1. Write a note on development of legal profession in India.

Ans. Introduction

The legal profession is an important branch of the administration of justice mechanism. Without
a well-organized legal profession, the courts would not be in a position to administer justice
effectively, as the evidence for or against the parties to a lawsuit cannot be adequately
gathered, the facts cannot be adequately expressed, and the best legal arguments in support of
or against the case of the parties cannot be presented in court. Although it has a federal
structure, the distinctive character of India according to Constitution has an effect on the
country to have a merged bar. The pre-constitutional legal framework had to go through a
modification in the scene of the struggle of the people of India to achieve their liberation from
the colonial rulers and the eventual takeover of a Democratic-Republican Constitution.

The Indian legal profession is one of the most widespread in the world, with more than 1.4
million registered lawyers across the country. The approximate total value of the Indian legal
market as of 2020 was approximately USD 1.25 billion. The legal profession, which developed
out of colonial India, has seen great variation since its independence. The hard work of the
members of the bar to achieve excellence in all areas of their practice through rigid competition
is not only evident in each of their confrontations with new challenges due to technological and
other growth, but also in the recognition received by them in the world. Historically, members
of the bar association have offered guidance both nationally and internationally. Today the
possibilities are much greater.

History of the legal profession in India

The history of the legal profession in India can be traced back to the establishment of the First
British Court in Bombay in the year 1672 by the respective Governor Aungier. Admissions of
attorneys were placed in the hands of the Governor in Council and not in Court. Before the
establishment of the Greater Courts in 1726 in Madras and Calcutta, there were no legal experts
in India. There was no established legal profession until the establishment of the Mayor’s Court.
Lawyers lacked legal training, and some of the mayor’s court officials were dismissed servants of
the British East India Company. There were some years that played an important role in the
creation of courts in India.

The legal profession in ancient India

In ancient India, people lived in small groups. The heads of these groups or tribes pronounced
justice in public before all members. Arguments were presented openly. In those days, there
were no specialists like lawyers. When kings established themselves in society, they dispensed
justice. At the royal court, the king was advised by his advisors. The law of those days had its
roots in Hindu religion and customs. Dharma was protected by the king. Though there were no
bar associations, some intellectuals ensured justice. From the stories of Maryada and
Vikramaditya, who were the sage who solved the critical cases of those days. In those days,
justice was administered by administrators. For a time, religious leaders dominated society in
the administration of justice. In those days, the victim filed a complaint with the king and later
the court summoned the accused to present his response. The court then investigated the
matter based on the evidence. The king followed the advice of the religious leaders and wise
courtiers and then passed his sentence.

The legal profession in medieval India

During the medieval period, there has been no group of the criminal profession. But each event
to the litigation called their Vakils. This frame comes to a decision the case and that they have
been paid a percentage of the quantity of the claim. The Court has the authority to determine
who needs to be allowed to seem as Vakils. They act as agents for the directors, however now
no longer as attorneys. The identical device persevered in northern India even beneath neath
the guideline of thumb of the East India Company.

The legal profession in British India

During the British period, the current legal system evolved in India. Before 1726, the courts
derived their authority now no longer from the British crown however from the East India
Company.

Mayors court

In the Charter of 1726, which established the Courts of the Mayor’s Office in the three cities of
the Presidency, no specific provision was made that established particular requirements for the
persons who would have the right to act or advocate as lawyers in these courts. Presumably,
these courts were left to regulate this matter by rules of practice that these courts were
authorized to frame. No change was made to this position when a new Charter was issued in
1753. No organized legal profession emerged in the Presidential Cities during the period of the
court of the Mayor. Those who practiced law lacked legal training or legal knowledge. They had
adopted the profession for want of something better to do. Many of these alleged attorneys
were dismissed employees of the Company.

Madras and Bombay regulations

Madras Regulation X of 1802 literally copied Bengal Regulation VII of 1793 with minor verbal
attractions. One notable difference is that the plaintiffs were allowed to stipulate more, but not
less, than the regulatory fee they were paid. Madras Regulation XIV of 1816 was inspired by
Bengal Regulation XXVII of 1814. It provided some decentralization of the powers of the courts
over Vakils. In Bombay, Regulation XIV of 1802 was a consolidating regulation based entirely on
the Bengal regulation verbatim with minor variations here and there. Further consolidation of
the regulations relating to lawyers was affected by Regulation I of 1827, which repealed all
previous Regulations on the subject. The Regulations went far beyond the Bengal regulations,
for example, every duly qualified person had the right to obtain sand to practice without any
admitted reference to practice in court, and henceforth any qualified person of good character
was promulgated between the Vakil and the client was recognized and a lawyer could agree
with his client a higher or lower rate than the established rate.

Mukhtars, and Revenue Agents

For an extended time, unlicensed decrease grades of practitioners functioned withinside the
mofussil, called mukhtars, who practiced in criminal courts and acted as legal professionals for
the leaders. There also are appearing revenue sellers in sales workplaces. All of those had been
identified and taken beneath neath the management of the courts for the primary time via Act
XX of 1865, Mukhtar and Revenue Agents. The Superior Courts had been legal to dictate the
guidelines for the qualifications, admission, and registration of the proper persons be the leader,
Mukhtars, for the charge to be paid for the exam, admission, and registration. Tax sellers
operating in tax places of work and courts additionally obtained the fame of legal professionals
beneath neath this law. They had been taken into consideration to be the bottom grade and did
now no longer play a vast function withinside the improvement of the legal profession.

Development of legal profession in India after Independence

In 1951, the All-India Bar Committee was formed under the chairmanship of Justice S.R. Das. In
its report, the committee recommended the establishment of an All-India Bar Council and State
Bar Councils. It recommended the powers of registration, suspension, or dismissal of the
lawyers of the Bar Association. He recommended that the common role of defenders is
maintained and that they be authorized to practice in all the country’s courts. Furthermore, it
recommended that no more lawyers or undergraduate mukhtars be hired. The Fifth Law
Commission of India made similar recommendations in its fourteenth report.

Advocate’s Act,1961

The Advocate’s Act of 1961 amended and mixed the regulation referring to criminal experts and
gave for the charter of the State Bar Councils and an All-India Bar Association, the Bar Council of
India as its principal body. The Indian Council of Lawyers includes the Attorney General of India
and the Attorney General of India as Ex-Officio individuals, in addition to an elected member
from every State Bar Council. The contributors of the State Bar Councils are elected for a
duration of 5 years. Some distinguished functions of the Bar Council of India are:

(1) Establish requirements of expert behaviour and courtesy for defenders;

(2) Establish the mechanism to be observed via way of means of your healing committee.

(3) Promote and help criminal reform.

(4) Updating criminal schooling and enjoyable the requirements of such information in
discussions with the Indian universities that transmit such schooling and the Councils of the
State Bar Association.
(5) Adjust criminal help to the bad withinside the prescribed manner;

(6) Recognize on a reciprocal foundation overseas qualification in regulation received out of

doors of India at the grounds of admission as suggest in India.

The Indian Bar Association is chaired via way of means of a President and Vice President, who’re
decided on from the council contributors for a duration of years. Each of the states of India has a
State Bar Council. Each of the State Bar Councils has a specific range of contributors relying upon
the numerical power of the legal professionals on their lists, who’re elected as contributors of
the State Bar council consistent with the proportional illustration system.

Legal education

The Indian Bar Association is responsible for the promotion of legal education and sets the
standards of legal knowledge in consultation with the universities. The Bar Association accepts
legal education centers and also prescribes various types and standards of courses of study,
admission capacity, infrastructure demands, and course structures.

The Bar Association also visits and audits these legal education centers as part of its statutory
functions. The Bar Association was also responsible for driving the next level of evolution in legal
knowledge in the country by establishing the first National University of India Law School in
Bangalore. The inception of this premier law school has brought about a paradigm shift in law
teaching and research.

Bar Council of India trust

The Bar Council of India Trust is a charitable public trust aimed at further legal research and
education. The Trust produces a quarterly publication known as the “Indian Bar Review”. It also
runs a national moot court competition and a variety of seminars and workshops as part of its
ongoing Legal Education Program. A scholarship and placement scheme for young attorneys was
initiated in order to provide financial assistance to the best candidates, which is being followed
by the trust.

Conclusion

The Advocate’s Act of 1961 ushered in a new era in the history of the legal profession by
conferring to a large extent on bar boards the power and jurisdiction previously exercised by the
courts. It has fulfilled the aspirations of those who had been demanding an All-India Bar
Association and effecting a unification of the Bar Association in India by creating a single class of
practitioners empowered to practice in all courts. They are now subject to the rules established
in the code of conduct established by their own bodies to which members can turn for the
protection of their rights, interests, and privileges.

Therefore, the legal profession can play a fundamental role in the defence of individual rights
and in the effective dissemination of justice, while acting as an integrating force in national life.
 It is now part of the modern legal system that provides both the personnel and the techniques
for efficient rational utility. The responsibility of this profession towards Indian society is really
great, as has been its history.

However, not all that glitters is gold. The responsibility that the Indian Bar Association has to
society and the challenge it faces today testify that the Indian Bar Association has not risen to
the level to fulfill its functions. The highest obligation is to provide free legal aid to the “destitute
and oppressed.” This obligation is subject to the limits of the economic condition of the lawyer.
But we know that even superstar attorneys whose financial conditions are exceedingly
prosperous even summarily refuse to see an indigent person in dire need of legal assistance.
Most high-profile attorneys steer clear of state legal aid programs. Unless the bar leaders do
some introspection and put the profession back on the rails, all we are left with is an occupation
and not a profession.

2. Explain the meaning and scope of Professional and other misconduct and the Roll of Bar Council
of India State Bar Council in dealing with such matters of misconduct.

Ans. Lawyering is such a graceful and honourable profession that common citizens expects any
advocate to be serious in his/her work. The law expects that Nothing should be done by any
member of the legal fraternity which might tend to lessen in any degree the confidence of the
public in the fidelity, honesty and integrity of the profession.

With a view to maintain professional ethics among advocates, law provides punishment for
those advocates who breach the common rule of professional ethics. So when a person from
legal profession especially advocates do any improper conduct wilfully, that is called
“professional misconduct.” It disqualifies that advocate to continue with legal profession.

DEFINITIONS OF MISCONDUCT

Misconduct has not been defined in the Advocates Act, 1961. But P. Ramanatha Aiyar’s the Law
Lexicon, Reprint Edition 1987 at p.821 `misconduct’ defines thus:-

“Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite

law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily
indefinite.

Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by

which the rights of a party have been affected.”

The expression professional misconduct was attempted to be defined by Darling J. in A Solicitor

ex p the Law Society, in re [1912 (1) KB 302)[3]in the following terms:

If it is shown that an advocate in the pursuit of his profession has done something with regard to
it which would be reasonably regarded as disgraceful or dis-honourable by his professional
brethren of good repute and competency, then it is open to say that he is guilty of professional
misconduct.

In RD Saxena vs. Balram Prasad Sharma [2000 (7) SCC 264] this Court has quoted the above
definition rendered by Darling J., which was subsequently approved by the Privy Council in
George Frier Grahame vs. Attorney General (AIR 1936 PC 224) and then observed thus:

Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the
expression misconduct, professional or otherwise. The word misconduct is a relative term. It has
to be considered with reference to the subject matter and the context wherein such term
occurs. It literally means wrong conduct or improper conduct.

Thus, misconduct may involve-

 moral turpitude, it must be improper or wrong behaviour;

 unlawful behaviour, wilful in character;
 forbidden act,
 a transgression of established and definite rule of action or code of conduct but not
mere error of judgment, carelessness or negligence in performance of the duty;

Its ambit has to be construed with reference to the subject matter and the context.

ROLE OF BAR COUNCIL OF INDIA

Advocates act, 1973 gives the wide power to bar council of India to deal with the matter of
professional conduct.

The functions of the Bar Council of India are inter alia to lay down standards of professional
conduct and etiquette, to lay down the procedure to be followed by its disciplinary committee
and the disciplinary committee of State Bar Councils, to safeguard the rights, privileges and
interests of advocates and to exercise general supervision and control over State Bar Councils
Disciplinary committees are constituted by each Bar Council.

PROVISION FOR THE DISCIPLINARY PROCEEDING AGAINST ADVOCATE UNDER ADVOCATES

ACT AND BAR COUNCIL OF INDIA RULES

PROVISIONS UNDER ADVOCATES ACT, 1961

Procedure of punishment, inquiry, appeal, proceeding for professional misconduct in legal

profession is provided in chapter V of advocates Act, 1961. Some of main provisions are
hereunder-

PROCEEDING TO HEAR THE COMPLAINT- (SECTION 35, 36B, 41, 42)- Where on receipt of a
complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll,
has been guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee.
The expression “reason to believe” is employed in section 35 of the Act only for the limited
purpose of using it as a filter for excluding frivolous complainants against advocate.

The disciplinary committee of a State Bar Council after giving the advocate concerned and the
Advocate-General an opportunity of being heard, may make any of the following orders,
namely: ―

 dismiss the complaint or, where the proceedings were initiated at the instance of the
State Bar Council, direct that the proceedings be filed;
 reprimand the advocate;
 suspend the advocate from practice for such period as it may deem fit;
 remove the name of the advocate from the State roll of advocates.
 When an order is made reprimanding or suspending an advocate, a record of the
punishment shall be entered against his name-
 in the case of an advocate whose name is entered in a State roll, in that roll;
 and where any order is made removing an advocate from practice, his name shall be
struck off the State roll;
 Where any advocate is suspended or removed from practice, the certificate granted to
him in respect of his enrolment shall be recalled. (section 41)

In each case the proceedings shall be concluded within a period of one year from the date of the
receipt of the complaint or the date of initiation of the proceedings at the instance of the State
Bar Council. (section 36B)

Where an advocate is suspended from practice, he shall, during the period of suspension, be
debarred from practicing in any court or before any authority or person in India.

Powers of disciplinary committee (section 42)- The disciplinary committee of a Bar Council shall
have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, in
respect of the following ma ers, namely: ―

 summoning and enforcing the attendance of any person and examining him on oath;
 requiring discovery and production of any documents;
 receiving evidence on affidavits;
 requisitioning any public record or copies thereof from any court or office;
 issuing commissions for the examination of witnesses or documents;
 any other matter which may be prescribed:

However, no such disciplinary committee shall have the right to require the attendance of—

 any presiding officer of a court except with the previous sanction of the High Court to
which such court is subordinate;
 any officer of a revenue court except with the previous sanction of the State
Government.
  APPEAL (SECTION 37, 38)- An advocate aggrieved by the decision of state bar council,
may prefer an appeal to Bar council of India (section 37) within sixty days of the date of
the communication of the order to him.

And If any advocate is also not satisfied with the decision of bar council of India, s/he can appeal
in Supreme court (section 38) against that decision, within sixty days of the date of the
communication of the order to him again.

 REVIEW (SEC 44)- The disciplinary committee of a Bar Council may review any order
within sixty days of the date of that order, passed by it. However, no such order of
review of the disciplinary committee of a State Bar Council shall have effect unless it has
been approved by the Bar Council of India.

BAR COUNCIL OF INDIA RULES

Section 49 of the advocates act 1961 empowers the Bar Council of India to frame rules
regulating standards of professional conduct. Thus, “Bar Council of India rules” were enacted.

 Chapter X of the rules, laid down the complete procedure for the review of application,
made under section 48AA of advocates act.
 Part IV is related to the “rules governing advocates”. And Chapter II of this part laid
down the rules on the “standards of professional conduct and etiquette”, which are in
brief as following.
 SECTION 1- DUTY TO THE COURTS-
 An Advocate shall, before a Court, conduct himself with dignity and self-respect.
 An Advocate shall maintain towards the Courts a respectful attitude, bearing in mind
that the dignity of the judicial office is essential for the survival of a free community.
 An Advocate shall not influence the decision of a Court by any illegal or improper
means. Private communications with a judge relating to a pending case are forbidden.
 An Advocate shall use his best efforts to restrain and prevent his client from resorting to
sharp or unfair practices or from doing anything in relation to the Court, opposing
counsel or parties which the Advocate himself ought not to do.
 An Advocate shall appear in Court at all times only in the prescribed dress, and his
appearance shall always be presentable.
 An Advocate shall not wear bands or gown in public places other than in Courts except
on such ceremonial occasions and at such places as the Bar Council of India or the Court
may prescribe.
 An Advocate shall not appear in or before any Court or Tribunal or any other authority
for or against an Organisation or an institution, society or corporation, if he is a member
of the Executive Committee of such Organisation or institution or society or corporation.
 An Advocate should not act or plead in any matter in which he is himself pecuniarily
interested.
 SECTION II – DUTY TO THE CLIENT-
 An Advocate shall not ordinarily withdraw from engagements once accepted, without
sufficient cause and unless reasonable and sufficient notice is given to the client.
 An Advocate should not accept a brief or appear in a case in which he has reason to
believe that he will be a witness and if being engaged in a case, it becomes apparent
that he is a witness on a material question of fact, he should not continue to appear as
an Advocate if he can retire without jeopardising his client’s interests.
 It shall be the duty of an Advocate fearlessly to defend a person accused of a crime
regardless of his personal opinion as to the guilt of the accused, bearing in mind that his
loyalty is to the law which requires that no man should be convicted without adequate
evidence.
 An Advocate shall not buy or traffic in or stipulate for or agree to receive any share or
interest in any actionable claim. Nothing in this Rule shall apply to stock, shares and
debentures or Government securities, or to any instruments, which are, for the time
being, by law or custom negotiable, or to any mercantile document of title to goods.
 An Advocate shall not do any thing whereby he abuses or takes advantage of the
confidence reposed in him by his client.
 Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of
any moneys of the client remaining in his hands, at the termination of the proceeding
for which he had been engaged.
 An Advocate who has, at any time, advised in connection with the institution of a suit,
appeal or other matter or has drawn pleadings, or acted for a party shall not act, appear
or plead for the opposite party.
 SECTION III – DUTY TO OPPONENT
 An Advocate shall not in any way communicate or negotiate upon the subject matter of
controversy with any party represented by an Advocate except through that Advocate.
 An Advocate shall do his best to carry out all legitimate promises made to the opposite
party even though not reduced to writing or enforceable under the rules of the Court.
 SECTION IV – DUTY TO COLLEAGUES
 An Advocate shall not solicit work or advertise, either directly or indirectly, whether by
circulars, advertisements, touts, personal communications, interviews not warranted by
personal relations, furnishing or inspiring newspaper comments or producing his
photograph to be published in connection with cases in which he has been engaged or
concerned. His sign-board or name plate should be of a reasonable size. The sign-board
or name-plate or stationery should not indicate that he is or has been President or
Member of a Bar Council or of any Association or that he has been associated with any
person or Organisation or with any particular cause or matter or that he specialises in
any particular type of work or that he has been a Judge or an Advocate General.
 An Advocate shall not permit his professional services or his name to be used in aid of,
or to make possible, the unauthorised practice of law by any agency.
  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 except
with his consent.
 SECTION VI – DUTY TO RENDER LEGAL AID
 Every Advocate shall in the practice of the profession of law bear in mind that any one
genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay
for it fully or adequately and that within the limits of an Advocate’s economic condition,
free legal assistance to the indigent and oppressed is one of the highest obligations an
Advocate owes to society.
 SECTION VII – RESTRICTION ON THEIR EMPLOYMENTS
 An Advocate shall not personally engage in any business; but he may be a sleeping
partner in a firm doing business provided that, in the opinion of the appropriate State
Bar Council, the nature of the business is not inconsistent with the dignity of the
profession.
 An Advocate may be Director or Chairman of the Board of Directors of a company with
or without any ordinary sitting fee, provided none of his duties are of an executive
character. An Advocate shall not be a Managing Director or a Secretary of any company.
 An Advocate shall not be a full-time salaried employee of any person, government, firm,
corporation or concern, so long as he continues to practise, and shall, on taking up any
such employment, intimate the fact to the Bar Council on whose roll his name appears,
and shall thereupon cease to practice as an Advocate so long as he continues in such
employment.
 An Advocate who has inherited, or succeeded by survivorship to, a family business may
continue it, but may not personally participate in the management thereof.
 An Advocate may review Parliamentary Bills for a remuneration, edit legal text books at
a salary, do press-vetting for newspapers, coach pupils for legal examination, set and
examine question papers; and, subject to the rules against advertising and full-time
employment, engage in broadcasting journalism, lecturing and teaching subjects, both
legal and non-legal.
 Complete procedure for the disciplinary proceeding against advocate, is mentioned in
Chapter VII of Rules. Chapter I is related to Complaints against advocates and procedure
to be followed by disciplinary committees of the state bar council and the bar council of
India. And chapter II is related to the review of the decision.

EXAMPLE OF PROFESSIONAL MISCONDUCT THROUGH CASE LAWS

 Writing a letter to his client to send money to bribe the Judge is a serious misconduct.

In Shambhu Ram Yadav vs Hanum Das Khatry, while giving above decision, the supreme court
said that The disciplinary bodies are guardians of the due administration of justice. They have
requisite power and rather a duty while supervising the conduct of the members of the legal
profession, to inflict appropriate penalty when members are found to be guilty of misconduct. It
is the duty of the bar councils to ensure that lawyers adhere to the required standards and on
failure, to take appropriate action against them.

 It is not in accordance with professional etiquette for one advocate to hand over his
brief to another to take his place at a hearing (either for the whole or part of the
hearing), and conduct the case as if the latter had himself been briefed, unless the client
consents to this course being taken.
 Advocate abusing the process of court is guilty of misconduct. When witnesses are
present in Court for examination the advocate concerned has a duty to see that their
examination is conducted. Seeking adjournments for postponing the examination of
witnesses who are present in Court even without making other arrangements for
examining such witnesses is a dereliction of advocates duty to the Court as that would
cause much harassment and hardship to the witnesses. Such dereliction if repeated
would amount to misconduct of the advocate concerned.

Legal profession must be purified from such abuses of the Court procedures. Tactics of
filibuster, if adopted by an advocate, is also professional misconduct.

 An advocate is a guilty of professional misconduct if he did not inform the complainant

about the progress of the case nor called upon the complainant to furnish any copies of
any of the proceedings.
 It is amounts serious professional misconduct if the advocate and his/her associates
misappropriates the money paid to them for court fee, miscellaneous expenses and the
professional fees, also if they don’t return the documents and other papers handed over
to them for filing the suit and they don’t inform the status of case even after asking
again and again.
 Bar Council of Maharashtra v. M.V. Dahbolkar is a very interesting case. The facts under
consideration involved advocates positioning themselves at the entrance to the
Magistrate’s courts and rushing towards potential litigants, often leading to an ugly
scrimmage to snatch briefs and undercutting of fees. The Disciplinary Committee of the
state Bar Council found such behavior to amount to professional misconduct, but on
appeal to the Bar Council of India, it was the Bar Council of India absolved them of all
charges of professional misconduct on the ground that the conduct did not contravene
Rule 36 of the Standards of Professional Conduct and Etiquette as the rule required
solicitation of work from a particular person with respect to a particular case. This
approach of the Bar council of India was heavily reprimanded by the Supreme Court.

It was held that “professional ethics cannot be contained in a Bar Council rule nor in traditional
cant in the books but in new canons of conscience which will command the member of the
calling of justice to obey rules or morality and utility.”

 In Hikmat Ali Khan V. Ishwar Prasad Arya [1997 (3) SC 131] the concerned advocate
assaulted his opponents with a knife. He was prosecuted and found guilty of
 commission of an offence under Section 307 of the IPC. In the aforementioned situation,
it was held that the advocate deserves the extraordinary punishment of removal of his
name from the state rolls of advocates.

DETERMINATION TO THE QUANTUM OF PUNISHMENT

A professional or other misconduct committed by a member of the profession should ordinarily

be judged qua profession. To determine the quantum of punishment which may be imposed on
an advocate, the test of proportionality shall be applied which would also depend upon the
nature of the acts complained of. No universal rule thus can be laid down as regard initiation of
a proceeding for misconduct of a member of the profession.

CONCLUSION

There is a saying that, “God save from the white coat (doctors) and black coat (lawyers).”
Because if anyone falls in the circle of them, s/he will not be able to remove himself/herself
easily without spending a good amount of money.

But situation can be worst if lawyers will cheat the people with extracting amount from them. It
will lessen the nobility and fidelity of the lawyers in the eyes of the people. There are a number
of people who have no idea that they can report against the advocate if he did something very
wrong against them. But a common person who already is stuck in a case how can we expect
him that he will report against the advocate so most the time, only literate person come against
the misconducts of lawyers.

Law is a noble profession, true; but it is also an elitist profession. When the constitution under
Article 19 enables professional expertise to enjoy a privilege and the Advocates Act confers a
monopoly, the goal is not assured income but commitment to the people whose hunger,
privation and hamstrung human rights need the advocacy of the profession to change the
existing order into a Human Tomorrow. This desideratum gives the clue to the direction of the
penance of a devient geared to correction. Serve the people free and expiate your sin, is the
hint.

3. Explain the “ Ideal Bar – Bench Relations “.

Ans. Introduction

Attainment of justice for all the parties of the case and the society at a large is the main
objective of our Judicial system. The Bar and Bench are the essential partners for fulfilling this
objective of our judicial system, with the judiciary at the top of a vibrant bar. Both the partners
must have mutual understanding and respect between each other, and each partner has its
duties which they should perform diligently and effectively in order to enable the system to
function in its best way. Failure of performing any duty by anyone partner will affect the other
partner naturally. Thus it’s the duty of both the partners i.e the Bench and Bar to perform their
work diligently effectively, and honestly in order to achieve justice in society.
In Calabar East Cooperative Thrift & Credit Society Ltd. V. Ikot (1999) case the Supreme Court of
Nigeria has summed up the respective duties of Bar and Bench in the administration of justice
thus :

“In our Adversary system, the object of adjudication is that the party shall come to the court
with his case which will make the opposite party respond to the case filed by the party, and then
the judge, will adjudicate on the issues in controversy impartially.”

