# K. ANJINAPPA v. K.C. KRISHNA REDDY AND ANR

- **Citation:** [2021] 9 S.C.R. 1034
- **Court:** Supreme Court of India
- **Decided:** 2021-12-17
- **Case number:** Civil Appeal No. 7478 of 2019
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-anjinappa-v-k-c-krishna-reddy-and-anr-35290
- **Pages:** 26

## Headnote

Advocates Act, 1961 - ss.35, 36, 36B - Held: Disposal of a
complaint received by a State Bar Council u/s.35 within a period of
one year from the date of receipt of such complaint is mandatory -
Only in an exceptional case, by giving valid reasons to be recorded
as to why the complaint could not be disposed of within one year,
such complaints are required to be transferred to the Bar Council
of India as provided u/s.36B - Thus, the transfer of the complaint(s)
received u/s.35 from the State Bar Council to the Bar Council of
India is an exception - Further, on such transfer the Bar Council of
India shall also dispose of the transferred proceedings/complaints
within one year from receipt thereof - In the present case, the
complaint filed by appellant against an advocate before the Andhra
Pradesh State Bar Council was not decided for one year and,
therefore it was transferred to the Bar Council of India which
dismissed it without considering it on merits - However, now
subsequently the complaint has been disposed of by the State Bar
Council - Revision is pending before the Bar Council of India -
Thus, no further order is required on the complaint made by the
appellant.
Advocates Act, 1961 - s.36B - Object and purpose of -
Discussed.
Advocates Act, 1961 - Bar Council of India/State Bar Councils
- Duty cast upon - Discussed - Judicial Deprecation.
Advocates Act, 1961 - s.36B - Disposal of complaints -
Mechanism for - Directions and suggestions - Discussed.
Disposing of the appeal, the Court
HELD: 1.1 An affidavit has been filed on behalf of the Bar
Council of India wherein it is stated that in last five years, 1,273
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complaints filed under Section 35 of the Advocates Act, 1961 have
been transferred to the Bar Council of India as the concerned
State Bar Council(s) did not dispose of the complaint(s) under
Section 35 of the Advocates Act within one year. During the years
2020 and 2021, there have been lesser number of complaints
filed. But earlier from 2016 to 2019, the number of complaints
transferred from the State Bar Councils to Bar Council of India
have been steadily increasing from 171, 242, 214 and 490
respectively. These statistics not only reflect on the increasing
number of complaints being filed against the advocates but also
the fact that the State Bar Councils have not discharged their
duty in disposing of these complaints within a period of one year
and have simply allowed the complaints to be transferred by
operation of law from the State Bar Councils to the Bar Council
of India in terms of Section 36B of the Advocates Act. The object
and purpose of the said provision must be understood in its right
perspective. It is not simply to pass on the responsibility from
the State Bar Councils to the Bar Council of India and thereby
avoid their responsibility of inquiry into the complaints that are
filed before them. The aforesaid section states that the
disciplinary committee of a State Bar Council shall dispose of a
complaint received by it under Section 35 expeditiously and the
proceedings shall be concluded within a period of one year from
the date of receipt of the complaint or the date of initiation of the
proceedings at the instance of the State Bar Council, as the case
may be, failing which, such proceedings shall stand transferred
to the Bar Council of India. The object of transfer of such
proceedings to the Bar Council of India is an intimation that the
State Bar Council has failed to dispose of the complaint within a
period of one year as aforesaid. In such circumstance, the Bar
Council of India will have to dispose of the same as if it were a
proceeding withdrawn for inquiry under sub-section (2) of Section
36 of the Act. Sub-section (3) of Section 36 of the Advocates Act
states that the disciplinary committee of the Bar Council of India
in disposing of any case under Section 36 shall observe as far as
may be the procedure laid down in Section 35 the references to
the Advocate General in that se

## Text

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SUPREME COURT REPORTS
[2021] 9 S.C.R.
 [2021] 9 S.C.R. 1034
1034
K. ANJINAPPA
v.
K.C. KRISHNA REDDY AND ANR.
(Civil Appeal No. 7478 of 2019)
DECEMBER 17, 2021
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Advocates Act, 1961 - ss.35, 36, 36B - Held: Disposal of a
complaint received by a State Bar Council u/s.35 within a period of
one year from the date of receipt of such complaint is mandatory -
Only in an exceptional case, by giving valid reasons to be recorded
as to why the complaint could not be disposed of within one year,
such complaints are required to be transferred to the Bar Council
of India as provided u/s.36B - Thus, the transfer of the complaint(s)
received u/s.35 from the State Bar Council to the Bar Council of
India is an exception - Further, on such transfer the Bar Council of
India shall also dispose of the transferred proceedings/complaints
within one year from receipt thereof - In the present case, the
complaint filed by appellant against an advocate before the Andhra
Pradesh State Bar Council was not decided for one year and,
therefore it was transferred to the Bar Council of India which
dismissed it without considering it on merits - However, now
subsequently the complaint has been disposed of by the State Bar
Council - Revision is pending before the Bar Council of India -
Thus, no further order is required on the complaint made by the
appellant.
