K. ANJINAPPA versus K.C. KRISHNA REDDY AND ANR. on 17 December 2021

[2021] 9 S.C.R. 1034

SUPREME COURT REPORTS

[2021] 9 S.C.R.

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K. ANJINAPPA

v.

K.C. KRISHNA REDDY AND ANR.

(Civil Appeal No. 7478 of 2019)

BDECEMBER 17, 2021

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Advocates Act, 1961 – ss.35, 36, 36B – Held: Disposal of acomplaint received by a State Bar Council u/s.35 within a period ofone year from the date of receipt of such complaint is mandatory –COnly in an exceptional case, by giving valid reasons to be recordedas to why the complaint could not be disposed of within one year,such complaints are required to be transferred to the Bar Councilof 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 ofDIndia is an exception – Further, on such transfer the Bar Council ofIndia shall also dispose of the transferred proceedings/complaintswithin one year from receipt thereof – In the present case, thecomplaint filed by appellant against an advocate before the AndhraPradesh State Bar Council was not decided for one year and,therefore it was transferred to the Bar Council of India whichEdismissed it without considering it on merits – However, nowsubsequently the complaint has been disposed of by the State BarCouncil – Revision is pending before the Bar Council of India –Thus, no further order is required on the complaint made by theappellant.FAdvocates 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.

GAdvocates 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 BarCouncil of India wherein it is stated that in last five years, 1,273H

Conclusion

complaints filed under Section 35 of the Advocates Act, 1961 havebeen transferred to the Bar Council of India as the concernedState Bar Council(s) did not dispose of the complaint(s) underSection 35 of the Advocates Act within one year. During the years2020 and 2021, there have been lesser number of complaintsfiled. But earlier from 2016 to 2019, the number of complaintstransferred from the State Bar Councils to Bar Council of Indiahave been steadily increasing from 171, 242, 214 and 490respectively. These statistics not only reflect on the increasingnumber of complaints being filed against the advocates but alsothe fact that the State Bar Councils have not discharged theirduty in disposing of these complaints within a period of one yearand have simply allowed the complaints to be transferred byoperation of law from the State Bar Councils to the Bar Councilof India in terms of Section 36B of the Advocates Act. The objectand purpose of the said provision must be understood in its rightperspective. It is not simply to pass on the responsibility fromthe State Bar Councils to the Bar Council of India and therebyavoid their responsibility of inquiry into the complaints that arefiled before them. The aforesaid section states that thedisciplinary committee of a State Bar Council shall dispose of acomplaint received by it under Section 35 expeditiously and theproceedings shall be concluded within a period of one year fromthe date of receipt of the complaint or the date of initiation of theproceedings at the instance of the State Bar Council, as the casemay be, failing which, such proceedings shall stand transferredto the Bar Council of India. The object of transfer of suchproceedings to the Bar Council of India is an intimation that theState Bar Council has failed to dispose of the complaint within aperiod of one year as aforesaid. In such circumstance, the BarCouncil of India will have to dispose of the same as if it were aproceeding withdrawn for inquiry under sub-section (2) of Section36 of the Act. Sub-section (3) of Section 36 of the Advocates Actstates that the disciplinary committee of the Bar Council of Indiain disposing of any case under Section 36 shall observe as far asmay be the procedure laid down in Section 35 the references tothe Advocate General in that section be considered as referencesto the Attorney General of India. Under sub-section (3) of Section35 of the Advocates Act, there is a mandate for the disciplinary AB

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Acommittee of a State Bar Council giving notice to the AdvocateGeneral and opportunity of being heard before making an orderunder the said sub-section. Having regard to sub-section (3) ofSection 36 in respect of a transferred complaint, possibly noticemay have to be given to the Attorney General of India beforedisposing of the complaint as per sub- section (2) of Section 36 ofBthe Act. Then in such a case the inquiry proceedings would notonly 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 BarCouncil(s) in not disposing the complaint(s) within a period ofCone year is not approved and appreciated. Disposal of a complaintreceived by the State Bar Council under Section 35 within a periodof one year from the date of receipt of such complaint is mandatoryand the concerned State Bar Council(s) have to dispose of suchcomplaints as expeditiously and in each case the proceeding shallDhave to be concluded within a period of one year. Only in anexceptional case, by giving valid reasons to be recorded as towhy the complaint could not be disposed of within a period of oneyear, such complaints are required to be transferred to the BarCouncil of India as provided under Section 36B of the AdvocatesAct. Therefore, the transfer of the complaint(s) received underESection 35 of the Advocates Act from the State Bar Council tothe Bar Council of India is an exception. However, for reasonsbest known to the concerned State Bar Councils, the complaintsare not being disposed received by them under Section 35 withinone year. This may be because the complaints are filed againstFthe fellow Advocates and they would not like to displease theAdvocates against whom the complaints are made. There couldalso be some valid reasons for not disposing of the complaint(s)within a period of one year. But for the same, the reasons have tobe assigned/recorded as to why the complaint(s) could not be disposed of within a period of one year. In many cases, theGcomplaints are deliberately kept pending for more than one year,so that the same shall be transferred to the Bar Council of Indiaas provided under Section 36B of the Advocates Act, by passingthe 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 councilto improve its functioning on the disciplinary side. Thus, underthe Advocates Act, a duty is cast upon the Bar Council of India/State Bar Councils to safeguard the integrity of the legalprofession. It is duty of the Bar Council of India/respective StateBar Councils to ensure the nobility of the legal system at all costs.The powers to conduct disciplinary proceedings against membersof the Bar are provided under Section 35 and 36B of theAdvocates Act. The mandate is to dispose of the complaintreceived under Section 35 and/or Section 36 within a period ofone year from the date of receipt of the said complaint and/orfrom the date of such proceeding to the Bar Council of India. Bynot disposing of the complaint within the stipulated time providedunder the Act would tantamount to failure on their part to performthe duty cast under the Advocates Act. [Paras 9.1, 10][1046-F;1049-E-G]

R. Muthukrishnan v. Registrar General, High Court ofJudicature at Madras, (2019) 16 SCC 407 : [2019] 1SCR 589; In re: Sanjiv Datta, Deputy Secretary, Ministryof Information & Broadcasting, New Delhi; KailashVasdev, 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 Councilof Gujarat and Anr., (2017) 5 SCC 465 : [2017] 5 SCR984; 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 Punjaband Haryana, (2011) 6 SCC 86 : [2011] 6 SCR 301;Harishankar Rastogi v. Girdhari Sharma, (1978) 2 SCC165 : [1978] 3 SCR 493 – relied on.

