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 for a period of one year and, therefore, it was transferred to the Bar Council of India. The said complaint however, was been dismissed without considering the complaint on merits.
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.
Therefore, in this case the said complaint came to be transferred to the Bar Council of India as per Section 36B of the Advocates Act.
Under the Advocates Act, 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.
An affidavit has been filed on behalf of the Bar Council of India in the said case wherein, it is stated that in last five years, 1,273 complaints were 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.
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 by the learned counsel of the Bar Council that the aforesaid transferred cases could not be disposed of by the body 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 was pointed out that during the period starting mid-March, 2020, the State Bar Councils as well as the Bar Council of India have not 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.
The court however, was not at all impressed by the reasoning given by the learned counsel on behalf of the Bar Council of India for not disposing of the transferred complaint(s) by the Disciplinary Committee of the Bar Council of India. The Hon’ble court reasoned 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. The court observed that at-least those cases could have been disposed of by the Bar Council of India at the earliest. The court categorically mentioned that it could 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.
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.
In Markand C. Gandhi Vs. Rohini M. Dandekar, (2008) 10 SCC 792, it was found that a complaint was filed before the State Bar Council in the year 1984 and transferred to the Bar Council of India, which remained pending before it for 22 years, this Court observed that the Chairman of the Bar Council of India would see that, in future, complaints are disposed of with reasonable dispatch and not in a leisurely fashion so that people may repose confidence in the Bar Council of India, which is a statutory and autonomous body mandated under Section 36B of the Advocates Act. 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)/proceeding(s).
(i) “The Bar Councils are enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and purity of the profession are in no way undermined. Its job is to uphold the standards of professional conduct and etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform, namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a person who is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized.” [Indian council of Legal Aid and Advice v. Bar Council of India, (1995) 1 SCC 732]
(ii) “The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. The Bar Council acts as the custodian of the high traditions of the noble profession.” [Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702].
(iii) “Every Bar Council is a body corporate. The functions of the State Bar Council are inter alia to admit persons as advocated, on its roll; to prepare and maintain such roll; to entertain and determine cases of misconduct against advocates on its roll; to safeguard the rights, privileges and interest of advocates on its roll. The functions of the Bar Council of India are to lay down standards of professional conduct and etiquette for advocates, to lay down the procedure to be followed by the Disciplinary Committee of the Bar Council of India and the Disciplinary Committees of the State Bar Councils, to safeguard the rights, privileges and interests of advocates. A Bar Council is empowered under the Act to constitute one or more Disciplinary Committees.” [Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General of Maharashtra, (1970) 2 SCC 484]
The court directed the respective State Bar Councils 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. Only in exceptional case and for the reasons to be recorded where it is found that for valid reasons, the proceedings could not be completed within the period stipulated under Section 36B of the Advocates Act, then and then only such proceedings shall stand transferred to the Bar Council of India and on such transfer the Bar Council of India shall also dispose of the such transferred proceedings/complaints within a period of one year from receipt of such transferred proceedings.
Having regard to the aforesaid provisions and bearing in mind the fact that 1273 complaints (minus 27 complaints which are disposed) are pending before the Bar Council of India, it is just and necessary that a mechanism be found for disposal of the said complaints in accordance with the procedure prescribed.
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 aforesaid suggestion is being made bearing in mind the number of complaints that are pending before Bar Council of India, that is, the transferred complaints which would act as the disciplinary authority on such transfer as it would be highly impossible for the said complaint to be disposed of within a reasonable time if the inquiry is also to be conducted by the Bar Council of India. Hence 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.
Section 36B of the Advocates Act mandates that there should be no tardiness by the State Bar Council in completion of the proceedings on the complaints received by them within a period of one year as stated in the said provision. When the number of complaints transferred from the State Bar Councils to Bar Council of India is noted from the aforesaid statistics, it implies that the States Bar Council have not been discharging their duties by not disposing the complaints within a period of one year as provided under section 36B of the Act period.
The object and purpose of section 36B of the Act is not to encourage delay in the disposal of the complaint so as to enable the complaints to be transferred to the Bar Council of India by operation of law and thereby increase the burden on the All India body and at the same time create a leeway for the State Bar Council to not act on the complaints and to simply wait for the passage of time so that by operation of law the said complaint would stand transferred to the Bar Council of India. This would also enable the complainants and the concerned advocates against whom the complaints are made to appear before the Inquiry Officers wherever such an inquiry is instituted in the State where the complaint has been filed. This would also remove the difficulties caused to the parties to travel from various parts of the country to Delhi for appearing before the inquiry, if any, to be conducted on the complaints filed by the complainants.
Hence 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.
Photo by Melinda Gimpel on Unsplash
About The Author
