# BAR COUNCIL OF MAHARASHTRA v. M. V. DABHOLKAR. ETC. ETC

- **Citation:** [1976] 1 S.C.R. 306
- **Court:** Supreme Court of India
- **Decided:** 1975-08-13
- **Case number:** Civil Appeals Nos. 1461 to 1468 of 1974
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bar-council-of-maharashtra-v-m-v-dabholkar-etc-etc-6502
- **Pages:** 21

## Headnote

306
BAR COUNCIL OF MAHARASHTRA
v.
M. V. DABHOLKAR. ETC. ETC.
August 13, 1975
[A. N. RAY, C.J., H. R. KHANNA,
K. K. MATHEW,
M. JI. BEG,
V. R. KRISHNA IYER, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]
Adrocates Act, 1961-Sections 37 and 38 Scope of-"Person aggrieved" if
a State Bar Council could be a "person aggrieved".
The State Bar Councils created by the Advocates Act, 1961 have been entrusted v;1ith the functions inter alia of entertaining and determ!ning cases of
misconduct against advocates on their rolls and to safeguard their rights, privileges and interests. The Bar Council of India wh'..ch is a national body created
by the Act is entrusted with the work of laying down standards of professiona-1
conduct and etiquette and overseeing the functioning of the State Bar Councils.
Under s. 35 of the Act, if a State Bar Council, either on receipt of a complai.nt
or otherwise has reason to believe that any advocate on its roll has been guilty
of professional or other misconduct, it shall refer the case to its Disciplinary
Committee wh'.,ch, after due inquiry may impose certain penalties.
An appe<1l
from the decision of the State Bar Council lies to the Bar Council of India.
Any "person aggrieved" by an order of the Disciplinary Committee of the Bar
Council of India may, under s. 38, appeal to the Supreme Court. In exercise
of the po\vers conferred by the Act the Bar Council of Ind'..a framed rules relating to professional conduct and etiquette, r. 36 of which says -:bat advocates
shall not solicit work or advertise themselves.
1 he State Bar Council, in the present case, issued notices to the respondents
suo nzotu alleging that they stood at the entrance of the court house at the
Presidency Mag'.strate's Court, Fort Bombay and solicited work etc., and that
the said act amounted to professional and/or other misconduct.
The Disciplinary Committee of the State Bar Council found the respondents guilty of conduct \vhich absolutely lowered the reoutafion of the Bar in the eyes of the public and suspended them from practising ~ advocates.
The respondents' appeal
to the Bar Counc'.l of India having been allowed, the State Bar Council has come
u.p in appeal to this Court under s. 38.
Before the Bar Council of India the
State Bar Council had not appeared.
On the question whe·'.her the State Bar Council is a "person nggrieved",
Allowing the appeals, Held:
[By the full Court],
The State Bar Council is an "aggrieved person" to maintain an appeal under
the Act.
(per Ray, C.J., ,Khanna, 1\1athe\Y, Gupta and Murtaza Fazal Ali, JJ):
(1) The Bar Counc!l is a "person aggrieved" because (i) the words "person
aggrieved" in the Act are of wide import in the context of the purpose and provisions of the statute and should not be subj'ected to a restricted interpretation
of possession or denial of legal rights or burdens or financial interests.
In disc'..plinary proceedings before the Di5ciplinary Committee there is no lis and there
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are no parties.
The word 'person' will embrace the Bar Council which repre-
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sent-; the Bar of the State; (ii) the Bar Council represents the collective ·con-
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science of the standards of professiona-1 .:onduct and etiquette. The Bar Counff
cil acts as the protector of the purity and dignity of the profession; e.ii) the
function of the Bar Council in entertaining complaints against advocates indicates
that the Bar Council is ~nterested in the proceedings for the vindication of discipline, dignity and decorum of the profession; (iv) vi hen the Bar Council ini-
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BAR COUNCIL v. M. V. DABHOLKAR (Ray, C.J.)
307
tiates proceedings by referring cases of misconduct to the Disc~,plinary Committee, the Bar Council, in the performance of its function under the Act, is interested in the task of seeing that the advocates maintain proper standards and
et:.quette of the profession and (v) the Bar Council is vitally concerned with
the decision, in the context of its functions.
The

## Text

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306
BAR COUNCIL OF MAHARASHTRA
v.
M. V. DABHOLKAR. ETC. ETC.
August 13, 1975
[A. N. RAY, C.J., H. R. KHANNA,
K. K. MATHEW,
M. JI. BEG,
V. R. KRISHNA IYER, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]
Adrocates Act, 1961-Sections 37 and 38 Scope of-"Person aggrieved" if
a State Bar Council could be a "person aggrieved".
The State Bar Councils created by the Advocates Act, 1961 have been entrusted v;1ith the functions inter alia of entertaining and determ!ning cases of
misconduct against advocates on their rolls and to safeguard their rights, privileges and interests. The Bar Council of India wh'..ch is a national body created
by the Act is entrusted with the work of laying down standards of professiona-1
conduct and etiquette and overseeing the functioning of the State Bar Councils.
