Constitution and Functions of Bar Council of India

Constitution / organization / Composition of Bar Council of India :

Section 4 (1) of the Advocate Act 1961 provides that there shall be a Bar Council for the territories to which
this Act extends to be known as the Bar Council of India which shall consist of the following members,
namely —
(a) the Attorney-General of India, ex officio;

(b) the Solicitor-General of India, ex officio;

(c) one member elected by each State Bar Council from amongst its members.

Section 4(1-A) No person shall be eligible for being elected as a member of the Bar Council of India unless
he possesses the qualifications specified in the proviso to sub-section (2) of section 3 of the Advocates Act.
Section 4(2) of the said Act provides that there shall be a Chairman and a Vice-Chairman of the Bar Council
of India elected by the Council in such manner as may be prescribed.
Section 4 (2-A) makes it clear that a person holding office as Chairman or as Vice-Chairman of the Bar
Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 , shall, on
such commencement, cease to hold office as Chairman or Vice- Chairman, as the case may be:
Provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice-
Chairman, as the case may be, of the Council, elected after the commencement of the Advocates
(Amendments) Act, 1977, assumes charge of the office.
The term of office :
The term of office of a member of the Bar Council of India elected by the State Bar Council shall —
(i) in the case of a member of a State Bar Council who holds office ex-officio, be two years from the date of
his election or till he ceases to be a member of the State Bar Council, whichever is earlier, and

(ii) in any other case, be for the period for which he holds office as a member of the State Bar Council:

Provided that every such member shall continue to hold office as a member of the Bar Council of India
until his successor is elected.
3) Bar Council to be body corporate (Section 5)
Every Bar Council shall be a body corporate having perpetual succession and a common seal, with power to
acquire and hold property, both moveable and immovable, and to contract, and may by the name by which it
is known sue and be sued
4) Functions of Bar Council of India
Section 7 of the Advocates Act, 1961 provides that the functions of the Bar Council of India shall be —

(i) to lay down standards of professional conduct and etiquette for advocates;

(ii) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of
each State Bar Council;

(iii) to safeguard the rights, privileges and interests of advocates;

(iv) to promote and support law reform;

(v) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar
Council;

(vi) to exercise general supervision and control over State Bar Councils;

(vii) to promote legal education and to lay down standards of such education in consultation with the
Universities in India imparting such education and the State Bar Councils;

(viii) to recognize Universities whose degree in law shall be a qualification for enrollment as an advocate and
for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect
Universities in accordance with such directions as it may give in this behalf;

(ix) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers
of legal interest;

(x) to organize legal aid to the poor in the prescribed manner;

(xi) to recognize on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of
admission as an advocate under this Act;

(xii) to manage and invest the funds of the Bar Council;

(xiii) to provide for the election of its members;

(xiv) to perform all other functions conferred on it by or under this Act.

(xv) to do all other things necessary for discharging the aforesaid functions;

(2) The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of -

(a) giving financial assistance to organize welfare schemes for indigents, disabled or other advocates;

(b) giving legal aid or advice in accordance with the rules made in this behalf;

(c) establishing law libraries.

(3) The Bar Council of India may receive any grants, donations, gifts or benefactions for all or any of the
purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted
under that sub-section.
 The Constitution, Powers and Functions of a State Bar Council
The Advocate Act, 1961, has made provisions for the establishment of Bar Councils. The Bar
Council will be two patterns - Bar Council of India and State Bar Council. Under Section 3 of the
Act State Bar Council will be established. However, Under Section 4, a Bar Council of India will be
established.

State Bar Councils :

(1) There shall be a Bar Council —

(a) for each of States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Jharkhand
Madhya Pradesh, Chhattisgarh, Karnataka, Orissa, Rajasthan Uttar Pradesh and Uttaranchal, to be
known as the Bar Council of that State;

(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and
Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram and Arunachal Pradesh.

(c) for the State of Kerala and the Union territory of Lakshadweep, to be known as the Bar
Council of Kerala;

(cc) for the State of Tamil Nadu and the Union territory of Pondicherry to be known as the Bar
Council of Madras;

(ccc) for the States of Maharashtra and Goa, and the Union territories of Dadra and Nagar Haveli
and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa;

(d) for the States of Punjab and Haryana, and the Union territory of Chandigarh, to be known as
the Bar Council of Punjab and Haryana;

(dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal Pradesh;

(e) for the State of West Bengal and the Union territory of Andaman and Nicobar Islands, to
be known as the Bar Council of West Bengal; and

(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.

(2) A State Bar Council shall consist of the following members, namely:—

(a) in the case of the State Bar Council of Delhi, the Additional Solicitor General of India ex
officio in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura,
the Advocate General of each of the State of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex
officio; in the case of the State Bar Council of Punjab and Haryana, the Advocate-General of each of
the State of Punjab and Haryana, ex officio; and in the case of any other State Bar Council, the
Advocate-General of the State, ex officio;

(b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen
members, in the case of a State Bar Council with an electorate exceeding five thousand but not
exceeding ten thousand, twenty members, and in the case of the State Bar Council with an electorate
exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional
representation by means of the single transferable vote from amongst advocates on the electoral roll
of the State Bar Council: Provided that as nearly as possible one-half of such elected members shall
subject to any rules that may be made in this behalf by the Bar Council of India, be persons who
have for at least ten years been advocates on a State roll, and in computing the said period of ten
years in relation to any such person, there shall be included any period during which the person has
been an advocate enrolled under the Indian Bar Councils Act, 1926 (38 of 1926).