Bar and Bench

There are two parts in a court where cases are conducted namely:

1. The Bench, i.e. the place where the judges take their seat.
2. Bar, i.e. the place where the advocates stand.

The judges are known as the “Bench” and the Advocates are known as the “Bar”. The relation
between the judges and Advocates are referred to as the Bar and Bench relation. Speedy justice
and the faith the public has on the judiciary depend on the relation between the judges and the
Advocates and in the administration of justice the role of Advocates is equally important as that
of judges. Providing justice is the joint responsibility of both the judges and the Advocates.

Duties of Bar and Bench in administration of justice

In the administration of justice, Bar and Bench plays an important role. Following are the duties
of the Bench and the Bar which they should perform for the administration of justice.

Duties of the Bench

In the state, there is no office of such powers as that of the judge, as the powers which are held
by judges are greater than any other functionary. The citizen’s life, liberty, personal domestic
happiness, reputation, and property all are subject to the wisdom of the judges and all the
citizens have to comply with the judge’s decision. If judges become corrupt there will be no
security left with citizens to life and liberty, and also there will be no guarantee of personal
domestic happiness to them. Thus, the state needs a judiciary that is strong, powerful, and
impartial. The judges shall perform the following duties:

Patient Hearing

While hearing cases the judge shall not be biased, and shall not form the opinion regarding the
merit of the case until he heard both the parties, he should act in the interest of justice.
Sufficient opportunity shall be given to the advocates by judges in order to present their case.

Impartiality

Judges shall act impartial, and shall not do anything in favor of his friend and relatives, he must
do everything for justice.
Avoidance of Interruptions

When advocates examine witnesses in a case or argue in case, the judge shall make sure that
there are no interruptions. Unwanted interruption or bad comments by the judges during the
hearing of the case disturbs the advocates and as a result, he may not be able to present his
case properly. But the judges can interfere in the following circumstances:

 To prevent waste of time.

 To check the relevancy of arguments put forward by the advocates.
 To get clarifications on a point that is not clear to him.
 To express his opinion on a point.
 To promote speedy disposal of cases.

Interpretation of Statutes

In some cases, interpretations of acts, codes, regulations, orders, etc has to be done by the
court, during the process of administration of justice, in order to remove the ambiguity or
inconsistency or to know the actual meaning of the provisions. So in such cases, proper
interpretation of statutes should be done by the court to render justice to the parties.

Avoidance of unreasonable adjournments

Without reasonable and sufficient grounds cases shall not be adjourned. One of the reasons for
mounting arrears of cases is unreasonable adjournment which causes hardship to the parties.

Speedy disposal

Cases that come before the court shall be disposed of as soon as possible, as when justice is
delayed it means justice is denied.

Avoiding harsh comments

Harsh comments shall be avoided by the judge in the court about the advocate’s lack of
knowledge in law, similarly, without any sufficient reason, they can not ask the advocates to
leave the court. Judges should possess a calm temper.

Independence

The protection of the independence of the judiciary should be the prime duty of the judge.

Meeting of judges and advocates

At regular intervals, meetings shall be conducted between the judges and the Advocates, such
that they can put forward their difficulties in front of each other and it can be sorted out, this
will help in strengthening the Bar and Bench relation.

Integrity
The character and the conduct of a judge shall be praiseworthy, and he should have personal
and intellectual integrity.

Industriousness

A judge should regularly update his knowledge and should know all the recent developments
and changes made in the law.

Duties of the Bar

Advocates assist the court in the administration of justice, they are the officers of the court.
Advocates present the case before the court after collecting material related to that case, and
thus helps the court in arriving at the judgment. In the process of administration of justice, an
advocate is a partner of the judiciary. An advocate shall perform the following duties-

1. A respectful attitude shall be maintained by advocates towards the courts, bringing in

mind that for the survival of the society the dignity of the judicial office is essential.
2. Efforts shall be made by advocates in order to prevent his/her client from adopting
unfair practices concerning the court.
3. By any illegal or improper means, an advocate shall not try to influence the judgment of
the court.
4. Dignity and self-respect shall be maintained by an advocate while presenting his/her
case in front of the judge.
5. An advocate shall help the court in the trial of the case by presenting clearly the laws
which are relevant to the particular case.
6. An advocate shall not present any fact in front of the court which he knows to be false.
7. An advocate shall not ask for an adjournment of the case without any sufficient reason.
8. An advocate shall always appear in court in a presentable manner and a prescribed
dress. In public places, he should not wear a gown or bands.
9. If an advocate knows a judge personally he should not practice before him.
10. An advocate shall not interrupt in between when an opposite council or judge is
speaking.
11. If an advocate has a monetary interest in any case, he shall not plead in such a case.
12. An advocate shall not represent any organization or institution if he is a member of the
executive committee of such an organization or institution.
13. An advocate shall not apply any personal influence over the decision of the court, nor he
should give any kind of impression that he possesses personal influence with the judge
before whom he practices.

What judge requires from an advocate

An advocate is found to be useful and effective by the judge if he satisfies all the needs of the
judge, and a judge requires an advocate to help him in reaching the conclusion of the case and
thereby helping in the performance of his own role. It’s impossible for an advocate to do so
unless he is equipped with the required skills.

Bar and Bench relation

The process of administration of justice includes both the Bench and Bar. In order to maintain
the cordial relation between Bar and Bench, mutual respect is necessary between them. Both
the Advocate and judge complement each other, the principal ground for recruiting judges is
Bar, so they both belong to the same community. But while discharging their duties sometimes
they get into a harsh or heated argument.

When the advocate scandalizes the court he corrupts the very foundation of justice and such
conduct by an advocate dishonors the process of administration of justice. Whatever is the
status of court an advocate’s behavior towards the court shall always be of respect. Whatever
advocate thinks about the Presiding officer, he must not show that in its attitude, because it’s
his duty to uphold the dignity of the judiciary. Also, it’s the duty of the judges to not only be
polite or calm towards the advocates but to do everything possible that will help the advocate in
presenting his/her case.

Any misconduct done by any advocate or judge may amount to contempt of court, for example,
if any advocate uses any offending language against a judge or if he threatens the judge to
transfer the case or make scandalous allegations against a judge, etc. he commits contempt of
court and for such an act he liable to punishment also. In order to protect the confidence of the
public in the process of Administration of justice punishment for contempt of court is provided.

The Supreme Court in P.D. Gupta v. Ram Murti and Others case has laid down his opinion on Bar
and Bench relation in the following words:

“An advocate should be fair not only towards his client but also towards the court as well as
towards the opposite party of the case. The process of administration of justice has to be kept
clean and uncorrupted. The Administration of justice not only concerns the Bench, it concerns
both the Bench and the Bar. The principal ground for recruiting judges is the Bar, both the
judges and the advocates complement each other. The main duty of an Advocate is to present
the case in court by informing the court about the law and the facts of the case and to help the
court in arising at the conclusion of the case. For good administration of justice, an advocate
shall possess good advocacy skills, so that he can put forward the case in court properly and not
get interrupted by the judge unless the interruption is necessary.”

In the case of Mahant Hakumat Rai v. Emperor the high court held that :

“An advocate can claim their right to be heard by the court before which they are practicing
while performing their duty they shall be fearless and independent, and also they have the right
to protest against any irregular procedure done by any judge. He would be perfectly right in
asking for getting a proper hearing and objecting to any interruption made by the judge in order
 to disturb him while he is arguing the case in court and performing his duty towards the client.
However, the presence of professional etiquette coupled with the recognition by the judiciary
will help in reducing the conflicts between the Bar and Bench”.

Conclusion

An independent and fearless Bar is not preferred over an independent Bench, similarly, an
independent Bench is also not preferred over an independent and fearless Bar, neither of them
is superior over the other, both are essential for a free society. The freedom given to the Bar
requires an independent judiciary, through which if necessary the freedom that is given to the
Bar, be vindicated. A well-behaved, responsible, cultured, and a leaned Bar is one of the potent
means for assuring judges their independence. Finally, the keystone for the smooth functioning
of the courts in the general interest of the society is the reciprocal adjustment of conduct by the
Bar and the Bench.

4. What are the duties of an Advocate towards Public, Clients, Courts and towards other advocates

Ans. Duties Of Advocate:

Advocacy is a noble profession. It cannot be compared with any other profession like trade,
business etc. because it is a part and parcel of judiciary and administration of justice. Bar and
bench are two eyes of the ‘Justice'. There are judicial ethics and etiquette for judges. There are
professional ethics and etiquette for advocates. Every advocate should follow them in his
profession. An advocate is also a key person in conducting a proceeding before the court. While
conducting a proceeding the advocate should function intelligently. There are several functions
entrusted to the advocate. There are five most important functions. They are:

 Briefing
 Counseling
 Pleadings, drafting and Conveyancing
 Examination, Cross – examination, chief examination of witness and
 Arguments.

Beside them, an advocate has to do several functions which are necessary in conducting
proceedings. While carrying out these functions an advocate must act prudently, legally and
cautiously. There are several ethics and etiquette controlling the conduct of the advocates.
These ethics and etiquette impose certain duties upon the advocates. Ethics and etiquette
means ethics are morals, a moral philosophy or moral science. It is the first stage of society.

Etiquette is the second stage, which formulates the rules of behaviour standard in polite society.
Humans have experienced ethics in their life. They are inherent in every religion. Along with the
civilization of humans there were Ethics. Every religion preached morals and ethics. Etiquette is
restricted to particular kind of profession. It is nothing but regularization of ethics. In simple
words ethics are bundle of habits whereas etiquette is bundle of rules of ethics. These rules
have statutory force.

Every advocate must follow these duties because they are part and parcel of the professional
ethics and etiquette. Whoever fails to oblige them, such an advocate is said to have committed
professional misconduct and be punished accordingly.

As stated above, the important duties that have to be followed by the advocate are:

1. Duties of an Advocate towards Public

2. Duties of an Advocate towards Court
3. Duties of an Advocate towards his Client
4. Duty of an Advocate towards Opponent Advocate
5. Duty of Advocate towards Colleagues
6. Duty to Act in Dignified Manner
7. An Advocate Should Communicate in Private

These are the duties of an advocate. Let’s discuss in brief the duties of the advocate.

1. Duties of an Advocate towards Public

The advocate is a privileged member of society. The advocate has a duty towards the public and
society. Being a citizen of this country, the advocate has a huge responsibility to protect the
country and lead society.

1. The advocate shall endeavour to make the laws suitable to the welfare of the people
and society.
2. The advocate should protect the liberty and freedom of the people.
3. The advocate always guards the fundamental and human rights of the people in respect
of the constitution.
4. The advocate should always be dedicated to the public service.
5. The advocate should make efforts to educate the people and society to respect the law
and court of justice.
6. The advocate should always help to constitute Legal Aid Societies to render legal
assistance to poor and needy people free of charge.
7. The advocate should provide Legal Education to the illiterate people of the society
through the Legal Aid campaign.

2. Duties of an Advocate towards his Client

Chapter – II of Part IV of Bar Council of India Rules (Rule 11 to 33) provides the provisions
relating to advocate's duty to client. Advocate's profession is a noble and honorable profession
in the society. It is a public service. But at the same time it should be kept in mind that it is not a
bed of roses especially for the new entrants. An advocate has several duties to his clients. The
clients generally prefer an advocate who is hard working.
They mostly trust on the workmanship of the advocate, whom they can easily reach and explain
their difficulties. Most of the clients prefer an advocate who dedicates his entire time to the
clients and especially who is polite with the clients. The duty- consciousness lawyer, once his
engagement is final, sticks to the preparation of that case in facts and laws with such tenacity
that he leaves no efforts from his side to win the case of his clients on merits by all legal means.

It is the duty of the lawyer to take up the particular file and has to start making preparation even
if the client is present or not. Such preparation of the file has to take place with the views that
are already shared by his clients. The duty of the advocate is to never shrikes from devoting
time, not only in the interest of his client, but also to satisfy his own duty- conscious nature
which singles him out from his profession. The relationship between the advocate and client is
of two types. They are:

1. Contractual Relationship: It basically arises and ends only till the period of contract
exist. In India, the relationship between the advocate and his client arises primarily from
contractual obligations. A client chooses an advocate for his case depending upon his
professional success, with strong desire that he is the fit person to defend his cause.
After hearing the cause, the advocate decides whether to take the case or not. If he
wants to take up the case, he will offer the client with certain amount of fee.

If the client agrees to pay the sum, the advocate takes up the case. Thus a matter of
contract shall be reached between an advocate and a client. If a client fails to pay the
remuneration, the advocate can sue him or has a right of lien on the documents of his
client.

In Kothi Jairam vs Vishwanath, the Supreme Court has held that an agreement made by
his client to pay his lawyer according to the result of the case is against public policy.
The Supreme Court observes that it is professional misconduct for an advocate to
stipulate for or agree with his client to accept as his fee or remuneration as share of the
property sued or other matter in litigation upon the successful issue thereof. In England,
a lawyer cannot sue for his fee. If a lawyer behaves negligently, he can be sued for his
negligence, in India whereas in England, he cannot be sued.

2. Fiduciary Relationship: Fiduciary relationship is the relationship which never ends. If a

client approaches the advocate and discloses the confidential information of his life
then this kind of information comes under fiduciary relationship which the advocate has
to keep it as a secret and not disclose it all his life.

An advocate shall not change the parties. Rule 33 of the bar council of India rules
provides for the same. It is also professional ethics. For example, if there are two rival
parties A and B. A approaches X- an advocate, and seeks his advice after explaining all
the facts of the case, weaknesses and strengths. After obtaining his opinion, A gives his
case to Z – another advocate. If B approaches X asking him to defend on his behalf, it is
professional ethics of X to refuse the brief of B, being fully informed about the case by A.
 It is the duty of the advocate to give proper advice to his client. Rule 32 of the bar
council of India provides that an advocate is not supposed to lend his money to his client
for any kind of legal proceedings. But there is an explanation which says that and
advocate cannot be pronounced as guilty if he does something that breaches the above
said rule. It is more like an exception but given as explanation.

2. Duties of an Advocate towards Court:

An advocate is considered as an officer of the court, honoured member of the community, and a
gentleman, thinking that to become a member of the bar he has to be lawful and moral not only
in his professional capacity but also in his non – professional capacity. An advocate has to
courageously support the interest of his client and also have to follow the principles of ethics
and etiquette both in correspondence. The bar council of India rules, State Bar Council rules
mention certain canons of conduct and etiquette as general guides. Section I of Chapter – II of
Part – IV OF THE Bar Council of India Rules explaining the rules pertaining to “Advocate's Duty to
the Court”.

Following Are The Duties Of Advocate Towards To Court:

1. An advocate while presenting his case should conduct himself with dignity and self
respect
2. Respectful attitude must be maintained by the advocate. He has to keep in mind the
dignity of the judge.
3. An advocate should not, by any improper means should influence the decision given by
the court.
4. It is the duty of the advocate to prevent his client from resorting to unfair practices and
also the advocate himself should not do any of such acts.
5. Dress code has to be maintained by the advocate while appearing before the court.
6. An advocate should not take up any case of his family members and relatives.
7. No bands or gowns had to be worn by the advocate in the public places. It is only limited
to the court premises.
8. An advocate cannot be as a surety for his client.
9. It is the duty of the advocate to cooperate with the bench in the court.
10. It is the duty of the advocate to perform his functions in such a manner that due to his
acts the honor, dignity and integrity of the courts shall not be affected.
11. An advocate should not laugh or speak loudly in the court room especially when the
proceedings are going on.
12. When an advocate accepts a brief, he should attend all adjournments properly. If he has
any other work in another court, he should first obtain the permission from the court
concerned. Particularly in criminal cases, it is the first and foremost duty of an advocate
to attend.
 13. While the case is going on, the advocate cannot leave the court without court's
permission and without putting another man in charge, preferably his colleague or
junior or friend advocate.

The Bar Council can review the order given by the disciplinary committee under Section 44 of
the Advocate's Act, 1961. V.C. Rangadurai vs D. Gopalan, In this case V. C. Rangadurai was an
advocate and Devasenapathy was an old deaf man, aged 70 years and Smt. D. Kamalammal was
also aged. They had given two promissory notes to rangadurai and also paid the fees as was
asked to the advocate. Nevertheless, the advocate did not file the case in time. The limitation
was over.

After a long time of wandering around the office of the advocate, the old man came to know
that the advocate deceived him by not filing the cases within the time even after receiving the
fees. He filed a complaint before disciplinary committee of the Tamilnadu state bar council
which after enquiry punished the advocate suspending him for 6 years.

On appeal, it was confirmed by the Bar council of India and also by Supreme Court. Rule 6 of
Chapter II of Part- VI of the Bar Council Rules states that an advocate shall not appear, act, plead
or practice before the court if any member is related to the advocate as father, son, wife etc. the
main object is to avoid personal bias between an advocate and presiding officer related to such
advocate. Due to natural love and affection, the judge may incline towards the advocate, thus to
favour the client of the advocate related to him or her.

In case of Satyendra Nararain Singh and Others vs Ram Nath Singh and Others, wife is the judge
and husband is the advocate. Court held that the advocate should not appear before his wife,
who is the judge of the court. If he appears before the court, to which his wife is presiding
officer, it becomes his professional misconduct. If he appears before the wife- judge. It is the
duty of the judge to raise the objection. If she fails to object and accepts his appearance, then it
becomes her judicial misconduct.

The advocate must always possess duty consciousness. The clients like the advocate, who
devotes his entire time and energy to his clients. The duty conscious lawyer, once his
engagement is final, sticks to the preparation of that case on facts and laws with such tenacity
that he leaves no efforts from his side to win the case of his clients on merits by all legal means.

3. Duties of an Advocate towards Colleagues :

Section IV of Chapter II of Part VI of Br Council of India lays down the provisions about the
‘Advocate's duty to the colleagues. Rules 36 to 39 provides for advocate's duty to the court. An
Advocate cannot appear in a case where a memo is filed by the name of the other advocate. To
do so he has to first take consent from the advocate and in case if such consent is not given then
he has to apply to the court stating the reasons as to why he need consent.
All advocates are part and parcel of the administration of justice. They are court officers. They
take the fee of the services rendered. But the fee is not the criteria its only secondary their
service is basically a public service and each advocate's office is known as public office. The
primary concern of the advocate should be aiming for justice for the welfare of people. There
should not be any kind of unhealthy competition between the colleagues. All are equal and each
of them to mutually respect each other. An advocate is not supposed to advertise himself.

If any client brings a case from another advocate to an advocate asking him to appear for the
case, then this new advocate should not readily accept the case; first he has to go through the
background of the case, details of the case and most importantly he must know the reasons as
to why the client wants to change the previous advocate. If all the reasons stated by the client
are proper then he must ask the client to bring a no objection certificate from the previous
advocate; then only it is appropriate for him to take up the case. All members of the bar
association are known as colleagues. An advocate has to respect all his colleagues and should
not criticise co advocates.

An arrogant attitude of an advocate towards his colleagues is always observed by the clients and
public present in the court. This kind of behaviour affects his profession, bar and bench
relations, court proceedings and finally the whole administration of justice.

Conclusion

Professional ethics is nothing but the duties which are to be followed by the advocate. An
advocate who violates these duties is considered as he has violated the principles of
professional ethics. These are the moral duties which have to be followed by everyone not only
in the advocate profession but other professions as well because ethics and morals are
important for each and every person in the society.

The core subject of legal ethics is to maintain honour, dignity of the law profession and to create
a friendly atmosphere in the court without any biasness and quarrels between advocates which
eventually spoils the bar and bench relations and ultimately affects the administrative system of
justice. Cooperation and fair dealing is necessary for the advocates. This kind of attitude helps
them to acquire more clients and be responsible towards the society because an advocate is
considered to do public service.

As every individual has a code of conduct, in the same way advocate also has conduct or duties
which are to be performed towards himself, his clients, opponents, colleagues, court etc. it is
the duty of the advocate to maintain the decorum of the court and act properly with his
opponents or colleagues. He must always act in the best interests of his clients and should not
do any kind of act that betrays their trust upon him. All these duties, ethics and morals help an
advocate to be in a better position in his career and become a successful lawyer.
5. “ An advocate should never seek business by advertisement or otherwise “ comment

Ans. Introduction:

Advertisement of Services is specifically barred by some professions on the grounds that it

violates their professional code of conduct. To preserve the pristine nature of a profession, this
restriction has been put into place. The Legal profession is one of those professions. Legal
advertising means promoting the services offered by legal professionals through the Court of
Law. The huge number of Lawyers that get enrolled in the Bar Council of India every single year,
is put on a stringent hold to advertise their services or indulge in activities that would attract
prospective clients. When a lawyer argues his case in the most cogent manner and the media
reports the case, the lawyer's name should not come to light. This situation is highly frowned
upon.

Advocates Act, 1961 and Bar Council of India Rules:

The Legal Profession in India is administered by the Advocates Act of 1961, which prescribes its
professional code of conduct and standards for advocates. Under its ambit, exists the Central
Bar Council (BCI and Bar Councils of States). As per Rule 36 of the BCI Rules,

"An advocate is prohibited from soliciting work or advertising, either directly or indirectly,
whether by circulars, advertisements, touts, personal communications, interviews not
warranted by personal relations, furnishing inspiring newspaper comments or producing his
photographs to be published in connection with cases in which he has been engaged or
concerned. Even the signboard, nameplate or stationery of an advocate should not indicate that
he is or has been the President or Member of a Bar Council or of any Association or that he has
been associated with any person or organisation or with any particular cause or matter or that
he specialises in any particular type of work or that he has been a Judge or an Advocate
General."

Needless to say, the position of Rule 36 before 2008 relaxations, had invited outrage from the
legal fraternity, accompanied by the ambiguity and twisted notion regarding what would
represent advertising. The several courts across India were also facing a dilemma and mixed
views while deciding upon the legal advertisements matters. Though the Supreme Court has
sympathised with the advocates at the 'have-not' position, the State Bar Councils had
admonished them and took Suo-moto stern action against those who resorted to the marketing
of their services.

The rationale behind Rule 36 :

The primary conception of the rule is that the Legal Profession is noble and shall not be
contaminated with unethical, resentful misleading advertisements. Hence, The Rules set by BCI
do not allow the Advocates to publicise their services. The most satisfactory explanation to this
is that it will safeguard the interest of the unaware population and wipe out the illegitimate
elements of this profession. Solicitation and publication of services have been seen as
impugned. In the perception of the Courts, if an Advocate requires to solicit briefs, he is seen
unworthy of the profession. Addressing postcards with a Lawyer's name and work description
was an inappropriate and illegitimate practice of advertising and it violates the ethical code of
the legal profession.

In 2003, in the case of RN Sharma Advocate Vs State of Haryana7, the High Court had
emphasised that an advocate is the 'officer of the court'. Further, the court stated that the legal
profession is a noble profession and it does not constitute a trade or business. The advocates
must strive to seek justice for their clients within the boundaries of what is legally permissible.

Amendment of Rule 36 in 2008:

However, in 2008, the BCI rules (rule 36) were liberalized and amended to ease the strait-jacket
law regarding advertising, which led us to the current status quo of law. Presently, Rule 36
entails that "Advocates can furnish only certain basic information on their chosen websites",
mainly their name, enrolment number, telephone number, e-mail IDs, professional and
academic qualifications. They may also state their areas of specialisation and years of
experience in a website. The Advocates publishing the prescribed information must also furnish
a declaration stating the information provided by them is true. Any additional information,
other than those prescribed under Rule 36, the advocate shall be charged for professional
misconduct and be made liable under section 35 of the Advocates Act, 1961. An advocate who
infringes these Rules can be prosecuted.

Precedents providing various Interpretations to the Ban of Advertising in Legal Profession:

The Courts have provided their reasoning and observations through various Precedents on the
issue of Advertising by Lawyers. The validity of Rule 36 and its arbitrariness has been examined
before the courts many times with a plethora of conflicting opinions as to their conclusion. The
interpretations have been different regarding what can be construed as advertising and what
cannot.

In 1967, the Madras High Court in the case C.D. Sekkizhar v. Secretary Bar Council opined that
advertising by advocates was rejected to prevent envy and it was unbecoming of the noble
profession. Further, In the case of Bar Council of Maharashtra v. M.V. Dabholkar, Justice Iyer
professed that "...the canon of ethics and propriety for the legal profession, totally taboo
conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or
clumsy, for the betterment of the legal business. Law is not a trade, briefs no merchandise and
to the heaven of commercial competition or procurement should not vulgarise the legal
profession."

In another case of Government Pleader v. S.A Pleader, it was held that mere sending of a
postcard with the lawyer's address, name and description, by a pleader, would be construed as
an advertisement. The pleader would be deemed to have breached the expected professional
code of an Advocate.

In another case, Allahabad High Court held that publishing articles in newspapers with the
advocate himself giving his description as a practising advocate in Courts can be made out as a
cheap way of endorsing one's services. Additionally, in SK Naicker Vs Authorised Officer, the
Madras High Court opined that writing articles for publication in newspapers under an
advocate's signature amounts to unauthorised legal advertising.

But the contrary was established in 1985 in Dharam Vir Singh v Vinod Mahajan, The Punjab &
Haryana High Court opined that providing legal services is a business proposition, and
advertising legal services is within the ambit of 'commercial speech'. Furthermore, the Supreme
Court in Tata Yellow Pages v MTNL, that as per Article 19(1)(a), the freedom of speech and
expression also protects commercial speech and hence advertising is within its purview.
Therefore, in both cases, it was held that commercial speeches are given protection under
Article 19(1)(a) of the Constitution. These cases were instrumental in examining the
constitutional validity of Rule 36. The conclusion that can be formed here is that the Bar Council
of India, Rule 36 does not satisfy the requirements stated in the constitution. In addition to
Article 19(1)(a), it also breaches Article 19(1)(g) which mentions the freedom to carry on trade,
profession or business. It enshrines that each citizen is entitled to the privilege to choose their
livelihood. Thus, this ban comes across as unconstitutional and excessive in nature.