Under s. 35 of the Act, if a State Bar Council, either on receipt of a complai.nt
or otherwise has reason to believe that any advocate on its roll has been guilty
of professional or other misconduct, it shall refer the case to its Disciplinary
Committee wh'.,ch, after due inquiry may impose certain penalties.
An appe<1l
from the decision of the State Bar Council lies to the Bar Council of India.
Any "person aggrieved" by an order of the Disciplinary Committee of the Bar
Council of India may, under s. 38, appeal to the Supreme Court. In exercise
of the po\vers conferred by the Act the Bar Council of Ind'..a framed rules relating to professional conduct and etiquette, r. 36 of which says -:bat advocates
shall not solicit work or advertise themselves.
1 he State Bar Council, in the present case, issued notices to the respondents
suo nzotu alleging that they stood at the entrance of the court house at the
Presidency Mag'.strate's Court, Fort Bombay and solicited work etc., and that
the said act amounted to professional and/or other misconduct.
The Disciplinary Committee of the State Bar Council found the respondents guilty of conduct \vhich absolutely lowered the reoutafion of the Bar in the eyes of the public and suspended them from practising ~ advocates.
The respondents' appeal
to the Bar Counc'.l of India having been allowed, the State Bar Council has come
u.p in appeal to this Court under s. 38.
Before the Bar Council of India the
State Bar Council had not appeared.
On the question whe·'.her the State Bar Council is a "person nggrieved",
Allowing the appeals, Held:
[By the full Court],
The State Bar Council is an "aggrieved person" to maintain an appeal under
the Act.
(per Ray, C.J., ,Khanna, 1\1athe\Y, Gupta and Murtaza Fazal Ali, JJ):
(1) The Bar Counc!l is a "person aggrieved" because (i) the words "person
aggrieved" in the Act are of wide import in the context of the purpose and provisions of the statute and should not be subj'ected to a restricted interpretation
of possession or denial of legal rights or burdens or financial interests.
In disc'..plinary proceedings before the Di5ciplinary Committee there is no lis and there
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are no parties.
The word 'person' will embrace the Bar Council which repre-
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sent-; the Bar of the State; (ii) the Bar Council represents the collective ·con-
""
science of the standards of professiona-1 .:onduct and etiquette. The Bar Counff
cil acts as the protector of the purity and dignity of the profession; e.ii) the
function of the Bar Council in entertaining complaints against advocates indicates
that the Bar Council is ~nterested in the proceedings for the vindication of discipline, dignity and decorum of the profession; (iv) vi hen the Bar Council ini-
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BAR COUNCIL v. M. V. DABHOLKAR (Ray, C.J.)
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tiates proceedings by referring cases of misconduct to the Disc~,plinary Committee, the Bar Council, in the performance of its function under the Act, is interested in the task of seeing that the advocates maintain proper standards and
et:.quette of the profession and (v) the Bar Council is vitally concerned with
the decision, in the context of its functions.
The Bar Council will have a grievance if the decision prejudices the maintenance of standards of prafessional
conduct and ethics.
f315G: 316D-G1
(2) (a) The Bar Council acts as the sent!.nel of professional code ot conduct and is vitally interested in the rights and privileges of the advocates as well
as th.e purity and dignity of the profession. [316A-BJ
(b) The grievance of the Bar Council is to be looked at purely from the
point of v~.ew of standards of professional conduct and etiquette.
rf any decision of the Disciplinary Committee of the Bar Council of India is a..;cording to.
the S.tate Bar Council such as will lower the standards and imperil the high trad~
tions and values in the profession the State Bar Council is an "aggrieved person"
to safeguard the interests of the public, the interests of the profession and the
interests of the Bar.
f316B-CJ
(3) The most significant feature in the matter of initiation o~ proce~d:ngs
before the Disciplinary Comm~ttee is that no litigant and no member of the
public can straightway commence disciplinary proceedings against an advocate.
Jt is the Bar Council of a State which initiates the d~sciplinary proceedings. There
is no /is in proceedings before the Discip1inary Comn1ittee. The Bar
Council~
in placing a matter before the D!sciplinary Committee, does not act as a prosecutor in a criminal case.
A compla·inant who prefers a complaint against an advocate is not like a plaintiff in a civil suit. The Bar Council may act on its own
initiative on information which has come to its notke in the course of its duties.
There is no party to the disciplinary proceedings because the Bar Council, the
Attorney General, the Advocate General act in protecting the interests of advocates and the interests of the public. In so acting there is no conflict betwee1J
the advocate and any other person because it is professional conduct, professional
· etiqilette, professional ethics, professional
morality, wh~ch are to be upheld,
transgression of which results in reprimanding the advocate or suspending him
from practice or ren1oving his name from the roll.
[314B-F]
Adi Pherozshah Gandhi v. H. M. Seervai, Advocate General of Maharashtra.