Term of Office of the Members of State Bar Council : Section 8 Provides term of the office of
the Members of the State Bar Council -

The term of office of an elected member of a State Bar Council (other than an elected member
thereof referred to in section 54) shall be five years from the date of publication of the result of his
election:

Provided that where a State Bar Council fails to provide for the election of its member before
the expiry of the said term, the Bar Council of India may, by order for reasons to be recorded in
writing, extend the said term, the Bar Council of India may, by order, extend the said term for a
period not exceeding six months.

Powers and functions of State Bar Council are as under

Functions of State Bar Council :

a) General functions -

Section 6(1) of the Advocate Act 1961 makes provisions in respect of the functions of the State Bar
Council.
Functions of State Bar Councils

(1) to admit persons as advocates on its roll;

(2) to prepare and maintain such roll;
(3) to entertain and determine cases of misconduct against advocates on its roll;
(4) to safeguard the rights, privileges and interests of advocates on its roll;
(5) to promote the growth of Bar Associations for the purposes of effective implementation of the
welfare schemes referred to in clause (a) of sub-section (2) of this section clause (a) of sub-section
(2) of section 7;
(6) to promote and support law reform;
(7) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and
paper of legal interest;
(8) to organise legal aid to the poor in the prescribed manner;
(9) to manage and invest the funds of the Bar Council;
(10) to provide for the election of its members;
(11) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-
section (1) of section 7;
(12) to perform all other functions conferred on it by or under this Act; (i) to do all other things
necessary for discharging the aforesaid functions.
 A State Bar Council may constitute one or more funds in the prescribed manner for the purpose
of—
(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other
advocates;
(b) giving legal aid or advice in accordance with the rules made in this behalf;
(c) establishing law libraries.

A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the
purposes specified in sub- section (2) which shall be credited to the appropriate fund or funds
constituted under that sub-section.

b) To Issue Certificates of Enrollment -

Section 22 of Advocate Act 1961 provides that, There shall be issued a certificate of enrollment in
the prescribed form by the State Bar Council to every person whose name is entered in the roll of
advocates maintained by it under this Act.
Every person whose name is so entered in the State roll shall notify any change in the place of
his permanent residence to the State Bar Council concerned within ninety days of such change.

Admission as an Advocate on a State Roll -

A person may be enrolled as an advocate by the State Bar Council if he fulfills the Conditions
required for admission as an advocate Under section 24 of the Advocate Act, 1961. Conditions laid
down in this section for admission as an advocate, may be enrolled as an advocate by the State Bar
Council, namely :

a) He is a citizen of India.
b) He has completed the age of twenty one years.
c) He has obtained the degree of Law.
d) He fulfills such other conditions as may be specified in the rules made by the State Bar Council.
e) He has paid, in respect of enrollment, stamp duty, and an enrollment fee payable to State Bar
Council.

An application for enrollment shall be made in the prescribed form to the State Bar Council within
whose jurisdiction the applicant proposes to practice. The application is referred to enrollment
Committee of State Bar Council. The application may be allowed or rejected. Where the Enrollment
Committee of Bar Council propose to refuse any such application, it shall refer such application for
the opinion of the Bar Council of India.

It may be noted that Section 26A of Advocate Act empower a State Bar Council by amendment of
1973 to remove from the State Roll the name of any Advocate who is dead or from whom a request
has been received to that effect.

Section 27 of The Act Provides that where an application has been once refused, it cannot be
entertained by another Bar Council except in certain circumstances. It lays down that where a State
Bar Council has refused the application of any person for admission as an advocate on its roll, no
other State Bar Council shall entertain an application for admission of such person as an advocate on
its roll, except with the previous consent in writing of the State Bar Council which refused the
application and of the Bar Council of India.
 c) To Maintain Roll of Advocates -
Section 17. of Advocate Act, 1961 provides that every State Bar Council shall prepare and maintain
a roll of advocates in which shall be entered the names and addresses of all persons who were
entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926,
immediately before the appointed day including persons, being citizens of India, who before the 15th
day of August, 1947, were enrolled as advocates under the said Act in any area which before the said
date was comprised within India as defined in the Government of India Act, 1935, and who at any
time express an intention in the prescribed manner to practice within the jurisdiction of the Bar
Council also enroll all other persons who are admitted to be advocates on the roll of the State Bar
Council under this Act on or after the appointed date.
Each such roll of advocates shall consist of two parts - the first part containing the names of senior
advocates and the second part, the names of other advocates.
Section 19 of the Advocate Act, 1961, requires the State Bar Council to send copies of rolls of
advocates to the Bar Council of India. It provides that every State Bar Council shall send to the Bar
Council of India an authenticated copy of the roll of advocates prepared by it for the first time under
this Act and shall thereafter communicate to the Bar Council of India all alterations in, the additions
to, any such roll, as soon as the same have been made.

Powers of State Bar Council

a) Power to make rules

The State Bar Council has been empowered to make rules to carry on the purposes of section 16 to
Section 27 of the Advocate Act, 196, dealing with the admission and enrollment of advocate, Section
28(1) provides that the State Bar Council may make rules to carry out the purposes of chapter III
(Section 16 to section 28) of the Act but this rules shall not effective unless approved by Bar Council
of India.
b) Power to punish Advocate
The State Bar Council has Power to punish an advocate for professional misconduct and other
misconduct. The Disciplinary Committee of the State Bar Council may make any of the following
order -
(a)dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar
Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
c) To appoint Committees and Staff Members
A bar Council establishes several committees to its function under this Act including disciplinary
committee, executive Committee, Enrollment Committee, etc. Every such committee is allotted a
distinct function to carry.
d) To Maintain Accounts and Conduct Audit
Section 12. of Advocate Act 1961 provides that every Bar Council shall cause to be maintained such
books of accounts and other books in such form and in such manner as may be prescribed. The
accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of companies
under the Companies Act, 1956 (1 of 1956), at such times and in such manner as may be prescribed.
A State Bar Council shall send a copy of its accounts together with a copy of the report of the
auditors thereon to the Central Government and shall cause the same to be published in the Gazette
of India
 Duties of an Advocate
I) Duty towards public -
An advocate is a privileged member of the community and a gentleman besides being a
citizen. He has greater responsibility to protect the country and lead the community.
A) Duty towards country -
1) An advocate shall endeavor to make the laws suitable to the well-being of the people .