1.4 The Bar Council of India is directed to issue appropriatedirections as stated by the Chairman of the Bar Council of India.Even the Bar Council of India is also required to dispose of thetransferred complaint(s)/transferred proceeding(s) within a periodof one year from the date of receipt of such complaint(s)/

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Aproceeding(s). Therefore, the Bar Council of India is directed tofinally dispose of the transferred complaints expeditiously butnot later than one year from today and for which even theDisciplinary Committee of the Bar Council of India may holdcircuit hearings. The respective State Bar Councils are alsodirected to decide and dispose of the complaint(s) received by itBunder Section 35 expeditiously and to conclude the same withina period of one year from the date of receipt of the complaint asmandated under Section 36B of the Advocates Act. For an efficientand quick disposal of the complaints by the Bar Council of Indiavis-à-vis those complaints which have been transferred to it asCper Section 36B of the Act, the Bar Council of India may considerempanelling experienced and seasoned advocates and/or retiredjudicial officers to act as Inquiry Officers where an inquiry wouldbe necessitated. On such inquiry being concluded the report ofthe Inquiry Officers could be received by the Bar Council of India.On consideration of the said inquiry report, the Bar Council ofDIndia could pass appropriate orders on the complaint. The BarCouncil of India may issue suitable directions to the State BarCouncil to enlist a panel of Inquiry Officers for the purpose ofconducting the inquiry on behalf of the Bar Council of India inthe respective States itself and on conclusion of the said inquiryEto transmit the inquiry report to the Bar Council of India forenabling it to take it further action in the matter. Now so far asthe present case is concerned, it is reported that subsequentlyeven the complaint made by the appellant-original complainantNo.1 has been disposed of by the State Bar Council against whicha revision application is pending before the Bar Council of India.FThus, no further order is required on the complaint made by theappellant. [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 & AdviceG vs. Bar Council Of India (1995) 1 SCC 732 : [1995]1 SCR 304; Adi Pherozshah Gandhi vs. H.M. SeervaiAdvocate General Of Maharashtra Bombay (1970) 2SCC 484 : [1971] 1 SCR 863; Bar Council ofMaharashtra Vs. M.V. Dabholkar, (1976) 2 SCC 291 :H[1976] 2 SCR 48; Mangu Sihari Vs. Bar Council of State of Andhra Pradesh, AIR 1983 AP 271 – reliedon.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7478of 2019.

From the Judgment and Order dated 12.12.2015 of the DisciplinaryCommittee of the Bar Council of India in B.C.I. Transfer Case No.152of 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 orderpassed by the Disciplinary Committee of the Bar Council of India dated12.12.2015 by which the Disciplinary Committee of the Bar Council ofIndia has dismissed the complaint filed by the appellant against hisAdvocate, the appellant - original complainant No.1 has preferred thepresent appeal under Section 35 of the Advocates Act, 1961.

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A2. The appellant herein filed the Complaint Case No.20 of 2013against his Advocate on the ground of professional misconduct. Thesaid complaint was filed initially before the Bar Council of State of AndhraPradesh. Though under the Advocates Act, the State Bar Council wasduty bound to dispose of the complaint received by it under Section 35expeditiously and in each case the proceedings had to be concludedBwithin a period of one year from the date of receipt of complaint, theState Bar Council did not dispose of the said complaint. Therefore, thesaid complaint came to be transferred to the Bar Council of India as perSection 36B of the Advocates Act.Now by the impugned order, thecomplaint has been dismissed on the ground that the complaint was filedCby two complainants, namely, Shri K. Anjinappa (the appellant herein)and one Shri S. Lakshmi Naryana (complainant No.2), however, thesaid complaint was not signed by complainant No.2 – Shri S. LakshmiNarayana; that the matter is pending since 2013 to 2015. Having observedso, the Disciplinary Committee of the Bar Council of India dismissed thecomplaint, without further entering into the allegations made in theDcomplaint, by observing that in view of the above, the complaint is not atall maintainable.

3. Feeling aggrieved and dissatisfied with the impugned orderpassed by the Disciplinary Committee of the Bar Council of India, theappellant - original complainant No.1 has preferred the present appeal.E

4. Considering the fact that the complaint filed by the appellantherein – original complainant No.1 remained pending with the Bar Councilof State of Andhra Pradesh for more than one year and therefore thesame was transferred to the Bar Council of India under Section 36B ofthe Advocates Act, by order dated 03.12.2021, this Court passed theFfollowing:- “This is a case where the complaint against the Advocate wasbefore the State Bar Council – Andhra Pradesh. However, thesaid complaint was not decided and disposed of by the State BarCouncil – Andhra Pradesh for a period of one year and, therefore,it was transferred to the Bar Council of India. The said complainthas been dismissed without considering the complaint on merits.

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In many cases the complaints are made before the concernedState Bar Council(s), however, for one reason or another andmay be that the complaint is against an Advocate, who is a memberHof the concerned Bar Association/Bar Council, the complaints

K. ANJINAPPA v. K.C. KRISHNA REDDY AND ANR.[M. R. SHAH, J.]

are not decided and disposed of within a period of one year andultimately they are required to be transferred to the Bar Councilof India.