Until 2008 all the attempts made were barren. But in 2008 March, BCI amended Rule 36 of the
BCI Rules, by a Resolution. In a Writ Petition filed by V. B. Joshi18, the prohibition imposed by
Rule 36 was challenged. The rules were liberalized which permitted the lawyers and legal
fraternity to publicise themselves and provide subtle details regarding their profession. After the
amendment legal practitioners may provide credentials such as their "names, PQE (Post
Qualification Experience), areas of practice, personal details on websites."

Current Position in different Nations:

We must call for the spirit of recognizing lawyers as service providers. Their services to the
consumers will allow consumer protection. This will only result in the greater good if the
stringency is reduced. Though initially, they had a blanket ban over the advertising of services by
lawyers, the countries the USA, Australia, Singapore, Canada and the UK now manifest support
of the right to advertising.

1. The United States of America

In the USA, Ordinance 27 clearly defines that it is construed to be unprofessional to solicit one's
profession by Advertising. (Professional Ethics of American Bar Association). However, in the
landmark case of Bates v. State Bar of Arizona, it was realised that advertising for legal services
will only be beneficial and especially for the consumers. Advertisements cover information
about the accessibility and expenditure of legal procedures. The Federal Trade Commission
encourages competition in licensed professions like the legal profession, to the extent that they
complement statutory and federal objectives. As per Section 7 of ABA, advertisements must be
accurate and not aim to mislead. A lawyer may choose any medium to advertise: spoken,
written or electronic. But no lawyer shall be allowed to publicise his professional employment,
personally (via phone or an e-contract) when the prime objective is to earn monetary gains.

2. The United Kingdom

The United Kingdom under its Solicitors' Publicity Code 1990, follows similar notions. But they
have addressed general worries over the issue of misleading or false advertising, and fees fixed
unrealistically low. Rule 7 of the Solicitors' Publicity Code 1990 states: "You are generally free to
publicise your firm or practice, subject to the requirements of this rule."

3. Singapore

The Legal Profession act of Singapore promotes advertisement of Legal Services: Section 4 under
the Legal Profession (Publicity) Rules states: "An advocate and solicitor may, subject to these
Rules, publicise his practise or the practice of his firm, or allow his employees or agents to do
so."

4. Australia

Section 36 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 states
that "A solicitor or principal of a law practice must ensure that any advertising, marketing, or
promotion in connection with the solicitor or law practice is not: false; misleading or deceptive
or likely to mislead or deceive; offensive; or prohibited by law."

5. The European Union

The European Union provides for "Personal Publicity". The Section 2.6.1 and 2.6.2 of CCBE code
2006 states that:

2.6.1 - A lawyer is allowed to notify the public of the services he offers. The condition is that the
information must be authentic and not misleading. It must adhere to the clause of
confidentiality and the primary ethics of the profession.

2.6.2 - Publicity on a personal level in forms of media like, media, radio, television, or even by
electronic commercial communications is allowed only till it is complying with the essentials
under 2.6.1.

Opportunities in Permitting Advertising Services:

When advertising in a regulated manner is permitted, it will be beneficial in upholding principles

of dignity and nobility of a profession.
Firstly, the stronger firms in the market have power with abundant resources for the marketing
of their firm/services through mediums like sponsorship of events, hosting seminars or
conferences and are not directly advertising, end up playing the monopoly king in the market.
Needless to mention, they become a hindrance to medium-sized or small-sized firms. The
medium and small size firms do not have sufficient credibility, power or resources to thrive in
the market. In such a situation, they have to rely on advertisements. Thus, permitting and
promoting them in disseminating information would act as an incentive for their growth.

Secondly, the client base is generally and by majority dependent upon the hearsay or oral
references of an advocate friend. It is safe to infer that there is no standard grade or criteria to
judge his credentials as an advocate. It is an irony how this vagary has not really provided us
with a compilation of good law practitioners. Therefore, the need of the current scenario is a
provision of an apparatus that can facilitate unbiased judgement of an Advocate through his
track record, competence and area of speciality. To avail required Legal Aid, advertising by the
respective specialists is absolutely imperative. The Prohibition of the same neither holds any
good nor justifies social or public cause.

Thirdly, the legal practitioners in India are at a drawback as compared to their foreign
counterparts. The services in foreign countries are allowed to be published. This also forms one
of the reasons why BCI seems disinterested in entering foreign firms or even allowing the entry
of foreign firms in India. In the current phase of Globalisation, when India is attempting to
acquire pertinent information and potential Lawyers, the ban is failing India's expectations or
gaining an upper hand. Indian Practitioners are substantially losing potential clients at an
international level.

Fourthly, Advertising services become extremely important when the majority of the population
does not possess the necessary knowledge or resources to access Internet websites.

"Unfortunately, these scholarly pieces are rarely available to the public at large since these
reports do not enjoy wide circulation amongst non-lawyers. Allowing lawyers to publish these
articles and analyses in their in-house brochures, newsletters or on websites would be a healthy
step."

Lastly, the Advocates offer research and writings of Journals, Articles, Blogs, Treatises, Papers
and manuscripts, for their respective area of specialisation. Their works offer a mirror to their
credibility and competence and thereby providing an insight into new perspectives on the
subject. The published material enjoys wide circulation among the general public.

Obstacles in Permitting the advertisement of services:

The general perception behind not allowing advertisement is that Advertising will likely result in
lower quality services, i.e., deviation from the morality of the profession. Hence, the practices of
the lawyers would be more directed toward creating a brand image and charging extravagant
fees, rather than upskilling and developing legal acumen. Advertising, by nature, may become
 misleading if not regulated and thus lead to unhealthy competition. The exploitation of the
public at large defeats the purpose enshrined in the Professional Code.

Another shortcoming is Unfair and unhealthy competition. The disparity between Big-Law firms
and Medium/Small Law Firms in terms of power and resources is so large that it becomes the
reason for the suppression of the latter by the former.

6. Necessity of Enrolment of advocates and Regulations governing enrolment and practice.

Ans. Introduction

The Bar Council of India is a well known established statutory body in India governing the legal
domain of the nation. This body was formed under the statute of Advocates Act, 1961 with an
objective to present standards of conduct to be carried out at a professional level along with the
role of governing the functioning of all other State Bar Councils. The Bar Council of India is a
corporate body by itself, coming under the purview of the Ministry of Law and Justice under the
Government of India. Being a corporate body, it has a seal and a perpetual succession over
movable as well as immovable property and therefore by its very name can sue anyone
infringing the same or be sued for its own deeds.

The Bar Council of India consists of a total of 18 members which is inclusive of the Attorney
General of India and the Solicitor General of India. The rest 16 members are the representatives
of the State councils across the nation. A national-level examination that helps to determine
advocates about to profess the legal profession is the All India Bar Council Examination that acts
as a screening procedure to identify the potentials in an individual aspiring to be an advocate
and contribute in the legal profession. Only after qualifying in the examination, the Bar Council
of India issues a certificate certifying that the advocate can practice in the nation. Thus the
examination is the entrance to the legal domain of practising for any aspiring advocate. An
analytical and aptitude assessment, the All India Bar Council Examination is indeed an ingredient
in the Indian legal system.

Procedure to enrol into the Bar council

The Advocates Act, 1961 provides authority to the State Bar Councils to promulgate their
respective rules and regulations for enrolling advocates. The committee formed by the
respective councils carried out the scrutinising procedure of the applications by the candidates
aspired to practice as advocates. The admitted candidates of the State Bar Council are eligible to
appear for the All India Bar Council Examination which is held by the Bar Council of India.
Qualifying this examination will provide the advocate enrolled by the State with a certificate and
thereby provide the opportunity to him or her to practice as an advocate in any lower court or
High Court within Indian territorial jurisdiction. There are, at present, 20 State Bar Councils
across India. Section 24 of the Advocates Act, 1961 lays down in specificity the parameters of
qualification that needs to be met with in order to be enrolled in the Bar council. The conditions
that are laid down by the concerned provision are:
1) The person must be a citizen of India. Any other nationals can be appointed as an advocate on
a State basis if the following grounds are fulfilled:

a) Has to be an Indian citizen.

b) Should be qualified as per requirement.

c) Has been granted permission to carry on legal practice in any other country.

d) Should be subjected to necessary restrictions that are required and as provided.

2) The person should be more or equal to the age of twenty-one years but should not be less
than that.

3) A degree in law has been obtained from any university recognised under the Bar Council of
India. If the national hails from some other country then a degree in law in the foreign university
will suffice provided the degree is recognised in India under the Act by the Bar Council of India.

4) Any other conditions or parameters laid down by the State councils should be carried out by
the person.

Advocates Enrolment

Currently, any individual can be enrolled as an advocate under the State Bar Council if he or she
has necessarily appeared in the examination held by the Bar Council of India and have thereby
cleared the same. As the Advocates Act, 1961 have mentioned, the States are provided with the
flexibility to frame their own regulations for the enrolment of an advocate in the council. The
committee that is formed to look after the procedure of enrolment is provided with the
authority to carry out scrutiny of the applications submitted by the candidates those have
applied for the examination. An enrolment fee needs to be paid according to the provision of
Section 24(1)(f) of the Advocates Act, 1961 of an amount of Rs.600 to the respective State Bar
Council and an amount of Rs 150 is to be deposited to the Bar Council of India. Separate
demand drafts are to be used for the mode of payment of these amounts to the different
councils. Although different states have been provided with the freedom to set their own rules,
the majority of the States ask the candidate to provide with certain requirements which are:

1) Application along with the showcasing of the law degree obtained from a university which
follows the parameters laid down by the council.

2) Marksheets of the degree need to be provided as well.

3) Judicial Stamp papers.

4) Fees as having been mentioned to be provided with.

The candidates who are eligible are appointed as advocates of State Bar Councils on its role. It is
through the State Bar Council that the contact details and other information of relevance can be
found when it comes to the appointment of the advocates. Scrutiny of the application of the
candidate is to be carried out by the Council’s Enrolment Committee. The eligible candidates
who are to be appointed as an advocate are issued a Certificate of Enrolment by the State’s Bar
Council.

State Bar Council of India

As different State Council provides with different regulations in conducting the procedure of
enrolment, an example of the West Bengal State Bar Council has been provided below in order
to create an idea as to how State Bar Council regulates the procedure of enrolment. In the case
of West Bengal State Bar Council, the enrolment procedure takes place by means of submitting
the enrolment form according to the regulations laid out by the Council. Like all other States as
well as the centre, the West Bengal State Bar Council also lays down certain criteria and
requirements to be fulfilled in order to be eligible for the enrolment procedure. They are
provided below:

1) 1 piece of passport size photograph of the candidate.

2) Admit card of the examination or any other documents that have an equivalent value with
the same.

3) Marksheet of either the three year LLB course or the five year LLB course.

4) The mark sheet of the final year of the three or five years of LLB degree.

5) Original certificate of LLB examination.

These requirements are essential to be provided for the candidates belonging to the university
located in the State of West Bengal. For the candidates who hail from any university that is
located in any other States across the nation, the documents that need to be provided by them
are as hereunder:

1) Passport size photograph.

2) Admit card of the examination or any other documents that have an equivalent value with
the same.

3) Marksheet of either the three year LLB course or the five year LLB course.

4) The mark sheet of the final year of the three or five years of LLB degree.

5) College leaving certificate along with character certificate of the candidate.

It is to be noticed that all these above documents should be original and should be enclosed
with the photocopies of the same which is to be having the initials of the advocate who
provided the candidate with the certificate of good character along with the concerned
enrolment number. The cost of the enrolment form issued by the West Bengal State Bar Council
worth Rs.700 with a separate enrolment fee of Rs 3000 for the general category candidates and
Rs.1500 for the candidates with the Scheduled Caste and Scheduled Tribe certificate. Along with
these several other fees focusing on other spheres needs to be provided with by the candidate.

All India Bar Council Examination

One of the essentials in the procedure for enrolment in the Bar includes the All India Bar Council
Examination. It is a step for upliftment in the post of an advocate who has been enrolled with
any State Bar Council. The national level standardised form of Examination is conducted across
40 cities of India in 11 languages. This examination acts as a determination for an individual to
practice as an advocate in any lower court or high courts in the country.

Eligibility for the examination

In order to be eligible for the examination, the following grounds need to be abided by:

1) The examination applicant has to be a citizen of India.

2) A degree of LLB of either 3 years or 5 years is required to be eligible for appearing in the
examination.

3) The applicant should be a registered advocate under any State Bar Councils.

4) A valid advocate identification should be present with the applicant.

5) The applicant cannot apply for the examination in the same year he or she is qualifying with
an LLB degree.

Application for the examination

As everything has been digitised in today’s world, the information and application procedure for
the examination can be viewed on the official website of the examination. The steps are
provided below:

1) The official link of the All India Bar Council examination needs to be visited.

2) Registration providing basic details of the candidates need to be carried out.

3) Registration confirmation to be sent by the medium of email in the registered mail id.

4) The application form needs to be filled up by logging in with approved credentials.

5) E-challan needs to be generated before proceeding with the application form.

6) Application fee needs to be paid.

 7) Print out of the form and the receipt is required for future references.

Therefore the steps towards the way of reaching out and giving the examination which has been
provided above are one of the ingredients in the procedure of enrollment in the Bar.

Conclusion

The profession of lawyers is a holy profession for they are burdened with the most important
responsibility on their shoulder, the responsibility of remedying injustice. The Bar Council of
India along with the State Bar Council provides a platform for these lawyers to enrol as an
advocate in order to keep a record as in how many practising advocates on the record are there
in the country. This ensures stability in the functioning of the bar in India. Along with the
function of governance, the Bar Council of India executes representative roles by means of
safeguarding the rights and privileges and interests associated with an advocate. This is carried
out through fund creation by means of providing financial assistance in order to layout welfare
mechanisms for the advocates.

Therefore these things make it clear as to why arises the necessity of enrolling in the Bar
Councils. The State Bar Councils and the Central Bar Council work in coexistence with each other
to carry out the functions and roles efficiently as has been laid down previously. As the legal
profession is gaining importance with the evolution of the world, the Bar Council of India which
was established under the Advocates Act, 1961 is also gaining recognition more than ever. Every
direction, idea, development has been made and is being made for the welfare of the advocates
in India. This regulating statutory body has come up with a very organised and well-structured
procedure for the enrolment of the advocates. Stages have been divided in order to avoid any
kind of causality in the procedure. With advocates being enrolled in the Bar by means of the
procedure, the domain of legal aid regulation is also being carried out swiftly. Legal aid is
reaching out to the poor and the needy ones. The Bar Council lays down etiquettes for
advocates to abide by. Thus in this way it is promoting the legal education and profession across
the nation.

7. ‘Right to boycott Courts’ is a Right and Privilege of advocates – do you agree.

Ans. Lawyer’s Right to strike – A Professional Misconduct

According to the constitutional perspective right to strike is a fundamental corollary conferred

by part III of the constitution under the right to freedom of association art 19(c) where a group
of people upholding a common interest can come together and demand of their rights. However
freedom of association under art 19 is not an absolute right, certain reasonable restrictions are
imposed on it. Therefore one of the important question arises in the legal profession is that do
lawyers have the right to call for a strike. The Supreme Court and High courts in its various
verdicts had made it clear that Lawyer’s strike is illegal and necessary steps should be taken to
curb the growing tendency.
In the landmark judgment given by the supreme court in case of

Ex-Capt. Harish Uppal v Union of India and Another

The Court held that lawyers have no right to go on strike or give a call for boycott, not even on a
token strike. The protest, if any is required, can only be by giving press statements, TV
interviews, carrying out of court premises banners and/or placards, wearing black or white or
any color armbands, peaceful protest marches outside and away from court premises, etc. In
another landmark case,

Hussain v Union of India

The court had clearly stated that the lawyers strike and suspension of the court is illegal and it is
high time that legal fraternity realizes its duty to the society which is foremost.

Advocates are bound to maintain rules on professional conduct and etiquettes which has been
laid down in chapter II part IV of the bar council of India Rules. Under this section, the advocates
are abide by the certain duties towards the court and their client. In Roman Services Pvt Ltd v
Subhash Kapoor the question was when a lawyer goes for a strike call made by the association
and boycotted the Court proceeding, whether his litigant should suffer a penalty. It was held by
the Court that when an advocate involves himself in strike there is no obligation on the part of
the Court to either wait or adjourn the case on that ground. It was held that advocate has no
right to boycott court proceedings on the ground that they have decided to go on a strike. In
B.L.Wadhera v State, the court held that if on the ground of strike a lawyer abstains from
appearing in court then he is conducting professional misconduct, a breach of contract, breach
of trust and breach of professional duty.

Role of Bar Council of India

Section 4 of the advocates act 1961 mentioned about the establishment of Bar Council of India
and further section 7 explains about the function of BCI, wherein clause (b) conferees power to
BCI to lay standards of professional conduct and etiquettes of advocates. according to verdicts
of courts, the BCI should ensure that lawyers should not involve in strikes and protest. However,
there are instances where BCI itself had called lawyers for strikes. The judgment pronounced in
the case of Ex-Capt. Harish Uppal v Union of India and Another wherein the supreme court
made it clear that “lawyers have no right to strike. No Bar Council or Bar Association can permit
calling of a meeting for purposes of considering a call for strike or boycott and requisition. Only
in the rarest of rare cases where the dignity, integrity, and independence of the Bar and/or the
Bench are at issue, courts may ignore to a protest abstention from work for not more than one
day”. In Krishnakant Tamrakar v State of Madhya Pradesh, the supreme court held that frequent
strikes by lawyers are illegal as they obstruct access to justice. The further court also observed
that such actions amount to contempt of court and office. In Common Cause a Registered
Society v. Union of India and Others in this case it was held that, if any associations of advocates
call for a strike, then the State Bar Council or the Bar Council of India must take actions against
those persons who call for strike In another case of Praveen Pandey v. State of Madhya Pradesh
and othrs wherein the court held “the decision of the State Bar Council calling upon the
Advocates in the State to observe a week-long protest and to abstain from all judicial works and
Court proceedings is illegal, unconstitutional and against the statutory provisions as well as
contrary to the judgments of the Supreme Court”

Reasons for denying Lawyers the right to strike.

The fundamental duty of Judiciary is to serve people who are seeking justice for themselves and
in order to do so its very important that every branch of it must coordinate and cooperate with
each other. Any deficiency in the system would lead to the violation of the fundamental right to
speedy trial guaranteed by article 21 of the constitution. Therefore the call for a strike by
lawyers has an adverse effect in the functioning of the judiciary. The frequent protest and
strikes interfere with the administration of justice that leads to delay in the trial of cases and
ultimately resulting in the pendency of cases. From time to time the supreme court in its various
judgments had resorted the right to strike by lawyers and directed the litigants to work
efficiently for justice without any failures.

The division bench comprising of justice AK Goel and UU Lalit in

Krishnakant Tamrakar v State of Madhya Pradesh

Stated “By every strike, irreversible damage is suffered by the judicial system, particularly
consumers of justice. They are denied access to justice. Taxpayers’ money is lost on account of
judicial and public time being lost. Nobody is accountable for such loss and harassment” In
Hussain and Anr. v Union of India the court said “Hardships faced by witnesses if their evidence
is not recorded on the day they are summoned or impact of delay on under trials on account of
avoidable interruptions of court proceedings is a matter of concern for any responsible body of
professionals and they must take appropriate steps. This needs the attention of all concerned
authorities and ways and means ought to be found to tackle this menace…Judicial services and
legal services are missions for serving society. The mission is not achieved if the litigant who is
waiting in the queue does not get his turn for a long time.”

Ex-Capt. Harish Uppal v Union of India and Another

It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a
brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar
Association or the Bar Council. It is settled law that Courts are under an obligation to hear and
decide cases brought before it and cannot adjourn matters merely because lawyers are on
strike.

Solutions to the Grievances of lawyers:

The ban imposed on strikes by lawyers is justified as consequences of strikes were corroding the
roots of the judiciary. However, it is also important to safeguard the interest of the advocates,
 so that the functioning of the legal system should be balanced. Section 7 clause (d) of the
advocate's act 1961explains the functions of Bar Council of India to safeguard the rights,
privileges, and interest of advocates therefore abiding by the rules grievances of lawyers must
be heard and further steps should be taken to tackle their issues that they are facing.

In 266th report of law commission of India a suggestion has been made that at every district
headquarters, the District Judge may constitute an Advocates’ Grievance Redressal Committee
headed by a Judicial Officer which will deal with the day to day routine matters, a large number
of issues and grievances arise in the smooth working of the advocates. In this regard, the High
Court may issue a circular in an exercise of its power under article 235 of the Constitution
providing for redressal of grievances of the Advocates which will help in improving their
efficiency. In case there is some grievance against a Judicial Officer, the Bar may raise the
grievance before the Chief Justice of the concerned High Court.

Taking these suggestions into consideration the grievances of advocates can be construed to a
greater extent that will ultimately help in curbing the menace of strikes by lawyers.

Conclusion:

In a nutshell, strikes by lawyers are beyond the scope of art 19 of the constitution. There are the
certain profession that should be treated alike as they had a motto to serve the society at large
and legal profession is one of them that needs to work towards providing justice to people
without any delay. The landmark judgment of Ex-Capt. Harish case had declared the strikes by
advocates as illegal and only in rare of rarest case lawyers can call for strikes as pointed by the
supreme court in the judgment. The lawyers have the right to demand solutions of their
grievances but not at the cost of their client’s right who had to suffer because of such strikes
that lead to the delay in the procedure of giving justice to people.

8. Write about the following cases

(a) Chandra Sekhar Soni Vs Bar Council of Rajasthan AIR 1983, SC 3012

Ans.

1. This appeal under Section 38 of the Advocates Act, 1961 is directed against an order of the
Disciplinary Committee of the Bar Council of India dated January 7, 1977 upholding the
order of the Disciplinary Committee of the State Bar Council of Rajasthan, Jodhpur dated
July 21, 1974 by which the appellant has been held guilty of professional misconduct and
suspended from practice for a period of three years under Section 35(c) of the Act.
2. Nothing should be done by any member of the legal fraternity which might tend to lessen in
any degree the confidence of the public in the fidelity, honesty and integrity of the
profession. The State Bar Council gave the appellant the benefit of doubt on the first charge
that he changed sides in a criminal case, holding that though such conduct on his part was
unprofessional, it was not tantamount to professional misconduct. The Disciplinary
 Committee of the Bar Council of India rightly observes that it failed to appreciate the
distinction drawn by the Slate Bar Council as his act in accepting the brief for the accused
after having appeared for the complainant was clearly contrary to r. 33 of the Bar Council of
India Rules, 1975. We concur with the Disciplinary Committee. It is not in accordance with
professional etiquette for an advocate while retained by one party to accept the brief of the
other. It is unprofessional to represent conflicting interests except by express consent given
by all concerned after a full disclosure of the facts. The appellant would not have appeared
for the other side except with the permission of the learned Magistrate. Counsel's
paramount duty is to the client, and where he finds that there is conflict of interests, he
should refrain from doing anything which would harm any interests of his client. A lawyer
when entrusted with a brief is expected to follow the norms of professional ethics and try to
protect the interests of his client in relation to whom he occupies a position of trust. The
State Bar Council however found the appellant guilty of the second charge viz. that he had
procured the brief of the complainant in another case on a fee of Rs. 300/- on the
representation that he would secure a favourable report from the Radiologist showing that
there was a fracture of the skull. The appellant was guilty of reprehensible conduct. The
preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times,
comfort himself in a manner befitting his status as an officer of the Court, privileged
member of the community and a gentleman. R. 4 of this Chapter provides that an advocate
shall use his best effort to restrain and prevent his client from resorting to sharp and unfair
practices etc. There is a long catena of decisions laying down that offering of bribe or giving
bribe or taking money from the client for the purpose of giving bribe amounts to grave
professional misconduct.

(b) Bar Council of Maharashtra Vs. M.V Shalkar AIR 1976, SC 242.

Ans. Facts of the case:

The respondents (16 advocates) were lawyers practicing in the criminal court. They would
position themselves at the entrance of the magistrate’s court, watchful of the arrival of the
potential litigants and on sighting them; they would rush to the clients and snatch their briefs to
lay claims to the engagements. A complaint against the lawyers to the Bar Council of
Maharashtra was sent by the High Court of Bombay.

The Disciplinary Committee of Bar Council of Maharashtra found the respondents guilty of
professional misconduct which lowered the reputation of the Bar in the eyes of the public. The
Committee directed that the respondents would stand suspended from practicing as advocates
for a period of 3years.

Aggrieved by the order the respondents preferred an appeal to the Bar Council of India under
section 37 of the Advocates Act, 1961.

Provision of law:
Rule 36 of the Bar Council of India Rules provides: An advocate shall not solicit work or
advertise either directly or indirectly, whether by circular, advertisement, personal
communication, interviews not warranted by personal relations furnishing newspaper
comments or providing his photograph to be published in connection with cases in which he has
engaged or concern. The three elements in rule 36 which are to be satisfied in order to be
amenable to the disciplinary jurisdiction the advocates must have:

a) Solicited work

b) From a particular person

c) With respect to a case

Section 35(3)(c) - Punishment of advocates for misconduct

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and
the Advocate-General an opportunity of being heard, may make any of the following orders,
namely: --

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State
Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit.

Judgement

The Bar Council of India held that the State Bar council is a ‘person aggrieved’ because it
represents the collective conscience of the standards of professional misconduct and etiquette.
Thus, the appeal of the State Bar Council is maintainable.

The Supreme Court of India heavily reprimanded the order given by the Bar Council of India and
held that the restrictive interpretation of the relevant rule by splitting up the section does not
imply that the conduct of the advocates are not justified.