2) An Advocate shall guard the liberty and freedom of the people.

3) An Advocate should protect the fundamental and human rights and respect the constitution of the
nation.

4) An advocate should strive for social legislation's to accelerate the advent of socialistic pattern of
society in India by dedicating to the public service .

5)An advocate shall uphold the integrity and Unity of the nation .

6) An advocate shall educate the people to respect the law and respect for the courts and the judges .

B) Duty towards community -

1)An advocate shall establish Legal Aid Societies for the purpose of rendering legal assistance to
really poor and deserving persons free of any charge .
2) An advocate shall help the people local bodies such as panchayats in villages to function on sound
lines, so that the people may discharge their functions in an enlightened and responsible manner.

3) An advocate shall provide Legal education to the illiterate and working people by informing them
for the rights and legal provisions in simple language .

4)An advocate shall compose family differences and Settle petty Disputes and controversies by
amicable settlement.

5) An advocate shall educate the masses on the right lines to come out of many social ills from
which people are suffering.

6) An advocate shall work with social welfare committees to promote social order in which justice
,political ,economic and social will be assured to one and .

II) Duty towards the court

1) An advocate should be straightforward and his arguments should be pointed, clear, precise and
concise.
2) An advocate should have sense of humor and pleasing manners in his arguments.

3) An advocate must be tactful in presenting the matters.

4)An Advocate should not mislead the Court .

5) An advocate shall not influence the decision of the court by any illegal or improper Means.
6) An advocate shall appear in the court at all times only in the prescribed dress. He shall not wear a
band or gown in public places other than in Courts.

7) An advocate shall, when presenting his case and while otherwise acting before a court, conduct
himself with dignity and self respect.

8) An Advocate shall not enter appearance, act, plead or practice in any way before a Court , tribunal
or authority on behalf of close kith and Kin.

9) An advocate shall not criticize the Judiciary with malice .

10) An advocate should not act or plead in any matter in which he himself pecuniarily interested .

11)An advocate shall not stand as a surety or certify the soundness of a surety for his client, required
for the purpose of any legal proceedings.

12) An advocate Shall assist court by presenting fully the pertinent law in his case.

A) Duty towards the client-

1) An advocate shall fearlessly uphold the interests of his client by All fair and honorable means
without regard any unpleasant consequences to himself or any other .

2) An advocate shall fairly and reasonably submit the case on behalf of his client.

3) An advocate shall pay attention which he is capable of giving to the case he is dealing.

4) An advocate shall not act on the instructions of any person either than his Client or authorised
agent.

5)An advocate shall not ordinarily withdraw from engagements ones accepted, without sufficient
cause and unless reasonable and sufficient notice is given to the client.

6) An advocate shall not do anything whereby be abuses or takes advantage. of the confidence
reposed in him by his client.

7) An advocate shall not accept a fee less than the fee taxable under the rules when the client is able
to pay the same .

8) An advocate shall not adjust fee payable to him by his client against his own personal liability to
the client which liability does not arise in the course of his employment as an advocate.

9) An advocate should keep accounts of the clients money entrusted to him.

10) An advocate shall not lend money to his client for the purpose of any action or legal proceedings
in which he is engaged by such client.

11) An advocate shall not disclose Communications made to them in course of their professional
engagement even after the case is over.
B) Duty towards opponent -
1) An advocate shall not communicate or negotiate upon the subject matter of controversy with any
party represented by an advocate except through that advocate.
2) An advocate shall not mislead an opponent, or put him on the wrong scent regarding any point in
the case.

3) An Advocate shall do his best to carry out all legitimate promises made to the opposite party even
though not reduced to writing.

III) Duty towards colleagues -

1) An advocate shall not solicit work or advice directly or indirectly through Mass Communication.
2) An advocate shall not pursue his profession in spirit of competition or rivalry, with his brethren.

3) An advocate should be courteous to opposing Counsel and should accede io reasonable request
regarding Court proceedings .

4) An advocate shall not enter appearance in any case in which there is already a vakalatnama or
Memo of appearance filed by an advocate engaged for a party expect with his consent.

5) An advocate does not envy another advocate who attains to position and rank and earns well.

6) An younger advocate must be cordial and relationship and pay respect to senior advocates .

7) An advocates shall be ready to give help and advice to brother members.

8) An advocate shall strive at all the levels aid the legal profession in advancing the standard of
members of profession

9)Advocate should maintain their high traditions of Fearless Independence, probity and integrity,
and live up to their noble ideals, and dedicated lives for the Vindication of truth, and Justice, and
also for good of the common man.
 The Seven Lamps of Advocacy
The Seven Lamps of Advocacy, which have been referred as the qualities of an advocate to be
successful at the bar, are as follows:

1) Honesty:
Honesty is the best policy but in case of an advocate, it should be the foremost policy for a
professional Lawyer.

2) Courage:
Courage is the weapon which is developed through deep knowledge of law and strength forwardness
of the advocate. An advocate can be successful through boldness which is developed by him
persistently through his inner qualities.

3) Industry:
Good adequacy is the life of industry. Only and industrious advocate can become a successful
lawyer. The act of advocacy Industry makes an advocate successful in his profession. An advocate
must study in brief assimilate it in the same way as an actor studies his part of acting before going to
perform.

4) With
Wit is that lamp through which the Advocate enlightens his point of view to the presiding officer of
the court in his favour to win the case of his client.