Advocates Act, 1961 - s.36B - Object and purpose of -
Discussed.
Advocates Act, 1961 - Bar Council of India/State Bar Councils
- Duty cast upon - Discussed - Judicial Deprecation.
Advocates Act, 1961 - s.36B - Disposal of complaints -
Mechanism for - Directions and suggestions - Discussed.
Disposing of the appeal, the Court
HELD: 1.1 An affidavit has been filed on behalf of the Bar
Council of India wherein it is stated that in last five years, 1,273
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complaints filed under Section 35 of the Advocates Act, 1961 have
been transferred to the Bar Council of India as the concerned
State Bar Council(s) did not dispose of the complaint(s) under
Section 35 of the Advocates Act within one year. During the years
2020 and 2021, there have been lesser number of complaints
filed. But earlier from 2016 to 2019, the number of complaints
transferred from the State Bar Councils to Bar Council of India
have been steadily increasing from 171, 242, 214 and 490
respectively. These statistics not only reflect on the increasing
number of complaints being filed against the advocates but also
the fact that the State Bar Councils have not discharged their
duty in disposing of these complaints within a period of one year
and have simply allowed the complaints to be transferred by
operation of law from the State Bar Councils to the Bar Council
of India in terms of Section 36B of the Advocates Act. The object
and purpose of the said provision must be understood in its right
perspective. It is not simply to pass on the responsibility from
the State Bar Councils to the Bar Council of India and thereby
avoid their responsibility of inquiry into the complaints that are
filed before them. The aforesaid section states that the
disciplinary committee of a State Bar Council shall dispose of a
complaint received by it under Section 35 expeditiously and the
proceedings shall be concluded within a period of one year from
the date of receipt of the complaint or the date of initiation of the
proceedings at the instance of the State Bar Council, as the case
may be, failing which, such proceedings shall stand transferred
to the Bar Council of India. The object of transfer of such
proceedings to the Bar Council of India is an intimation that the
State Bar Council has failed to dispose of the complaint within a
period of one year as aforesaid. In such circumstance, the Bar
Council of India will have to dispose of the same as if it were a
proceeding withdrawn for inquiry under sub-section (2) of Section
36 of the Act. Sub-section (3) of Section 36 of the Advocates Act
states that the disciplinary committee of the Bar Council of India
in disposing of any case under Section 36 shall observe as far as
may be the procedure laid down in Section 35 the references to
the Advocate General in that section be considered as references
to the Attorney General of India. Under sub-section (3) of Section
35 of the Advocates Act, there is a mandate for the disciplinary
K. ANJINAPPA v. K.C. KRISHNA REDDY AND ANR.
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[2021] 9 S.C.R.
committee of a State Bar Council giving notice to the Advocate
General and opportunity of being heard before making an order
under the said sub-section. Having regard to sub-section (3) of
Section 36 in respect of a transferred complaint, possibly notice
may have to be given to the Attorney General of India before
disposing of the complaint as per sub- section (2) of Section 36 of
the Act. Then in such a case the inquiry proceedings would not
only become complicated but also delay the entire proceeding.
[Paras 5, 8.1][1041-C-D; 1043-C-F; 1044-D-F; 1055-D-G]
1.2 The delay on the part of the respective State Bar
Council(s) in not disposing the complaint(s) within a period of
one year is not approved and appreciated. Disposal of a complaint
received by the State Bar Council under Section 35 within a period
of one year from the date of receipt of such complaint is mandatory
and the concerned State Bar Council(s) have to dispose of such
complaints as expeditiously and in each case the proceeding shall
have to be concluded within a period of one year. Only in an
exceptional case, by giving valid reasons to be recorded as to
why the complaint could not be disposed of within a period of one
year, such complaints are required to be transferred to the Bar
Council of India as provided under Section 36B of the Advocates
Act. Therefore, the transfer of the complaint(s) received under
Section 35 of the Advocates Act from the State Bar Council to
the Bar Council of India is an exception. However, for reasons
best known to the concerned State Bar Councils, the complaints
are not being disposed received by them under Section 35 within
one year. This may be because the complaints are filed against
the fellow Advocates and they would not like to displease the
Advocates against whom the complaints are made. There could
also be some valid reasons for not disposing of the complaint(s)
within a period of one year. But for the same, the reasons have to
be assigned/recorded as to why the complaint(s) could not be
disposed of within a period of one year. In many cases, the
complaints are deliberately kept pending for more than one year,
so that the same shall be transferred to the Bar Council of India
as provided under Section 36B of the Advocates Act, by passing
the buck. [Para 9][1045-G-H; 1046-C-F]
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1.3 It is the duty of the Bar Council of India/State Bar council
to improve its functioning on the disciplinary side. Thus, under
the Advocates Act, a duty is cast upon the Bar Council of India/
State Bar Councils to safeguard the integrity of the legal
profession. It is duty of the Bar Council of India/respective State
Bar Councils to ensure the nobility of the legal system at all costs.