Bonibay, [1971] 1 S.C.R. 863, referred to.
Beg, J. (concurring)
(1) There is no objection to a participation of a State Bar Council tn its
executive capacity in a disciplinary proceedi.ng against an advocate on its roll
either at the initial or at the appellate stages.
Before it can become a "person
aggrieved" by an order against which it could appeal, there must have been a
!is or a d!spute to be decided which gives rise to the order complained of. To
such a "!is" the State Bar Council, in its executive capacity, must be deemed to
be a party. There seems to be no legal obstacles in the way of its separate re~
presentation even before its own Disciplinary Committee. Its right to appeal as
a "person aggrieved" is squarely covered by the provisions of ss. 37 and 38 of
the Act.
In the present case the respondents them,selves treated the Bar Council
as a party interested in the Iis when they imp1eaded the State Bar Council as a
respondent in their. appeals to the Bar Council of India.
Its sta-tutory right to
appeal under s. 38 15 not affected by the mere fact that it did not put in appearance before th~ Bar Council of India.
[319D-GJ
. (2) The. S!ate Bar Council operates through its committees.
.Each committee has distinct and separable functions.
Each could be said to have a "peri.ona" and an identity of its own, which is distingu=shable from that of the Bar
Coun:il as a whole.
f3 l 7G]
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3(a) _If the Bar Council has a separable interest as a guardian of the rights
and pnvileges of the members of the Bar, specifically mentioned by s. 6 (1) ( d)
of the Act, there is no reason why a right to represent this interest hefore its
308
SUPREME COURT REPORTS
[1976] 1 S.C.R.
own Disciplinary Con1n1ittee as well as before the Bar Council of India, on an
appeal under s. 3 7 of the Act, or, on further appeal to this Court under s. 38
-0f the Act should be denied to it.
[318C-D]
4(a) \Vhen the State Bar Council can have locus sta11llt. and ri.ghts of a
'1>erson aggrieved'' affected by the results of such proceedings there is no reason
why it should not b.! in the position of a party to- a !is or dispute ·between itself
fl.nd
~he allegedly delinquent advocate.
[318D-E]
'(b) The tenn '/is' is not confined to lit!gation by means of a suit in a i..:ourt
of law.
[318EJ
Butler v. }vfountgarret 7 H.L. Ca. 641 and B. Johnson & Co. (Builders) v.
Minister of Health. [1947] 2 All. E.R. 395 @399, referred to.
5. The State Ba·r Council in its executive capacity acts as the prosecutor
through its Executive Committee. There is no incongruity in its Disciplinary
Com mi: tee r~presenting its judicial" wing, functioning as an impartial jud.ge \Vhose
decisions are binding upon the State Bar Counci( · It is a· "person aggrieved"
within the meaning of that expression U5ed in ss. 37 and 38 of the Act.
[3180-HJ
Krishna Iyer, J. (concurring) :
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dlbstick-maKers' but, a public institution committed to public justice and pro
bona publico service.
The grant of a monopoly licence to practice Jaw is based
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on three '1Ssumptiqns; (iJ there is a soc'.ally useful function for the lawyer to
perform; (ii) the lawyer is a professional person who will perform that function; and (iii) his performance <is a professional person is regulated by himself 1.1.nd more formally, by the professi-00 -as a whole.
The central function that
the legal profession must perform is nothing less than the administration of
ju.sti:e.
[3220-HJ
(2) Jn a developing count1y the pattern of public oriented litigation better
fulfils the ruJe of law if it £s to run close to the rule of life. The Bar Council
clearly comes within this category of organisations when a lawyer is involved.
[3230]
(3) A case of professional misconduct is not a Us in the British sense nor a
case and controrersy in the Amer:Can meaning. It is a public investigation about
misconduct by one belonging to a public profession where every member of the
Bar with a reputation to lose has a stake and everyone concerned with the justice
administTation is interested.
The Bar has a share in being the sentinel on the
qui vive when the legal dykes of right and justice are breached by authoritarianism
or citizen wrongdoing.
[323F~G]
(4) The possible apprehension that widening_ legal standing with a public
connotation may unloose a flood of litigation which may ovenvhelm the judges
ls misplaced because pubEc resort to court to suppress public n1ischief is a tribute
to the justice system. In this case to grant an exclusionary windfall on the res·
pondents is to cripple the Bar Council in its search for justice and insistence on
standards.
[326BJ
A. P. Gt111dhi v. H. M. Seeravai, [1971] 1 S.C.R. refered to.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1461 to 1468
of 1974.
From the Judgment and Order dated the 14th April, 1974 of the
Disciplinary Committee of the Bar Conncil of India, New Delhi. in
D. C. Appeals Nos. 15 to 19, 21, 22 and 25 of 1973 respectively.
V. S. Desai, Vimal Dave a!ad Kai/ash Mehta, for the appellant (in
all the appeals).
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BAR COUNCIL v. M. V. DABHOLKAR (Ray, C.J.)