5) Eloquence:
Eloquence of manner of an advocate is the real eloquence. In Eloquence there is display of physical
as well as psychological side of advocacy.

6) Judgement:
Through the lamp of Judgement, an advocate takes a final decision for his success through
perceptions and intuitions.

7) Fellowship:
It is the feeling of Fellowship among the advocates through which an advocate encourages his fellow
advocates to walk in the light of seven lamps of advocacy.

8) Tact:
Tact is the eighth lamp which enlightens an advocate to move forward in his profession. Tact is the
intellectual quality of an advocate. Through "tact" human side of putting things into action as a result
of his judgment of taking decision, is carried on by an advocate. ( This one is added by Justice Raj
Kishore Prasad.)
 10 Qualities of Successful Advocate
Justice Raj Kishore Prasad listed equipments of an advocate to be become a successful one as
follows-
1)Honesty integrity and character :
An advocate should be honest and must be a man of integrity and character. Along with these he
should possess straightforwardness to be appreciated by the court and the client alike. All great
people become great due to their divine knowledge, honesty and integrity. Honesty is the quality of
freedom from deceit, cheating, stealing and telling lies. Integrity is the quality of completeness and
upright in character. Character consisting both mental and moral qualities, make one person different
from others. these 3 virtues of honesty, integrity and character go a long way towards the success of
an advocate.

2) Patience and perseverance :

Patience is the power of enduring trouble, suffering, inconvenience without complaining. An
advocate with patience will have ability to wait for results, to deal with problems calmly and without
haste. Perseverance is consent effort to achieve something. Patience and perseverance ones are two
hands of success. An advocate who is capable of labour, with maximum patience self confidence
and Faith is honoured by all . He should not be Defeatist and pessimist. Exact thinking and exact
expression are needed for a successful advocate. Accuracy and diligence are much more necessary to
a lawyer than great comprehension of Mind or brilliancy of truant. says Daniel Webster.

3) Legal learning:
learning of law does not stop with the acquisition of law degree from a University. to acquire
professional knowledge he has to continue the learning process. To learn law an advocate should
study law, and not merely read it . He should not taste and chew the law but he should digest it. The
loss should be studied in spirit of enquiry. he must be through with the sections of Acts and case
study. He must study law to reach the height of running Encyclopaedia of law.
4) General education :
An advocate should not only be the master of his faculty in law but also the
contemporary knowledge of all the branches of sciences. He should have the knowledge of both
social sciences and Natural physical sciences. He must touch every field of human being and he has
to study all walks of life of human beings. If he is gifted with knowledge of all subjects he can claim
to be an architect in the profession .
5) Memory :
In general sense a memory means the power of keeping fact in the conscious mind and of being able
to call them back at will. An advocate should possess tenacious memory. and advocate has no use
of reading he fails to store the matter is memory . professor Blackie says , by memory I do not mean
wholesale reproduction, but the faculty of the mind that will help an advocate at the hour of need to
put his hand in the proper place, one that is cultivated and gained by system, order and classification
as the result of intensive study. an advocate may have in memory many things but if he fails to use
them skillfully then when needed they are of no use to him .

6) Study of Law Reports:

An advocates should read the current Law Reports to make it knowledge up to date . The Law
Journal and reports published the case laws and articles on law issues . An advocate should not only
study the Law Reports he should also preserve them to refer again and again and produce in the
court in support of his arguments.
7 ) Use of legal phraseology :
Every science has its own terminology. In the similar way law also has its phraseology peculiar to
itself every praise of law has it peculiar to itself. Every phrase of law has its peculiar special
meaning it carries. No other word is suitable to be used in its place. To express some feelings he
should use appropriate word to convey such meaning. The elegance and dignity of arguments in
court can be exposed through correct use of the language.
8) Manner in court:
An advocate should maintain calmness he should be a respectable to the court . He should never
interrupt the Judge when he speaks, but should wait for the judge to complete his statement. He
should not reply in hurry to the question put by the judge. He should speak politely.
An advocate should not argue when he is not asked for by the Judge. He should not continue his
argument when the judge asks him not to proceed further.
An advocate should not loss balance, or temper in the court if anything is expressed his
opinion. He can forcibly submit his opinion but with humility and modestly along with humour. He
should be exemplary, calm and cool and ever smiling. He should argue logically but not confront or
quarrel;
9) Presentation of case:
An advocate should I represent present meaningfully his case by arranging his thoughts in proper
sequence and chronological order without confusion he should present record of citation for his law
points presented. He should not give scope for the lapses of accuracy and misstatement for facts. He
should not repeat the arguments once again. An advocate should not conceal adverse points, But
present the special circumstances of them.
Citation of Authorities:
He should quote the applicable citations. He should always take care of citing the latest authority on
the particular point. If the decision of Supreme Court of privy Council are there which support his
case we should present them instead of decisions of lower courts. He should skillfully select correct
and suitable one among several decisions. He need not go for number of citations. It is always better
to cite a few recent cases which have a closed resemblance to the fact of his case. He should refer the
volume number, and page on which he wants to relay for his proposition of Law.
10) Independence and dignity :
An advocate should maintain his dignity Independence and integrity . An advocate should discharge
his duties fearlessly and faithfully. He should not be a headstrong and arrogant . He should not be
proud of himself. He should give consideration for others. He should fulfill his duties with the
eternal and immutable interests of truth and justice.
Meaning of Bar and Bench –
Bar - Bar is a collective term for the attorneys who are licensed to practice in the Courts, or a particular
court, of any state.