The Supreme Court of India was of the opinion that of, the state bar council has from a
professional angle fallen short of means like numbering, index of witnesses and avoid taking up
all cases together of each delinquent for convicting and sentence. The appeals are thus off in the
trust and standards and sanctions befitting the National Bar. The appeals are disposed off and
the parties will bear their own costs.
(c) Haniraj L Chulani Vs. Bar Council of Maharashtra &Goa AIR 1996, SC 1708.

Ans.

(d) Rambharosey Agarwal Vs. Harsaroop Maheswari AIR 1976, SC 1739.

Ans. 1. As this appeal under Section 38 of the Advocates Act, 1961, must succeed on three short
points, it will be enough to state those facts which bear on them.

Appellant Ram Bharosey Agarwal was practising as an advocate in Bulandshahr, Uttar Pradesh
He was engaged by respondent Har Swarup Maheshwari, on behalf of his daughter Smt.Munni
Devi, to pursue her application against her husband Jai Narain under Section 468 Gr. P.O. in the
Court of Sub-Divisional Magistrate, Bulandshahr. The case was decided in favour of Smt. Munni
Devi on September 5, 1963, and a maintenance allowance was granted to her. When the order
was put into execution, Har Swarup Maheshwari engaged another lawyer to prosecute the
execution application. In those proceedings the property of Jai Narain was attached. His father
claimed that the attached property belonged to him, and his application to that effect was
alleged to have been filed by the appellant. The first charge against the appellant was that he
was guilty of professional misconduct in accepting a brief on b half of Jai Narain's father. Jai
Narain filed an application for reconsideration of the order of maintenance, and examined three
witnesses. Smt. Munni Devi's father Har Swarup Maheshwari instituted a case for defamation
against those three witnesses and Jai Narain. Appellant, Ram Bharosey Agarwal was engaged by
the accused in those proceedings. The second allegation against the appellant therefore was
that he was guilty of misconduct in appearing on behalf of the accused in the defamation case.
The third allegation was that the appellant wrote a letter dated August 14, 1967 to Jagdish
Narain Agarwal, an advocate of the Allahabad High Court, to have an appeal which had gone
upto the Allahabad High Court dismissed even though there were no such instructions from his
client and the action was detrimental to the interest of the client.

2. The Bar Council of Uttar Pradesh was moved for disciplinary action against appellant Ram
Bharosey Agarwal for the three matters mentioned above. The Disciplinary Committee framed
four issues, three of which related to the alleged misconduct in regard to the three matters
mentioned above, while the fourth issue was meant to decide whether the appellant was guilty
of Professional misconduct. Instead of dealing with the three substantial issues one by one, the
Disciplinary Committee examined them all together even though they raised different questions
of fact. What was worse, the Disciplinary Committee did not give reasons in support of its
finding on any of the issues. All the same, it reached the conclusion that the appellant was guilty
of professional misconduct, suspended him from practice for a period of two years, and
awarded Rs. 100/- as costs to the complainant.

3. An appeal was taken by Ram Bharosey Agarwal to the Bar Council of India. The Council held
by its order dated December 10, 1974 that he was not guilty of professional misconduct in
respect of the first two matters, but that there was no reason for interfering with the finding of
fact of the Bar Council (of Uttar Pradesh) in the third matter regarding the writing of the
aforesaid letter dated August 14, 1967, to Jagdish Nirain Agarwal, Advocate, for having the
appeal dismissed in the High Court. The Bar Council therefore affirmed the finding on the third
charge, but modified the order of the Disciplinary Committee of the Bar Council of Uttar Pradesh
by directing the suspension of the appellant for a total period of three months and ordering him
to pay Rs. 1000/- by way of costs to the complainant.

4. Mr. Sen appearing for the appellant has argued that the appellate order of the Bar Council of
India dated December 10, 1974, should be set aside for three reasons.

5. Firstly, be has pointed out that although a specimen of the handwriting of the appellant was
taken by the Disciplinary Committee of Uttar Pradesh by its order dated January 26, 1969, for
the purpose of comparing it with the letter said to have been written by him on August 14, 1967
to Jagdish Narain Agarwal, Advocate, that letter was not sent to handwriting expert. D.
Alexander and he was thereby prevented from comparing the signature on the disputed letter
dated August 14, 1967 which was alleged to be the principal evidence against the appellant and
formed the basin of the allegation of misconduct against him. We have been taken through the
relevant record, and it appears that there is justification for argument of Mr. Sen.

6. Secondly, it has been pointed out by Mr. Sen that the handwriting expert was required to
compare the signature on the aforesaid letter dated August 14, 1967, with a letter said to have
been written by the appellant to one Bhuley Ram Sharma, who was examined by the
Disciplinary Committee in respect of the allegation against the appellant, the appellant was not
given an opportunity to cross-examine Bhuley Ram Sharma at all, so that his defence was
seriously prejudiced. We find from the proceedings dated January 6, 1974, that while the
complainant and his witness Bhuley Ram Sharma were present on that date, the appellant was
absent. The examination-in-chief of Bhuley Ram Sharma was however recorded, and the care
was adjourned to February 3, 1974 with the direction that information of the adjourned date
may be given to the appellant. The appellant appeared on February 3, 1974, but the cross-
examination of Bhuley Ram Sharma was not allowed even though he was present. The case was
then adjourned to March 24, 1974. Complainant Har Swarup Maheshwari was not present on
that date, but the appellant was present. The Disciplinary Committee however closed the
evidence of the eomplainant, and fixed May 5, 1974, for recording the defence evidence. In this
way the appellant was denied the opportunity of cross examining Bhuley Ram Sharma who was
an important witness in the case. There is therefore justification for the argument of Mr. Sen
that a serious illegality was committed by the Bar Council of Uttar Pradesh in denying the
opportunity of cross-examination to the appellant.

7. As is obvious mentioned above seriously prejudiced the appellant's defence in the inquiry
held by the Disciplinary Committee of the Bar Council of Uttar Pradesh. It is surprising that such
serious illegalities should have been committed by the Disciplinary Committee, and it is difficult
for us to overlook the contention of Mr. Sen that this was so because in the words of Mr. Sen
the Bar Council was a "hot bed of politics." Be that as it may, there can be no doubt that the
order under appeal cannot be sustained when it suffers from such serious defects.
 8. Thirdly, it has been argued by Mr. Sen that although Section 9 of the Advocates Act provided
that the Bar Council shall constitute one or more disciplinary committees, each of which "shall
consist of three persons". only two persons were present on July 21, 1974 when the appellant's
defence was closed and arguments were heard in the case. Mr. Sharma appearing on behalf of
the respondent has not been able to deny that this was so. He has argued that, by virtue of
Section 13 of the Act, no act done by the Bar Council or its committee could be called in
question on the ground merely of the existence of any vacancy in, or any defect in the
Constitution of the Council or committee, as the case may be. We have gone through Section
13, but it is inapplicable to the present controversy as it cannot be said that there was any
"vacancy" in the Disciplinary Committee. It is nobody's case that any of the three members of
the Committee ceased to be a member thereof at any time during lie course of the proceedings
before the Committee. It is also nobody's case that there was any defect in the Constitution of
the Committee or that it was permissible to function with two members only. Therefore
justification for the third argument of Mr. Sen also.

9. In these circumstances, we are constrained to allow the appeal and to set aside the appellate
order dated December 10, 1974. In the circumstances of the case, we would direct that the
patties shall pay and bear their own costs.

(e) P.D. Gupta Vs. Ram Murti and others, AIR 1998, SC 283.

Ans. Fact of the case:-

One Mr. Krishnan died on 5-6-1980. His sister Vidyawati filed a suit for decleration of title in her
favour for certain properties of Mr. Krishnan, Ramamurthi and others resisted the suit claiming
title in their favour. P.D.Gupta was the Advocate of Vidyawati. When the suit was pending P.D.
Gupta purchased part of the disputed property for Rs.18000 and sold it for 34000 immediately.
Mr. ramamurthi filed a complaint against P.D.Gupta before the Delhi Bar Council alleging
professional misconduct. The main allegation is that he has purchased the part of the disputed
property from his client during the pendency of the suit. Since the enquiry was not completed
within one year the matter is transferred to the Bar Council of India. After hearing both the
parties, the Bar Council of India passed an order suspending him from the practice for a period
of one year. The court held that a shadow of undue influence is present when an Advocate buys
property of his own client. Against this order P.D. Gupta filed an appeal before the Supreme
court. In the appeal his main contention was that his client or her legal heirs has not filed any
complaint regarding professional misconduct, and the enquiry conducted based on the
complaint by some other person is wrong.

The Supreme Court did not accept this argument and passed the following orders.

1. Any person shall file a complaint regarding professional misconduct against an Advocate.

2. Bar council shall enquire into the allegation of professional misconduct, though the complaint
is filed by a stranger, because, the Bar council is concerned with the conduct of Advocates.
 3. The order passed by the Bar Council of India is confirmed.

In P.D. Gupta v. Ram Murti and Another22 the Bar Council of India was of the view that the
conduct of P.D. Gupta in the above circumstances was unbecoming of professional ethics and
conduct of an Advocate. The Bar Council observed in this Context as follows: “It is an
acknowledge fact that a lawyer conducting the case of his client, he has a commanding status
and exert influence on his client. As a member of the Bar it is common knowledge that lawyers
have started contracting with the client and enter into bargains that in case of success he will
share the result. A number of instances have been found in the cases of Motor Accident Claims.
No doubt, there is no bar for a lawyer to purchase property but on account of common
prudence specially a law knowing person will never prefer to purchase the property, the title of
which is under doubt” The Supreme Court of India observed that bar council of India, in the
present case, has considered all the relevant circumstances and has rightly come to the
conclusion that Shri P.D. Gupta is guilty of miscount and so he is suspended from practice for
one year.

(f) Charan Lal Vs. Union of India Another, AIR 1988, SC 107.

Ans. PETITIONER: CHARAN LAL SAHU Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT09/10/1987

BENCH: MISRA RANGNATH SINGH, K.N. (J)

ACT: Contempt of Court Act, 1971: s. 15-Writ Petition by way of public interest litigation-
Couched in unsavoury language with a designed attempt to lower the prestige of the Court-
Petitioner issued show cause for contempt of Court.

HEADNOTE: The petitioner, an advocate, filed the application by way of a public interest
litigation alleging that the working of the Judges of the apex Court was cocktail, based on
Western Common Law and American techniques; that the Court had become a constitutional
liability without having control over the illegal acts of Government, and that the Court was
sleeping over the issues.

Dismissing the writ petition,

^ HELD: The petitioner is prima facie guilty of contempt. The petition is clearly intended to
denigrate the Court in. the esteem of the people of India. The allegations are clumsy. It is an
intentional attempt at lowering the prestige of the Court as the apex Judicial Institution.

The Registry to draw up an appropriate proceeding for contempt of court and issue notice to
the petitioner.
 The petition is an act against public interest. The petitioner has certainly overstepped the
limit of self restraint so much necessary in such litigation. The Registry directed not to entertain
any public interest litigation application filed by the petitioner in future.

JUDGMENT:

In a Public Interest Litigation, the Advocate allegedly stated in his writ petition thus :

"Thus the working of the Judges are cocktail based on western Common Laws and American
Techniques, as such unproductive and outdated socioeconomic conditions of the country."

"This Court has become a constitutional liability without having control over the illegal acts of
the Government...Thus the people for whom the constitution is meant have now turned down
their forces against it which is a disillusionment for fear that justice is a will-o-the wisp".

"This Court is sleeping over the issues like Kumbhakarna."

The Court held that many of the allegations are likely to lower the prestige of the Supreme
Court as the apex Judicial Institution. The Court is of the prima facie view that the petitioner has
been drawn up with a designed purpose of bringing the Court into contempt and the petitioner
is prima facie guilty of Contempt.

The Court dismissed the petition as the petition is an act against public interest. The Registrar is
directed to draw up an appropriate proceedings for contempt and issue notice to the petition
calling upon him to show cause in person, as to why he may not be proceed under the Contempt
of Courts Act.

(g) In. Re. : Ajay Kumar Pandey AIR 1997, SC 260.

Ans.

(h) L.D. Jaikwal Vs. State of Uttar Pradesh AIR 1984, SC 1374.

Ans. Case name: L.D. JAIKWAL Vs. STATE OF U.P

Case number: 1984 AIR 1374 1984 SCC (3) 405

Court: SUPREME COURT OF INDIA

Bench: THAKKAR, M.P. (J) SEN, A.P. (J)

Decided on: 17/05/1984

BRIEF FACTS AND PROCEDURAL HISTORY:

The appellant was a senior advocate. He was required To appear before the Special Judge to
make his submission on the question of sentence to be imposed upon his client who was
convicted for an offence under s.5(2) of the Prevention of Corruption Act, 1947. As he appeared
in a shirt and trouser outfit and not in Court attire, the Judge asked him to appear in the
prescribed formal attire for being heard in his professional capacity.

The appellant took umbrage and left the Court. Some other advocate appeared in the matter
and the accused having being found guilty of the charge of corruption the Judge imposed a
sentence of four years R.I. The appellant made a written application to the Judge couched in
scurrilous language making the imputation that the Judge was a ’corrupt Judge’ and added that
he was ’contaminating the seat of justice’; and forwarded copies of the application, without
occasion or need to the Administrative Judge, Chief Secretary and other authorities.

The High Court initiated contempt proceedings, found the appellant guilty of having committed
criminal contempt under s. 2(c)(1) of the Contempt of Courts Act, 1971 and after affording full
opportunity of hearing, imposed a sentence of simple imprisonment for one week and a fine of
Rs. 500. Hence the present appeal.

ISSUE BEFORE THE COURT:

Written apology tendered to Judge ’as directed by the Supreme Court under contempt of court
proceeding sufficient to set aside conviction by High Court?

RATIO OF THE COURT

Considerations regarding maintenance of the independence of the judiciary and the morale of
the Judges demand that the appellant should not escape with impunity on the mere tendering
of an apology which in any case does not wipe out the mischief. If such a apology were to be
accepted, as a rule, and not as an exception, it would virtually be tantamount to issuing a license
to scandalize courts and commit contempt of court with impunity. The High Court was justified
in imposing a substantive sentence and the said sentence cannot be said to be excessive or out
of proportion.

No Judge can take a decision which does not displease one side or the other. By the very nature
of his work he has to decide matters against one or other of the parties. If the fact that he
renders a decision which is resented to by a litigant or his lawyer were to expose him to such a
risk, it will sound the death knell of the institution. A line has therefore to be drawn some
where, some day, by some one. That is why the Court is impelled to act (rather than merely
sermonize) much as the Court dislikes imposing punishment whilst exercising the contempt
jurisdiction, which no doubt has to be exercised very sparingly and ’with circumspection.

An attitude of unmerited leniency cannot be adopted at the cost of principle and at the expense
of the Judge who has been scandalized. To pursue a populist line of showing indulgence is not
very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to
the mail studded path of duty. Institutional perspective demands that considerations of
populism are not allowed to obstruct the path of duty.
 In the instant case, the appellant sought to justify his conduct before the High Court on the
ground of the treatment alleged to have been meted out to him by the Special Judge. No
remorse was felt. No sorrow was expressed. No apology was offered: He expressed his sorrow
only before this Court, saying that he had lost his mental balance, and was granted an
opportunity to tender an apology. He appeared before the Special Judge and tendered a written
apology indicating that he was doing so: “as directed by the Hon’ble Supreme Court.” This
circumstance shows it was a ’paper’ apology, and that the expression of sorrow came from his
pen, not from his heart. It is one thing to “say” sorry-it is another to “feel” sorry. This Court
cannot subscribe to the ’slap-say sorry-and forget’ school of thought in administration of
contempt jurisdiction.

DECISION HELD BY COURT:

Appeal was accordingly dismissed.

9. Right to Practice a Right or privilege under article 19(g).

Ans. There are six clauses in article 19 the first one{19(1)} deals with the important freedom rights
and {19(2)-19(6)} deals with tests for restrictions imposed on freedom.

The six freedom rights covered under article 19(1) are:

1. 19(1)(a) - Right to freedom of speech and expression

2. 19(1)(b) - Right to assemble peacefully without arms
3. 19(1)(c) - Freedom to form associations
4. 19(1)(d) - Right to move freely in territory of India
5. 19(1)(e) - Right to settle in territory of India
6. 19(1)(g) - Freedom of trade and profession

Meaning

As per the bare language the article 19 is defined as follows:

Protection of certain rights regarding freedom of speech etc

1. All citizens shall have the right

a. to freedom of speech and expression;

b. to assemble peaceably and without arms;
c. to form associations or unions;
d. to move freely throughout the territory of India;
e. to reside and settle in any part of the territory of India; and
f. omitted
g. to practise any profession, or to carry on any occupation, trade or business
2. Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause in the interests
of the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence.

3. Nothing in sub clause (b) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public order, reasonable restrictions
on the exercise of the right conferred by the said sub clause

4. Nothing in sub clause (c) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub clause

5. Nothing in sub clauses (d) and (e) [2]of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub
clauses either in the interests of the general public or for the protection of the interests
of any Scheduled Tribe

6. Nothing in sub clause (g) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub clause, and, in particular, nothing in the said sub clause shall
affect the operation of any existing law in so far as it relates to, or prevent the State
from making any law relating to:

i. The professional or technical qualifications necessary for practising any

profession or carrying on any occupation, trade or business, or
ii. The carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise

Freedom Of Trade And Profession 19(1) (g)

Constitution has granted this fundamental right under Art 19(1)(g), for the prosperity and well
being of everyone in the society. The State ensures that no individual residing within the
territorial boundaries of the country is deprived of this right and if at all he is, it will take the
requisite measures to avail him of an appropriate remedy and make sure that justice is
delivered. Every citizen should utilize this right to the best of his capabilities and for his moral as
well as economic progress.
[Art. 19(1)(g)) grants a person the freedom to choose the source of his or her choice of living.
The right covers the right not to choose an undertaking or the right to close a company. The
second right comes with other provisions such as payment of wages for jobs, pension, etc. The
right of the person to carry on a career is fundamental to a man's life and the state does not
place any specific restriction on it, except for the general public's benefit. There is of course no
right to carry on a dangerous or immoral business

19(1)(g) along with restriction as mentioned in 19(6)

As we know that article 19(1)(g) deals with FREEDOM OF TRADE AND PROFESSION and 19(6)
lays down reasonable restrictions to it which are as follows:

Grounds for Reasonable restriction:

1. In the interests of the general public.

2. State prescribed qualifications for carrying on any profession or technical occupation.
3. State-run trade, business, industry, or service that excludes the participation of citizens
or others either completely or partially.

Right to carry on business includes right to close the business? NO

Excel Wear v. Union of India (1979)[15]

It was held that the right of the businessmen to close down their business (and in particular the
members' right of voluntary winding up) has to be protected. The Apex Court in Excel Wear case
by holding the impugned provisions as unconstitutional has rightly prevented the businessmen
from being forced to implore to the government for permission to close down their business
which could have been easily denied by the government arbitrarily and without any reason.

Education covered under Article 19(1)(g)?

Unni Krishnan v. State of A.P.(1993)[16]

The Supreme Court held that the right to basic education is implied by the fundamental right to
life (Article 21) when read in conjunction with the directive principle on education (Article 41).
The Court held that the parameters of the right must be understood in the context of the
Directive Principles of State Policy, including Article 45 which provides that the state is to
endeavour to provide, within a period of ten years from the commencement of the Constitution,
for free and compulsory education for all children under the age of 14The Court ruled that there
is no fundamental right to education for a professional degree that flows from Article 21.

Conclusion

The Right to Freedom is one of the most important Fundamental Rights under the Constitution
of India. Without freedom, there can't be any democratic setup. People will not be able to grow
and develop if they do not have the freedom to do anything. At the same time, providing people
 with absolute freedom could be very dangerous. It is important to put restrictions on freedom
so that people don't misuse their rights and co-exist with others peacefully.

The State thus acts as a source of limiting the freedom of individuals. Our Constitution has very
nicely mentioned the freedoms and the grounds on which they can be limited. This balance of
power is necessary. Thus, the Article 19 of our Constitution is one of the most important article
which ensures the welfare of the citizens of our country. It enables them to form opinions and
choices and work accordingly to their will. But through reasonable restrictions it also ensures
that while one is exercising his right he doesn't infringe the right of any other person or create
thread to the society.

10. An Advocate’s an officer of the court and an agent as well as trustee of his client. Comment.

Ans. An advocate is considered as an officer of the court, honoured member of the community, and a
gentleman, thinking that to become a member of the bar he has to be lawful and moral not only
in his professional capacity but also in his non – professional capacity. An advocate has to
courageously support the interest of his client and also have to follow the principles of ethics
and etiquette both in correspondence.

The bar council of India rules, State Bar Council rules mention certain canons of conduct and
etiquette as general guides. Section 49(1)(c) of the Advocates Act, 1961 empowers the bar
council of India to make rules in order to determine the standards of professional conduct and
etiquette to be observed by the advocates. Chapter – II of Part – VI OF The Bar Council of India
Rules explaining the rules pertaining to Advocate's Duty to the Court.

Following are the duties of advocate towards to court:

1. An advocate while presenting his case should conduct himself with dignity and self
respect
2. Respectful attitude must be maintained by the advocate. He has to keep in mind the
dignity of the judge.
3. An advocate should not, by any improper means should influence the decision given by
the court.
4. An advocate can make a complaint against the judicial officer but it has to be before
proper authorities and there has to be serious offence done by the judicial officer.
5. It is the duty of the advocate to prevent his client from resorting to unfair practices and
also the advocate himself should not do any of such acts.
6. Dress code has to be maintained by the advocate while appearing before the court.
7. An advocate should not take up any case of his family members and relatives.
8. No bands or gowns had to be worn by the advocate in the public places. It is only limited
to the court premises.
9. An advocate cannot be as a surety for his client. An advocate shall not act or plead in
any matter in which he has some kind of pecuniary interest.
10. It is the duty of the advocate to cooperate with the bench in the court.
 11. It is the duty of the advocate to perform his functions in such a manner that due to his
acts the honor, dignity and integrity of the courts shall not be affected.
12. An advocate should not laugh or speak loudly in the court room especially when the
proceedings are going on.
13. When an advocate accepts a brief, he should attend all adjournments properly. If he has
any other work in another court, he should first obtain the permission from the court
concerned. Particularly in criminal cases, it is the first and foremost duty of an advocate
to attend.
14. While the case is going on, the advocate cannot leave the court without court's
permission and without putting another man in charge, preferably his colleague or
junior or friend advocate.

The Bar Council can review the order given by the disciplinary committee under Section 44 of
the Advocate's Act, 1961. V.C. Rangadurai v/s D. Gopalan, In this case V. C. Rangadurai was an
advocate and Devasenapathy was an old deaf man, aged 70 years and Smt. D. Kamalammal was
also aged.

They had given two promissory notes to rangadurai and also paid the fees as was asked to the
advocate. Nevertheless, the advocate did not file the case in time. The limitation was over. After
a long time of wandering around the office of the advocate, the old man came to know that the
advocate deceived him by not filing the cases within the time even after receiving the fees. He
filed a complaint before disciplinary committee of the Tamilnadu state bar council which after
enquiry punished the advocate suspending him for 6 years.

On appeal, it was confirmed by the Bar council of India and also by Supreme Court. Rule 6 of
Chapter II of Part- VI of the Bar Council Rules states that an advocate shall not appear, act, plead
or practice before the court if any member is related to the advocate as father, son, wife etc. the
main object is to avoid personal bias between an advocate and presiding officer related to such
advocate.

Due to natural love and affection, the judge may incline towards the advocate, thus to favour
the client of the advocate related to him or her. In case of Satyendra Nararain Singh and Others
vs Ram Nath Singh and Others, wife is the judge and husband is the advocate.

Court held that the advocate should not appear before his wife, who is the judge of the court. If
he appears before the court, to which his wife is presiding officer, it becomes his professional
misconduct. If he appears before the wife- judge. It is the duty of the judge to raise the
objection. If she fails to object and accepts his appearance, then it becomes her judicial
misconduct.

Apart from the above, in our view lawyers are perceived to be their client's agents. The law of
agency may not strictly apply to the client-lawyer's relationship as lawyers or agents, lawyers
have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will
sometimes more demanding than those imposed on other agents. The authority-agency status
affords the lawyers to act for the client on the subject matter of the retainer. One of the most
basic principles of the lawyer-client relationships is that lawyers owe fiduciary duties to their
clients. As part of those duties, lawyers assume all the traditional duties that agents owe their
principals and, thus, have to respect the client's autonomy to make decisions at a minimum, as
to the objectives of the representation. Thus, according to generally accepted notions of
professional responsibility, lawyers should follow the client's instructions rather than substitute
their judgment for that of the client. The law is now well settled that a lawyer must be
specifically authorised to settle and compromise a claim, that merely on the basis of his
employment he has no implied or ostensible authority to bind his client to a
compromise/settlement. To put it alternatively that a lawyer by virtue of retention, has the
authority to choose the means for achieving the client's legal goal, while the client has the right
to decide on what the goal will be. If the decision in question falls within those that clearly
belong to the client, the lawyers conduct in failing to consult the client or in making the decision
for the client, is more likely to constitute ineffective assistance of counsel.

The Privy Council in the case of Sourendra Nath Mitra v. Tarubala Dasi MANU/PR/0016/1930 :
AIR 1930 PC 158 has made the following two observations which hold relevance to the present
discussion:

Two observations may be added. First, the implied authority of counsel is not an appendage of
office, a dignity added by the Courts to the status of barrister or advocate at law. It is implied in
the interests of the client, to give the fullest beneficial effect to his employment of the advocate.
Secondly, the implied authority can always be countermanded by the express directions of the
client. No advocate has actual authority to settle a case against the express instructions of his
client. If he considers such express instructions contrary to the interests of his client, his remedy
is to return his brief.