309
A
M. V. Dabolkar, for the respondent (In C. A. No. 1461/74).
~·
Z. F. Bootwa.la and Urmila Sirur, for the respondent (In C. A. Nos.
1462-64174).
V. N. Ganpule and v. H. Dixit, for the respondent (In C. A. No.
1465174).
B
K. G. Mandalia, for the respondent (In C. A. No. 1466/74).
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E. Udayarathanam and A. K. Doshi, for the respondent (In C.A.
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No. 1467 /74).
D. K. Raisinghani, for the respondent (In C.A. No. 1468/n).
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K. K. Sinha and S. K. Sinha, for the Bihar State Bar Council.
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D. V. Patil and K. Hingorani, for the Bar Council of India.
The Judgment of A. N. RAY, C.J., H. R. KHANNA, K. K. MA<HEW,
A. c. GUPTA ANDS. M. FAZAL Au, was delivered by A. N. RAY. C.J.,
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M. H. BEG and v. R. KRISHNA IYER; JJ. gave separate Opinions.
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RAY, C.J.-Thesc appeals were placed before this Bench for cons!-
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deration of the question whether the Bar Council of a State i>
"a
person aggrieved" to maintain an appeal under section 38 of th~ Advacates Act, 1961 hereinafter called the Act.
The Rar Council of Maharashtra on 8 August, 1964 considered
a complaint received from the High Court against the respondeiats and
resolved that the complaint received from the High Court against the
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respondents be referred to the disciplinary committee.
Another resolution was passed by the Bar Council of Maharashtra on the same day
whereby Messrs Hotchand Advani, R. W. Adik
and
S. C. Chagla
were elected as members of the disciplinary committee to enquire into
the complaints.
The aforesaid discipliaary committee met on 19 March, 1965 and
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beard the advocates for the Bar Council of the State of Maharashtra.
After considering the papers placed before the committee, it directed
the Registrar to issue notices under section 35 (2) of the Act to the
"parties concerned ineluding the Advocate-General".
The committee
also expressed the opinion that "there is a prima facie case of professional misconduct".
G
The Bar Council of Maharashtm on 18 May, 1965 issued r.otices
;
under sectiola 35 of the Act to the respondents.
The notice was described as a suo motu inquiry against the respondents.
The
notice
proceeaed with the recital that it came to the notice of the Bar Council
of Maharashtra that the respondents stood at the entrance of the Court
:l~
House at the Presidency Magistrate's Court, Esplanade, Fort Bombay
and solicited work and generally behaved at that plate in an u'ndigniH
fied manner and the said acts amounted to professional and/ or other
misconduct and the Bar Council ~constituted disciplinary committee and
the inquiry was entrusted to the committee consisting of Messrs H. G.
Advani, R. W. Adik and S. C. Chagla.
310
SUPREME COURT REPORTS
[1976] 1 S.C.R.
The said disciplinary committee heard evidence upto 31 August,
1968. On 14 June, 1969, the Bar Council of Maharashtra passed
a resolution requesting the aforesaid disciplinary committee to proceed with the inquiry which was pending before them prior to 3 l
March, 1969.
The disciplinary committee of the Bar Council of Maharashtra on
27 June, 1973 fouad the respondents guilty of conduct which seriously
lowered the reputation of the Bar in the eyes of the public. The disciplinary committee directed that the respondents would stand suspended from practising as advocates for a period of three years. The
suspension orders were to be operative from 1 August, 1973.
The respondents preferred appeals before the Bar Council of India.
In these appeals, the respondents impleaded the Bar Council of Maharashtra as respdadents. The disciplinary committe~ of the Bar Council of India on 14 April, 197 4 allowed the appeals and set ~side the
orders of the disciplinary committee of the Bar Council of Maharashtra. While setting aside the orders of the disciplinary committee
of the Bar Council of Maharashtra, the disciplinary committee of the
Bar Council of India stated as follows :-
"The Bar Council of Maharashtra has not appeared even
though they started the proceedings suo motu and we do
not pass any orders as to costs and we direct each party will
bear their costs.
However, we have gone through the evidence ourselves and also the same has been placed in defail
by the appellants. All that we can say is that we expected
the Bar Council of Maharashtra to be respresentcd in the appeal because proceedings were started s110 motu".
These statements of the disciplinary committee of the Bar Council of India indicate that the Bar Council of Maharashtra should have
appeared before the disciplinary committee of the Bar Council of India.
The scheme of the Advocates Act ia short is as follows :
There are State Bar Councils. There is Bar Council of India Everv
Bar Council is a body corporate.
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The functions of a State Bar Council are inter alia to entertain
and determine cases of misconduct against advocates on its roll and
to safeguard the rights, privileges and interests of advocates on its roll.
The foactions of. the Bar Council of India are inter alia to lay down
standards of profess10nal .cound~ct. and etiquet.te, to Jay down the procedur~ to be followed by its disc.iplmary committee and the disciplinary
comn~ittee of State Bar Councils, to safeguard the rights, privileges
and mterests of advocates and to exercise general supervision and
control over State Bar Councils.
