justice. He commits injustice to the court t h a t expects him to be
vigilant in administration of justice. But above all, he commits the
greatest injustice to the legal profession that expects him to take it to a
more reputed and high attitude.