Therefore, it is the solemn duty of an advocate not to transgress the authority conferred him by
the client. It is always better to seek appropriate instructions from the client or his authorized
agent before making any concession which may, directly or remotely, affect the rightful legal
right of the client. The advocate represents the client before the Court and conducts
proceedings on behalf of the client. He is the only link between the Court and the client.
Therefore his responsibility is onerous. He is expected to follow the instructions of his client
rather than substitute his judgment.

Conclusion:

Advocate has duties which are to be performed towards himself, his clients, opponents,
colleagues, court etc. it is the duty of the advocate to maintain the decorum of the court and act
properly with his opponents or colleagues. He must always act in the best interests of his clients
and should not do any kind of act that betrays their trust upon him.
 An advocate has to present his case before the court fearlessly. He must maintain the dignity of
the legal profession as well as the dignity of the court. He is considered as an officer of the court
and required to uphold the dignity and decorum of the court.

These rules prohibit private communication with the judge relating to a pending case. Not only
the litigants and witnesses but the general public will also get the inspirations from the example
of advocates. It is necessary for dignified and honourable administration of justice that the court
should be regarded with respect by the suitors and people. All these duties, ethics and morals
help an advocate to be in a better position in his career and become a successful lawyer.

11. Who is a senior advocate? Are there any restrictions imposed on his appearance before the
courts?

Ans. In a long-overdue move aimed at ensuring transparency and more egalitarian representation
among the ranks of senior lawyers, the Supreme Court has set out a detailed procedure and
clear criteria for designating lawyers as senior advocates.

The Advocates Act of 1961- According to section 16 of The Advocates Act, 1961.

1. Advocate act prescribes that there shall be in India two classes of advocates, advocates,
and senior advocates.
2. An Advocate may, with his consent, be designated as senior advocate if the Supreme
Court or High court is of an opinion that by his ability, standing at the bar or special
knowledge or experience in law he is deserving of such distinction
3. Senior Advocate shall, in the matter of their practice, be subject to such restrictions as
the Bar Council of India may, in the interest of the legal profession, prescribe.
4. An Advocate of the Supreme Court who was a senior advocate of the court immediately
before the appointed day shall, for the section, be deemed to be a senior Advocate.

Provided that were any such senior advocate makes an application before 31 of December 1965
to the Bar council maintaining the role in which his name has been entered that he does not
desire to continue as a senior advocate, The Bar Council may grant the application and the role
shall be altered accordingly.”

In practice, the process of appointments is governed by the rules of the high court and the rules
of the Supreme Court which was laid in the following case In, MS Indira Jaising v. Supreme Court
of India In this case, three-judge bench of Justices Ranjan Gogoi, Rohinton Nariman and Navin
Sinha had heard arguments in August by former Additional Solicitor General Indira Jaising,
Through Secretary-General and others in Writ Petition (C) No. 454 of 2015 which had very
clearly prescribed the parameters for designation of advocates as senior advocates after senior
advocate Ms Indira Jaising who filed the petition pointed out that the present system of which
certain lawyers were officially given the status of ‘senior advocates' – following which they are
provided with special lawyers' robes/gowns4.
Jaising, herself a senior advocate, had argued that the system for granting the designation, at
the discretion of judges of the High Courts and Supreme Court (upon receiving an application),
was opaque and discriminatory, and needed to be modified. She also challenged the practice of
giving special gowns to senior advocates and stopped wearing her own.

"Along with her plea to ensure that any designation of lawyers as senior was based on proper
criteria, Jaising also raised an argument that the practice violated Article 14 and 15 of the
Constitution by being arbitrary and discriminatory, and led to lobbying and undue power among
current senior advocates."

Other stakeholders also filed similar cases that were clubbed with Jaising's, such as the Gujarat
High Court Advocates Association, and the Meghalaya Bar Association.

The Supreme Court upheld the constitutionality of the practice of classifying people as senior
advocates, but recognized the need for a more transparent procedure and criteria for doing so.

Under the new procedure, each High Court and the Supreme Court will need to have a
Permanent Committee for Designation of Senior Advocates composed of the Chief Justice, the
two senior most judges, the Advocate General (for High Courts) or Attorney General (for the SC)
and an eminent member of the Bar nominated by the other four members. This is significantly
different from the old procedure whereby only the judges made the decisions.

Applications for designation as a senior advocate would be received and vetted by the
Secretariat of the Permanent Committee, which will process the applications and send a report
to the Committee. The Committee has to then interview the applicants and assess them based
on the following factors:

1. Number of years of experience;

2. Their contributions to reported judgments of the courts, and the number of such
judgments in the last 5 years;
3. Publications by them; and
4. Test of personality and suitability

The Permanent Committee will then select which applications are to be forwarded to the
respective full courts, which will then make the final determination. Unsuccessful applications
can be resubmitted after two years.

The Court also noted that the process would need to be reviewed and reconsidered as required
over time.

APPLICATION AND ELIGIBILITY

Application shall be made by the advocate, the recommendation can also be made in writing by
the chief justice of India or by other judges of the Supreme Court in the prescribed manner. That
application must be submitted to the secretariat. The secretariat will investigate the application
and call for application to take place only in January and July.

As far as eligibility is concerned, it has to be in the mind of the person making the application for
the designation as a senior advocate that he should have 10 years of experience standing as an
advocate or district judge or as judicial member of any tribunal whose qualification for eligibility
isn't less than the district judge. Retried chief justice or the judge of the high court are also
eligible for this designation.

PROCEDURE FOR DESIGNATION

All the application and the written proposal are to be submitted with the secretariat which will
then compile data of applicant's reputation, conduct, and integrity and with the pro bono work,
no. of judgment during the past five years.

After all the database complied, the committees will scrutiny based on four-point criteria which
are already explained above. Simply then, the application is submitted to the Full Court, which
would vote on the same. These rules also specify that the voting is to be done by secret ballot. If
the application is rejected by the Full Court it would be considered fresh after 2 years and cases
which are deferred can be considered after one year of such deferment. This rule also clarifies
that if an advocate found guilty of misconduct, the Full Court may disentitle the advocate for the
designation of a senior advocate or may review its decision to designate the person's concern
and recall the same. Before any action is taken by the Full Court, it gives an opportunity of
hearing to the concerned senior advocate.

Restriction on senior advocate

1) Under the Advocate Act 1961, the bar council of India imposes certain restrictions on the
practice by senior Advocates it is thought necessary in the interests of the legal profession.
Senior Advocates shall, in the matter of their practice of the profession of law mentioned in
section 20 of the Act, be subject to the following :

 A Senior Advocate shall not file the vakalatnama or actin any court, or tribunal, or
before any person or other authority mentioned in section 30 of the Act.

 1) A Senior Advocate shall not appear without any Advocate on Record in the Supreme
court or without an Advocate in Part II of state roll in any court, or tribunal, or any other
authorities mentioned in section 30 of the Act.

2) Where a Senior Advocate has been engaged before the coming into force of the rule
in this chapter, he shall not continue thereafter unless an Advocate in Part II of the State
Roll in engaged along with him.

 He shall not accept an instruction to draft pleading or affidavit, advice on evidence or to

do any drafting work of an analogous kind in any court or tribunal, or before any person
 or authority mentioned in section 30 of the act or undertake conveyancing work of any
kind whatsoever. This restriction, however, shall not extend to settling any such matter
as aforesaid in consultation with an advocate in Part-II of the state roll.

 A senior advocate shall, however, be free to make connections or give an undertaking in

the course of arguments on behalf of his clients on instructions from the junior
advocate.

 He shall not accept directly from a client any brief or instructions to appear in any court
or tribunal, or before any person or any other authority in India.

 A senior advocate, who had acted as an advocate (junior) in a case, shall not after he has
been designated as senior advocate advice on grounds of appeal in a court of appeal or
the Supreme Court, except with an advocate as aforesaid.

 A senior Advocate may in recognition of the services rendered by an advocate in Part II

of the state roll appearing in any matter pay him a fee which he considers reasonable.

2) Under Order 4 Rule 7 of Supreme Court Rules 1950, which provides that senior advocate
shall not draw pleadings, Affidavit, Advice on evidence, and Statement of cases or do any
drafting work of any kind in any court. This restriction does not apply to discuss the same work
with the junior Advocate.

CASE STUDY:

Ram Sagar Shukla v. U.P. Textile Printing Corporation Ltd. It appears that the Writ Petition No.
7937 of 1985. Ram Sagar Shukla v. U.P. Textile Printing Corporation Ltd. Khalilabad, Basti and
Ors., was dismissed in default on 16.7.2003 and the restoration application has been filed by Sri.
K.P. Agrawal designated Senior Advocate on 14.8.2003 and this Court has passed the order
dated 18.8.2003 which reads as below:

List this case before me on 21.8.2003. A notice has to be issued to Sri K. P. Agrawal, Senior
Advocate to indicate under what circumstance he has filed this application, is a Senior Advocate
he is not supposed to file any application and he is not supposed to file Vakalatnama by his
signature as the Full Court of Allahabad High Court has designated him as Senior Advocate. If
satisfactory explanation is not given by him the case shall be referred to Hon'ble the Chief
Justice for consideration for removal of his senior's counsel designation and the matter shall be
sent to Bar Council of U. P. and Registrar General shall intimate to Sri K. P. Agrawal about this
order with an intimation to this Court."

The affidavit enclosed with the restoration application was sworn by Sri Nazme Hasan claims to
be the registered clerk of Sri K. P. Agrawal, Senior Advocate. It has been contended in paragraph
3 that when the case was listed on 16.7.2003 at serial No. 4 on page 121 the name of Sri K. P.
Agrawal, Sri B. C. Tripathi and Sri Hari Om Khare were shown as counsel for the petitioner. Since
the name of other than Sri K. P. Agrawal was shown it was presumed that the petitioner had
engaged the other two counsel and he was not present when the case was called out, however,
it was not noted in the office of Sri K. P. Agrawal, Senior Advocate and Sri K. P. Agrawal has no
knowledge that the case was listed otherwise he certainly might have appeared before the
Court and might have argued the case.

As contended in the affidavit that at the time of filing the Writ Petition No. 7937 of 1985 in the
name and signature of Sri K. P. Agrawal, he was not a designated Senior Advocate. It has further
been contended in paragraph 4 of the affidavit that it was not on account of any negligence but
for bona fide reasons the case was dismissed in default. No satisfactory explanation, however,
has been given in this application besides the important aspect that despite designated as Senior
Advocate Sri K. P. Agrawal has applied for a derogation to the applicable provisions after being
designated as Senior Advocate he could not be engaged as counsel for any party on
Vakalatnama.

Now in the present facts and circumstances, the following questions arise:

(i) Whether Senior Advocate could be engaged by a client on Vakalatnama?

(ii) Whether a Senior Advocate could directly receive instruction from the client/ party?

(iii) Whether the present application of restoration could be filed for and on behalf of Senior
Advocate and the signature of Senior advocate?

For dealing with these aspects it is necessary to deal with the relevant provisions of the
Advocates Act and the Bar Council of India Rules and other different provisions applicable in the
present case.

Section 30- Right of an advocate to practice- subject to the provision of this Act, every advocate
whose name is entered in the (state roll) shall be entitled as of right to practice throughout the
territories to Which this Act extend,-

 In all court including the Supreme Court

 Before any tribunal or person legally authorized to take evidence
 Before any other authority or person before whom such advocate is or by under any law
Chapter VI deals with the miscellaneous parts of Act and section 49 deals with general
power of the Bar Council of India to make rule and the relevant part is provided as
below: Section 49(1)(g)- The restrictions in the matter of practice to which Senior
Advocate shall be subject: Under the provision under rule 16(3) and 49(1)(g) of the Act
and Part VI of Bar Council of India Rules deals with the rule governing the advocates and
the Chapter I deals with the Restrictions on Senior Advocates.

Only an advocate having at least 10 years of practice can be recommended: Provided that a
retired Judge of any High Court who is qualified to practice in Allahabad High Court may also be
recommended for being designated as Senior Advocate: Provided that concerned advocate shall
fulfill the criteria and the procedure of Designated Committee for the appointment of Senior
Advocate as explained above in the Admission of Senior Advocates.

In these circumstances, it was not in consonance to the provisions of the Act as well as the
provision of the Bar Council of India Rule that the Senior Advocate Sri K.P. Agrawal signed the
restoration application and got the affidavit sworn by a clerk attached to him. He is also not
supposed to file Vakalatnama of his client. In the present circumstances, this application cannot
be treated to be duly filled, it is difficult to accept the justification and explanation given in the
supporting affidavit. Therefore, it is not necessary to go into the contents or justification, it is
only indicated that Sri K.P. Agrawal was to maintain and uphold the dignity of Senior Advocate in
present facts.

For dealing the restoration application this Court referred and relief on the order passed in
Restoration Application No. 138670 of the 2003 in W.P. No. 28709 of 1993 that if Sri K.P.
Agrawal was earlier a junior counsel and was engaged by a client after designated as Senior
Advocate he ceased to be counsel for the party and he cannot say that since earlier he was not
senior counsel, therefore, he has the legal right to file the restoration application in his
signature. For the reasons recorded in the order dated 18.12.2003 passed in Restoration
Application, the restoration application is rejected.

CONCLUSION & SUGGESTION

The paper concludes that the cardinal principle which determines the privileges and
responsibilities of advocates concerning the court is that he is an officer to justice and a friend of
the court and restricted to the rules laid. This is the primary position. The advocate must not
place himself in a position in which he cannot effectively discharge his obligation to the court as
minister of justice.

Senior Advocate is designated as per section 16 of the Advocate Act, 1961 which states that the
court will designate any Advocate, with his consent in the opinion of the supreme court or high
court by his ability, or standing at Bar, or experience of law. As far as Senior Advocate is
concerned, that he is indulged in accepting briefs. And the State Bar council of India is in the
authority to regulate it.

So, it is suggested in the Phase "Practice of law" under rule 2(xx) it is very wide and includes
giving of a legal advice and contemplates a degree of independence and neutrality in the legal
advice given and doesn't appear to include legal advice given by in- house counsel to their
employer. Thus inhouse counsel cannot be considered to be into "practice of law".

Diversifying the current roster of senior advocates may mean encouraging women advocates
and those belonging to the lower castes to apply for seniority. This is critical. Among practicing
lawyers, only senior advocates are earnestly considered for a judgeship. So, a diversified bench
of judges can only come from a diversified roster of senior advocates.
12. “Practice of law is a noble calling and not a business”. Comment.

Ans. Advocate’s profession is service oriented, not trade or commerce or industry and is noble.
Maintaining dignity and decorum is essentially based on mutual respect in between members of
the Bar and Bench. Dignity, decorum and self-respect of the bar should be maintained as they
are counterparts of the Administration of Justice, a divine act. Dispensation of justice is not an
individual act of judiciary, but a joint act of the Bar and Bench. The central function of the legal
profession is to help promotion of administration of justice. Any misdemeanour or misdeed or
misbehaviour can become an act of delinquency. It is desirable to observe written and oral
conventions built over long years and followed since time immemorial.

The Indian legal system is the product of the history. It is rooted in our soil; nurtured and
nourished by our culture; languages and traditions; fostered and sharpened by our genius and
quest for social justice; reinforced by history and heritage; it is not a mere copy of the English
common law, though inspired and strengthened, guided and enriched by concepts and precepts
of justice, equity and good conscience, which are indeed the hallmark of the common law.
Elaborate rules framed by the Bar Council of India provide for the duty of an advocate to the
Court, to the client; to the opponent counsel and to his colleagues; to maintain towards the
Court a respectful attitude bearing in mind that the dignity of the judicial office is essential for
the survival of a free community, that he shall use his best effort to restrain and prevent his
client from resorting to sharp or unfair practices or from doing anything in relation to the Court,
opposing counsel or parties which the advocate himself ought not to do; to uphold the interests
of his client by all fair and honourable means without regard to any unpleasant consequences to
himself or to any other; etc.

An advocate is an officer and a Senior advocate is a senior officer of the Court and with that
privilege responsibility must follow in its wake. His primary allegiance is to the Court and it is no
part of the professional duties of an Advocate to act merely as a mouthpiece of his client. A
member of the bar should use best efforts to restrain and prevent his client from resorting to
any unfair or sharp practice. He should ‘settle’ i.e. put pleadings in proper form and not ‘cut and
paste’ from other cases. Pleadings should be tailored made not stereo-typed. He is expected to
argue the case with sense of detachment and non-identification with the cause espoused as he
is expected to argue in order to make law and considering the binding precedents and taking
care of dissenting judgments.

He is expected to place facts fully, completely and correctly, as available on records. No material
fact be concealed. He should raise arguments based on law and support by law laid down by the
Hon’ble Supreme Court, the jurisdictional High Court and other High Courts. Only relevant
judgments matching to the facts of the case need be cited. On the same proposition large
number of judicial precedents need not be placed to burden the Hon’ble Court and to waste
precious time of all concerned. Citing judgment of a Court which has been overruled by a larger
Bench of the same High Court or Supreme Court without disclosing the fact that it has been
overruled is bad and a matter of serious concern. Object is to ensure smooth functioning of the
Court. We are architects of society by serving as social engineers. The indispensable role played
by us in the dispensation of justice is commendable. When an advocate or a party appearing
before the Court requires to conduct himself in a manner befitting to the dignity and decorum
of the Court, he cannot have a free licence to indulge in writing in the pleadings the scurrilous
accusations or scandalisation.

An advocate should be peaceful and keep atmosphere calm and quiet. Voice need not be too
loud, aggressive or agitative. One should argue without any bias, pre-notions and attachment.
Advocates are not astrologers or fore-tellers and should not forecast or guarantee. Guarantee
briefs should be eschewed. Dignity and honour should not only be maintained but enhanced.
We have a bounden duty to assist the Court and not to mislead it. We stand in a loco parentis
towards the litigants and it, therefore, follows that the client is entitled to receive disinterested,
sincere and honest treatment especially where the client approaches the advocate for succour
in times of need.

An advocate shall, at all times, comport himself in a manner befitting his status as an officer of
the Court, a privileged member of the community, and a gentleman bearing in mind that what
may be lawful and moral for a person who is not a member of the Bar, or for a member of the
Bar in his non-professional capacity may still be improper for an advocate. The preamble depicts
as to conduct of an advocate and need be read with care and caution. It is the soul and heart of
the noble profession of law.

An advocate should not accept brief, file Vakalatnama and put appearance before his father or
other close blood relation or friend or an associate and should not accept brief in such case
where any other advocate has filed Vakalatnama, without seeking no objection from the existing
advocate. Tendency to retain the records and not to return need to be eschewed. No right vests
to retain the records even if fees remains as outstanding. Any communication between the
client and the counsel is secret and it is the duty of the counsel not to divulge or disclose or
discuss without permission of the client. Loose talks deserve to be avoided. Gossips
impermissible. Utmost care and caution is essential in proper discharge of duty and trust.

He should at all times pay differential respect to the judge and unscrupulously observe the
decorum of the Court room and maintain strict fiduciary relations with the clients under all
circumstances. We must act as a ‘model to the juniors’ of the profession. He should know that
his first duty is to the Court, he has nothing to fear. “Fear None, Except one, who is above all of
us”. He must disregard specific instruction of his client, if they conflict with his duty to the Court.
If he breaks it, he is offending against the rules of profession and is subject to its discipline.

An advocate should not hesitate to condemn tyranny or injustice. An advocate stands for justice
more than a Judge and he pleads for it. An advocate should continue to enjoy the confidence
not only of his client but also of the Court and the Bar by his moral excellence. It is not the duty
to follow every instruction of the client friendly / mechanically. That is an entire
misapprehension of the duty of a legal practitioner. He must not trick or deceive the Court or
attempt to gain for his client an advantage by dishonest means.

Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The
protest, if any is required, can only be by giving press statements, TV interviews, carrying out of
Court premises banners and/or placards, wearing black or white or any colour arm bands,
peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts
etc. It was held that only in the rarest of rare cases where the dignity, integrity and
independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a
protest abstention from work for not more than one day. It has been admitted that judiciary is
over-burdened with pending litigation. If strikes are resorted to on one or the other ground,
litigants would suffer as cases would not be decided for years to come. Therefore, some
concrete joint action is required to be taken by the Bench and the Bar to see that there are no
strikes any more. Strike by lawyers is illegal and unethical. It infringes fundamental right of
litigants for speedy trial. Lawyers abstaining from appearing in Court are also guilty of
professional misconduct.

Relationship between an advocate and his client is of trust and therefore sacred. Acts of
professional misconduct and the frequency with which such acts are coming to light distressed
the Court. Preservation of the mutual trust between the advocate and the client is a must
otherwise the prevalent judicial system in the country would collapse and fail. Such acts do not
only affect the lawyers found guilty of such acts but erode the confidence of the general public
in the prevalent judicial system. It is more so, because today hundred per cent recruitment to
the Bench is from the Bar starting from the subordinate judiciary to the higher judiciary. You
cannot find honest and hard working Judges unless you find honest and hard working lawyers in
their chambers. Time has come when the Society in general, respective Bar Council of the States
and the Judges should take note of the warning bells and take remedial steps and nip the evil or
the curse, in the bud.

Ordinarily a lawyer should fix his fees at the time when he is engaged by his client. It is improper
for a lawyer to leave the determination of the fees till the conclusion of the litigation or
dependent upon how the litigation fares. An agreement between an advocate or a lawyer and
his client that he will accept as his fees a specified share in the subject-matter of the litigation or
claim upon the successful issue of such litigation is void as being opposed to public policy and
the conduct of such advocate or lawyer amounts to gross professional misconduct. The fees
should commensurate to the labour involved and his standing but it should be just, fair,
reasonable and such where an ordinary litigant can also seek the help. It should be as per
“need” – not “greed”. As far as possible professional bills be issued, payment be received by
cheque, receipt be issued and proper taxes paid.

The high standards of the profession demand that when the moneys of the client come into the
possession of an advocate, otherwise than as earmarked fees, he has to treat himself as in the
position of a trustee for the client in respect of the said moneys. Even if he has a lien on such
moneys, it would be improper for him to retain, i.e., to appropriate the same towards his fees
without the consent, express or implied of his client or without any order of the Court.

It is not in accordance with professional etiquette for an advocate while retained by one party to
accept the brief of the other. It is unprofessional to represent conflicting interests except by
express consent given by all concerned after a full disclosures of the facts. Acceptance of brief
for accused after having appeared for complainant amounts to professional misconduct. Giving
of improper legal advice may amount to professional misconduct but not wrong legal advice.
Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in
the exercise of his profession does not amount to professional misconduct. However, proper
care need be taken while giving an opinion. Cases for and against need be examined and
intimated. It is a sacred act – may make or mar your client – reposing utter confidence in you.

Snatching briefs by standing at the door of the Court house and in-fighting for this purpose is
too dishonourable, disgraceful and unbecoming to be approved. The canons of ethics and
propriety for the legal profession totally taboo conduct by way of soliciting, advertising,
scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business.
Law is no trade, briefs no merchandise and so the heaven of commercial competition or
procurement should not vulgarise the legal profession.

An advocate stands in a loco parentis towards the litigants. Therefore, he is expected to follow
norms of professional ethics and try to protect the interests of his client in relation to whom he
occupies a position of trust. Counsel’s paramount duty is to the client. The client is entitled to
receive disinterested, sincere and honest treatment. It was further observed that no advocate
can take it for granted that he will appear in the Court according to his whim or convenience. It
would be against professional ethics for a lawyer to abstain from the Court when the cause of
his client is called for hearing or further proceedings.

Some members of the profession have been adopting perceptibly casual approach to the
practice of the profession as is evident from their absence when the matters are called out, the
filing of incomplete and inaccurate pleadings – many time even illegible and without personal
check and verification, the non-payment of Court fees and process fees, the failure to remove
office objections, the failure to take steps to serve the parties, et al. They do not realise the
seriousness of these acts and omissions. They not only amount to the contempt of the Court but
do positive disservice to the litigants and create embarrassing situation in the Court leading to
avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of
our judicial system.

Judicial function cannot and should not be permitted to be stonewalled by browbeating or

bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even
course unbridled by any boycott call of the Bar or tactics of filibuster adopted by any member
thereof. It concluded : “Some Courts might have conducted the cases even during the strike or
boycott periods or adjourned due to helplessness for not being in a position to decide the lis in
 the absence of the counsel but majority of the Courts in the country have been impliedly
sympathisers by not rising to the occasion by taking positive stand for the preservation of the
high traditions of law and for continued “restoration of the confidence of the common man in
the institution of judiciary. It is not too late even now for the Courts in the country to rise from
the slumber and perform their duties without fear or favour particularly after the judgment of
this Court in Mahabir Singh’s case (supra). Inaction will surely contribute to the erosion of ethics
and values in the legal profession. The defaulting Courts may also be contributory to the
contempt of this Court.

Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore
the aforesaid mutual respect is the sine qua non for the efficient functioning of the solemn work
carried on in Courts of law. But that does not mean that any advocate or a group of them can
boycott the Courts or any particular Court and ask the Court to desist from discharging judicial
functions. At any rate, no advocate can ask the Court to avoid a case on the ground that he does
not want to appear in that Court.

A Vakalatnama need be stamped as per the fees provided under the Court Fees and Suits
Valuation Act. A Muktarnama, Vakalatnama or any paper signed by an advocate signifying or
intimating that he is retained for a party should carry court fee leviable as per the State Law.
Different court fee has been provided for presentation to any court, the Board of Revenue or
the High Court. Additional Stamp for Advocates Welfare Fund and for Bar Associations have to
be affixed. One must note that Vakalatnama is filed immediately after engagement.

An advocate has to conduct himself as a model for others both in his professional and in his
private and public life. The society has a right to expect of him such ideal behaviour. Service to
Humanity is Service to God. Let us pledge to do service to humanity after discharging our duties
and obligations of this unique institution. Let us search, introspect and correct ourselves.