The powers to conduct disciplinary proceedings against members
of the Bar are provided under Section 35 and 36B of the
Advocates Act. The mandate is to dispose of the complaint
received under Section 35 and/or Section 36 within a period of
one year from the date of receipt of the said complaint and/or
from the date of such proceeding to the Bar Council of India. By
not disposing of the complaint within the stipulated time provided
under the Act would tantamount to failure on their part to perform
the duty cast under the Advocates Act. [Paras 9.1, 10][1046-F;
1049-E-G]
R. Muthukrishnan v. Registrar General, High Court of
Judicature at Madras, (2019) 16 SCC 407 : [2019] 1
SCR 589; In re: Sanjiv Datta, Deputy Secretary, Ministry
of Information & Broadcasting, New Delhi; Kailash
Vasdev, Advocate and Kitty Kumaramangalam (Smt.),
Advocate (1995) 3 SCC 619: [1995] 3 SCR 450;
Dhanraj Singh Choudhary v. Nathulal Vishwakrama,
(2012) 1 SCC 741 : [2011] 16 SCR 240; V.C.
Rangadurai v. D. Gopalan, (1979) 1 SCC 308 : [1979]
1 SCR 1054; Ajitsinh Arjunsinh Gohil v. Bar Council
of Gujarat and Anr., (2017) 5 SCC 465 : [2017] 5 SCR
984; J.S. Jadhav v. Mustafa Haji Mohamed Yusuf,
(1993) 2 SCC 562 : [1993] 2 SCR 1006; Kokkanda B.
Poondacha v. K.D. Ganapathi, (2011) 12 SCC 600 :
[2011] 4 SCR 417; O.P. Sharma v. High Court of Punjab
and Haryana, (2011) 6 SCC 86 : [2011] 6 SCR 301;
Harishankar Rastogi v. Girdhari Sharma, (1978) 2 SCC
165 : [1978] 3 SCR 493 - relied on.
1.4 The Bar Council of India is directed to issue appropriate
directions as stated by the Chairman of the Bar Council of India.
Even the Bar Council of India is also required to dispose of the
transferred complaint(s)/transferred proceeding(s) within a period
of one year from the date of receipt of such complaint(s)/
K. ANJINAPPA v. K.C. KRISHNA REDDY AND ANR.
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proceeding(s). Therefore, the Bar Council of India is directed to
finally dispose of the transferred complaints expeditiously but
not later than one year from today and for which even the
Disciplinary Committee of the Bar Council of India may hold
circuit hearings. The respective State Bar Councils are also
directed to decide and dispose of the complaint(s) received by it
under Section 35 expeditiously and to conclude the same within
a period of one year from the date of receipt of the complaint as
mandated under Section 36B of the Advocates Act. For an efficient
and quick disposal of the complaints by the Bar Council of India
vis-à-vis those complaints which have been transferred to it as
per Section 36B of the Act, the Bar Council of India may consider
empanelling experienced and seasoned advocates and/or retired
judicial officers to act as Inquiry Officers where an inquiry would
be necessitated. On such inquiry being concluded the report of
the Inquiry Officers could be received by the Bar Council of India.
On consideration of the said inquiry report, the Bar Council of
India could pass appropriate orders on the complaint. The Bar
Council of India may issue suitable directions to the State Bar
Council to enlist a panel of Inquiry Officers for the purpose of
conducting the inquiry on behalf of the Bar Council of India in
the respective States itself and on conclusion of the said inquiry
to transmit the inquiry report to the Bar Council of India for
enabling it to take it further action in the matter. Now so far as
the present case is concerned, it is reported that subsequently
even the complaint made by the appellant-original complainant
No.1 has been disposed of by the State Bar Council against which
a revision application is pending before the Bar Council of India.
Thus, no further order is required on the complaint made by the
appellant. [Paras 11, 12, 12.1, 13 and 15][1055-D-F; 1056-B-C,
E-F; 1059-B]
Markand C. Gandhi Vs. Rohini M. Dandekar, (2008)
10 SCC 792; Indian Council Of Legal Aid & Advice
 vs. Bar Council Of India (1995) 1 SCC 732 : [1995]
1 SCR 304; Adi Pherozshah Gandhi vs. H.M. Seervai
Advocate General Of Maharashtra Bombay (1970) 2
SCC 484 : [1971] 1 SCR 863; Bar Council of
Maharashtra Vs. M.V. Dabholkar, (1976) 2 SCC 291 :
[1976] 2 SCR 48; Mangu Sihari Vs. Bar Council of
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State of Andhra Pradesh, AIR 1983 AP 271 - relied
on.