Discipli;ia:y com'.'1ittees are constituted by each Bar Cou'acil.
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B~r Council is reqmred to constitute one or more disciplinary committees each of which shall consist of three persons of whom two shall
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BAR COUNCIL v. M. V. DABHOLKAR (Ray, C.J.)
3lr
be persons elected by the Council from amongst its members and the·
other shall be a person co-opted by the Council from amongst advocates who posscsss the qualifications specified in the proviso to sectioru
3(2) of the Act and are aot members of the Council, and the senrormost advoca.e amongst the members of a disciplinary committee shall
be its Chairman.
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When the Executive Committees of a State Bar Council and of the
Bar Council of fadia and an Enrolment Committee of a State Bar·
Council and the legal education committee of the
Bar Council of
India are to consist of members erected by the Council from amongst
its members, it is noticeable that the disciplinary committees of Bar
Council of State as well .as of Bar Council of India shall consist of
three persons of whom two shall be elected by the Council from·
amongst its members and the other shall be a person co-opted by the
Council from advocates who are not otherwise members of the Council.
Chapter V of the Act relates to the Conduct of Advocates. Chapter V contai.is sections 35 to 44.
Section 35 sfates that where on·
receipt of a complaint or otherwise a State Bar Council has reason to.
believe that any •advocate on its roll has been guilty of professional or·
other misconduct, it shall refer the case for disposal to its disciplinary
committee. The State Bar Council may, either of its own motion or
on application made to it by any person interested, withdraw a proceeding pending before its disciplinary commiltee and direct that
inquiry to be made by another disciplinary committee of the State Bar·
Council. The disciplinary committee of a State Bar Council shall fix
a date for the hearing of the case and shall cause a notice to be given·
to the advocate concerned and to the Advocate-General of the Srate.
The disciplinary committee of ihe State Bar Council may make any
of the following orders namely, (a) dismiss the complaint, or where·
the proceedings were initiated at the instance of the State Bar Council,
direct that the proceedings be filed, (b) reprimand the advocate, (c)
suspend the advocate for such period as it may deem fit, ( d) remove
the name of the advocate from the State roll of advocates.
Section 36 speaks of disciplinary powers of the Bar Council of
India and provides that where on receipt of a complalat or otherwise
the Bar Council of India has reason to believe that any advocate whose
name is not entered on any State roll has been guilty of professional
or other misconduct, it shall refer the case for disposal to its disciplinary committee.
The disciplinary committee of the Bar Council of
India may either of its ov/.i motion or on a report by any State Bar
Council or on an application made to it by any person interested,
wit~draw for inquiry before itself any proceeding for disciplinary action
agamst any advocate pending before the disciplinary committee of a:ny
State Bar Council and dispose of the same.
Section 37 speaks of appeal to the Bar Council of India. This section states that any person aggrieved by an order of the disciplinary
:3 I 2
SUPREME COURT REPORTS
[1976] 1 S.C.R.
committee of a State Bar Council or the Advocate-General of the
A
State may, within sixty days of the date of communication of the order,
prefer an appeal to the Bar Council of India.
Section 38 provides for appeal to the Supreme Court. Section 38
states that any person aggrieved by an order made by the disciplinary
committee of the Bar Council of India under section 36 or section 3 7
or the Attorney-General of India or the AdvoC'ate-Ge,1eral of the
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State, as the case may be, may prefer an appeal to the Supreme Court.
Section 49 of the Act provides that the Bar Council of India may
make rules for discharging its functions under the Act and in particular
·such rules may prescribe inter alia the standards of professional con-
.duct and etiquette to be observed by advocates. The Bar Council of
.Iadia in exercise of the rule making power under section 49 ( c) of the
C
Act on 10 and 11 July, 1954, approved the rules of standards of pro-
.fessional conduct and etiquette.
The standards of professional conduct and etiquette arc described in five sections. The first section deals
·with duty of advocates to the Court.
The second section speaks of
. duty of advocates to the clients. The thi<d section consists of rules re_garding duty of advocates to opponent.
The fourth section prescribes
duties of advocates to colleagues. The fifth section Jays down restricD
tions on advocates on other employments.
The present appeals touch on Ruic 36 of the Rules of the Bar
'Council of India. Rule 36 is in fourth section under the heading "duty
1o colleagues".
Rule 36 speaks that "an advocate shall not solicit
work or advertise either directly or indirectly, whether by circular, advertisements, touts, perso\J1al comn1unicoations, interviews not warranted
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hy personal relations, furnishing newspaper comments or procuring
his photograph to be published in connection with cases in which he
has been engaged or concerned.
The question for consideratioi,1 is the meaning of the words "any
person aggrieved by an order made by the disciplinary committee of
the Bar Council of India" occurring in section 3 8 of the Act. It is
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noticeable that in section 37, the Advocate-General of the State an.d
in section 38, the Attorney-General or the Advocate-General of the
State, as the case may be, have been given specific rights of appeal.