13. Explain the duties of the Advocate towards the court.

Ans. Introduction -

An advocate Shall all times, comport himself in a manner benefiting his status as an officer of
the court. An advocate is a privileged member of the community and a gentlemen besides being
a citizen. He has great responsibility to protect the country and lead the community.

Duties of an advocate towards the court are as follows -

1. An advocate shall, during the presentation of his case and while otherwise acting before a
court conduct himself with dignity and self-respect. He shall not be servile and whenever
there is proper ground for serious complaint against a judicial officer, it shall be his right and
duty to submit his grievance to proper authorities.
2. An advocate shall maintain towards the court a respectful attitude bearing in mind that the
dignity of the judicial office is essential for the survival of a free community.
3. An advocate shall not influence the decision of a Court by any illegal or improper means.
Private communication with a judge relating to a pending case are forbidden.
4. An advocate shall use his best efforts to restrain and prevent his client from restoring to
sharp or unfair practices or from doing anything in relation to the court, opposing Counsel
or parties which the advocates himself ought not to do. An advocate shall refuse to
represent the client who persists in such improper conduct. He shall not consider himself a
mere mouthpiece of the client, and shall exercise his own judgement in the use of
restrained language in correspondence, avoiding scurrilous attack in pleadings, and using
intemperate language during arguments in court.
5. An advocate shall appear in court at all times only in the prescribed dress, and his
appearance shall always be presentable .
6. An advocate shall not enter appearance, act,plead or practice in any way before the court,
tribunal or authority mention in Section 30 of the Act, if the sole or any member thereof is
related to the Advocate as father, mother, grandfather, son, grandson, daughter, sister ,
father in law, mother in law , son in law, brother in law , daughter in law or sister in law.

For the purposes of this rule, court shall mean a court bench or tribunal in which above
mentioned relation of an advocate is a Judge , member of the preseding officer.

7. An advocate shall not band or gown in public places other than in courts except on such
ceremonial occasions and as such places as the bar council of India or the court may
prescribe.
8. An advocate shall not appear in or before any court or tribunal or any other authority for or
against an organisation or an Institution, society or Corporation, if he is a member of the
executive committee of such organisation or institution or society or Corporation,"
executive committee " ,by whatever name it may be called shall include any committee or
body of persons which, for the time being is vested with the general management of the
affairs of the organisation or institution, society or Corporation : provided that this rule
shall not apply to such a member appearing as amicus Curie or without a free on behalf of a
bar council, incorporated law Society or a bar association.
9. An Advocate should not act or plead in any matter in which he himself is pecuniarily
interested.
10. 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.
11. An advocate should have sense of humour and pleasing manners in his argument.
12. An advocate should be straight forward and his argument should be pointed, clear precious
and concise
13. An Advocate must be tactful in presenting the matters.
14. An Advocate should not mislead Court.
15. An advocate shall not criticize the Judiciary with malice.

The Bar Council can review the order given by the disciplinary committee under Section 44 of
the Advocate's Act, 1961. V.C. Rangadurai v/s D. Gopalan, In this case V. C. Rangadurai was an
advocate and Devasenapathy was an old deaf man, aged 70 years and Smt. D. Kamalammal was
also aged.

They had given two promissory notes to rangadurai and also paid the fees as was asked to the
advocate. Nevertheless, the advocate did not file the case in time. The limitation was over. After
a long time of wandering around the office of the advocate, the old man came to know that the
advocate deceived him by not filing the cases within the time even after receiving the fees. He
filed a complaint before disciplinary committee of the Tamilnadu state bar council which after
enquiry punished the advocate suspending him for 6 years.

On appeal, it was confirmed by the Bar council of India and also by Supreme Court. Rule 6 of
Chapter II of Part- VI of the Bar Council Rules states that an advocate shall not appear, act, plead
or practice before the court if any member is related to the advocate as father, son, wife etc. the
main object is to avoid personal bias between an advocate and presiding officer related to such
advocate.

Due to natural love and affection, the judge may incline towards the advocate, thus to favour
the client of the advocate related to him or her. In case of Satyendra Nararain Singh and Others
vs Ram Nath Singh and Others, wife is the judge and husband is the advocate.

Court held that the advocate should not appear before his wife, who is the judge of the court. If
he appears before the court, to which his wife is presiding officer, it becomes his professional
misconduct. If he appears before the wife- judge. It is the duty of the judge to raise the
objection. If she fails to object and accepts his appearance, then it becomes her judicial
misconduct.

UP Sales Tax Service Association vs Taxation Bar Association, In this case, an advocate was
carrying a revolver along with him to the court. So, it was held by the Supreme Court that if an
advocate attends the court with firearms then it definitely against the dignity of the legal
profession.

Conclusion:

Advocate has duties which are to be performed towards himself, his clients, opponents,
colleagues, court etc. it is the duty of the advocate to maintain the decorum of the court and act
properly with his opponents or colleagues. He must always act in the best interests of his clients
and should not do any kind of act that betrays their trust upon him.

An advocate has to present his case before the court fearlessly. He must maintain the dignity of
the legal profession as well as the dignity of the court. He is considered as an officer of the court
and required to uphold the dignity and decorum of the court.

These rules prohibit private communication with the judge relating to a pending case. Not only
the litigants and witnesses but the general public will also get the inspirations from the example
of advocates. It is necessary for dignified and honourable administration of justice that the court
 should be regarded with respect by the suitors and people. All these duties, ethics and morals
help an advocate to be in a better position in his career and become a successful lawyer.

14. Write a critical comment on the importance of Bar – Bench relations.

Ans. Introduction

For the administration of Justice, the judicial system is composed of the judges and the
advocates who assist the judiciary in dispensing justice through discharging their duties. The Bar
and the Bench are two elements of the same system, and without them, justice cannot be
efficiently administered in the courts.

Bar – Advocates are registered by the State Bar Council as such after receiving their degree of
L.L.B from a university and receiving a specific amount of training under the supervision of an
advocate as stipulated by the rules. The advocates are collectively referred to as the ‘Bar,’ and
an advocate is designated as the representative of the Bar. For the most part, the term “Bar”
refers to an association of attorneys who are licensed to practice in the courts, or a specific
court, of any state.

Bench – The term “bench” refers to all of the judges taken together, as opposed to the term
“Bar,” which refers to all members of the legal profession. The term “bench” also refers to the
key component of the court deemed in its official capacity while the judges are sitting. The term
‘Bar’ was originally used to refer to the part of the court that dealt with attorneys. However, the
term is now used to refer to the part of the court that deals with judicial officers, which is known
as the Bench.

The Bar and the Bench are considered as the two wheels of a chariot that play a role in
administering the law. Both are subordinate to and interrelated to one another in their
respective roles. In law, the term “Bar-Bench relationship” pertains to the friendly relationship
that advocates have with judges. The Bar (advocates) and the Bench (judges) both play critical
roles in the administration of justice. Maintaining cordial relations between the Bench and the
Bar requires respect and understanding on both sides of the bench and bar.

Role of bar-bench in the administration of justice

The practice of law and the administration of justice is vitally important to each other. There is
no other office in the state that possesses the same level of authority as that of the judge.
Judges carry enormous power, far exceeding that of any other official in the government or
military. The common people’s lives and liberty, individual domestic happiness, property, and
public image are subordinate to the judges’ wisdom, and citizens are held accountable for their
judgments. If judicial power is corrupted, there is no longer any assurance of life, liberty is
forfeited, and there is no longer any guarantee of personal or domestic happiness. A strong
judiciary that is active, unbiased, and competent is the most important thing a state can have.
Judges must carry out their responsibilities due to the importance of judges in the maintenance
of civil and orderly society.

The administration of justice is not limited to the courtroom. It also has significance for the Bar.
The preservation of cordial relations between the Bar and the Bench necessitates respect and
understanding on both sides of the bar. The roles of attorneys and judges are supplementary to
one another. The primary source of judges’ recruitment is the legal profession. As a result, they
are both members of the same community. The Bar and bench need to sustain cordial relations
with one another. However, because of the nature of the responsibilities that attorneys and
judges must fulfill, they may engage in dialogues that are sometimes amusing, sometimes
heated, and sometimes tough.

Bar-bench relations : an overview

 When it comes to democratic institutions, the independent judiciary is a pillar of

stability, and the bar is the cornerstone of that stability. The Bench reflects the
appearance, character, and behavior of the judges as the bench is considered to be a
mother and a bright mirror for the judicial officers.
 Those who practice law are just as much a part of the justice delivery system as the
judges themselves, and it is the closest possible harmony between the Bar and the
Bench that will produce the best results in accomplishing the targets embodied in our
Constitution. The Bar and the Bench are two opposing sides of the same coin, as the
saying goes. The administration of justice cannot be successful unless there is unity
between the Bar and the Bench. Otherwise, the required outcomes to maintain the
grandeur of the institution will not be achieved.
 An advocate’s scandalizing of the court is truly despoiling the very foundations of
justice, and such behavior by an advocate tends to bring dishonor to the entire
administration of justice. The behavior of an advocate towards the court is always one
of uniform reverence, regardless of the status of the court in which the case is being
heard. The advocate’s personal view of the judge must not be shown in his conduct
because he has a responsibility to maintain the respect of the judiciary as a professional
organization. At the same time, it is the responsibility of the judiciary not only to be
courteous to members of the Bar but also to do everything in their power to progress
the high traditions of the profession.
 Contempt of court can be imposed on a lawyer or a judge for their discourteous
behavior or misbehavior. There are two types of contempt of court: civil contempt and
criminal contempt. Consider the following examples: using derogatory language against
an individual judge, harassing him with transfer or removal from office, casually
addressing the judge, questioning his authority to ask questions, or making disgraceful
accusations against an individual judge. It is considered to be contempt of court. He is
responsible for his uncourteous behavior and may be prosecuted for contempt of court.
  The opinion about the Bar and Bench relationship has been laid down in the case of P.D.
Gupta v. Ram Murthi and others(1997) in which the primary focus was on how the
relationship between the Bar and the Bench affects the administration of justice.

Facts: Shri Kishan Dass passed away, leaving behind a large amount of immovable property.
Several people made claims to the deceased’s property, including one Vidyawati, who claimed
to be the deceased’s sister, one Ram Murti, and two other people who claimed to be the
deceased’s heirs, among other things. Later, the advocate for Vidyawati bought the
aforementioned properties, knowing full well that they were in dispute. In the following months,
the attorney made a profit by selling the property to a third party. A grievance against the
lawyer was filed with the Delhi Bar Council, which resulted in the attorney being suspended.

Held: Because the disciplinary committee of the Bar Council of Delhi was unable to resolve the
complaint within a year, the hearings were relocated to the Bar Council of India under Section
36-B of the Advocates Act, which provides that the complaint must be resolved within one year.
The Bar Council of India’s disciplinary committee put him on trial for professional misconduct
and expelled him from practicing law for one year.

Role of the bar in strengthening the bar-bench relation

Advocates are court officers, and they are required to aid the court in the administration of
justice on behalf of the court. Advocates gather resources relevant to the case to aid the court in
reaching an (outcome) in the case. An advocate works in collaboration with the judiciary to
ensure that justice is administered properly. Advocates, like judges, play a significant role in the
administration of justice. An advocate has to practice the following steps to preserve and
strengthen the relation between Bar and Bench:

 They should show reverence to the judges and refrain from disparaging the judges or
the judiciary in any way whatsoever.
 They should assist the judges in the court hearing of the cases by conveying the relevant
law accurately and understandably during the trial. They should never behave in a way
that would displease the judges.
 If the judges make a mistake in their decision, they should not be criticized. They should
attempt to correct the error in the order by filing an appeal.
 They should not exert stress or control on the judges to obtain a favorable order. An
advocate should refrain from seeking to manipulate the verdict of the court through the
use of illegal or inappropriate means.
 If the judge’s conduct is annoying and disrespectful to the advocates, they should refrain
from engaging in violent talks with the judge in question. The issue should be addressed
with the judge in his chambers, and the Bar Association should make a formal request
that such misbehavior not be repeated.
 It is the responsibility of an advocate to make every effort to constrain and avert his or
her client from engaging in unfair practices with the court.
Role of the bench in strengthening the bar-bench relation

A judge is a public official who hears and decides cases in the court of law, thereby resolving a
legal dispute. Judges wield enormous power, far exceeding that of any other official in the
government or military. A judge has to practice the following steps to preserve and strengthen
the relation between Bar and Bench:

 In the same way that the advocates respect the judges, the judges should respect the
advocates as well.
 It is important for judges to approach the case with an open mind and to do so without
bias or prejudice, as appropriate. They will act in a manner that is beneficial to the
interests of justice. They will give the advocates sufficient time to present their case in
its entirety.
 Judges are expected to act in a fair and unbiased manner. They are not permitted to act
in the interests of any prosecutor or party to the dispute.
 When required, judges should refrain from interfering with the lawyer’s interviews of
witnesses and presentation of the argument. A lawyer’s professional reputation may be
harmed by undue intrusion and disparaging messages from the judges, and he may be
unable to effectively present the case. In most cases, a judge’s intervention is confined
to the following factors: avoiding reiteration and time-wasting, checking for pertinence,
providing clarification, sharing an opinion of the courts on a particular point, and
promoting the expeditious disposition of the case.
 In the course of administering justice, the courts are frequently called upon to decipher
the law’s rules, directives, regulations, codes, bylaws, circulars, notices, and other
documents to determine the true significance of the statutes or to clear up confusion or
incoherence in the legislation. In these instances, a proper explanation should be
provided to provide full justice to the parties involved in the situation.
 Adjournments are granted to allow the parties a reasonable amount of time to present
their arguments. Cases will not be adjourned where possible unless there are
reasonable and appropriate grounds to do so. Excessive postponement of cases, which
causes the parties to suffer financial difficulties is the most common cause of mounting
backlogs in the court system.
 The case of ‘justice deferred is justice denied’ will also be resolved as soon as possible as
well. When older cases are given priority over new cases, new cases should not fall
behind in their disposition.
 Judges should refrain from making unjustified public remarks about a lawyer’s lack of
legal insight in open court. They should not ask any lawyer to leave the trial unless they
have a compelling reason to do so. Likewise, they should not request that any advocate
not appear in his or her court in the future.
 Judges will have a thorough understanding of the law. They should be able to apply the
appropriate legislation to the evidence available and come to the best possible
conclusion on the matter.
  The foremost duty of ensuring and preserving judicial independence relies upon the
judges who preside over the courts.
 A judge’s moral responsibility and honesty should be unquestionable. He should be
treated with respect, both personally and intellectually. There should be something to
commend about the character and the action.
 This entails a lot of hard work and extensive research done on a regular and
comprehensive basis. A judge’s knowledge should be kept up to date with the most
recent advancements and transformations in legislation by continuously reviewing it.
 Briefings of judges and advocates are scheduled at regular intervals to strengthen the
relationship between the Bar and the Bench. During these sessions, the problems of the
opposing sides can be discussed, and the differences can be resolved through
discussion.

Suggestions on the relation between bar and bench

In the administration of justice, the Bar and the Bench play a vital role in being the two most
important organs; they share a common duty in ensuring that justice is administered properly
and effectively. Given the fact that both are national assets of our nation, they must therefore
coordinate and work cooperatively with one another, as well as stay cautious together, in order
to safeguard judicial independence.

A reputed and unbiased judiciary, as well as a powerful bar, are required to maintain the system
of democracy and independence under the rule of law in the country. Furthermore, the lawyers
must have the impression that they were given a fair court hearing and that their issues would
be addressed by an unbiased and credible attorney, among other things.

It is critical for the productive discharge of the court’s duties that the high level of optimism,
prestige, and dignity that they have admired throughout their careers be sustained and not
weakened in any manner. Whether it is judges or lawyers, they bear the main duty of
administering and maintaining the public’s trust in the courts.

Conclusion

An ordinary citizen has faith and confidence in the country’s judicial system. It is the
responsibility of both the Bench and the Bar to uphold and strengthen the rule of law through
their dedication and behavior. To ensure the independence of the bar, an independent judiciary
must be in place, which can be used to defend that independence if required. One of the most
effective methods of guaranteeing judges’ independence is to have a responsible, well-behaved,
sophisticated, and learned Bar. In the end, the mutual adjustment of behavior by the Bench and
the Bar is the cornerstone of the polished operation of courts in the overall interest of society.
15. Discuss income and loss account and explain about the basic financial statements.

Ans. Financial statements are written records of a business's financial situation. They include
standard reports like the balance sheet, income or profit and loss statements, and cash flow
statement. They stand as one of the more essential components of business information, and as
the principal method of communicating financial information about an entity to outside parties.
In a technical sense, financial statements are a summation of the financial position of an entity
at a given point in time. Generally, financial statements are designed to meet the needs of many
diverse users, particularly present and potential owners and creditors. Financial statements
result from simplifying, condensing, and aggregating masses of data obtained primarily from a
company's (or an individual's) accounting system.

FINANCIAL REPORTING

According to the Financial Accounting Standards Board, financial reporting includes not only
financial statements but also other means of communicating financial information about an
enterprise to its external users. Financial statements provide information useful in investment
and credit decisions and in assessing cash flow prospects. They provide information about an
enterprise's resources, claims to those resources, and changes in the resources.

Financial reporting is a broad concept encompassing financial statements, notes to financial

statements and parenthetical disclosures, supplementary information (such as changing prices),
and other means of financial reporting (such as management discussions and analysis, and
letters to stockholders). Financial reporting is but one source of information needed by those
who make economic decisions about business enterprises.

The primary focus of financial reporting is information about earnings and its components.
Information about earnings based on accrual accounting usually provides a better indication of
an enterprise's present and continuing ability to generate positive cash flows than that provided
by cash receipts and payments.

MAJOR FINANCIAL STATEMENTS

The basic financial statements of an enterprise include the 1) balance sheet (or statement of
financial position), 2) income statement, 3) cash flow statement, and 4) statement of changes in
owners' equity or stockholders' equity. The balance sheet provides a snapshot of an entity as of
a particular date. It list the entity's assets, liabilities, and in the case of a corporation, the
stockholders' equity on a specific date. The income statement presents a summary of the
revenues, gains, expenses, losses, and net income or net loss of an entity for a specific period.
This statement is similar to a moving picture of the entity's operations during this period of time.
The cash flow statement summarizes an entity's cash receipts and cash payments relating to its
operating, investing, and financing activities during a particular period. A statement of changes
in owners' equity or stockholders' equity reconciles the beginning of the period equity of an
enterprise with its ending balance.
Items currently reported in financial statements are measured by different attributes (for
example, historical cost, current cost, current market value, net reliable value, and present value
of future cash flows). Historical cost is the traditional means of presenting assets and liabilities.

Notes to financial statements are informative disclosures appended to the end of financial
statements. They provide important information concerning such matters as depreciation and
inventory methods used, details of long-term debt, pensions, leases, income taxes, contingent
liabilities, methods of consolidation, and other matters. Notes are considered an integral part of
the financial statements. Schedules and parenthetical disclosures are also used to present
information not provided elsewhere in the financial statements.

Each financial statement has a heading, which gives the name of the entity, the name of the
statement, and the date or time covered by the statement. The information provided in
financial statements is primarily financial in nature and expressed in units of money. The
information relates to an individual business enterprise. The information often is the product of
approximations and estimates, rather than exact measurements. The financial statements
typically reflect the financial effects of transactions and events that have already happened (i.e.,
historical).

Financial statements presenting financial data for two or more periods are called comparative
statements. Comparative financial statements usually give similar reports for the current period
and for one or more preceding periods. They provide analysts with significant information about
trends and relationships over two or more years. Comparative statements are considerably
more significant than are single-year statements. Comparative statements emphasize the fact
that financial statements for a single accounting period are only one part of the continuous
history of the company.

Interim financial statements are reports for periods of less than a year. The purpose of interim
financial statements is to improve the timeliness of accounting information. Some companies
issue comprehensive financial statements while others issue summary statements. Each interim
period should be viewed primarily as an integral part of an annual period and should generally
continue to use the generally accepted accounting principles (GAAP) that were used in the
preparation of the company's latest annual report. Financial statements are often audited by
independent accountants for the purpose of increasing user confidence in their reliability.

Every financial statement is prepared on the basis of several accounting assumptions: that all
transactions can be expressed or measured in dollars; that the enterprise will continue in
business indefinitely; and that statements will be prepared at regular intervals. These
assumptions provide the foundation for the structure of financial accounting theory and
practice, and explain why financial information is presented in a given manner.

Financial statements also must be prepared in accordance with generally accepted accounting
principles, and must include an explanation of the company's accounting procedures and
policies. Standard accounting principles call for the recording of assets and liabilities at cost; the
recognition of revenue when it is realized and when a transaction has taken place (generally at
the point of sale), and the recognition of expenses according to the matching principle (costs to
revenues). Standard accounting principles further require that uncertainties and risks related to
a company be reflected in its accounting reports and that, generally, anything that would be of
interest to an informed investor should be fully disclosed in the financial statements.

ELEMENTS OF FINANCIAL STATEMENTS

The Financial Accounting Standards Board (FASB) has defined the following elements of financial
statements of business enterprises: assets, liabilities, equity, revenues, expenses, gains, losses,
investment by owners, distribution to owners, and comprehensive income. According to FASB,
the elements of financial statements are the building blocks with which financial statements are
constructed. These FASB definitions, articulated in its "Elements of Financial Statements of
Business Enterprises," are as follows:

 Assets are probable future economic benefits obtained or controlled by a particular

entity as a result of past transactions or events.
 Comprehensive income is the change in equity (net assets) of an entity during a period
from transactions and other events and circumstances from nonowner sources. It
includes all changes in equity during a period except those resulting from investments
by owners and distributions to owners.
 Distributions to owners are decreases in net assets of a particular enterprise resulting
from transferring assets, rendering services, or incurring liabilities to owners.
Distributions to owners decrease ownership interest or equity in an enterprise.
 Equity is the residual interest in the assets of an entity that remains after deducting its
liabilities. In a business entity, equity is the ownership interest.
 Expenses are outflows or other uses of assets or incurring of liabilities during a period
from delivering or producing goods or rendering services, or carrying out other activities
that constitute the entity's ongoing major or central operation.
 Gains are increases in equity (net assets) from peripheral or incidental transactions of
an entity and from all other transactions and other events and circumstances affecting
the entity during a period except those that result from revenues or investments by
owner.
 Investments by owners are increases in net assets of a particular enterprise resulting
from transfers to it from other entities of something of value to obtain or increase
ownership interest (or equity) in it.
 Liabilities are probable future sacrifices of economic benefits arising from present
obligations of a particular entity to transfer assets or provide services to other entities in
the future as a result of past transactions or events.
 Losses are decreases in equity (net assets) from peripheral or incidental transactions of
an entity and from all other transactions and other events and circumstances affecting
 the entity during a period except those that result from expenses or distributions to
owners.
 Revenues are inflows or other enhancements of assets of an entity or settlement of its
liabilities (or a combination of both) during a period from delivering or producing goods,
rendering services, or other activities that constitute the entity's ongoing major or
central operations.

SUBSEQUENT EVENTS

In accounting terminology, a subsequent event is an important event that occurs between the
balance sheet date and the date of issuance of the annual report. Subsequent events must have
a material effect on the financial statements. A "subsequent event" note must be issued with
financial statements if the event (or events) is considered to be important enough that without
such information the financial statement would be misleading if the event were not disclosed.
The recognition and recording of these events often requires the professional judgment of an
accountant or external auditor.

Events that effect the financial statements at the date of the balance sheet might reveal an
unknown condition or provide additional information regarding estimates or judgments. These
events must be reported by adjusting the financial statements to recognize the new evidence.
Events that relate to conditions that did not exist on the balance sheet date but arose
subsequent to that date do not require an adjustment to the financial statements. The effect of
the event on the future period, however, may be of such importance that it should be disclosed
in a footnote or elsewhere.

PERSONAL FINANCIAL STATEMENTS

The reporting entity of personal financial statements is an individual, a husband and wife, or a
group of related individuals. Personal financial statements are often prepared to deal with
obtaining bank loans, income tax planning, retirement planning, gift and estate planning, and
the public disclosure of financial affairs.

For each reporting entity, a statement of financial position is required. The statement presents
assets at estimated current values, liabilities at the lesser of the discounted amount of cash to
be paid or the current cash settlement amount, and net worth. A provision should also be made
for estimated income taxes on the differences between the estimated current value of assets.
Comparative statements for one or more periods should be presented. A statement of changes
in net worth is optional.

DEVELOPMENT STAGE COMPANIES

A company is considered to be a development stage company if substantially all of its efforts are
devoted to establishing a new business and either of the following is present: 1) principal
operations have not begun, or 2) principal operations have begun but revenue is insignificant.
Activities of a development stage enterprise frequently include financial planning, raising
capital, research and development, personnel recruiting and training, and market development.

A development stage company must follow generally accepted accounting principles applicable
to operating enterprises in the preparation of financial statements. In its balance sheet, the
company must report cumulative net losses separately in the equity section. In its income
statement it must report cumulative revenues and expenses from the inception of the
enterprise. Likewise, in its cash flow statement, it must report cumulative cash flows from the
inception of the enterprise. Its statement of stockholders' equity should include the number of
shares issued and the date of their issuance as well as the dollar amounts received. The
statement should identify the entity as a development stage enterprise and describe the nature
of development stage activities. During the first period of normal operations, the enterprise
must disclose its former developmental stage status in the notes section of its financial
statements.

FRAUDULENT FINANCIAL REPORTING

Fraudulent financial reporting is defined as intentional or reckless reporting, whether by act or

by omission, that results in materially misleading financial statements. Fraudulent financial
reporting can usually be traced to the existence of conditions in either the internal environment
of the firm (e.g., inadequate internal control), or in the external environment (e.g., poor industry
or overall business conditions). Excessive pressure on management, such as unrealistic profit or
other performance goals, can also lead to fraudulent financial reporting.