Case Law Reference
[2019] 1 SCR 589
relied on
Para 9.1
[1995] 3 SCR 450
relied on
Para 10.1
[2011] 16 SCR 240
relied on
Para 10.2
[1979] 1 SCR 1054
relied on
Para 10.3
[2017] 5 SCR 984
relied on
Para 10.4
[1993] 2 SCR 1006
relied on
Para 10.5
[2011] 4 SCR 417
relied on
Para 10.6
[2011] 6 SCR 301
relied on
Para 10.7
[1978] 3 SCR 493
relied on
Para 10.8
[1995] 1 SCR 304
relied on
Para 14
[1971] 1 SCR 863
relied on
Para 14
[1976] 2 SCR 48
relied on
Para 14
CIVIL APPELLATE JURISDICTION : Civil Appeal No.7478
of 2019.
From the Judgment and Order dated 12.12.2015 of the Disciplinary
Committee of the Bar Council of India in B.C.I. Transfer Case No.152
of 2014.
Goli Ramakrishna, Sumanth Nookala, Advs. for the Appellant.
Manan Kumar Mishra, Sr. Adv., Shishir Pinaki, D. Mahesh Babu,
Ardhendumauli Kumar Prasad, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned order
passed by the Disciplinary Committee of the Bar Council of India dated
12.12.2015 by which the Disciplinary Committee of the Bar Council of
India has dismissed the complaint filed by the appellant against his
Advocate, the appellant - original complainant No.1 has preferred the
present appeal under Section 35 of the Advocates Act, 1961.
K. ANJINAPPA v. K.C. KRISHNA REDDY AND ANR.
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2. The appellant herein filed the Complaint Case No.20 of 2013
against his Advocate on the ground of professional misconduct. The
said complaint was filed initially before the Bar Council of State of Andhra
Pradesh. Though under the Advocates Act, the State Bar Council was
duty bound to dispose of the complaint received by it under Section 35
expeditiously and in each case the proceedings had to be concluded
within a period of one year from the date of receipt of complaint, the
State Bar Council did not dispose of the said complaint. Therefore, the
said complaint came to be transferred to the Bar Council of India as per
Section 36B of the Advocates Act.Now by the impugned order, the
complaint has been dismissed on the ground that the complaint was filed
by two complainants, namely, Shri K. Anjinappa (the appellant herein)
and one Shri S. Lakshmi Naryana (complainant No.2), however, the
said complaint was not signed by complainant No.2 - Shri S. Lakshmi
Narayana; that the matter is pending since 2013 to 2015. Having observed
so, the Disciplinary Committee of the Bar Council of India dismissed the
complaint, without further entering into the allegations made in the
complaint, by observing that in view of the above, the complaint is not at
all maintainable.
3. Feeling aggrieved and dissatisfied with the impugned order
passed by the Disciplinary Committee of the Bar Council of India, the
appellant - original complainant No.1 has preferred the present appeal.
4. Considering the fact that the complaint filed by the appellant
herein - original complainant No.1 remained pending with the Bar Council
of State of Andhra Pradesh for more than one year and therefore the
same was transferred to the Bar Council of India under Section 36B of
the Advocates Act, by order dated 03.12.2021, this Court passed the
following:-
"This is a case where the complaint against the Advocate was
before the State Bar Council - Andhra Pradesh. However, the
said complaint was not decided and disposed of by the State Bar
Council - Andhra Pradesh for a period of one year and, therefore,
it was transferred to the Bar Council of India. The said complaint
has been dismissed without considering the complaint on merits.
In many cases the complaints are made before the concerned
State Bar Council(s), however, for one reason or another and
may be that the complaint is against an Advocate, who is a member
of the concerned Bar Association/Bar Council, the complaints
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are not decided and disposed of within a period of one year and
ultimately they are required to be transferred to the Bar Council
of India.
We, therefore, call upon and direct the Bar Council of India to
place on record the particulars that in how many cases during the
last five years the complaints are transferred from the concerned
State Bar Council(s) to the Bar Council of India and in how many
cases the transferred complaints/cases are decided and disposed
of.
Put up on 13.12.2021."
5. In compliance of the order dated 03.12.2021, an affidavit has
been filed on behalf of the Bar Council of India. In the affidavit, it is
stated that in last five years, 1,273 complaints filed under Section 35 of
the Advocates Act have been transferred to the Bar Council of India as
the concerned State Bar Council(s) did not dispose of the complaint(s)
under Section 35 of the Advocates Act within one year. The statement
is reproduced herein below:-
Sr.
State
2016
2017
2018
2019
2020
2021
Total Disposed
1.
Andhra Pradesh/
Telangana
4
11
45
20
2
0
82
0
2.
Assam etc.