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We, therefore, call upon and direct the Bar Council of India toplace on record the particulars that in how many cases during thelast five years the complaints are transferred from the concernedState Bar Council(s) to the Bar Council of India and in how manycases the transferred complaints/cases are decided and disposedof.

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Put up on 13.12.2021.”

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5. In compliance of the order dated 03.12.2021, an affidavit hasbeen filed on behalf of the Bar Council of India. In the affidavit, it isstated that in last five years, 1,273 complaints filed under Section 35 ofthe Advocates Act have been transferred to the Bar Council of India asthe concerned State Bar Council(s) did not dispose of the complaint(s)under Section 35 of the Advocates Act within one year. The statementis reproduced herein below:- D

Sr. State 2016 2017 2018 2019 2020 2021 Total Disposed 1.Andhra Pradesh/ 4 11 45 20 2 0 82 0 Telangana 2.Assam etc.10010011203.Bihar 31 01 1 0604.Chhattisgarh10010020E5.Delhi 11 002501 3766.Gujarat 0 3 4 8 1 0 16 0 7.Himachal 0 0 0 1 1 1 3 0 Pradesh 8.Jharkhand000000009.Karnataka02 11 50018010.Kerala 0 28 1 0 0 0 29 0 1112..MMaharashtra adhya Pradesh 24 376 1936 205 80 00 050142 01 F&Goa13.Odisha 4 3 1 0 0 0 8 1 14.Punjab & 22 18 10 16 3 0 69 4 Haryana15.Rajasthan 18815812 061 016.Tamil Nadu2631 11 42 24 0134 4 17.Uttar Pradesh3238734669315231118.Uttarakhand4 2 0009150G19.West Bengal 9 2 51 4 0 0 66 20.Jammu and 0 0 0 0 0 0 0 0 Kashmir 21.Tripura- - - - - - - - 22.Manipur --------23.Meghalaya- - - - - - - - Total171 242 214 490 113 43 1273 27

A6. Shri Ardhendumauli Kumar Prasad, learned counsel appearingon behalf of the Bar Council of India has submitted that amongst theaforementioned 1273 transferred cases, a total of 646 cases have beenreceived by the Bar Council of India during the period commencingJanuary, 2019 to December, 2021 – during the pandemic situation. It ispointed out that the aforesaid transferred cases could not be disposed ofBby the Bar Council of India as the hearing could not be conducted throughvirtual mode and the complainants were required to be physically presentbefore the Disciplinary Committee to lead their evidences.It is pointedout that during the period starting mid-March, 2020, the State Bar Councilsas well as the Bar Council of India havenot been able to hold physicalCsittings of the Disciplinary Committees. It is stated that pendency oftransferred cases before the Bar Council of India is not intentional andthat the Bar Council of India is making every possible effort to clear thependency of such transferred cases by conducting expeditious hearings.

7. Shri Manan Kumar Mishra, learned Senior Advocate andDChairman of the Bar Council of India, who is also present during thehearing, has fairly conceded that State Bar Councils have to dispose ofthe complaint(s) received under Section 35 of the Advocates Act withina period of one year. He has stated that the Bar Council of India shallissue necessary instructions to the respective State Bar Councils inexercise of power under Section 48B of the Advocates Act directing allEState Bar Councils or any Committee thereof to dispose of thecomplaint(s) received under Section 35 of the Advocates Act within aperiod 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 aperiod of one year, then along with the reasons to be recorded as to whyFthe said complaint(s) could not be disposed of within a period of oneyear, the said complaint be transferred to the Bar Council of India as perSection 36B of the Advocates Act.

8. We are not at all impressed by the reasoning given by the learnedcounsel on behalfof the Bar Council of Indiafor not disposing of theGtransferred complaint(s) by the Disciplinary Committee of the Bar Councilof 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 of2018, a total of 214 cases and in the year 2019, a total of 490 cases weretransferred to the Bar Council of India. At-least those cases could haveH

been disposed of by the Bar Council ofIndia at the earliest. One canappreciate the delay in disposal of the transferred complaint(s) receivedin the year 2020 and 2021 due to COVID-19 pandemic but not for theearlier period.

8.1 On perusal of the table it is noted that out of a total of 1273complaints which have been transferred from the State Bar Councils tothe Bar Council of India in respect of these States, viz., Andhra Pradeshand Telangana, Madhya Pradesh, Punjab & Haryana, Rajasthan, andWest Bengal, more than 50 complaints each have been transferred.Insofar as the States of Maharashtra and Goa, Tamil Nadu and UttarPradesh are concerned, the complaints transferred are over 100 each.

Further during the years 2020 and 2021, there have been lessernumber of complaints filed, obviously for the reason that courts werenot functioning in a full fledged manner owing to Covid-19 Pandemicand consequent lock down imposed from time to time by the CentralGovernment and the State Governments. But earlier from 2016 to 2019,the number of complaints transferred from the State Bar Councils toBar Council of India have been steadily increasing from 171, 242, 214and 490 respectively. These statistics not only reflect on the increasingnumber of complaints being filed against the advocates but also the factthat the State Bar Councils have not discharged their duty in disposingof these complaints within a period of one year and have simply allowedthe complaints to be transferred by operation of law from the State BarCouncils to the Bar Council of India in terms of section 36B of theAdvocates Act. The object and purpose of the said provision must beunderstood in its right perspective. It is not simply to pass on theresponsibility from the State Bar Councils to the Bar Council of Indiaand thereby avoid their responsibility of inquiry into the complaints thatare filed before them. For immediate reference, section 36B of the Actis extracted as under :

“36B. Disposal of disciplinary proceedings.—

(1) The disciplinary committee of a State Bar Council shall disposeof the complaint received by it under section 35 expeditiously andin each case the proceedings shall be concluded within a periodof one year from the date of the receipt of the complaint or thedate of initiation of the proceedings at the instance of the Statebar Council, as the case may be, failing which such proceedingsshall stand transferred to the Bar Council of India which may A

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Adispose of the same as if it were a proceeding withdrawn forinquiry under sub-section (2) of section 36.