The legal requirements for a publicly traded company when it comes to financial reporting are,
not surprisingly, much more rigorous than for privately held firms. And they became even more
rigorous in 2002 with the passage of the Sarbanes-Oxley Act. This legislation was passed in the
wake of the stunning bankruptcy filing in 2001 by Enron, and subsequent revelations about
fraudulent accounting practices within the company. Enron was only the first in a string of high-
profile bankruptcies. Serious allegations of accounting fraud followed and extended beyond the
bankrupt firms to their accounting firms. The legislature acted quickly to fortify financial
reporting requirements and stem the decline in confidence that resulted from the wave of
bankruptcies. Without confidence in the financial reports of publicly traded firms, no stock
exchange can exist for long.

The Sarbanes-Oxley Act is a complex law that imposes heavy reporting requirements on all
publicly traded companies. Meeting the requirements of this law has increased the workload of
auditing firms. In particular, Section 404 of the Sarbanes-Oxley Act requires that a company's
financial statements and annual report include an official write-up by management about the
effectiveness of the company's internal controls. This section also requires that outside auditors
attest to management's report on internal controls. An external audit is required in order to
attest to the management report.
Private companies are not covered by the Sarbanes-Oxley Act. However, analysts suggest that
even private firms should be aware of the law as it has influenced accounting practices and
business expectations generally.

AUDITING

The preparation and presentation of a company's financial statements are the responsibility of
the management of the company. Published financial statements may be audited by an
independent certified public accountant. In the case of publicly traded firms, an audit is required
by law. For private firms it is not, although banks and other lenders often require such an
independent check as a part of lending agreements.

During an audit, the auditor conducts an examination of the accounting system, records,
internal controls, and financial statements in accordance with generally accepted auditing
standards. The auditor then expresses an opinion concerning the fairness of the financial
statements in conformity with generally accepted accounting principles. Four standard opinions
are possible:

1. Unqualified opinion—This opinion means that all materials were made available, found
to be in order, and met all auditing requirements. This is the most favorable opinion that
can be rendered by an external auditor about a company's operations and records. In
some cases, a company may receive an unqualified opinion with explanatory language
added. Circumstances may require that the auditor add an explanatory paragraph to his
or her report. When this is done the opinion is prefaced with the term, "explanatory
language added."
2. Qualified opinion—This type of opinion is used for instances in which most of the
company's financial materials were in order, with the exception of a certain account or
transaction.
3. Adverse opinion—An adverse opinion states that the financial statements do not
accurately or completely represent the company's financial position, results of
operations, or cash flows in conformity with generally accepted accounting principles.
Such an opinion is obviously not good news for the business being audited.
4. Disclaimer of opinion—A disclaimer of opinion states that the auditor does not express
an opinion on the financial statements, generally because he or she feels that the
company did not present sufficient information. Again, this opinion casts an unfavorable
light on the business being audited.

The auditor's standard opinion typically includes the following statements, among others:

The financial statements are the responsibility of the company's management; the audit was
conducted according to generally accepted auditing standards; the audit was planned and
performed to obtain reasonable assurance that the statements are free of material
misstatements, and the audit provided a reasonable basis for an expression of an opinion
 concerning the fair presentation of the audit. The audit report is then signed by the auditor and
a principal of the firm and dated.

16. Explain accounting and law and use of knowledge of accountancy in legal disputes especially
arising out of tax laws.

Ans. Accountancy is the science, art and practice of an accountant. It is a discipline which records,
classifies, summarises and interprets financial information about the activities of a person or
concern so that intelligent decisions can be made about the future actions.

Functions Of Accounting:

1. Systematic record of transactions.

2. Communicating results to the interested parties.
3. Compliance with legal requirements.
4. Ascertain the financial position of individual.

Advantages Of Accounting:

1. Replacement of memory.
2. Evidence in court.
3. Settlement of taxation liability.
4. Comparative study.
5. Assistance to various parties.

Limitations Of Accounting:

1. Records only monetary transactions.

2. No realistic information.
3. Personal bias of accountant affects the accounting statements.
4. No real test of managerial performance.
5. It lacks a uniform procedure.

Need For Accountancy For Lawyers:

Lawyers have to maintain accounts and for this they should have the knowledge of accounting
due to the following reasons:

1. As a member of the Bar Council, he should know its accounting.

2. He should know Legal services Authorities and Supreme Court Legal Services
Committee.
3. He should know the accounting of Advocates as per Supreme Court rules.
4. He should know the welfare fund accounting.
5. He should know how to prepare his own accounts.
Central tax laws provide for a three-tiered appellate mechanism. A person aggrieved by the tax
officer's assessment order may approach the first appellate authority, who is generally a
designated senior officer of the department. The first appeal is essentially an administrative
appeal to the Commissioner (Appeals), with the appellate authority having powers concomitant
to the powers of the tax officers. With a view of expediting the first appeal process, the Faceless
Appeal Scheme has been introduced as an extension to the e-assessment scheme. Under this
scheme, all filings and appeal proceedings before the first appellate authority are to be
concluded through a designated online portal, thereby minimising any personal interactions
between taxpayers and the tax authority. Certain appeals relating to serious fraud, major tax
evasion and international tax matters are kept out of this scheme, for now. Further, the Faceless
Appeal Scheme also contemplates internal peer reviews of appellate orders before the orders
are finalised, and further appears to remove the statutory right to a personal hearing (which,
under the Scheme, is made discretionary). The Faceless Assessment Scheme itself has been
challenged as being an excessive delegation of legislative powers, and as being arbitrary and in
breach of fundamental tenets of natural justice. The challenge is presently pending before the
Bombay High Court. In January 2022, a Revised Scheme was introduced to address some of
these problems.

An appeal from the appellate authority's order goes to the appellate tribunal. The appeal may
go before a single-member or a two-member bench, depending on the complexity of issue and
the tax effect involved. In general, if the appellant pays 20 per cent of the disputed demand, the
revenue authorities themselves may not insist on further recoveries pending the first appeal
before the commissioner. However, the pendency of an appeal does not in itself stay the
recovery of the demand appealed against, but administrative authorities as well as appellate
authorities have powers to grant a conditional or unconditional stay. The factors relevant
include the prima facie strength of the appellant's case and the balance of convenience.
Provisions have now been included to enable introduction of faceless and electronic procedures
in tribunal proceedings with the objective of eliminating physical interaction between tribunals
and taxpayer.

In matters involving transfer pricing adjustments, a slightly different procedure is available. In

such matters, the assessing officer is required to make a reference to the transfer pricing officer
for determining the proper arm's-length price in respect of transactions covered under transfer
pricing regulations, and is then required to pass a draft assessment order. Objections against the
draft assessment order can be filed by the taxpayer to the dispute resolution panel (a panel
consisting of three commissioner-level officers). The assessing officer is required to pass the
final assessment order giving effect to the directions of the dispute resolution panel. In such
cases, an appeal can be filed directly to the appellate tribunal bypassing the first appeal before
the Commissioner (Appeals).

Appeals from the appellate tribunal, generally, go to the jurisdictional high court limited only to
substantial questions of law. An assessee may approach the Supreme Court of India on appeal
from the decisions of the High Courts, subject to the special leave of the Supreme Court (which
is granted at the discretion of the court in matters involving substantial questions of law of
general public importance) or (even more exceptionally) subject to a certificate of fitness from
the high court.

The right to appeal under the Indian tax laws is, of course, subject to certain limitation periods,
although the authorities do have the power to condone reasonable delays. Even the tax
authority (the Revenue) has the right to refer appeals against orders of the appellate
authorities. However, the Revenue's right to file appeals is subject to limits put up by the
litigation policy issued by the government, under which the Revenue does not appeal if the tax
effect involved is less than the monetary limits specified.

Certain indirect tax disputes can be directly appealed to the Supreme Court (from orders of the
appellate tribunal). The right to appeal under Central Goods and Services Tax Act, 2017 is
encumbered with a burden to deposit certain percentage of the taxes under dispute. In case of
excise duties, the appellant pays 7.5 per cent of the disputed demand or 100 million rupees,
whichever is less. Under the Central Goods and Services Tax Act, 2017, the appellant pays 10 per
cent of the disputed tax plus the full amount of tax admitted by him or her. The goods and
services tax appellate tribunal is yet to commence functioning as the Central Goods and Services
Tax Act, 2017 is a recent introduction to the tax laws. An impediment for the goods and services
tax appellate tribunal is a recent decision by the Madras High Court striking down the
constitution of the tribunal as being ultra vires the Constitution of India. The Supreme Court has
also recently struck down recent amendments in the mode of appointment and conditions of
service of the members of various tribunals. These decisions appear to be premised on the need
to have a tribunal that is truly independent and not simply an extension of the revenue
authorities. Subsequently, new rules have been notified for effective appointments of
independent members to the various tribunals. Since the goods and services tax appellate
tribunal is yet to be constituted, a blanket stay has been granted in respect of demand notices
against which taxpayers wish to approach the tribunal.

Apart from the statutory appellate remedies, taxpayers may also approach the jurisdictional
high court or the Supreme Court by invoking their respective writ jurisdiction as envisaged by
Articles 32, 226 and 227 of the Constitution. The writ jurisdiction may be invoked in cases where
the conduct of the tax authorities or appellate authorities is ultra vires the statute or procedure
or where it is violative of the principles of natural justice. In practice, the courts do not entertain
writs where an efficacious alternate remedy in the form of an appeal is available. However,
there are exceptions: thus, the existence of an alternative remedy may not bar the exercise of
writ jurisdiction in cases where the challenged measure is wholly without jurisdiction, or has
arisen from an egregious breach of the principles of natural justice.

Writ remedies are potent, particularly in challenging reopening proceedings: once a notice for
reopening is received, the taxpayer is required to file a return in response to the notice, and is
entitled to seek the reasons for the reopening. On receipt of the reasons, the taxpayer can file
objections to the proposed reopening. Those objections are required to be decided by the
 assessing officer through a speaking order. That speaking order is itself not appealable: an
appeal would lie only against a final re-assessment order itself. Hence, a writ petition can be
filed challenging the notice for reopening and the order on objections, even prior to the ultimate
re-assessment order being passed. Of course, the writ court would consider only the
jurisdictional objections.

17. Write a short notes on any two of the following

(a) Enrolment process.

Ans. The Advocates Act, 1961 provides authority to the State Bar Councils to promulgate their
respective rules and regulations for enrolling advocates. The committee formed by the
respective councils carried out the scrutinising procedure of the applications by the candidates
aspired to practice as advocates. The admitted candidates of the State Bar Council are eligible to
appear for the All India Bar Council Examination which is held by the Bar Council of India.
Qualifying this examination will provide the advocate enrolled by the State with a certificate and
thereby provide the opportunity to him or her to practice as an advocate in any lower court or
High Court within Indian territorial jurisdiction. There are, at present, 20 State Bar Councils
across India. Section 24 of the Advocates Act, 1961 lays down in specificity the parameters of
qualification that needs to be met with in order to be enrolled in the Bar council. The conditions
that are laid down by the concerned provision are:

1) The person must be a citizen of India. Any other nationals can be appointed as an advocate on
a State basis if the following grounds are fulfilled:

a) Has to be an Indian citizen.

b) Should be qualified as per requirement.

c) Has been granted permission to carry on legal practice in any other country.

d) Should be subjected to necessary restrictions that are required and as provided.

2) The person should be more or equal to the age of twenty-one years but should not be less
than that.

3) A degree in law has been obtained from any university recognised under the Bar Council of
India. If the national hails from some other country then a degree in law in the foreign university
will suffice provided the degree is recognised in India under the Act by the Bar Council of India.

4) Any other conditions or parameters laid down by the State councils should be carried out by
the person.

Currently, any individual can be enrolled as an advocate under the State Bar Council if he or she
has necessarily appeared in the examination held by the Bar Council of India and have thereby
cleared the same. As the Advocates Act, 1961 have mentioned, the States are provided with the
 flexibility to frame their own regulations for the enrolment of an advocate in the council. The
committee that is formed to look after the procedure of enrolment is provided with the
authority to carry out scrutiny of the applications submitted by the candidates those have
applied for the examination. An enrolment fee needs to be paid according to the provision of
Section 24(1)(f) of the Advocates Act, 1961 of an amount of Rs.600 to the respective State Bar
Council and an amount of Rs 150 is to be deposited to the Bar Council of India. Separate
demand drafts are to be used for the mode of payment of these amounts to the different
councils. Although different states have been provided with the freedom to set their own rules,
the majority of the States ask the candidate to provide with certain requirements which are:

1) Application along with the showcasing of the law degree obtained from a university which
follows the parameters laid down by the council.

2) Marksheets of the degree need to be provided as well.

3) Judicial Stamp papers.

4) Fees as having been mentioned to be provided with.

The candidates who are eligible are appointed as advocates of State Bar Councils on its role. It is
through the State Bar Council that the contact details and other information of relevance can be
found when it comes to the appointment of the advocates. Scrutiny of the application of the
candidate is to be carried out by the Council’s Enrolment Committee. The eligible candidates
who are to be appointed as an advocate are issued a Certificate of Enrolment by the State’s Bar
Council.

(b) Code of Ethics

Ans. Many professions in India, such as legal and medical professions have codes of practice that
members of the profession must follow. For advocates it is the Advocates Act and Bar Councils
Act, whereas for doctors it’s the Indian Medical Councils Act, 1956 and Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002. These legislations aim at
preventing exploitation of clients and patients; and at the same maintaining the integrity of the
profession. The Bar Council of India is a statutory body that regulates and represents the Indian
bar. It was created by Parliament under the Advocates Act, 1961. It prescribes standards of
professional conduct and etiquette and exercises disciplinary jurisdiction. Section 49(1)(c) of the
Advocates Act, 1961 empowers the Bar Council of India to make rules so as to prescribe the
standards of professional conduct and etiquette to be observed by the advocates. It has been
made clear that such rules shall have effect only when they are approved by the Chief Justice of
India. It has also been made clear that any rules made in relation to the standards of
professional conduct and etiquette to be observed by the advocates and in force before the
commencement of the Advocates (Amendment) Act, 1973, shall continue in force, until altered
or repealed or amended in accordance with the provisions of this Act.

On codification of ethics law, Justice P.B. Majmudar said, "I feel the rules governing ethics of
lawyers should never have had to be codified but there are black sheep in every profession”.
Chapter II of part VI of the Rules framed by the Bar Council of India deals with the standards of
professional Conduct and Etiquette. These rules specify the duties of an advocate to the Court,
client, opponent and colleagues, etc. It’s Preamble states that, “An advocate shall, at all times,
comport himself in a manner befitting his status as an officer of the Court, a privileged member
of the community, and a gentleman, bearing in mind that what may be lawful and moral for a
person who is not a member of the Bar, or for a member of the Bar in his non-professional
capacity may still be improper for an advocate. Without prejudice to the generality of the
foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his
conduct conform to the rules hereinafter mentioned both in letter and in spirit.”

The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general
guides; yet the specific mention thereof shall not be construed as a denial of the existence of
others equally imperative though not specifically mentioned. The rules mentioned in chapter II
of part VI of the rules of Bar Council of India maybe discussed as follow:-

1. Rules on Advocates Duty towards Court: The Bar Council of India has made certain rules so as
to prescribe duties of an advocate towards the court. Such duties may be explained as follow:

i. Act in a dignified manner: During the presentation the case and while acting otherwise
as an advocate before the court is required to conduct himself with dignity and self
respect. An advocate shall not be servile and in case of proper ground for serious
complaint against a judicial officer, it is his right and duty to submit his grievances to the
proper authority. In re D.C. Saxena, AIR 1966 SC 2481 - The rule empowers the advocate
to make complaint against judicial officer but it should be submitted to proper
authority.

ii. An advocate is required to maintain towards the court respectful attitude bearing in
mind that the dignity of the judicial office is essential for survival of free community. In
U.P. Sales Tax Service Association v Taxation Bar Association, AIR 1996 SC 1384 – This
rule makes it clear that the lowering the dignity of the judicial officer will be a serious
danger to the survival of a free community..

iii. Not communicate in private: An advocate shall not influence the decision of the court by
any illegal or improper means. It prohibits the private communication with the judge
relating to pending case. If an advocate does so it amounts to professional misconduct –
Rizwan-Ul-Hassan v. State of U.P. AIR 1953 SC 250.

iv. Refuse to act in an illegal manner towards the opposition: The rule requires the
advocate to use his best effort to restrain and prevent his client from resorting to sharp
 or unfair practice opposite or from doing anything in relation to the in court, opposing
council or parties which the advocate himself ought not to do. It also requires the
advocate to refuse to represent the client who persists in such improper conduct.

The Rule makes it clear that the advocate shall not consider himself mere mouthpiece of
the client and shall exercise his own judgement in the use of restrained language in
correspondence, avoiding scurrilous attacks in pleadings and using intemperate
language during arguments in the court - M.Y. Shareef & Anothers. V. Hon'ble Judges of
Nagpur High Court & Ors., (1955) 1 SCR 757.

v. Appear in proper dress code: An advocate shall appear in court at all times only in the
prescribe dress and his appearance shall always be presentable.

vi. Refuse to appear in front of relations: An advocate shall not enter appearance, act,
plead, or practice in any way before a court, tribunal, or authority mentioned in section
30 of the Advocates Act, 1961 if the sole or any member thereof is related to the
advocate as father, nephew, grand-father, son, grand-son, uncle, brother, nephew, first
cousin, husband, mother, wife, daughter, sister, niece, aunt, sister-in-law, mother-in-
law, and father-in-law, son-in-law, daughter-in-law.

For this purpose of this rule, court shall mean a court, Bench or tribunal in which
abovementioned relation of the advocate is a judge, member or the presiding officer.

vii. Not to wear bands or gowns in public places: The rule requires the advocate not to wear
bands or gowns in public place other than in court except on such ceremonial occasions
and at such places as the Bar Council of India and the court may prescribe.

viii. Not to represent establishments of which he is a member: The rule provides that an
advocate shall not appear in or before any court or tribunal or any other authority for or
against an organization, institution, society, or corporation if he is a member of
executive committee of such organization, institution, society, or corporation.

However, it has been made clear that this rule shall not apply to such a member
appearing as ‘amicus curiae’ or without a fee on behalf of a Bar Council, Incorporated
Law Society or a Bar Association.

ix. Not appear in matters of pecuniary interest: An advocate shall not act or plead in any
matter in which he himself has some pecuniary interest.

Illustrations:

(a) He should not act in a bankruptcy petition when he himself is also a creditor of
the bank.

(b) He should not accept a brief from a company of which he is a director.

 x. Not stand as surety for client: An advocate shall not stand as a surety, or certify that
soundness of a surety for his client required for the purpose of any legal proceedings.

© Art. 19 (g) and its scope

Ans. Freedom of profession, occupation, trade or business [Article 19(1)(g) and 19(6)]

Article 19(1)(g) provides for the fundamental right of the citizens to practice any profession or to
carry on any occupation, trade or business.

Scope: What’s included and what’s not

1. The right to carry on a business also includes the right to shut down the business.

In Excel Wear v. Union of India (1978), the Supreme Court declared Section 25-O of the
Industrial Disputes Act, 1947, which required an employer to take prior permission from
the government for closure of his industrial undertaking, as unconstitutional and invalid
on the ground that it violated Article 19(1)(g).

2. There is no right to hold a particular job of one’s choice. For example, in the case of
closure of an establishment, a man who has lost his job cannot say that his fundamental
right to carry on an occupation is violated.
3. There is no right to carry on any dangerous activity or any antisocial or criminal activity.
4. No one can claim a right to carry on business with the government.
5. The right to trade does not include the right of protection from competition in trade.
Thus, loss of income on account of competition does not violate the right to trade under
Article 19(1)(g).

The Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997) has observed that the sexual
harassment of working women in workplaces violates the fundamental right under Article
19(1)(g). In this case, comprehensive guidelines and binding directions were issued by the court
to prevent the incidents of sexual harassment of women at workplaces in both public and
private sectors.

Reasonable restrictions on freedom of profession, occupation, trade or business

Article 19(6) provides that the fundamental right under Article 19(1)(g) can be restricted in the
following ways:

1. By imposing reasonable restrictions in the interest of the general public.

2. By state monopoly: Sub-clause (ii) of Article 19(6) enables the state to make laws for
creating state monopolies either partially or completely in respect of any trade or
business or industry or service. The right of a citizen to carry on trade is subordinated to
the right of the state to create a monopoly in its favour.
 Also, Sub-clause (i) of Article 19(6) empowers the state to lay down, by law, “the professional or
technical qualifications necessary for practising any profession or carrying on any occupation,
trade or business”.

In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005), the Supreme Court has held
that the expression ‘in the interest of general public’ in Article 19(6) is of wide import
comprehending public order, public health, public security, morals, economic welfare of the
community and the objects mentioned in Part IV of the Constitution.

(d) Elements of Advocacy

Ans. The following are 8 essential elements of advocacy.

A) Accept Brief in the Court -

An advocate is bound to accept any brief in the Courts or Tribunal or before any other authority
in or before which he is professes to practice at a fee consistent with his standing at the Bar and
the nature of the case.

B) Filing the case -

In civil cases of suit is required to be instituted by presenting a plaint to the court. The
statement of a plaint regarding his claim he is taken as a plaint. The plaintiff presents his case
along with cause of action etc, through the plaint. The plant is also called the written statement.
Every pleading is required to contain a statement in a concise form of the material facts on
which the party filing the plaint relies for his claim or defense.

Pleading- There are four fundamental principles of pleadings:

1) Every pleading must state Fact and No Law.

2) It must state all the material facts;

3) It must state only the facts on which the party pleading relies, and not the evidence; and

4) It must state concisely but with precision and certainty.

The object of the pleading is to make both the parties aware of their cases and allegations
against each other. Every pleading shall be signed by the party and his pleader. Order VI of the
Civil Procedure Code deals with pleadings. It contains several rules relating to pleading. An
advocate shall follow the rules in his pleading. Suit is commenced by presentation of the plaint.

C) Examination-in-chief -

Examination-in-chief is the way in which advocates present almost all the evidence through
witnesses, whether as Counsel for plaintiff or defendant. Examination of expert witnesses and
admission of expert opinions are also vital part of advocacy for which special skill is to be
achieved according to the expert evidence.

D) Cross-examination -

The examination of a witness by the adverse party shall be called his cross examination. Witness
shall be first examined-in-chief and cross-examined, later re-examined. The witness maybe
cross-examined to show his bias or prejudice, to show an interest in the outcome of the case.
Cross-examination should be carefully done to the extent when there is a reasonable chance
that it will advance their clients theory of the case or undermine some elements of the
opponent's case or defense. Good cross-examination is an art and it is learnt from experience
and from observing senior Advocates while cross-examining witnesses as well.

In cross-examination every question is required to be asking with an object. By cross-

examination discrepancies in the evidence of the opponent may be created.

Cross examination of witness is a procedural matter. It should be done according to the

provision of the Indian Evidence Act, Civil Procedure Code, Criminal Procedure Code and the
provisions of the law.

While cross-examining witnesses, an advocate must not offend the personal feelings of the
opposite party.

Cross-examination must relate to the relevant facts. An advocate has no right to disgrace and
bully a witness by putting offensive questions. The witness may be cross-examined on the same
point and if there is a contradiction in relation to the transaction, the same can be brought to
the notice of the court during arguments. Cross-examination should not be misused by an
examination which is unnecessarily too long, ambiguous, improper, aimless and uncertain.

In cross examination an advocate should ask only leading questions cross examination is an art
and the advocate should use it without losing temper. Questions which affect the credibility of a
witness by attacking his character should not be asked.

It is to be remembered that crossed examination should be carefully done and to the extent
when there is a reasonable chance that it will advance their clients theory of the case, or
undermine from elements of the opponent's case or defense.

The opponent advocate should not interrupt the cross examining advocate. Cross examination is
a right of the Advocate but it should not be misused.

E) Re-Examination -

The examination of a witness subsequent to the cross examination by the party who called him
is called Re-Examination. The main object of the Re-Examination is to explain the points arising
out of the cross-examination. And the Re-Examination is required to be directed to the
 explanation of the matter referred to the in cross examination. In the Re-Examination an
attempt is to be made to restore the credit of the witness attacked during the cross-
examination. In re-examination leading questions must not be asked. If new matter is, by
permission of the court, introduced in re-examination, the adverse party has the right to cross-
examine upon that matter.

F) Arguments -

In arguing a case strongest points should be emphasized and the weak points should not be
raised as far as possible. Arguments on each issue should be written out. The name of witnesses
and the documents in support of the issues should be clearly noted.

An advocate should study the record of the case with the object to discover the weak points and
also the strong points in the opponent's case. An advocate should prepare the argument in such
a way as to meet them and prove them as insignificant. If the Advocate finds that a point of the
opponent is very strong and cannot be met, then it is better to concede it. The weak points in
the opponent case should be emphasized much as so as to prove that the weakness is of such a
nature that in spite of everything else cannot be sustained.

G) Appeals:

Arguing of appeals in a court of law is also of considerable importance. In the previous

judgment, the judge will have some reasonable ground. A careful study of the case is required to
find the points which were not noticed by the Court below.

18. Evaluate the functions of the Bar Council of India in the matters pertaining to the Disciplinary
proceedings.

Ans. The Bar Council of India is a statutory body created by Parliament to regulate and represent the
Indian bar. We perform the regulatory function by prescribing standards of professional conduct
and etiquette and by exercising disciplinary jurisdiction over the bar. We also sets standards for
legal education and grants recognition to Universities whose degree in law will serve as
qualification for enrolment as an advocate.

In addition, we perform certain representative functions by protecting the rights, privileges and
interests of advocates and through the creation of funds for providing financial assistance to
organise welfare schemes for them.

The Bar Council of India was established by Parliament under the Advocates Act, 1961. The
following statutory functions under Section 7 cover the Bar Council’s regulatory and
representative mandate for the legal profession and legal education in India:

Rules applicable to disciplinary proceedings

Proceedings to be in camera
All the proceedings before the Disciplinary Committee shall be held in camera.