The term 'Bar' was originated in England with the partition of Bar fixed for dividing the court hall into two
parts for the purpose of separating lawyers and officers of the court from suitors and other general public.
Black's Law dictionary defines 'Bar' as the railing that separates the front area where the judge, court
personnel, lawyers and witness conduct court business, from the back area which provides seats for observers.
The same dictionary has also defined the ‘Bar’ as the whole body of lawyers qualified to practice in a given
court or jurisdiction; the legal profession or an organized sub-set of it.

“Encyclopedia of American explains that the term ‘Bar’ as a court room applied to the area impliedly
reserved for the principals of the court. i.e. the judge, the attorneys, the court officer and members of the
jury. At present Bar means a particular part of court room where lawyers sit.

Bench – Bench means all the judges taken together as distinguished from the ‘Bar’ the name for all the
members of the legal profession- bench is that part of the court considered in its official capacity, while the
judges are sitting. The earlier meaning of Bar contained the part of Bench also at the present term ‘Bar’ is
applied for the attorneys part of the court and the term is used for the judicial officers part of the Court.

2) Role of Bar Bench in Administration of Justice

The Bar and Bench play important role in the administration of justice. According to Justice
C.L. Anand, there is no office in the State of such power as that of the Judge. Judges hold power
which is immensely greater than that of any other functionary. The common people's life, and
liberty, personal domestic happiness, property, and reputation subject to the wisdom of the
judges and hang citizens on their decisions. If Judicial power becomes corrupt no security is left of
life, liberty expires, there no guarantee is left of personal or domestic happiness. A strong powerful,
impartial active and the capable judiciary is the greatest need of a State. On the account of the
importance of the judges in the maintenance of the orderly society, judges should perform their
duties.
Like Judges, Advocates also plays important role in the administration of Justice. Advocates
are officers of the Court, they are expected to assist the Court in the Administration of Justice.
Advocates collect materials relating to the case and thereby assist the Court in arriving at a
(conclusion)correct judgment. An advocate is a partner with the judiciary in the administration of
Justice.

3) Bar-Bench Relations:

Administration of Justice is not something which concerns Bench only. It concerns the Bar also.
Mutual respect is necessary for the maintenance of the cordial relations between the Bar and Bench.
Advocates and Judges are complementary to each other. Bar is the Principal ground for recruiting
Judges. So they both belong to the same community. ar and Bench should maintain cordial relations
with each other. But on account of nature of duties to be discharged by advocates and judges, they
may get into dialogues sometimes, humorous, sometimes heated and sometimes harsh.

Scandalising of the court by an advocate is really polluting the very foundation of justice and
such conduct by an advocate brings disrepute to the whole administration of justice.
 The attitude of an Advocate towards the Court should be one of the uniform respect, whatever the
status of the Court. Advocates Private opinion about the Presiding officer, he must not show in its
behavior because he has to uphold the dignity of the judiciary as an institution. At the same, it is
equally the duty of the judiciary not only to be polite towards the members of the Bar but to do
everything possible to advance ints high traditions.

The uncourteous conduct or misconduct of a lawyer or judge may amount to contempt of Court,
there are two Types of Contempt of Court. for example, using insulting language against a judge or
threatening him with transfer or impeachment or addressing the judge in a loose manner or
questioning his authority to ask questions or making scandalous allegations against a judge etc. It
amounts to contempt of Court. He is liable for his uncourteous act and punishable for such contempt
of Court. The punishment for contempt of Court is intended to protect the public confidence in the
system of Administration of Justice.
 Contempt of court : Defences in Criminal Contempt
1) Introduction :
Any act done or writing published calculated to bring a court or a Judge of the Court into Contempt
or lower his authority, is one class of contempt further , an act done or writing published calculated
to obstruct or interfere with due course of the courts, is another class of the Contempt of Court.
The purpose of the Contempt jurisdiction of court is, therefore, to uphold the majesty and dignity of
the law Courts and the image of such majesty in the minds of the public cannot be allowed to be
destroyed. An action for contempt is not for the purpose of placing judges in a position of immunity
from criticism but is aimed at protection of the freedom of individual and the orderly and equal
administration of laws. Contempt of Court Act 1971, Section 3 to 7 provides for defenses to the
persons charged with Criminal Contempt.

2) Meaning Contempt of Court :

Halsbury Laws of England defines Contempt of Court as , " Any act done or writing published
which calculated to bring a court or Judge into contempt or lowering authority or inference with due
course or lawful process of the court is the contempt of Court.

According to Oswald " Contempt of Court may be said to be constituted by any conduct that tends
to bring the authority and administration of law into disrespect or disregard or to interfere with or
prejudice parties to litigation or their witnesses during the litigation.

The Contempt of Court cannot be defined exhaustively. According Section 2(a) of the Contempt of
Court Act, 1971 Contempt of Courts means, Civil Contempt or Criminal Contempt.

3) Criminal Contempt :
According to Section 2(c) of the Contempt of Court Act, 1971 “Criminal contempt” means the
publication whether by words, spoken or written, or by signs, or by visible representation, or
otherwise of any matter or the doing of any other act whatsoever which -

(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice.

The definition of Criminal Contempt is wide enough to include any act of person which would tend
to interfere with administration of justice or which would lower the authority of the court. Doctrine
mens rea is not applicable and is not essential ingredient of the Criminal Contempt.