(2) Notwithstanding anything contained in sub-section (1), whereon the commencement of the Advocates (Amendment) Act, 1973(60 of 1973), any proceedings in the respect of any disciplinaryBmatter against an advocate is pending before the disciplinarycommittee of a State Bar Council, that disciplinary committee ofthe State Bar Council shall dispose of the same within a period ofsix months from the date of such commencement or within aperiod of one year from the date of the receipt of the complaintor, as the case may be the date of initiation of the proceedings atCthe instance of the State Bar Council, whichever is later, failingwhich such other proceedings shall stand transferred to the BarCouncil of India for disposal under sub-section (1).]

The aforesaid section states that the disciplinary committee of aState Bar Council shall dispose of a complaint received by it under sectionD35 expeditiously and the proceedings shall be concluded within a periodof one year from the date of receipt of the complaint or the date ofinitiation of the proceedings at the instance of the State Bar Council, asthe case may be, failing which, such proceedings shall stand transferredto the Bar Council of India. The object of transfer of such proceedingsEto the Bar Council of India is an intimation that the State Bar Councilhas failed to dispose of the complaint within a period of one year asaforesaid. In such circumstance, the Bar Council of India will have todispose of the same as if it were a proceeding withdrawn for inquiryunder sub-section (2) of section 36 of the Act. For immediate reference,section 36 of the Act is extracted as under:F

“36. Disciplinary powers of Bar Council of India.—

(1) Where on receipt of a complaint or otherwise the Bar Councilof India has reason to believe that any advocate 1[***] whosename is not entered on any State roll has been guilty of professionalGor other misconduct, it shall refer the case for disposal to itsdisciplinary committee.

(2) Notwithstanding anything contained in this Chapter, thedisciplinary committee of the Bar Council of India may, [either ofits own motion or on a report by a State Bar Council or on anapplication made to it by any person interested], withdraw forH

inquiry before itself any proceedings for disciplinary action againstany advocate pending before the disciplinary committee of anyState Bar Council and dispose of the same.

(3) The disciplinary committee of the Bar Council of India, indisposing of any case under this section, shall observe, so far asmay be, the procedure laid down in section 35, the references tothe Advocate-General in that section being construed as referencesto the Attorney-General of India.

(4) In disposing of any proceedings under this section thedisciplinary committee of the Bar Council of India may make anyorder which the disciplinary committee of a State Bar Councilcan make under sub-section (3) of section 35, and where anyproceedings have been withdrawn for inquiry 3[before thedisciplinary committee of the Bar Council of India] the State BarCouncil concerned shall give effect to any such order.”

Sub-section (3) of section 36 of the Advocates Act states that thedisciplinary committee of the Bar Council of India in disposing of anycase under section 36 shall observe as far as may be the procedure laiddown in section 35 the references to the Advocate General in that sectionbe considered as references to the Attorney General of India.

Under sub-section (3) of section 35 of the Advocates Act, thereis a mandate for the disciplinary committee of a State Bar Council givingnotice to the Advocate General and opportunity of being heard beforemaking an order under the said sub-section.

Having regard to sub-section (3) of section 36 in respect of atransferred complaint, possibly notice may have to be given to theAttorney 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 inquiryproceedings would not only become complicated but also delay the entireproceeding.

9. We also do not approve and appreciate the delay on the part ofthe respective State Bar Council(s)in not disposing the complaint(s) withina period of one year. As per Section 36B of the Advocates Act, theDisciplinary Committee of the State Bar Council have to dispose of thecomplaint received by it under Section 35 expeditiously and in each casethe proceeding shall have to be concluded within a period of one yearfrom the date of the receipt of the complaint or the date of initiation of A

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Athe proceedings at the instance of the State Bar Council, as the casemay be. Failing to dispose the complaint within a period of one year,such complaint is required to be transferred to the Bar Council of Indiafor its disposal as if, it was a proceeding withdrawn for inquiry undersub-section (2) of Section 36. Therefore, disposal of a complaint receivedby the State Bar Council under Section 35 within a period of one yearBfrom the date of receipt of such complaint is mandatory and the concernedState Bar Council(s) have to dispose of such complaints as expeditiouslyand in each case the proceeding shall have to be concluded within aperiod of one year. Only in an exceptional case,by giving valid reasonsto be recorded as to why the complaint could not be disposed of within aCperiod of one year, such complaints are required to be transferred to theBar Council of India as provided under Section 36B of the AdvocatesAct. Therefore, the transfer of the complaint(s) received under Section35 of the Advocates Act from the State Bar Council to the Bar Councilof India is an exception. However, for reasons best known to theconcerned State Bar Councils, the complaints are notbeing disposedDreceived by them under Section 35 within one year. This may be becausethe complaints are filed against the fellow Advocates and they wouldnot like to displease the Advocates against whom the complaints aremade. There could also be some valid reasons for not disposing of thecomplaint(s) within a period of one year. But for the same, the reasonsEhave to be assigned/recorded as to why the complaint(s) could not bedisposed of within a period of one year. In many cases, the complaintsare deliberately kept pending for more than one year, so that the sameshall be transferred to the Bar Council of India as provided under Section36B of the Advocates Act, by passing the buck so to say.

F9.1 It is the duty of the Bar Council of India/State Bar council toimprove its functioning on the disciplinary side. This Court in the case ofR. Muthukrishnan Vs. Registrar General, High Court ofJudicature at Madras, (2019) 16 SCC 407 had occasion to considerthe 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. InGparagraphs 15, 16, 17, 25, 26, 33 and 44, it is observed as under:- “15. The Advocates Act has been enacted pursuant to therecommendations of the All India Bar Committee made in 1953after taking into account the recommendations of the LawCommission on the subject of the reforms of judicial administration.H

The main features of the Bill for the enactment of the Act includethe creation of autonomous Bar Council, one for the whole ofIndia and one for each State. The Act has been enacted to amendand consolidate the law relating to the legal practitioners and toprovide for the constitution of the Bar Council and an All IndiaBar.