These rights were introduced into the Act by amendments made in the
:year 1974 by Amending Act 60 of 1973.
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In Adi Pherozshah Gandhi v. H. M. Seervai, Advocate.General
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of Maharashtra, Bombay(!), the question which fell for considcra-
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tion was whether the appeal filed by the Advocate-General of Mahar~shtra before the Bar Council of India was competent. The majority
view was that the Advocate-General of the State was not competent to
·file an appeal to the Bar Council of India. In the Maharashtra case
'('..,
(supra), the disciplinary committee of the Sta'e Bar Council was satisfied that there was no reason to hold Adi Pherozshah Gandhi guilty of
H
professional misconduct or other misconduct.
The Advocate-General
(1) !1971] I S. C. R. 863.
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BAR COUNCIL v. M, V. DABHOLKAR (Ray, C.J.)
313
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of Maharashtra filed an appeal before the Bar Council of India. The
appellant objected to the tocus siandi of Advocate-General before
the Bar Council of India. That objection was overruled and the appeal
filed by the A\jvocate-General was accepted by the disciplinary committee of the Bar Council of India. The disciplinary committee of the
Bar Council of India held the advocate, Adi Pherozshah Gandhi guilty
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of misconduct and suspended him from practice for one year. The
advocate preferred an appeal Ul\der section 38 of the Act to this Court ..
I 11 vic•v or majority decision, the appeal filed by Adi Pherozshah Gandhi
was accepted by this Court on the ground that the Advocate-General
of Maharashtra was incompetent to tile an appeal.
It is in this background that amendments have been introduced into sections 37 and 38
of the Act conferring right of appeal on the Advocate-General of State
and the Attorney-General of India under sections 37 and 38 respectively .
The respondents · contended on the ruling of this Court in Adi
Plzerozshah Gandhi's case (supra) that the Bar Council of the S:ate is
not a person aggrieved to maintain an appeal against a decision of its
disciplinary committee for these reasons.
First, the Bar Council of
a State is not an aggrieved person because Bar Council has not suffered
any legal grievance, and the decision of the Bar Council of India has
not deprived the Bar Council of a State of anything.
Second,· the
allegation that order of the disciplinary committee of the Bar Council
of India is wrongfully made does nQt by itself giye any grievance to the.
Bar Council of a State. The person must be.,aggrieved by the order and
not by the consequences whkh ensue. Third, it is not the duty of the
State Bar Council to attempt to set right any alleged error of the disciplinary co'11.mittee of the Bar Council of India. The reason is that no
such duty has been impos.\'d or cast by law on the Bar Council of a
State. Fomth, a person can be said to be aggrieved by a,n order which is
to his detriment, pecuniary or otherwise or causes him some prejudice in
some form or other.
Fifth, the Bar Council of a_· State is sub01tlinate
to Bar Council of India and is, therefore, not competent to appeal
against any orders of the superior body. Finally, an appeal could have
been filed by the Advocate-General or the Attorney-General of India
who have the right to appeal but they have chosen not to do so.
The scheme and the provisions of the Act indicates that the constitution of State Bar Councils and Bar Council of India is for one of the
principal purposes to see that the standards of professional conduct aad
etiquette laid down by the Bar Council of India are observed and preserved.
The Bar Councils therefore entertain cases of misconduct
agoinst a~vocates. The Bar Councils are to safeguard the rights, privilege and mt_erests of adyocates.
The Bar Council is a body corporate.
The d1sc1plmary committees are ·constitutel::l bv the Bar CouncL The
Bar Council is not' the same body as its disciplinary committee. One
of the principal functions of the Bnr Council ·in regard to standacds of
professional conduct a~d etiquette of advocates is to receive complaints
against advocates and 1f the Bar Council lras reason to believe that any
advocate has been guilty of orofessional ot other · miscon>luct it >haUrefer the case for disposal to its disciplinary committee. The Bar Coun-
:J 14
. SUPREME COURT REPORTS
[1976] I S,C.R .
.cil of a State may also of its own motion if it has reason to believe that
any advocate has been guilty oi protess,onal or other misconduct it
shall refer the case for disposal to its disciplinary committee. It is
apparent that a State Bar Council not only receives a complaint but is
rcqwred to apply its mind to find out whether there is any reason to
believe that any advo:ate has been guJty of professional or other misconduct.
The Bar Council of a State acts on that reasoned belief.
Th~
Bar Council has a very important part to play first, in the reception of
.complaints, second, in forming reasonable belief of guilt of professional
.or other misconduct and finally in making reference of the case to its
.disciplinary committee. 111e initiation of the proceedings before the
disciplinary committee is by the Bar Council of a State. A most signifi-
.cant feature is that no litigant and no member of the public can straight-
. away commence disciplinary proce~ngs against an advocate.
It is
the Bar Council of a State which initiates the disciplinary proceedings.