4) Defences In Criminal Contempt :

Section 3 to 7 of the contempt of Court Act 1971, provides for defences to the person charged with
criminal contempt are as follows :

I) Innocent publication and distribution of matter (Section 4)

(1) A person shall not be guilty of contempt of court on the ground that he has published whether by
words, spoken or written, or by signs, or by visible representations, or otherwise any matter which
interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in
connection with criminal proceeding pending at that time of publication, if at that time he had no
reasonable grounds for believing that the proceeding was pending.
(2) Notwithstanding anything to the contrary contained in this Act or any other law for the time
being in force, the publication of any such matter as is mentioned in sub-section (1) in connection
with criminal proceeding which is not pending at the time of publication shall not be deemed to
constitute contempt of court.
(3) A person shall not be guilty of contempt of court on the ground that he has distributed a
publication containing any such matter as is mentioned in sub-section (1), if at the time of
distribution he had no reasonable grounds for believing that it contained or was likely to contain any
such matter as aforesaid:

Provided that this sub-section shall not apply in respect of the distribution of —

(i) any publication which is a book or paper printed or published otherwise than in conformity with
the rules contained in section 3 of the Press and Registration of Books Act, 1867;
(ii) any publication which is a newspaper published otherwise than in conformity with the rules
contained in Section 5 of the said Act.

Explanation —
For the purposes of this section, a judicial proceeding —
(a) is said to be pending —
(A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise;
(B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898, or any
other law —
(i) where it relates to the commission of an offence, when the charge-sheet or challan is filed,
or when the court issues summons or warrant, as the case may be, against the accused, and
(ii) in any other case, when the court takes cognizance of the matter to which the proceeding
relates, and in the case of a civil or criminal proceeding, shall be deemed to continue to be pending
until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent,
until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred,
until the period of limitation prescribed for such appeal or revision has expired;
(iii) which has been heard and finally decided shall not be deemed to be pending merely by
reason of the fact that proceedings for the execution of the decree, order or sentence passed therein
are pending.

II) Fair and accurate report of judicial proceeding not contempt (Section 4)
Subject to the provisions contained In section 7, a person shall not be guilty of contempt of court for
publishing a fair and accurate report of a judicial proceeding or any state thereof.

III) Fair criticism of judicial act not contempt (Section 5)

A person shall not be guilty of contempt of court for publishing any fair comment on the merits of
any case which has been heard and finally decided.

IV) Bona fide Complaint against presiding officers of subordinate courts (Section 6)
A person shall not be guilty of contempt of court in respect of any statement made by him in good
faith concerning the presiding officer or any subordinate court to –
(a) Any other subordinate court, or
(b) The High court to which it is subordinate.

Explanation – In this section, ”subordinate court” means any court subordinate to a High court.
V) Publication of information relating to proceeding in chambers or in camera not contempt
except in certain cases (Section 7)

(1) Notwithstanding anything contained in this Act, a person shall not be guilty of contempt of court
for publishing a fair and accurate report of a judicial proceedings before any court sitting in
chambers or in camera except in the following cases, that is to say -
(a) Where the publication is contrary to the provisions of any enactment for the time being in
force.
(b) Where the court, on grounds of public policy or in exercise of any power vested in it, expressly
prohibits the publication of all information relating to the proceeding or of information of the
description which is published.
(c) Where the court sits in chambers or in camera for reason connected with public order or the
security of the State, the publication of information relating to those proceedings,
(d) Where the information relates to secret process, discovery or invention which is an issue in the
proceedings.

(2) Without prejudice to the provisions contained in sub section (1) a person shall not be guilty of
contempt of court for publishing the text or a fair and accurate summary of the whole, or any part, of
an order made by a court sitting in chambers or in camera, unless the court has expressly prohibited
the publication thereof on grounds of public policy, or for reasons connected with public order or the
security of the State, or on the ground that it contains information relating to secret process,
discovery or invention, or in exercise of any power vested on it.

VI) Contempt not punishable in certain cases (Section 13)

Section 13 of the Contempt of Court Act, 1971 provides that notwithstanding anything contained in
any law for the time being in force no court shall impose a sentence under this Act for a contempt of
court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends
substantially to interfere with the due course of justice.
In order to constitute Criminal Contempt, it is not necessary that there should be an actual
interference with the administration of justice, but it is sufficient if the publication or act complained
of is likely top interfere with the administration of justice.
Punishment for Contempt of Court -
According to Section 12 of The Contempt of courts Act ,1971, the following are the punishments for
the Contempt of court.
(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be
punished with simple imprisonment for a term which may extend to six months, or with fine which
may extend to two thousand rupees, or with both.
Provided that the accused may be discharged or the punishment awarded may be remitted on
apology being made to the satisfaction of the court.
Explanation –
An apology shall not be rejected merely on the ground that it is qualified or conditional if the
accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose
a sentence in excess of that specified in sub section for any contempt either in respect of itself or of a
court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil
contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of
imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that the he
be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court
is a company, every person who, at the time the contempt was committed, was in charge of, and was
responsible to, the company for the conduct of business of the company, as well as the company,
shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of
the court, by the detention in civil prison of each such person.

Provided that nothing contained in this sub section shall render any such person liable to such
punishment if he proves that the contempt was committed without his knowledge or that he
exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub section (4) where the contempt of court referred to
therein has been committed by a company and it is provided that the contempt has been committed
with the consent or connivance of, or is attributable to any neglect on the part of, any director,
manger, secretary or other officer of the company, such director, manager , secretary or other officer
shall also be deemed to be guilty of the be contempt and the punishment may be enforced, with the
leave of the court, by the detention in civil prison of such director, manager, secretary or other
officer.

Explanation –
For the purpose of sub sections (4) and (5)-
(a) “Company ” means any body corporate and includes a firm or other association of individuals,
and
(b) “Director” in relation to a firm, means a partner in the firm.
S.13 Contempt not punishable in certain cases
According to Section 13 of contempt of courts Act 1971, notwithstanding anything contained in any
law for the time being in force no court shall be impose a sentence under this act for a Contempt of
court unless it is satisfied that the contempt is of such nature that it substantially interference or
tends substantially to interfere with the due course of justice.
S.20 Limitation for actions for contempt
No court shall initiate any proceedings if contempt, either on its own motion or otherwise, after the
expiry of a period of one year from the date on which the contempt is alleged to have been
committed.
 CASE LAWS

Pandurang dattatray Khandekar vs Bar Council of India and others AIR,1984

Supreme Court 110.