10
0
1
0
0
1
12
0
3.
Bihar
3
1
0
1
1
0
6
0
4.
Chhattisgarh
1
0
0
1
0
0
2
0
5.
Delhi
11
0
0
25
0
1
37
6
6.
Gujarat
0
3
4
8
1
0
16
0
7.
Himachal
Pradesh
0
0
0
1
1
1
3
0
8.
Jharkhand
0
0
0
0
0
0
0
0
9.
Karnataka
0
2
11
5
0
0
18
0
10.
Kerala
0
28
1
0
0
0
29
0
11.
Madhya Pradesh
3
19
20
8
0
0
50
0
12.
Maharashtra
& Goa
24
76
36
5
0
0
142
1
13.
Odisha
4
3
1
0
0
0
8
1
14.
Punjab
&
Haryana
22
18
10
16
3
0
69
4
15.
Rajasthan
18
8
15
8
12
0
61
0
16.
Tamil Nadu
26
31
11
42
24
0
134
4
17.
Uttar Pradesh
32
38
7
346
69
31
523
11
18.
Uttarakhand
4
2
0
0
0
9
15
0
19.
West Bengal
9
2
51
4
0
0
66

20.
Jammu
and
Kashmir
0
0
0
0
0
0
0
0
21.
Tripura
-
-
-
-
-
-
-
-
22.
Manipur
-
-
-
-
-
-
-
-
23.
Meghalaya
-
-
-
-
-
-
-
-
Total
171
242
214
490
113
43
1273
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K. ANJINAPPA v. K.C. KRISHNA REDDY AND ANR.
[M. R. SHAH, J.]
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6. Shri Ardhendumauli Kumar Prasad, learned counsel appearing
on behalf of the Bar Council of India has submitted that amongst the
aforementioned 1273 transferred cases, a total of 646 cases have been
received by the Bar Council of India during the period commencing
January, 2019 to December, 2021 - during the pandemic situation. It is
pointed out that the aforesaid transferred cases could not be disposed of
by the Bar Council of India as the hearing could not be conducted through
virtual mode and the complainants were required to be physically present
before the Disciplinary Committee to lead their evidences.It is pointed
out that during the period starting mid-March, 2020, the State Bar Councils
as well as the Bar Council of India havenot been able to hold physical
sittings of the Disciplinary Committees. It is stated that pendency of
transferred cases before the Bar Council of India is not intentional and
that the Bar Council of India is making every possible effort to clear the
pendency of such transferred cases by conducting expeditious hearings.
7. Shri Manan Kumar Mishra, learned Senior Advocate and
Chairman of the Bar Council of India, who is also present during the
hearing, has fairly conceded that State Bar Councils have to dispose of
the complaint(s) received under Section 35 of the Advocates Act within
a period of one year. He has stated that the Bar Council of India shall
issue necessary instructions to the respective State Bar Councils in
exercise of power under Section 48B of the Advocates Act directing all
State Bar Councils or any Committee thereof to dispose of the
complaint(s) received under Section 35 of the Advocates Act within a
period of one year positively and without fail and if for any valid reason(s),
the State Bar council is not able to dispose of the complaint(s) within a
period of one year, then along with the reasons to be recorded as to why
the said complaint(s) could not be disposed of within a period of one
year, the said complaint be transferred to the Bar Council of India as per
Section 36B of the Advocates Act.
8. We are not at all impressed by the reasoning given by the learned
counsel on behalfof the Bar Council of Indiafor not disposing of the
transferred complaint(s) by the Disciplinary Committee of the Bar Council
of India. The COVID-19 pandemic commenced only in March, 2020.
As per the chart submitted by the Bar Council of India, in the year 2016,
a total of 171 cases; in the year 2017, a total of 242 cases; in the year of
2018, a total of 214 cases and in the year 2019, a total of 490 cases were
transferred to the Bar Council of India. At-least those cases could have
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been disposed of by the Bar Council ofIndia at the earliest. One can
appreciate the delay in disposal of the transferred complaint(s) received
in the year 2020 and 2021 due to COVID-19 pandemic but not for the
earlier period.
8.1 On perusal of the table it is noted that out of a total of 1273
complaints which have been transferred from the State Bar Councils to
the Bar Council of India in respect of these States, viz., Andhra Pradesh
and Telangana, Madhya Pradesh, Punjab & Haryana, Rajasthan, and
West Bengal, more than 50 complaints each have been transferred.
Insofar as the States of Maharashtra and Goa, Tamil Nadu and Uttar
Pradesh are concerned, the complaints transferred are over 100 each.