16. The legal profession cannot be equated with any othertraditional professions. It is not commercial in nature and is anoble one considering the nature of duties to be performed and itsimpact on the society. The independence of the Bar and autonomyof the Bar Council has been ensured statutorily in order to preservethe very democracy itself and to ensure that judiciary remainsstrong. Where the Bar has not performed the duty independentlyand has become a sycophant that ultimately results in thedenigrating of the judicial system and judiciary itself. There cannotbe existence of a strong judicial system without an independentBar.

17. It cannot be gainsaid that lawyers have contributed in thestruggle for independence of the nation. They have helped in theframing of the Constitution of India and have helped the courts inevolving jurisprudence by doing hard labour and research work.The nobility of the legal system is to be ensured at all costs so thatthe Constitution remains vibrant and to expand its interpretationso as to meet new challenges.

25. The role of a lawyer is indispensable in the system of deliveryof justice. He is bound by the professional ethics and to maintainthe high standard. His duty is to the court, to his own client, to theopposite side, and to maintain the respect of opposite party counselalso. What may be proper to others in the society, may be improperfor him to do as he belongs to a respected intellectual class of thesociety and a member of the noble profession, the expectationfrom him is higher. Advocates are treated with respect in society.People repose immense faith in the judiciary and judicial systemand the first person who deals with them is a lawyer. Litigantsrepose faith in a lawyer and share with them privileged information.They put their signatures wherever asked by a lawyer. An advocateis supposed to protect their rights and to ensure that untaintedjustice is delivered to his cause.

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26. The high values of the noble profession have to be protectedby all concerned at all costs and in all the circumstances cannotbe forgotten even by the youngsters in the fight of survival informative years. The nobility of the legal profession requires anadvocate to remember that he is not over attached to any case asadvocate does not win or lose a case, real recipient of justice isbehind the curtain, who is at the receiving end. As a matter offact, we do not give to a litigant anything except recognising hisrights. A litigant has a right to be impartially advised by a lawyer.Advocates are not supposed to be money guzzlers or ambulancechasers. A lawyer should not expect any favour from the Judgeand should not involve by any means in influencing the fair decision-making process. It is his duty to master the facts and the law andsubmit the same precisely in the court, his duty is not to waste thecourts’ time.

33. The legislature has reposed faith in the autonomy of the Barwhile enacting the Advocates Act and it provides for autonomousBar Councils at the State and Central level. The ethical standardof the legal profession and legal education has been assigned tothe Bar Council. It has to maintain the dignity of the legal professionand independence of the Bar. The disciplinary control has beenassigned to the Disciplinary Committees of the Bar Councils ofvarious States and the Bar Council of India and an appeal lies tothis Court under Section 38 of the Act.

44. The Bar Council has the power to discipline lawyers andmaintain nobility of profession and that power imposes greatresponsibility. The court has the power of contempt and that lethalpower too accompanies with greater responsibility. Contempt is aweapon like Brahmastra to be used sparingly to remain effective.At the same time, a Judge has to guard the dignity of the courtand take action in contempt and in case of necessity to imposeappropriate exemplary punishment too. A lawyer is supposed tobe governed by professional ethics, professional etiquette andprofessional ethos which are a habitual mode of conduct. He hasto perform himself with elegance, dignity, and decency. He has tobear himself at all times and observe himself in a manner befittingas an officer of the court. He is a privileged member of thecommunity and a gentleman. He has to mainsail with honesty and sail with the oar of hard work, then his boat is bound to reach tothe bank. He has to be honest, courageous, eloquent, industrious,witty and judgmental.”

In the aforesaid decision, this Court also further observed inparagraph 85 as under:-

“85. Soul searching is absolutely necessary and the blame gameand maligning must stop forthwith. Confidence and reverence andpositive thinking is the only way. It is pious hope that the BarCouncil would improve upon the function of its DisciplinaryCommittees so as to make the system more accountable, publishperformance audit on the disciplinary side of various Bar Councils.The same should be made public. The Bar Council of India underits supervisory control can implement good ideas as always doneby it and would not lag behind in cleaning process so badly required.It is to make the profession more noble and it is absolutely necessaryto remove the black sheep from the profession to preserve therich ideals of the Bar and on which it struggled for the values offreedom. It is basically not for the Court to control the Bar. It isthe statutory duty of the Bar to make it more noble and also toprotect the Judges and the legal system, not to destroy the Baritself by inaction and the system which is an important pillar ofdemocracy.”

10. Thus, under the Advocates Act, a duty is cast upon the BarCouncil of India/State Bar Councils to safeguard the integrity of thelegal profession. It is duty of the Bar Council of India/respective StateBar Councils to ensure the nobility of the legal system at all costs. Thepowers to conduct disciplinary proceedings against members of the Barare provided under Sections 35 and 36B of the Advocates Act. Themandate is to dispose of the complaint received under Section 35 and/orSection 36 within a period of one year from the date of receipt of thesaid complaint and/or from the date of such proceeding to the Bar Councilof India. By not disposing of the complaint within the stipulated timeprovided under the Act would tantamount to failure on their part to performthe duty cast under the Advocates Act.