In finding out the meaning of the words "person aggrieved by an
.order made by the disciplinary committee of the Bar Cou;;cil of lr.dia",
two features are to be kept in the fore-front. First, there is no /is in pro-
.ceel'.lings before the disciplinary committee. When the disciplinary com-
.mittee exercises the power to reprimand the advccatc, or suspend th:
.advocate from practice or remove the name of the advocate, the com-
.mittee does
not decide a suit between the parties.
The Bar
.council in placing a matter before the disciplinary committee does not
act as prosecutor in a criminal case.
A complainant who prefers a
.complaint against an advocate is not like a plaintiff in a civil suit. The
.complaint is examined by the Bar Council in order to find out whether
there is any reason to believe that any advocate has been gnilty of mis-
,conduct.
The Bar Council may act on its own initiative on information which has come to its notice in the course of its duties. Secom!,
there is no party to the disciplinary proceedings. It is because the Bar
•Council, the Attorney-General, the Advocate-General, as the case may
'be, all act in protecting the interests of advocates, the interests of the
public.
In so acting there is no conflict between the advocate and any
·Other person. The reason is that it is professional conduct, professional
etiquette, professional ethics, professional morality, which are to be upheld, transgression of which results in reprimanding the advocate or
·suspending him from practice or removing his name from the roll.
With regard to the conduct of the a'dvocates, the State Bar Conncil
plays an important part, vis-a-vis the disciplinary committee constituted
·by the State Bar Council.
First, under section 35(1A) of the Act the
·state Bar Conncil may either of its own motion or on an application
made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by anv
·other 'disciplinary committee of the State Bar Council. This indicate;
·the watch that the State Bar Council has to keep.
Its task does not
cease on placing a matter before the disciplinary committee. This provision shows on one hand the abiding interest of the State Bar Council in
the matter and on the other the duty of guarding the professional ethics
with which it is ~ntrnsted. Second, under section 36(2) of the Ad, a
:State Bar Council may make a report to the Bar Council of Ind;a to
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BAR COUNCIL v. M, V. DABHOLKAR (Ray, C.J.)
315
withdraw before the disciplinary committee of the Bar Council of India
any proceeding for disciplinary action against any advocate pendillg
betore rhe disciplinary commn,ee at a Srace tsar Counc1l. These provisions indicate that after the State Bar Council has placed the matter
before its disciplinary commit,ee, the tsar Council continues its check en
the proceedings. 1 nese courses 01 acnon are procedural. These steps
do not give the State Bar Council any power 10 dea1 with the decisions of
the disciplinary commi,tee. The reason why the State Bar Council is
empowered under the Act to withdraw proceedings from one disciplinary
committee and give it to another or to have the disciplinary proceedings
withdrawn from the State for determination by the disciplinary committee of the Bar Council of India is that the State Bar Council is all
the time interested in the task of preserving the profession against impurities in the standards of conduct.
The Bar Council is the· collective
representative of the lawyers, the public, in regard to the observance of
profess!onal ethics by persons belonging to the noble profession .
The words "person aggrieved" are found in several statutes. The
meaning of the words "person aggrieved" will have to be ascertained
with reference to the purpose and the .provisions of the statute. Sometimes, it is said that the words "person aggrieved" correspond to the
requirement of locus standi which arises in relation to judicial remedies.
Where a right of appeal to Courts against an administrative or
judicial decision is created by statute, the right is invariably confined to
a person aggrieved or a person who claims to be aggrieved.
The meaning of the words "a person aggrieved" may vary according to the context of the statute.
One of the meanings is that a person will be held
to be aggrieved by a decision if that decisioa is materially adverse to
him.
Normally, one is required to establish that one has been denied
Qr deprived of something to which cne is legally entitled in order to
make one "a person aggrieved". Again a person is aggrieved if a legal
burden is imposed on him. The meaning of the words a "person
aggrieved" is sometimes given a restricted meaning in certain statutes
which provide remedies for the protection of private legal rights. The
restricted meaning requires denial or deprivation of legal rights.
A
more liberal approach is required in the background of statutes wh'ch
do not deal with property rights but deal with professioaal conduct and
morality.
The role of the Bar Council under the Advocates Act is
comparable to the role of a guardian in professional ethics.
The words
"persons aggrieved" in sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal ri~ts or burdens or financial interests. The
test is whether the words "person aggrieved" include "a person who has
a genuine grievance because an order has been m.ade which prejudicially affects his interests". It has, therefore, to be found out whether
the Bar Council has a grievance in respect of an order or decision affect- .
ing the professional conduct and etiquette.
The pre-eminent question is : what are the interests
of the Bar
Council ? The interests of the Bar Council are the ma;ntenance of
standartls of professional conduct and etiquette. The Bar Council has
316
SUPREME COURf REPORTS
[1976] l S.C.R.
no personal or pecuniary interest. The Bar Collilcil has the statutory
A
duty and interest to see that the rules laid down by the Bar Council of
India in relation to professional conduct and etiquette are upheld and
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not violated.