A group of 12 advocate practicing in two courts of S.D. Ms in the collectorate of Pune are the
complainants both the state bar council and Bar Council of Delhi through its disciplinary committee
found the appellant and one Agvane Guilty of giving improper legal advice and held the charge of
professional misconduct provided the and suspended the appellant for a period of 4 months and
Agvane for a period of 2 months therefrom.

As regard the lenient punishment as stated above, the disciplinary committee observed:
" we take into consideration the age of the Advocate the family they have to maintain,
the environment in which they practice and the practice and the standard which is maintained in
such an environment is not very high as the bar council Association rules certify toutism and provide
for toutism which could be unthinkable anywhere else ."

In appeal , the supreme court observed that there is a difference between the Giving of improper
advice and giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency
on the on the part of legal practitioner in the exercise of profession does not amount to professional
misconduct; into that offence there must enter the element of professional misconduct element of
moral delinquency. of that there is no suggestion here, and there is no case to investigate, and that no
reflection adverse to his professional honour.

Prahlad Saran Gupta Vs. Bar Council of India (1997) (Professional MIsconduct)

Matter- Withholding of amount

The appellant Pralhad Saran Gupta was a practicing lawyer at Ghaziabad of UP. He was appearing
for the decree-holder in a case in the court of civil judge, Ghaziabad.
A complaint was received by the U.P. State Bar Council from Rajendra Prasad alleging him
withholding of Rs 1500/- without paying the decree-holder and with other allegations.

The Bar Council referred the case to it's disciplinary committee but it could not complete the
proceedings within one year and the same was transferred to the Bar Council of India .

The disciplinary committee of Bar Council of India did not find merit in the allegation in the
complaint that the appellant was grossly careless in handling the execution case. however , the
committee found the appellant guilty of gross professional misconduct regarding withholding RS.
1500/- and imposed the punishment of suspension from practice for a period of one year .

The appellate appealed the case to the Supreme Court. The Supreme Court found one charge against
the appellant established and that was withholding rs.1500/- rupees which was handed over to
him. The Court imposed the penalty of reprimand on the appellant said misconduct of wrongfully
retaining the amount.
Radha Mohan Lal V. Rajastan High Court (J.P Bench) (2003) 3 SCC 427

Judges : Y. K. Sabharwal
H. K. Seema

Facts :
Rajasthan High Court ( Jaipur bench) in March 1993 , delivered a judgement against the
Appellant Radha Mohan Lal and his advocate Shri Sualal Yadav, for committing Contempt of Court
and sentenced to 3 months simple imprisonment besides fine of Rs. 1000 each and in default of
payment, further simple improvement for 15 days.

The basis of initiation and Punishment for Contempt of Court is the statement made in
the application made before the single judge of High Court in a Civil revision application. In the
statement it was mentioned that the appellant and other petitioners have moved to complain in
writing against Honorable Shri. R.R. Kejriwal to the Honorable Chief Justice requesting him to list
the above revision before a Bench of which Shri. R.S.Kejriwal is not a member as they have
reasonable Grounds to believe that no impartial justice would be imparted from this Bench.

This revision petition arose out of an interim order passed in a civil suit filed by the
appellant Radha Mohan Lal and four other to ensure the access to the temple and not obstructed by
the Rajasthan Sports Council.

When The Contempt petition came up for hearing, the Appellant Radha Mohan gave an
undertaking to this Court that he shall file an affidavit within one week unconditional apology for the
allegations made by him against R.S. Kejriwal of the High Court of Rajasthan and shall tender such
apology to him. Accordingly, the Appellant tendered apology before the Court.

The matter came up for hearing before the Supreme Court. The Supreme Court set aside
the punishment of simple improvement as also the fine imposed on the Appellant. However, the case
of Appellant's advocate Sualal Yadav is different. He maintained that whatever he has written is as
per the instructions by his client and therefore he is not guilty.

The Supreme Court observed that the advocate cannot escape his responsibility for
drafting a scandalous notice to Magistrate on the ground that he did so in his professional capacity.

Supreme Court Held :

Advocate Sualal Yadav guilty of Contempt of Court and confirm the findings.
However, on the quantum of punishment it was reduced to on already undergone by the Appellant
while maintaining the fine and the improvement in default of payment.
 Types of contempt of courts

Section 2(A) of The Contempt of courts Act,1971 , provides that contempt of court means civil
contempt or criminal contempt .
Contempt of court classified mainly in two categories

1) Civil contempt of courts and

2) Criminal contempt of Court

The willful disobedience to the order of court is considered civil contempt, while the scandalizing or
lowering the authority of the court in the public eye is considered criminal contempt. The
classification or categorization of contempt of court into Civil and criminal are not closed. There are
several contempt which do not fall in any of them. for example, undue delay in pronouncing the
order by a judge or judge coming late to the court by amount to contempt of court, but they are not
covered exactly by the definition of classification of contempt in the act .
1) Civil contempt-
According to section 2 (b) of The Contempt of court Act, 1971, civil contempt means "willful
disobedience to any judgement, decree, direction , order, writ or other process of a court or
willful breach of an undertaking given to the Court . "
Thus Civil contempt consist of disobeying the orders and process of the court .Civil contempt
involves only the willful disobedience of the courts order or breach of undertaking given to the
court. The purpose of the proceeding for the Civil contempt is not only to punish the container but
also to exercise enforcement and obedience to the order of the court .
Civil contempt serves two purposes -
1) Vindication of the public interest by punishment of contemptuous conduct; and
2) coercion to compel the container to do what the court requires of him.