10.1 Under the Advocates Act, a duty is cast upon the Bar Councilof India/State Bar Councils to safeguard the integrity and nobility of thelegal profession. On the nobility of the legal profession, in the case of, In A

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Are: Sanjiv Datta, Deputy Secretary, Ministry of Information &Broadcasting, New Delhi;Kailash Vasdev, Advocate and KittyKumaramangalam (Smt.), Advocate (1995) 3 SCC 619, taking noteof various instances, which can be described as unfortunate, both forthe legal profession and the administration of justice, it is observed asunder:-B

“20. The legal profession is a solemn and serious occupation. It isa noble calling and all those who belong to it are its honourablemembers. Although the entry to the profession can be had byacquiring merely the qualification of technical competence, thehonour as a professional has to be maintained by its members byCtheir exemplary conduct both in and outside the court. The legalprofession is different from other professions in that what thelawyers do, affects not only an individual but the administration ofjustice which is the foundation of the civilised society. Both as aleading member of the intelligentsia of the society and as aDresponsible citizen, the lawyer has to conduct himself as a modelfor 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)

The Court further stated: (SCC pp. 634-35, para 20)

“20. … If the profession is to survive, the judicial system has toEbe vitalised. No service will be too small in making the systemefficient, effective and credible. The casualness and indifferencewith which some members practise the profession are certainlynot calculated to achieve that purpose or to enhance the prestigeeither of the profession or of the institution they are serving. IfFpeople lose confidence in the profession on account of the deviantways of some of its members, it is not only the profession whichwill suffer but also the administration of justice as a whole. Thepresent trend unless checked is likely to lead to a stage when thesystem will be found wrecked from within before it is wreckedfrom outside.”G

10.2 In Dhanraj Singh Choudhary Vs. Nathulal Vishwakrama,(2012) 1 SCC 741, it has been observed that an advocate’s attitudetowards dealing with his client has to be scrupulously honest and fairand the punishment for professional misconduct has twin objectives –deterrence and correction.H

10.3 Krishna Iyer J. has stated in V.C. Rangadurai Vs. D.Gopalan, (1979) 1 SCC 308, as under:- “5. Law’s nobility as a profession lasts only so long as the membersmaintain their commitment to integrity and service to thecommunity.”

10.4 After referring to the aforesaid decisions of this Court aswell as the scheme of the Advocates Actin Ajitsinh Arjunsinh GohilVs. Bar Council of Gujarat and Anr., (2017) 5 SCC 465, it is observedin paragraphs 39 and 40 as under:- “39. ……………….. A lawyer is treated as a part of the nobleprofession and expected as an elite member of the society, to beprofessionally responsible and constantly remind himself that hisservices are rendered to the consumers of justice. As has beenheld in Pandurang Dattatraya Khandekar v. Bar Council ofMaharashtra [Pandurang Dattatraya Khandekar v. BarCouncil of Maharashtra, (1984) 2 SCC 556] , an advocate standsin a loco parentis towards the litigants. He has a paramount dutyto his client and client is entitled to receive disinterested, sincereand honest treatment.

40. Once a complaint is made by a litigant, it has to follow adefinite procedure and is required to be dealt with as per thecommand of the Act to conclude the disciplinary proceeding withina period of one year from the date of receipt of the complaint orthe date of initiation of the proceedings at the instance of theState Bar Council. On many an occasion, it has come to the noticeof this Court that disciplinary authority of the State Bar Council isnot disposing of the complaint within the stipulated period, as aconsequence of which the proceeding stands transferred to BCI.The responsibility to deal with the disciplinary proceedings is caston the State Bar Council which constitutes its DisciplinaryCommittee. Every member of the Disciplinary Committee is awarethat the proceeding has to be concluded within one year. Thecomplainant and the delinquent advocate are required to cooperate.Not to do something what one is required to do, tantamounts toirresponsibility and the prestige of an institution or a statutory bodyinhere in carrying out the responsibility. One may not be alwaysright in the decision but that does not mean to be shirking away A

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Afrom taking a decision and allow the matter to be transferred byoperation of law to BCI. A statutory authority is obliged toconstantly remind itself that the mandate of the statute isexpediency and the stipulation of time is mandatory. It will not beerroneous to say that the Disciplinary Committee is expected toperform its duty within a time-frame and not to create aBblameworthy situation. It is better to remember that offering anexplanation to one’s own conscience is like blaming everything on“accident”. When duties are given by law, duties are required tobe performed.”

10.5 In J.S. Jadhav Vs. Mustafa Haji Mohamed Yusuf, (1993)C2 SCC 562, this Court has observed as under:-

“Advocacy is not a craft but a calling; a profession whereindevotion to duty constitutes the hallmark. Sincerity of performanceand earnestness of endeavour are the two wings that will bearaloft the advocate to the tower of success. Given these virtuesDother qualifications will follow of their own account. This is thereason why legal profession is regarded to be a noble one.”

10.6 In Kokkanda B. Poondacha Vs. K.D. Ganapathi, (2011)12 SCC 600, this Court has observed as under:- E“The relationship between a lawyer and his client is solely foundedon trust and confidence. A lawyer cannot pass on the confidentialinformation to anyone else. This is so because he is a fiduciary ofhis client, who reposes trust and confidence in the lawyer.Therefore, he has a duty to fulfil all his obligations towards hisclient with care and act in good faith. Since the client entrusts theFwhole obligation of handling legal proceedings to an advocate, hehas to act according to the principles of uberrima fides i.e. theutmost faith, integrity, fairness and loyalty.”

10.7 In O.P. Sharma Vs. High Court of Punjab and Haryana,

(2011) 6 SCC 86, this Court has observed as under:-G

“An advocate should be dignified in his dealings to the court, tohis fellow lawyers and to the litigants. He should have integrity inabundance and should never do anything that erodes his credibility.An advocate has a duty to enlighten and encourage the juniors inthe profession. An ideal advocate should believe that the legalHprofession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abideby the standards of professional conduct and etiquette prescribedby the Bar Council of India in Chapter II, Part VI of the BarCouncil of India Rules.”