Further during the years 2020 and 2021, there have been lesser
number of complaints filed, obviously for the reason that courts were
not functioning in a full fledged manner owing to Covid-19 Pandemic
and consequent lock down imposed from time to time by the Central
Government and the State Governments. But earlier from 2016 to 2019,
the number of complaints transferred from the State Bar Councils to
Bar Council of India have been steadily increasing from 171, 242, 214
and 490 respectively. These statistics not only reflect on the increasing
number of complaints being filed against the advocates but also the fact
that the State Bar Councils have not discharged their duty in disposing
of these complaints within a period of one year and have simply allowed
the complaints to be transferred by operation of law from the State Bar
Councils to the Bar Council of India in terms of section 36B of the
Advocates Act. The object and purpose of the said provision must be
understood in its right perspective. It is not simply to pass on the
responsibility from the State Bar Councils to the Bar Council of India
and thereby avoid their responsibility of inquiry into the complaints that
are filed before them. For immediate reference, section 36B of the Act
is extracted as under :
"36B. Disposal of disciplinary proceedings.-
(1) The disciplinary committee of a State Bar Council shall dispose
of the complaint received by it under section 35 expeditiously and
in each case the proceedings shall be concluded within a period
of one year from the date of the receipt of the complaint or the
date of initiation of the proceedings at the instance of the State
bar Council, as the case may be, failing which such proceedings
shall stand transferred to the Bar Council of India which may
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dispose of the same as if it were a proceeding withdrawn for
inquiry under sub-section (2) of section 36.
(2) Notwithstanding anything contained in sub-section (1), where
on the commencement of the Advocates (Amendment) Act, 1973
(60 of 1973), any proceedings in the respect of any disciplinary
matter against an advocate is pending before the disciplinary
committee of a State Bar Council, that disciplinary committee of
the State Bar Council shall dispose of the same within a period of
six months from the date of such commencement or within a
period of one year from the date of the receipt of the complaint
or, as the case may be the date of initiation of the proceedings at
the instance of the State Bar Council, whichever is later, failing
which such other proceedings shall stand transferred to the Bar
Council of India for disposal under sub-section (1).]
The aforesaid section states that the disciplinary committee of a
State Bar Council shall dispose of a complaint received by it under section
35 expeditiously and the proceedings shall be concluded within a period
of one year from the date of receipt of the complaint or the date of
initiation of the proceedings at the instance of the State Bar Council, as
the case may be, failing which, such proceedings shall stand transferred
to the Bar Council of India. The object of transfer of such proceedings
to the Bar Council of India is an intimation that the State Bar Council
has failed to dispose of the complaint within a period of one year as
aforesaid. In such circumstance, the Bar Council of India will have to
dispose of the same as if it were a proceeding withdrawn for inquiry
under sub-section (2) of section 36 of the Act. For immediate reference,
section 36 of the Act is extracted as under:
"36. Disciplinary powers of Bar Council of India.-
(1) Where on receipt of a complaint or otherwise the Bar Council
of India has reason to believe that any advocate 1[***] 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.
(2) Notwithstanding anything contained in this Chapter, the
disciplinary committee of the Bar Council of India may, [either of
its own motion or on a report by a State Bar Council or on an
application made to it by any person interested], withdraw for
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inquiry before itself any proceedings for disciplinary action against
any advocate pending before the disciplinary committee of any
State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India, in
disposing of any case under this section, shall observe, so far as
may be, the procedure laid down in section 35, the references to
the Advocate-General in that section being construed as references
to the Attorney-General of India.
(4) In disposing of any proceedings under this section the
disciplinary committee of the Bar Council of India may make any
order which the disciplinary committee of a State Bar Council
can make under sub-section (3) of section 35, and where any
proceedings have been withdrawn for inquiry 3[before the
disciplinary committee of the Bar Council of India] the State Bar
Council concerned shall give effect to any such order."
Sub-section (3) of section 36 of the Advocates Act states that the
disciplinary committee of the Bar Council of India in disposing of any
case under section 36 shall observe as far as may be the procedure laid
down in section 35 the references to the Advocate General in that section
be considered as references to the Attorney General of India.
Under sub-section (3) of section 35 of the Advocates Act, there
is a mandate for the disciplinary committee of a State Bar Council giving
notice to the Advocate General and opportunity of being heard before
making an order under the said sub-section.
Having regard to sub-section (3) of section 36 in respect of a
transferred complaint, possibly notice may have to be given to the
Attorney General of India before disposing of the complaint as per subsection (2) of section 36 of the Act. Then in such a case the inquiry
proceedings would not only become complicated but also delay the entire
proceeding.