Inspection of Records and Copies

Inspection of any of the records in any proceeding before the Disciplinary Committee may be
permitted to the parties. They have to present an application duly signed by the applicant or his
advocate. They also have to pay a prescribed fee. The permission is given on any working day
except during the summer or other vacations of the Supreme Court.

An application for inspection shall be made to the Registrar of the Disciplinary Committee. The
Registrar of the Disciplinary Committee may permit the inspection in his presence or in the
presence of any member of the staff authorised by him.

The person inspecting shall not be entitled to make copies of the record of which inspection is
granted. He shall, however, be permitted to make short notes with a pencil.

Copies of Records and Judgments

Certified copies of the records of a case pending before the Disciplinary Committee may be
granted to the parties or to their counsel on an application made in that behalf and on payment
of the prescribed fee.

A copy of a final judgment in a decided case may be given to any person applying for the same
on payment of the prescribed fee. However, the name of the advocate against whom the
proceedings were taken shall be omitted.

Order Awarding Costs

All orders where costs are awarded in disciplinary proceedings shall specify the amount of costs
awarded. It shall also state the party against whom the order is made and the time within which
the amount is payable.

As soon as possible after such an order is made by the Disciplinary Committee, in respect of
every order where costs are awarded to any of the parties, a decretal order shall be drawn up.
This is signed by the Secretary of the State Bar Council or the Bar Council of India as the case
may be, as Registrar of the Disciplinary Committee and bearing the seal of the State Bar Council
or the Bar Council of India as the case may be.

This decretal order shall be furnished to any party to the proceeding on application made and
on payment of the charges prescribed under the rules.

Copies of Final Orders

The Secretary of the State Bar Council or the Bar Council of India as the case may be, shall send
to each of the parties in the proceedings, a certified copy of the final order.
 It shall be signed by him as Registrar of the Disciplinary Committee and bearing the seal of the
State Bar Council/Bar Council of India as the case may be. No charges shall be payable on the
copies so sent. Charges as prescribed under the rules shall however be payable for all additional
copies of the said order applied for.

19. Explain the essential features of Accountancy in Lawyers office.

Ans. PURPOSE OF MAINTAINING ACCOUNTS BY LAWYERS

A business enterprise must keep a systematic record of its daily transaction. It is a legal duty. It
helps to know where its stand and adjudge its performance. This systematic recording of
transactions is known as accounting. Since legal profession is a trade, lawyers are under duty to
maintain systematic accounts relating to the profession.

The basic purpose of accounting is to present a complete financial picture of the Advocates
profession. This can be done with the help of two financial statements like

(i) Profit and loss account and (ii) Balance sheet showing the assests and liabilities.

It is necessary to maintain proper accounts to calculate the following

(i) Annual Income (ii) Income Tax

(iii) Professional Tax (iv) Amount due to the client or amount due by the client.

1. To calculate the annual income :

To calculate the annual income of the Advocate from the legal profession, it is necessary to
maintain proper accounts of his income from the profession. Maintaining this account is useful
for Advocates also. By knowing his Annual Income , he can take steps to improve his profession.

2. To Calculate income Tax :

Advocates are liable to Pay Income tax for the income derived from the profession. In order to
calculate the amount payable as income tax, he has to maintain proper accounts relating to his
income and expenditure. To calculate the taxable income he is entitled to deduct certain
expenditure like rent, salary, telephone bill and other administrative expenditure. For this
purpose also he has to maintain proper accounts.

3. To calculate professional tax:

Every six months the advocates are liable to pay professional tax to the Government. The
amount of professional tax varies depending on the income. In order to calculate the amount of
professional tax he has to maintain the proper accounts.

4. To Ascertain the amount due from the client or due to the client:
The account relating to the amount received from the client and the amount received on behalf
of the client from others or from the court should be properly maintained. Then only the
amount due from the client can be calculated. This will help not only the client but also the
Advocate.

PLACE OF KEEPING THE ACCOUNTS BOOKS.

The accounts books and documents relating to the accounts should be kept and maintained by
the advocate,

(i) At his office.

(ii) Where he is carrying on the profession more than one office, then at his head office. But
accounts can also be maintained separately for each branch at the respective branch office.

Penalty for not keeping Account Books: A Lawyer who is legally liable to maintain account
books, fails to maintain it or fails to retain it for the prescribed period (cash book and ledger-16
years, other books-8 years) is liable to pay penalty ranging from Rs.2000/- to 1,00,000/- (S.271
A). Bar council Rules relating to accounting Accounting is an art of recording, classifying and
summarizing in a significant manner the event which are financial in character and interpreting
the result there of . An Advocate is under a duty to maintain proper accounts of money received
from his client and the amount received on behalf of client from others or from the court. The
rules relating to such accounting is dealt in rules 25 to 32 of the Bar Council Of India Rules 1975.

Rule 25: An advocate should keep the accounts of the client’s money entrusted to him. The
accounts should show the amounts received from the client, the expenses incurred for him and
the debits made on the account of Advocate fees with the respective dates and all other
necessary particulars.

Rule 26 : Where moneys are received from the client, it should be entered whether the amount
have been received for the advocates fees or expenses. Amount received for the expenses shall
not be diverted towards Advocates fees without the consent of the client in writing.

Rule 27: Where any amount is received on behalf of his client the fact of such receipt must be
intimated to the client as early as possible.

Rule 28 : After the completion of the proceeding, the advocate shall be at the liberty to take the
settled fee due to hi to the unspent money in his hand.

Rule 29: Where the fee has been left unsettled, the advocate shall take the fees which he is
legally entitled from the moneys of the client remaining in his hands, after the completion of
the proceeding. The balance shall be returned to the client.

Rule 30: A copy of the client account shall be furnished to him after getting the necessary
copying charges from him.
Rule 31: An advocate shall not make any agreements whereby client’s funds in his hands are
converted into loans to the advocate.

Rule 32: An Advocate shall not lend money to his client for the purpose of conducting the case.

Rules Relating to Accounting Under Income Tax Act. Under the Income Tax Act, every lawyer is
required to maintain the following books of accounts and other documents to enable the

Assessing Officer to calculate his total income

(i) cash book

(ii) Receipt Voucher

(iii) payment voucher

(iv) journal

(v) ledger.

The accounting year is 1st April to 31 st March next year.

1. Cash book : It is the book in which the amount received by the Advocates from the clients
and others and the amount spent for the clients are written. This book is useful for the Advocate
to know the amount in his hand on each day.

2. Receipt Voucher : It is the document prepared for recording the receipt of money by cash or
cheque. When an Advocate received money from the client, the Advocate has to issue a receipt
to the client. Advocate shall maintain receipt books with serially numbered receipt forms in
duplicate. The original receipt should be given to the client and the duplicate shall be retained
by the Advocate.

3. Payment Voucher : Payment vouchers are used to record such payments for which receipts
are not obtainable from the person to whom such payments are made. For example bus fare,
auto fare, court fees, stamps, refreshment expenses etc. In such cases the Advocate signature in
the payment voucher and the signature of the person to whom payment is made may be
obtained.

4. Journal : Journal is the book of first entry or original entry. In the journal the transactions are
recorded in the order of their occurrence. It should contain the following details

(i) Date of Transactions

(ii) Account to which the transaction relates

(iii) Amount to be debited,

(iv) Amount to be credited

 (v) Explanation of the transaction.

5. Ledger : The transactions recorded in the journal are to be posted to the separate heads of
account in other book called as Ledger. In the ledger different pages are allotted to the
different heads of accounts. When the journal entries are posted to the concerned heads of
account in the ledger, the page number of the ledger should be noted in the journal for easy
reference.

The ledger account of an advocate shall contain the following heads.

Clients Account : For each and every client separate pages shall be allotted in this ledger and
separate account shall be maintained for them.

(i) Fees Account : In this account the fees received from each and every client shall be entered
separately. From this account the total amount of fees received from all the clients in a financial
year can be ascertained.

(ii) Rent Account.

(iii) Salary Account.

(iv) Library Account.

(v) Printing and Stationary Account.

(vi) Postage and Telegram Account.

(vii) Electricity Charges.

(viii) Conveyance Charges.

(ix) Repair and Maintenance.

(x) Office Miscellaneous Expenses Account.

At the beginning of the ledger book the index may be given with the name of the different
heads of account and their respective pages for easy reference.

20. Write a critical comment on the importance of Bar-Bench relations.

Ans. Introduction

For the administration of Justice, the judicial system is composed of the judges and the
advocates who assist the judiciary in dispensing justice through discharging their duties. The Bar
and the Bench are two elements of the same system, and without them, justice cannot be
efficiently administered in the courts.
 1. Bar – Advocates are registered by the State Bar Council as such after receiving their
degree of L.L.B from a university and receiving a specific amount of training under the
supervision of an advocate as stipulated by the rules. The advocates are collectively
referred to as the ‘Bar,’ and an advocate is designated as the representative of the Bar.
For the most part, the term “Bar” refers to an association of attorneys who are licensed
to practice in the courts, or a specific court, of any state.
2. Bench – The term “bench” refers to all of the judges taken together, as opposed to the
term “Bar,” which refers to all members of the legal profession. The term “bench” also
refers to the key component of the court deemed in its official capacity while the judges
are sitting. The term ‘Bar’ was originally used to refer to the part of the court that dealt
with attorneys. However, the term is now used to refer to the part of the court that
deals with judicial officers, which is known as the Bench.

The Bar and the Bench are considered as the two wheels of a chariot that play a role in
administering the law. Both are subordinate to and interrelated to one another in their
respective roles. In law, the term “Bar-Bench relationship” pertains to the friendly relationship
that advocates have with judges. The Bar (advocates) and the Bench (judges) both play critical
roles in the administration of justice. Maintaining cordial relations between the Bench and the
Bar requires respect and understanding on both sides of the bench and bar.

Role of bar-bench in the administration of justice

The practice of law and the administration of justice is vitally important to each other. There is
no other office in the state that possesses the same level of authority as that of the judge.
Judges carry enormous power, far exceeding that of any other official in the government or
military. The common people’s lives and liberty, individual domestic happiness, property, and
public image are subordinate to the judges’ wisdom, and citizens are held accountable for their
judgments. If judicial power is corrupted, there is no longer any assurance of life, liberty is
forfeited, and there is no longer any guarantee of personal or domestic happiness. A strong
judiciary that is active, unbiased, and competent is the most important thing a state can have.
Judges must carry out their responsibilities due to the importance of judges in the maintenance
of civil and orderly society.

The administration of justice is not limited to the courtroom. It also has significance for the Bar.
The preservation of cordial relations between the Bar and the Bench necessitates respect and
understanding on both sides of the bar. The roles of attorneys and judges are supplementary to
one another. The primary source of judges’ recruitment is the legal profession. As a result, they
are both members of the same community. The Bar and bench need to sustain cordial relations
with one another. However, because of the nature of the responsibilities that attorneys and
judges must fulfill, they may engage in dialogues that are sometimes amusing, sometimes
heated, and sometimes tough.

Bar-bench relations : an overview

 When it comes to democratic institutions, the independent judiciary is a pillar of stability,
and the bar is the cornerstone of that stability. The Bench reflects the appearance,
character, and behavior of the judges as the bench is considered to be a mother and a bright
mirror for the judicial officers.
 Those who practice law are just as much a part of the justice delivery system as the judges
themselves, and it is the closest possible harmony between the Bar and the Bench that will
produce the best results in accomplishing the targets embodied in our Constitution. The Bar
and the Bench are two opposing sides of the same coin, as the saying goes. The
administration of justice cannot be successful unless there is unity between the Bar and the
Bench. Otherwise, the required outcomes to maintain the grandeur of the institution will
not be achieved.
 An advocate’s scandalizing of the court is truly despoiling the very foundations of justice,
and such behavior by an advocate tends to bring dishonor to the entire administration of
justice. The behavior of an advocate towards the court is always one of uniform reverence,
regardless of the status of the court in which the case is being heard. The advocate’s
personal view of the judge must not be shown in his conduct because he has a responsibility
to maintain the respect of the judiciary as a professional organization. At the same time, it is
the responsibility of the judiciary not only to be courteous to members of the Bar but also to
do everything in their power to progress the high traditions of the profession.
 Contempt of court can be imposed on a lawyer or a judge for their discourteous behavior or
misbehavior. There are two types of contempt of court: civil contempt and criminal
contempt. Consider the following examples: using derogatory language against an individual
judge, harassing him with transfer or removal from office, casually addressing the judge,
questioning his authority to ask questions, or making disgraceful accusations against an
individual judge. It is considered to be contempt of court. He is responsible for his
uncourteous behavior and may be prosecuted for contempt of court.
 The opinion about the Bar and Bench relationship has been laid down in the case of P.D.
Gupta v. Ram Murthi and others(1997) in which the primary focus was on how the
relationship between the Bar and the Bench affects the administration of justice.

Facts: Shri Kishan Dass passed away, leaving behind a large amount of immovable property.
Several people made claims to the deceased’s property, including one Vidyawati, who claimed
to be the deceased’s sister, one Ram Murti, and two other people who claimed to be the
deceased’s heirs, among other things. Later, the advocate for Vidyawati bought the
aforementioned properties, knowing full well that they were in dispute. In the following months,
the attorney made a profit by selling the property to a third party. A grievance against the
lawyer was filed with the Delhi Bar Council, which resulted in the attorney being suspended.

Held: Because the disciplinary committee of the Bar Council of Delhi was unable to resolve the
complaint within a year, the hearings were relocated to the Bar Council of India under Section
36-B of the Advocates Act, which provides that the complaint must be resolved within one year.
The Bar Council of India’s disciplinary committee put him on trial for professional misconduct
and expelled him from practicing law for one year.

Role of the bar in strengthening the bar-bench relation

Advocates are court officers, and they are required to aid the court in the administration of
justice on behalf of the court. Advocates gather resources relevant to the case to aid the court in
reaching an (outcome) in the case. An advocate works in collaboration with the judiciary to
ensure that justice is administered properly. Advocates, like judges, play a significant role in the
administration of justice. An advocate has to practice the following steps to preserve and
strengthen the relation between Bar and Bench:

 They should show reverence to the judges and refrain from disparaging the judges or the
judiciary in any way whatsoever.
 They should assist the judges in the court hearing of the cases by conveying the relevant law
accurately and understandably during the trial. They should never behave in a way that
would displease the judges.
 If the judges make a mistake in their decision, they should not be criticized. They should
attempt to correct the error in the order by filing an appeal.
 They should not exert stress or control on the judges to obtain a favorable order. An
advocate should refrain from seeking to manipulate the verdict of the court through the use
of illegal or inappropriate means.
 If the judge’s conduct is annoying and disrespectful to the advocates, they should refrain
from engaging in violent talks with the judge in question. The issue should be addressed
with the judge in his chambers, and the Bar Association should make a formal request that
such misbehavior not be repeated.
 It is the responsibility of an advocate to make every effort to constrain and avert his or her
client from engaging in unfair practices with the court.

Role of the bench in strengthening the bar-bench relation

A judge is a public official who hears and decides cases in the court of law, thereby resolving a
legal dispute. Judges wield enormous power, far exceeding that of any other official in the
government or military. A judge has to practice the following steps to preserve and strengthen
the relation between Bar and Bench:

 In the same way that the advocates respect the judges, the judges should respect the
advocates as well.
 It is important for judges to approach the case with an open mind and to do so without bias
or prejudice, as appropriate. They will act in a manner that is beneficial to the interests of
justice. They will give the advocates sufficient time to present their case in its entirety.
 Judges are expected to act in a fair and unbiased manner. They are not permitted to act in
the interests of any prosecutor or party to the dispute.
 When required, judges should refrain from interfering with the lawyer’s interviews of
witnesses and presentation of the argument. A lawyer’s professional reputation may be
harmed by undue intrusion and disparaging messages from the judges, and he may be
unable to effectively present the case. In most cases, a judge’s intervention is confined to
the following factors: avoiding reiteration and time-wasting, checking for pertinence,
providing clarification, sharing an opinion of the courts on a particular point, and promoting
the expeditious disposition of the case.
 In the course of administering justice, the courts are frequently called upon to decipher the
law’s rules, directives, regulations, codes, bylaws, circulars, notices, and other documents to
determine the true significance of the statutes or to clear up confusion or incoherence in
the legislation. In these instances, a proper explanation should be provided to provide full
justice to the parties involved in the situation.
 Adjournments are granted to allow the parties a reasonable amount of time to present their
arguments. Cases will not be adjourned where possible unless there are reasonable and
appropriate grounds to do so. Excessive postponement of cases, which causes the parties to
suffer financial difficulties is the most common cause of mounting backlogs in the court
system.
 The case of ‘justice deferred is justice denied’ will also be resolved as soon as possible as
well. When older cases are given priority over new cases, new cases should not fall behind
in their disposition.
 Judges should refrain from making unjustified public remarks about a lawyer’s lack of legal
insight in open court. They should not ask any lawyer to leave the trial unless they have a
compelling reason to do so. Likewise, they should not request that any advocate not appear
in his or her court in the future.
 Judges will have a thorough understanding of the law. They should be able to apply the
appropriate legislation to the evidence available and come to the best possible conclusion
on the matter.
 The foremost duty of ensuring and preserving judicial independence relies upon the judges
who preside over the courts.
 A judge’s moral responsibility and honesty should be unquestionable. He should be treated
with respect, both personally and intellectually. There should be something to commend
about the character and the action.
 This entails a lot of hard work and extensive research done on a regular and comprehensive
basis. A judge’s knowledge should be kept up to date with the most recent advancements
and transformations in legislation by continuously reviewing it.
 Briefings of judges and advocates are scheduled at regular intervals to strengthen the
relationship between the Bar and the Bench. During these sessions, the problems of the
opposing sides can be discussed, and the differences can be resolved through discussion.

Suggestions on the relation between bar and bench

 In the administration of justice, the Bar and the Bench play a vital role in being the two most
important organs; they share a common duty in ensuring that justice is administered properly
and effectively. Given the fact that both are national assets of our nation, they must therefore
coordinate and work cooperatively with one another, as well as stay cautious together, in order
to safeguard judicial independence.

A reputed and unbiased judiciary, as well as a powerful bar, are required to maintain the system
of democracy and independence under the rule of law in the country. Furthermore, the lawyers
must have the impression that they were given a fair court hearing and that their issues would
be addressed by an unbiased and credible attorney, among other things.

It is critical for the productive discharge of the court’s duties that the high level of optimism,
prestige, and dignity that they have admired throughout their careers be sustained and not
weakened in any manner. Whether it is judges or lawyers, they bear the main duty of
administering and maintaining the public’s trust in the courts.

Conclusion

An ordinary citizen has faith and confidence in the country’s judicial system. It is the
responsibility of both the Bench and the Bar to uphold and strengthen the rule of law through
their dedication and behavior. To ensure the independence of the bar, an independent judiciary
must be in place, which can be used to defend that independence if required. One of the most
effective methods of guaranteeing judges’ independence is to have a responsible, well-behaved,
sophisticated, and learned Bar. In the end, the mutual adjustment of behavior by the Bench and
the Bar is the cornerstone of the polished operation of courts in the overall interest of society.

21. Explain the duties of the Advocate towards the court.

Ans. Professional ethics is nothing but the duties which are to be followed by the advocate. An
advocate who violates these duties is considered as he has violated the principles of
professional ethics. The core subject of legal ethics is to maintain honour, dignity of the law
profession and to create a friendly atmosphere in the court without any biasness and quarrels
between advocates which eventually spoils the bar and bench relations and ultimately affects
the administrative system of justice.

Cooperation and fair dealing is necessary for the advocates. Advocacy is a noble profession. It
cannot be compared with any other profession like trade, business etc. because it is a part and
parcel of judiciary and administration of justice. Bar and bench are two eyes of the Justice.
There are judicial ethics and etiquette for judges.

There are professional ethics and etiquette for advocates. Every advocate should follow them in
his profession. An advocate is also a key person in conducting a proceeding before the court.
While conducting a proceeding the advocate should function intelligently. Every advocate must
follow these duties because they are part and parcel of the professional ethics and etiquette.
Whoever fails to oblige them, such an advocate is said to have committed professional
misconduct and be punished accordingly.

Advocate's Duty To The Court:

An advocate is considered as an officer of the court, honoured member of the community, and a
gentleman, thinking that to become a member of the bar he has to be lawful and moral not only
in his professional capacity but also in his non – professional capacity. An advocate has to
courageously support the interest of his client and also have to follow the principles of ethics
and etiquette both in correspondence.

The bar council of India rules, State Bar Council rules mention certain canons of conduct and
etiquette as general guides. Section 49(1)(c) of the Advocates Act, 1961 empowers the bar
council of India to make rules in order to determine the standards of professional conduct and
etiquette to be observed by the advocates. Chapter – II of Part – VI OF The Bar Council of India
Rules explaining the rules pertaining to Advocate's Duty to the Court.

Duties of an advocate towards the court are as follows -

16. An advocate shall, during the presentation of his case and while otherwise acting before a
court conduct himself with dignity and self-respect. He shall not be servile and whenever
there is proper ground for serious complaint against a judicial officer, it shall be his right and
duty to submit his grievance to proper authorities.
17. An advocate shall maintain towards the court a respectful attitude bearing in mind that the
dignity of the judicial office is essential for the survival of a free community.
18. An advocate shall not influence the decision of a Court by any illegal or improper means.
Private communication with a judge relating to a pending case are forbidden.
19. An advocate shall use his best efforts to restrain and prevent his client from restoring to
sharp or unfair practices or from doing anything in relation to the court, opposing Counsel
or parties which the advocates himself ought not to do. An advocate shall refuse to
represent the client who persists in such improper conduct. He shall not consider himself a
mere mouthpiece of the client, and shall exercise his own judgement in the use of
restrained language in correspondence, avoiding scurrilous attack in pleadings, and using
intemperate language during arguments in court.
20. An advocate shall appear in court at all times only in the prescribed dress, and his
appearance shall always be presentable .
21. An advocate shall not enter appearance, act,plead or practice in any way before the court,
tribunal or authority mention in Section 30 of the Act, if the sole or any member thereof is
related to the Advocate as father, mother, grandfather, son, grandson, daughter, sister ,
father in law, mother in law , son in law, brother in law , daughter in law or sister in law.

For the purposes of this rule, court shall mean a court bench or tribunal in which above
mentioned relation of an advocate is a Judge , member of the preseding officer.
22. An advocate shall not band or gown in public places other than in courts except on such
ceremonial occasions and as such places as the bar council of India or the court may
prescribe.
23. An advocate shall not appear in or before any court or tribunal or any other authority for or
against an organisation or an Institution, society or Corporation, if he is a member of the
executive committee of such organisation or institution or society or Corporation,"
executive committee " ,by whatever name it may be called shall include any committee or
body of persons which, for the time being is vested with the general management of the
affairs of the organisation or institution, society or Corporation : provided that this rule
shall not apply to such a member appearing as amicus Curie or without a free on behalf of a
bar council, incorporated law Society or a bar association.
24. An Advocate should not act or plead in any matter in which he himself is pecuniarily
interested.
25. 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.
26. An advocate should have sense of humour and pleasing manners in his argument.
27. An advocate should be straight forward and his argument should be pointed, clear precious
and concise
28. An Advocate must be tactful in presenting the matters.
29. An Advocate should not mislead Court.
30. An advocate shall not criticize the Judiciary with malice.

The Bar Council can review the order given by the disciplinary committee under Section 44 of
the Advocate's Act, 1961. V.C. Rangadurai v/s D. Gopalan, In this case V. C. Rangadurai was an
advocate and Devasenapathy was an old deaf man, aged 70 years and Smt. D. Kamalammal was
also aged.

They had given two promissory notes to rangadurai and also paid the fees as was asked to the
advocate. Nevertheless, the advocate did not file the case in time. The limitation was over. After
a long time of wandering around the office of the advocate, the old man came to know that the
advocate deceived him by not filing the cases within the time even after receiving the fees. He
filed a complaint before disciplinary committee of the Tamilnadu state bar council which after
enquiry punished the advocate suspending him for 6 years.

On appeal, it was confirmed by the Bar council of India and also by Supreme Court. Rule 6 of
Chapter II of Part- VI of the Bar Council Rules states that an advocate shall not appear, act, plead
or practice before the court if any member is related to the advocate as father, son, wife etc. the
main object is to avoid personal bias between an advocate and presiding officer related to such
advocate.

Due to natural love and affection, the judge may incline towards the advocate, thus to favour
the client of the advocate related to him or her. In case of Satyendra Nararain Singh and Others
vs Ram Nath Singh and Others, wife is the judge and husband is the advocate.
Court held that the advocate should not appear before his wife, who is the judge of the court. If
he appears before the court, to which his wife is presiding officer, it becomes his professional
misconduct. If he appears before the wife- judge. It is the duty of the judge to raise the
objection. If she fails to object and accepts his appearance, then it becomes her judicial
misconduct.

UP Sales Tax Service Association vs Taxation Bar Association, In this case, an advocate was
carrying a revolver along with him to the court. So, it was held by the Supreme Court that if an
advocate attends the court with firearms then it definitely against the dignity of the legal
profession.

Conclusion:

Advocate has duties which are to be performed towards himself, his clients, opponents,
colleagues, court etc. it is the duty of the advocate to maintain the decorum of the court and act
properly with his opponents or colleagues. He must always act in the best interests of his clients
and should not do any kind of act that betrays their trust upon him.

An advocate has to present his case before the court fearlessly. He must maintain the dignity of
the legal profession as well as the dignity of the court. He is considered as an officer of the court
and required to uphold the dignity and decorum of the court.

These rules prohibit private communication with the judge relating to a pending case. Not only
the litigants and witnesses but the general public will also get the inspirations from the example
of advocates. It is necessary for dignified and honourable administration of justice that the court
should be regarded with respect by the suitors and people. All these duties, ethics and morals
help an advocate to be in a better position in his career and become a successful lawyer.