10.8 In Harishankar Rastogi Vs. Girdhari Sharma, (1978) 2SCC 165, this Court has observed as under:- “(…) the Bar is an extension of the system of justice; an advocateis an officer of court. He is master of an expertise but more thanthat, accountable to the court and governed by a high ethic. Thesuccess of the judicial process often depends on the services ofthe legal profession.”

10.9 In Bar Council of Maharashtra Vs. M.V. Dabholkar,(1976) 2 SCC 291, this Court has observed as under:- “The vital role of the lawyer depends upon his probity andprofessional lifestyle. Be it remembered that the central functionof the legal profession is to promote the administration of justice.If the practice of law is thus a public utility of great implicationsand a monopoly is statutorily granted by the nation, it obligates thelawyer to observe scrupulously those norms which make himworthy of the confidence of the community in him as a vehicle ofjustice – social justice.”

10.10 On the role of the Bar Council of India, the Andhra PradeshHigh Court in the case of Mangu Sihari Vs. Bar Council of State ofAndhra Pradesh, AIR 1983 AP 271 has observed in paragraphs 7and 13 as under:- “7. In this context it must be noticed that the Advocates Act andthe rules framed by the Bar Council of India are calculated tomaintain high standard of professional conduct. Towards this end,it is provided that any allegation of professional misconduct shouldbe enquired into by senior members of the said profession in whomprofessional body has reposed confidence electing them R. 36-Bof the Rules made under Advocates Act envisages expeditiousdisposal of any such complaint by prescribing a period of oneyear for the disposal of the complaint and laying down that if theenquiry is not so disposed of it would stand transferred to the BarCouncil of India. Neither the Act nor the rules governing thedisciplinary proceedings envisage stay of these proceedings having A

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Aregard to the pendency of a criminal or civil case before anycourt or other authority. The complainant himself cannot withdrawthe proceeding. Even the death of the complainant does notterminate the disciplinary proceedings before the Bar Council. Itis only a decision of the Disciplinary Committee that terminatesthe proceeding. Disposal of such a proceeding with utmostBexpedition is in the interests of the advocate whose professionalintegrity is under a cloud as a result of the initiation and pendencyof the disciplinary proceedings.

13. XXXXXXXXXX

CA professional body, such as the Bar-Council, has the exclusivejurisdiction to enquire into the allegations of misconduct againstthe members of the legal profession and it is enjoined to disposeof enquiry into such allegations expeditiously within a period ofone year. That provision is intended not merely to clear the cloudcast on the particular advocate at the earliest but also intended toDkeep the noble profession itself clear of such members. Advocatesowe a duty not only to their clients but to the court as well in theadministration of law and justice. It is in the interest of the Advocateand in particular that the proceedings conclude with the leastpossible delay. Merely because some civil or criminal proceedingEis pending before a court or Authority in respect of some issuecommon to that proceeding and the proceeding before thedisciplinary committee of the Bar Council and stay of proceedingsbefore the Bar Council would result in serious interference withthe discharge of the statutory functions of the professional bodyunless allowing such proceeding to go on would result inFmiscarriage of justice. Such a step should in our view, be avoided.”We are in complete agreement with the view taken by the AndhraPradesh High Court.

10.11 In Markand C. Gandhi Vs. Rohini M. Dandekar, (2008)

G10 SCC 792, it was found that a complaint was filed before the StateBar Council in the year 1984 and transferred to the Bar Council of India,which remained pending before it for 22 years, this Court observed thatthe Chairman of the Bar Council of India would see that, in future,complaints are disposed of with reasonable dispatch and not in a leisurelyfashion so that people may repose confidence in the Bar Council ofHIndia, which is a statutory and autonomous body.

We are constrained to observed that despite the aboveobservations, still the complaints are not disposed of with reasonabledispatch and firstly, kept pending by the State Bar Councils for one yearand thereafter by the Bar Council of India.

11. As observed hereinabove, Shri Manan Kumar Mishra, learnedsenior counsel and Chairman of the Bar Council of India has stated thatnecessary guidelines/directions in exercise of the powers under Section48B shall be issued by the Bar Council of India to all the State BarCouncils to dispose of the complaint(s) received under Section 35 of theAdvocates Act within a period of one year and only in exceptional caseand for the reasons to be recorded by the concerned State Bar Counciland if for valid reasons, the said complaint could not be disposed ofwithin a period of one year, then and then only such complaint/proceedingbe transferred to the Bar Council of India as mandated under Section36B of the Advocates Act. The Bar Council of India is directed to issueappropriate directions as stated by the Chairman of the Bar Council ofIndia. Even the Bar Council of India is also required to dispose of thetransferred complaint(s)/transferred proceeding(s) within a period of oneyear from the date of receipt of such complaint(s)/proceeding(s).

12. Therefore, we direct the Bar Council of India to finally disposeof the transferred complaints, the particulars of which are referred tohereinabove expeditiously but not later than one year from today and forwhich even the Disciplinary Committee of the Bar Council of India mayhold circuit hearings.

12.1 We also direct the respective State Bar Councils to decideand dispose of the complaint(s) received by it under Section 35expeditiously and to conclude the same within a period of one year fromthe date of receipt of the complaint as mandated under Section 36B ofthe Advocates Act.

12.2 Only in exceptional case and for the reasons to be recordedwhere it is found that for valid reasons, the proceedings could not becompleted within the period stipulated under Section 36B of the AdvocatesAct, then and then only such proceedings shall stand transferred to theBar Council of India and on such transfer the Bar Council of India shallalso dispose of the such transferred proceedings/complaints within aperiod of one year from receipt of such transferred proceedings.

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A13. Having regard to the aforesaid provisions and bearing in mindthe fact that 1273 complaints (minus 27 complaints which are disposed)are pending before the Bar Council of India, it is just and necessary thata mechanism be found for disposal of the said complaints in accordancewith the procedure prescribed.BFor an efficient and quick disposal of the complaints by the Bar BFor an efficient and quick disposal of the complaints by the BarCouncil of India vis-à-vis those complaints which have been transferredto it as per section 36B of the Act, the Bar Council of India may considerempanelling experienced and seasoned advocates and/or retired judicialofficers to act as Inquiry Officers where an inquiry would be necessitated.On such inquiry being concluded the report of the Inquiry Officers couldCbe received by the Bar Council of India. On consideration of the saidinquiry report, the Bar Council of India could pass appropriate orders onthe complaint.