9. We also do not approve and appreciate the delay on the part of
the respective State Bar Council(s)in not disposing the complaint(s) within
a period of one year. As per Section 36B of the Advocates Act, the
Disciplinary Committee of the State Bar Council have to dispose of the
complaint received by it under Section 35 expeditiously and in each case
the proceeding shall have to be concluded within a period of one year
from the date of the receipt of the complaint or the date of initiation of
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the proceedings at the instance of the State Bar Council, as the case
may be. Failing to dispose the complaint within a period of one year,
such complaint is required to be transferred to the Bar Council of India
for its disposal as if, it was a proceeding withdrawn for inquiry under
sub-section (2) of Section 36. Therefore, disposal of a complaint received
by the State Bar Council under Section 35 within a period of one year
from the date of receipt of such complaint is mandatory and the concerned
State Bar Council(s) have to dispose of such complaints as expeditiously
and in each case the proceeding shall have to be concluded within a
period of one year. Only in an exceptional case,by giving valid reasons
to be recorded as to why the complaint could not be disposed of within a
period of one year, such complaints are required to be transferred to the
Bar Council of India as provided under Section 36B of the Advocates
Act. Therefore, the transfer of the complaint(s) received under Section
35 of the Advocates Act from the State Bar Council to the Bar Council
of India is an exception. However, for reasons best known to the
concerned State Bar Councils, the complaints are notbeing disposed
received by them under Section 35 within one year. This may be because
the complaints are filed against the fellow Advocates and they would
not like to displease the Advocates against whom the complaints are
made. There could also be some valid reasons for not disposing of the
complaint(s) within a period of one year. But for the same, the reasons
have to be assigned/recorded as to why the complaint(s) could not be
disposed of within a period of one year. In many cases, the complaints
are deliberately kept pending for more than one year, so that the same
shall be transferred to the Bar Council of India as provided under Section
36B of the Advocates Act, by passing the buck so to say.
9.1 It is the duty of the Bar Council of India/State Bar council to
improve its functioning on the disciplinary side. This Court in the case of
R. Muthukrishnan Vs. Registrar General, High Court of
Judicature at Madras, (2019) 16 SCC 407 had occasion to consider
the object and purpose of enactment of the Advocates Act; role of Bar
Council of India/State Bar Councils as well as the role of lawyers. In
paragraphs 15, 16, 17, 25, 26, 33 and 44, it is observed as under:-
"15. The Advocates Act has been enacted pursuant to the
recommendations of the All India Bar Committee made in 1953
after taking into account the recommendations of the Law
Commission on the subject of the reforms of judicial administration.
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The main features of the Bill for the enactment of the Act include
the creation of autonomous Bar Council, one for the whole of
India and one for each State. The Act has been enacted to amend
and consolidate the law relating to the legal practitioners and to
provide for the constitution of the Bar Council and an All India
Bar.
16. The legal profession cannot be equated with any other
traditional professions. It is not commercial in nature and is a
noble one considering the nature of duties to be performed and its
impact on the society. The independence of the Bar and autonomy
of the Bar Council has been ensured statutorily in order to preserve
the very democracy itself and to ensure that judiciary remains
strong. Where the Bar has not performed the duty independently
and has become a sycophant that ultimately results in the
denigrating of the judicial system and judiciary itself. There cannot
be existence of a strong judicial system without an independent
Bar.
17. It cannot be gainsaid that lawyers have contributed in the
struggle for independence of the nation. They have helped in the
framing of the Constitution of India and have helped the courts in
evolving jurisprudence by doing hard labour and research work.
The nobility of the legal system is to be ensured at all costs so that
the Constitution remains vibrant and to expand its interpretation
so as to meet new challenges.
25. The role of a lawyer is indispensable in the system of delivery
of justice. He is bound by the professional ethics and to maintain
the high standard. His duty is to the court, to his own client, to the
opposite side, and to maintain the respect of opposite party counsel
also. What may be proper to others in the society, may be improper
for him to do as he belongs to a respected intellectual class of the
society and a member of the noble profession, the expectation
from him is higher. Advocates are treated with respect in society.
People repose immense faith in the judiciary and judicial system
and the first person who deals with them is a lawyer. Litigants
repose faith in a lawyer and share with them privileged information.
They put their signatures wherever asked by a lawyer. An advocate
is supposed to protect their rights and to ensure that untainted
justice is delivered to his cause.
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26. The high values of the noble profession have to be protected
by all concerned at all costs and in all the circumstances cannot
be forgotten even by the youngsters in the fight of survival in
formative years. The nobility of the legal profession requires an
advocate to remember that he is not over attached to any case as
advocate does not win or lose a case, real recipient of justice is
behind the curtain, who is at the receiving end. As a matter of
fact, we do not give to a litigant anything except recognising his
rights. A litigant has a right to be impartially advised by a lawyer.
Advocates are not supposed to be money guzzlers or ambulance
chasers. A lawyer should not expect any favour from the Judge
and should not involve by any means in influencing the fair decisionmaking process. It is his duty to master the facts and the law and
submit the same precisely in the court, his duty is not to waste the
courts' time.
33. The legislature has reposed faith in the autonomy of the Bar
while enacting the Advocates Act and it provides for autonomous
Bar Councils at the State and Central level. The ethical standard
of the legal profession and legal education has been assigned to
the Bar Council. It has to maintain the dignity of the legal profession
and independence of the Bar. The disciplinary control has been
assigned to the Disciplinary Committees of the Bar Councils of
various States and the Bar Council of India and an appeal lies to
this Court under Section 38 of the Act.