The Bar Council acts as the sentinel of professional code
of conduct and is vitally interested in the rights and privileges of the
advocates as well as. the Pl!rity and dignity of the profession.
· The interest of the Bar Council is to uphold standards of professional
conduct and etiquette in the profession, which is founded upon integrity
and mutual trust.
The Bar Council acts as the custodian of the high
traditions of the noble profession.
The grievance of the Bar Council
is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the disciplinary
committee of the Bar Council of India is according to the State Bar
CoUllcil such as will lower the standards and imperil the high traditions
and values in the profession, the State Bar CoiinciUs an aggrieverl per:
son to safeguard the interests of the public, the interests of the profession and the interests of the Bar.
The Bar Council is "a person aggrieved" for these reasons. First,
the words "person aggrieved" in the Act are of wide import in the
context of the purpose and provisions of the siatute. In disciplinary
proceedings before the disciplinary committee there is no /is and there
are no parties. Therefore, the word "person" will embrace the Bar
Council which represents the Bar of the State. Second, the Bar Council is ··a person aggrievtld" because it represents the collective conscience: of the standards of professional conduct and etiquette.
The
Bar Council acts as the protector of the purity and dignity of the profession.
Third, the function of the Bar Council in entertaining -com:
plaints against advocates is when the Bar Council has reasonable belief
that ther.e'.-is a prima facie case of misconduct that a disciplinary com-
. mittee is .entrusted with such inquiry.
Once an inquiry starts, the Bar
Council has no control over its decision. The Bar Council may entrust
it to another disciplinary committee or the Bar Council may make a
report to the Bar Council of India.
This ir,ldicates that the Bar Council is all ihe time interested in the proceedings .for the vindication of
discipline, dignity and decorum of the professfon. Fourth, a .decision
of a disciplinary committee can only be corrected by .appeais as provided 1;1n,dei:. the Act. . When the Bar Coimc~l ·~ i@tia1~s .• ptqceellings by
rcfernng. cal'e_s of miscQllduct to disciplinary co_mmittee. the J?ar 9oun-.
cil in th~ performance of.its furuotions wider .the. Act is interested in the
task. of seeing that the advocates maintain the proper standards and
etiquette of the profession. Fifth, the Bar Council is vitally concerned
with.the dedsion in the context of the fnnctions of. the Bar Council. The
Bar Cpue~]I will bave a grievance if the decision prejudices the maintenance of .St'lJltlar!ls of professional conduct and. ethics.
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son to mamta!n an ~ppeal un_der the Act.
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The appeals will now be J:ieard on merits py a. Division Berch.
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BEG, J.-I not only concur with the conclusion reached by My Lord
the Chief Justice and the reasons given to support it. but I think t.hat we
can and should hold that there was actually a "lis" between the Bar
Council and the allegedly delinquent Advocates who were hauled up
before its Disciplinary Committee, on complaints sent by the Executive
Committee of the State Bar Council, for what were said to be acts of
professional misconduct.
The learned Chief Justice.has very clearly and succinctly set out the
reasons why a State Bar Council is a "person aggrieved" entitled to
appeal against orders in disciplinary proceedings against members of
the Bar of the State. It represents the Bar of the State.
It is the
"keeper of the conscience" and the guardian of the interests of members
of the Bar. It acts "as the protector of the purity and dignity of the
profession.''
Its function in relation to disciplinary proceedings, is to
entertain complaints against Advocates, and, when there is a prima facie
case of misconduct, to initiate proceedings by sending the complaint to
its Disciplinary Committee. It has an interest in seeing that correct
decisions are given upon matters involving allegations of misconduct
against members of the Bar of the State.
My learned brother Krishna
Iyer has indicated the wide range and the social significance and dimensions of this interest.
A State Bar Council is composed primarily of members elected from
amongst Advocates of a State. . Its statutory functions are given in
Section 6 of the Advocates Act, 1961 (hereinafter referred to as 'the
Act').
Amongst these, we are especially concerned here with clauses
(c) and (d) of Section 6(1) of the Act, which read as follows:
"(c) to entertain and determine cases of misconduct against
advocates on its roll;
(d) to safeguard the rights. privileges and foterests of
advocates on its roll;"
Under Section 9 of the Act, the State Bar Council constitutes its
Disciplinary Committee consisting of "three persons of whom two shall
be persons elected by the Council from amongst its members and the
other shall be a person coopted by the Council from amongst Advocates
who possess the qualifications specified .... ".
Under Section 10 it
elects an Executive Committee of five members and an Enrolment Committee of three. members.
Thus, the State Bar Conncil operates. through
its Committees.
Each Committee has distinct and separable. functions.
Each could, therefore, be said to have a "persona" and an identity of its
own which is distinguishable from that of the Bar Council as a whole.
Each Committee, no doubt, acts for the Bar Council, but its members
are likely to be different although this is not necessarily so.