To constitutes 'civil contempt' the following things are required to be proved :

A) there is disobedience of the order, decree etc. of the court or breach of undertaking given to the
court ;and
B) the disobedience of Breach Is Wilful.
For civil contempt it is necessary that order which has been disobeyed must have been passed by the
court having jurisdiction to pass such order. If the order has been passed without jurisdiction , it is
not binding on the party against which it has been Passed by the and therefore disobedience of such
order will not amount to contempt of Court. The burden to prove that the court has no jurisdiction to
pass the order lies on the person who alleges it.
When the court orders a person to do something or not to do something, it is incumbent on that party
to comply with that order forthwith. The person disobeying the order of the court will alone be
responsible for the consequence and he cannot be heard to say that he referred the matter to his
higher officer.
 The breach of undertaking given to the court is also taken as contempt, if it is wilful. the basis for
taking the breach of undertaking as contempt of court is that the container by making a false
representation to the court obtains a benefit for himself and if he fails to Honour the undertaking, he
plays a serious fraud on the Court itself and thereby obstructs the course of justice and brings
disrepute to the judicial institution. But the breach of undertaking recorded are forming part of
compromise decree, would not amount to contempt of court.
For civil contempt , the disobedience of the order, decree, etc .of the court or breach of undertaking
given to The Court Must Be willful . Willful means the action or state for which compulsion of
ignorance or accident cannot be pleaded as excuse, intentional, deliberate, due to perversity or self-
will. To establish that the disobedience is willful , it is not necessary to show that it is
contumacious in the sense that there is a direct intention to disobey the order; it is sufficient to show
that effective administration of justice requires some penalty for disobedience to the order of the
court ,if it is a more than casual, accidental or unintentional .
The reasons of the Civil contempt is willful disobedience to any judgement degree , direction, order,
or writ of a court, and not Mere inaction to give effect to it . The conduct of the alleged contemner
must be willful showing deliberate and conscious disregard of the court order . or a despising or
disdainful attitude towards the verdict of the court .
If a party who has full knowledge of the order of the court or is conscious and aware of the
consequences and implications of the court's order, ignores it or acts in violation of the courts order,
it must be held that disobedience is willful.
Whether the disobedience has been wilful or not It is an issue to be decided by the court, taking into
account the facts the circumstances of the case.
2) Criminal contempt -

According to Section 2(c) of The Contempt of courts Act, 1971 , "criminal contempt" means the
publication ( whether by words, spoken or written, or by signs ,or by visible representations, or
otherwise) of any matter or the doing of any other Act whatsoever which -

I) scandalize or tends to scandalize, or lower or tends to lower, the authority of any Court ;or
II) prejudice or interfere or tents to interfere with, the due course of any judicial proceeding ; or
III) interface or tends to interfere with or obstructs, tends to obstruct, the administration of justice in
any other manner.
Criminal contempt is a conduct directed against dignity of Court.
Criminal contempt is directed against the power and dignity of the court. The definition of criminal
contempt is wide enough to include any act of a person which would tend to interfere with the
administration of justice or with which would lower to the authority of the court.
To constitute the criminal contempt it is not necessary that the publication or other acts should have
actually resulted in scandalizing or lowering the authority of the court but it is enough that the act is
likely to result in scandalizing. Thus the offense of contempt is complete by mere attempt and does
not depend on actual deflection of Justice .
'Scandalize' connotes to speak falsely, or maliciously, to bring into approach ,dishonor, disgrace, to
offend the feelings, conscious or property of an action. ' scandalize' also means to offend a moral
feeling, and to make a public scandal of, to utter false or malicious reports of a person's conduct,
slander, or to bring same or discredit or to disgrace . We can say that the disgraceful word
scandalize means the defamatory , derogatory, false malicious disgraceful statements regarding the
persons as Judges.
It is for the court to decide whether or not the publication or act is likely to scandalize or lower the
authority of the court or interfere with due course of any judicial proceeding for administration of
justice.
The publication act will be taken as criminal contempt, if it has resulted in scandalizing the authority
of court or interference with the due course of judicial proceedings or interfering the administration
of justice in any matter.
The word ' Publication ' was given very wide meaning . The publication may be by words written or
spoken by sign's or by visible representations or otherwise of any matter. but in the Act it is not clear
as to whether the publication should be taken to mean Publication to the general public or any kind
of Publication.
Scandalizing the court means any hostile criticism of the judge ; any Personal attack on him
unconnected with the office he holds, is dealt with under the ordinary rules of Slender and libel. The
criticism can form the basis for committal of contempt of court only if it is made against the judge
in exercise of his judicial function.
The publication which prejudice or interferes with or tends to interfere with, the due course of any
judicial proceeding is taken as contempt of court . Whenever the publication or any other act unduly
influences the result of a litigation it is treated as criminal contempt of court and a
punished therefore.
If the parties to a pending proceeding are abused and vilified and the words are likely to cause
prejudice to the case, it will amount to contempt of court.
The publication of doing of any other act which interferes or tend to interfere with or obstructs or
tend to obstruct the administration of justice in any of other manner is also taken as contempt of
court .
An Advocate is an officer of the court and hence undue interference with the Advocate in the
discharge of his professional functions amount to contempt of court .
Any conduct by which course or Justice is prevented either by a party or a stranger is a contempt of
court. Any person who interfere or prevent other person from coming to the stream of justice is he
liable for contempt of Court. The Court must be very careful in analyzing the facts and
circumstances of the case for determining whether or not the action taken by a person amounts to
interfere with the course of Justice.
Witnesses are also integral part of the judicial process and they must have freedom to perform their
duties and so interference with performance of their duties is taken as contempt of Court
Abuse of the process of court calculated to hamper the due course hamper of judicial proceedings or
the administration of Justice amounts to contempt of court.