44. The Bar Council has the power to discipline lawyers and
maintain nobility of profession and that power imposes great
responsibility. The court has the power of contempt and that lethal
power too accompanies with greater responsibility. Contempt is a
weapon like Brahmastra to be used sparingly to remain effective.
At the same time, a Judge has to guard the dignity of the court
and take action in contempt and in case of necessity to impose
appropriate exemplary punishment too. A lawyer is supposed to
be governed by professional ethics, professional etiquette and
professional ethos which are a habitual mode of conduct. He has
to perform himself with elegance, dignity, and decency. He has to
bear himself at all times and observe himself in a manner befitting
as an officer of the court. He is a privileged member of the
community and a gentleman. He has to mainsail with honesty and
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sail with the oar of hard work, then his boat is bound to reach to
the bank. He has to be honest, courageous, eloquent, industrious,
witty and judgmental."
In the aforesaid decision, this Court also further observed in
paragraph 85 as under:-
"85. Soul searching is absolutely necessary and the blame game
and maligning must stop forthwith. Confidence and reverence and
positive thinking is the only way. It is pious hope that the Bar
Council would improve upon the function of its Disciplinary
Committees so as to make the system more accountable, publish
performance audit on the disciplinary side of various Bar Councils.
The same should be made public. The Bar Council of India under
its supervisory control can implement good ideas as always done
by it and would not lag behind in cleaning process so badly required.
It is to make the profession more noble and it is absolutely necessary
to remove the black sheep from the profession to preserve the
rich ideals of the Bar and on which it struggled for the values of
freedom. It is basically not for the Court to control the Bar. It is
the statutory duty of the Bar to make it more noble and also to
protect the Judges and the legal system, not to destroy the Bar
itself by inaction and the system which is an important pillar of
democracy."
10. Thus, under the Advocates Act, a duty is cast upon the Bar
Council of India/State Bar Councils to safeguard the integrity of the
legal profession. It is duty of the Bar Council of India/respective State
Bar Councils to ensure the nobility of the legal system at all costs. The
powers to conduct disciplinary proceedings against members of the Bar
are provided under Sections 35 and 36B of the Advocates Act. The
mandate is to dispose of the complaint received under Section 35 and/or
Section 36 within a period of one year from the date of receipt of the
said complaint and/or from the date of such proceeding to the Bar Council
of India. By not disposing of the complaint within the stipulated time
provided under the Act would tantamount to failure on their part to perform
the duty cast under the Advocates Act.
10.1 Under the Advocates Act, a duty is cast upon the Bar Council
of India/State Bar Councils to safeguard the integrity and nobility of the
legal profession. On the nobility of the legal profession, in the case of, In
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re: Sanjiv Datta, Deputy Secretary, Ministry of Information &
Broadcasting, New Delhi;Kailash Vasdev, Advocate and Kitty
Kumaramangalam (Smt.), Advocate (1995) 3 SCC 619, taking note
of various instances, which can be described as unfortunate, both for
the legal profession and the administration of justice, it is observed as
under:-
"20. The legal profession is a solemn and serious occupation. It is
a noble calling and all those who belong to it are its honourable
members. Although the entry to the profession can be had by
acquiring merely the qualification of technical competence, the
honour as a professional has to be maintained by its members by
their exemplary conduct both in and outside the court. The legal
profession is different from other professions in that what the
lawyers do, affects not only an individual but the administration of
justice which is the foundation of the civilised society. Both as a
leading member of the intelligentsia of the society and as a
responsible citizen, the lawyer has to conduct himself as a model
for others both in his professional and in his private and public life.
The society has a right to expect of him such ideal behaviour."
The Court further stated: (SCC pp. 634-35, para 20)
"20. ... If the profession is to survive, the judicial system has to
be vitalised. No service will be too small in making the system
efficient, effective and credible. The casualness and indifference
with which some members practise the profession are certainly
not calculated to achieve that purpose or to enhance the prestige
either of the profession or of the institution they are serving. If
people lose confidence in the profession on account of the deviant
ways of some of its members, it is not only the profession which
will suffer but also the administration of justice as a whole. The
present trend unless checked is likely to lead to a stage when the
system will be found wrecked from within before it is wrecked
from outside."
10.2 In Dhanraj Singh Choudhary Vs. Nathulal Vishwakrama,
(2012) 1 SCC 741, it has been observed that an advocate's attitude
towards dealing with his client has to be scrupulously honest and fair
and the punishment for professional misconduct has twin objectives -
deterrence and correction.
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10.3 Krishna Iyer J. has stated in V.C. Rangadurai Vs. D.
Gopalan, (1979) 1 SCC 308, as under:-
"5.