The aforesaid suggestion is being made bearing in mind the numberof complaints that are pending before Bar Council of India, that is, theDtransferred complaints which would act as the disciplinary authority onsuch transfer as it would be highly impossible for the said complaint tobe disposed of within a reasonable time if the inquiry is also to beconducted by the Bar Council of India.

Hence the Bar Council of India may issue suitable directions toEthe State Bar Council to enlist a panel of Inquiry Officers for the purposeof conducting the inquiry on behalf of the Bar Council of India in therespective States itself and on conclusion of the said inquiry to transmitthe inquiry report to the Bar Council of India for enabling it to take itfurther action in the matter.F

This would also enable the complainants and the concernedadvocates against whom the complaints are made to appear before theInquiry Officers wherever such an inquiry is instituted in the State wherethe complaint has been filed. This would also remove the difficultiescaused to the parties to travel from various parts of the country to DelhiGfor appearing before the inquiry, if any, to be conducted on the complaintsfiled by the complainants.

Further and as directed hereinabove, the Bar Council of India toalso issue suitable directions to the State Bar Council to conclude theproceedings from the complaints filed against the advocates within aperiod of one year since the intention of the Parliament appears to be toH

decide on the said complaint within the said period which is a reasonableperiod. The object and purpose of section 36B of the Act is not toencourage delay in the disposal of the complaint so as to enable thecomplaints to be transferred to the Bar Council of India by operation oflaw and thereby increase the burden on the All India body and at thesame time create a leeway for the State Bar Council to not act on thecomplaints and to simply wait for the passage of time so that by operationof law the said complaint would stand transferred to the Bar Council ofIndia.

In fact, section 36B of the Act mandates that there should be notardiness by the State Bar Council in completion of the proceedings onthe complaints received by them within a period of one year as stated inthe said provision. When the number of complaints transferred from theState Bar Councils to Bar Council of India is noted from the aforesaidstatistics, it implies that the States Bar Council have not been dischargingtheir duties by not disposing the complaints within a period of one yearas provided under section 36B of the Act.

Further in order to enable the State Bar Council to dispose of thecomplaints within a period of one year as provided under section 36B ofthe Act, it is incumbent for the respective disciplinary committees of theState Bar Councils meet on a regular basis.

The State Bar Council could also enlist a panel of Inquiry Officerswho could be entrusted with the conduct of the inquiry as and when thesame is necessitated on a complaint.

The disciplinary committee of the State Bar Council onconsideration of the said inquiry report may pass orders in accordancewith the provision of section 35 of the Act.

14. We are constrained to issue the aforesaid directions andsuggestions having regard to the observations of this Court which areextracted as under:-

(i) “The Bar Councils are enjoined with the duty to act assentinels of professional conduct and must ensure that thedignity and purity of the profession are in no wayundermined. Its job is to uphold the standards of professionalconduct and etiquette. Thus every State Bar Council andthe Bar Council of India has a public duty to perform, namely,to ensure that the monopoly of practice granted under the A

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AAct is not misused or abused by a person who is enrolledas an advocate. The Bar Councils have been created atthe State level as well as the Central level not only to protectthe rights, interests and privileges of its members but alsoto protect the litigating public by ensuring that high and nobletraditions are maintained so that the purity and dignity ofBthe profession are not jeopardized.”

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[Indian council of Legal Aid and Advice v. Bar Councilof India, (1995) 1 SCC 732]

(ii) “The interest of the Bar Council is to uphold standards ofprofessional conduct and etiquette in the profession, whichis founded upon integrity and mutual trust. The Bar Councilacts as the custodian of the high traditions of the nobleprofession.”

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[Bar Council of Maharashtra v. M.V. Dabholkar,D(1975) 2 SCC 702]

(iii) “Every Bar Council is a body corporate. The functions ofthe State Bar Council are inter alia to admit persons asadvocated, on its roll; to prepare and maintain such roll; toentertain and determine cases of misconduct againstEadvocates on its roll; to safeguard the rights, privileges andinterest of advocates on its roll. The functions of the BarCouncil of India are to lay down standards of professionalconduct and etiquette for advocates, to lay down theprocedure to be followed by the Disciplinary Committee ofthe Bar Council of India and the Disciplinary CommitteesFof the State Bar Councils, to safeguard the rights, privilegesand interests of advocates. A Bar Council is empoweredunder the Act to constitute one or more DisciplinaryCommittees.”

[Adi Pherozshah Gandhi v. H.M. Seervai, AdvocateGGeneral of Maharashtra, (1970) 2 SCC 484]

(iv) “The Bar Council has a very important part to play, first, inthe reception of complaints, second, in forming reasonablebelief of guilt of professional or other misconduct and finallyin making reference of the case to its DisciplinaryHCommittee.”

K. ANJINAPPA v. K.C. KRISHNA REDDY AND ANR.[M. R. SHAH, J.]

[Bar Council of Maharashtra v. M.V. Dabholkar, (1975)2SCC 702]

15. Now so far as the present case is concerned, it is reportedthat subsequently even the complaint made by the appellant – originalcomplainant No.1 has been disposed of by the State Bar Council byorder dated 11.03.2017 against which a revision application is pendingbefore the Bar Council of India. In that view of the matter, no furtherorder is required on the complaint made by the appellant.

16. In view of the above and for the reasons stated above, thepresent appeal stands disposed of with the above directions to the BarCouncil of India and the respective State Bar Council(s).

Divya Pandey

Appeal disposed of.

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