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TMI Blog1975 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee. Another resolution was passed by the Bar Council of Maharashtra on the same day whereby Messrs Hotchand Advani, R. W. Adik and S. C. Chagla were elected as members of the disciplinary committee to enquire into the complaints. The aforesaid disciplinary committee met on 19 March, 1965 and heard the advocates for the Bar Council of the State of Maharashtra. After considering the papers placed before the committee, it directed the Registrar to issue notices under section 35(2) of the Act to the parties concerned including the Advocate-General . The committee also expressed the opinion that there is a prima facie case of professional misconduct . The Bar Council of Maharashtra on 18 May, 1965 issued notices under section 35 of the Act to the respondents. The notice was described as a suo motu inquiry against the respondents. The notice proceeded with the recital that it came to the notice of the Bar Council of Maharashtra that the respondents stood at the entrance of the Court House at the Presidency Magistrate's Court, Esplanade, Fort Bombay and solicited work and generally behaved at that place in an undignified manner and the said acts amounted to professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s roll. 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. A Bar Council is required to constitute one or more disciplinary committees each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be A person co-opted by the Council from amongst advocates who possesss the qualifications specified in the proviso to section 3(2) of the Act and are not members of the Council, and the senior most advocate amongst the members of a disciplinary committee shall be its Chairman. When the Executive Committees of a State Bar Council and of the Bar- Council of India and an Enrolment Committee of a State Bar Council and the legal education committee of the Bar Council of India are to consist of members erected by the Council fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person aggrieved by an order of the disciplinary committee of a State Bar Council or the Advocate-General of the state may, within sixty days of the date of communication of the order, prefer an appeal to the Bar Council of India. Section 38 provides for appeal to the Supreme Court. Section 38 states that any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37 or the Attorney-General of India or the Advocate-General of the State, as the case may be, may prefer an appeal to the Supreme Court. Section 49 of the Act provides that the Bar Council of India may make rules for discharging its functions under the Act and in particular such rules may prescribe inter alia the standards of professional conduct and etiquette to be observed by advocates. The Bar Council of India in exercise of the rule making power under section 49(c) of the Act on 10 and l l July, 1954, approved the rules of standards of professional conduct and etiquette. The standards of professional conduct and etiquette are described in five sections. The first section deals with duty of advocates to the Court. The second section speaks of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 38 of the Act to this Court. In view or majority decision, the appeal filed by Adi Pherozshah Gandhi was accepted by this Court on the ground that the Advocate-General of Maharashtra was incompetent to file an appeal. It is in this background that amendments have been introduced into sections 37 and 38 of the Act conferring right of appeal on the Advocate-General of State and the Attorney-General of India under sections 37 and 38 respectively. The respondents contended on the ruling of this Court in Adi Pherozshah Gandhi s case (supra) that the Bar Council of the State is not a person aggrieved to maintain an appeal against a decision of its disciplinary committee for these reasons. First, the Bar Council of a State is not an aggrieved person because Bar Council has not suffered ally legal grievance, and the decision of the Bar Council of India has not deprived the Bar Council of a State of anything. Second, the allegation that order of the disciplinary committee of the Bar Council of India is wrongfully made does not by itself give any grievance to the Bar Council of a State. The person must be aggrieved by the order and not by the consequences which ensue. Third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to its disciplinary committee. The initiation of the proceedings before the disciplinary committee is by the Bar Council of a State. A most Significant feature is that no litigant and no member of the public can straightaway commence disciplinary proceedings against an advocate. lt is the Bar Council of a State which initiates the disciplinary proceedings. In finding out the meaning of the words person aggrieved by an order made by the disciplinary committee of the Bar Council of India , two features are to be kept in the fore-front. First, there is no lis in proceedings before the disciplinary committee. When the disciplinary committee exercises the power to reprimand the advocate, or suspend the advocate from practice or remove the name of the advocate, the committee does not decide a suit between the parties. The Bar Council in placing a matter before the disciplinary committee does not act as prosecutor in a criminal case. A complainant who prefers a complaint against an advocate is not like a plaintiff in a civil suit. The complaint is examined by the Bar Council in order to find out whether there is any reason to believe that any advocate has been guilty of misconduct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee of the Bal- Council of India is that the State Bar Council is all the time interested in the task of preserving the profession against impurities in the standards of conduct. The Bar Council is the collective representative of the lawyers, the public, in regard lo the observance of professional ethics by persons belonging to the noble profession. The words `person aggrieved are found in several statutes. The meaning of the words person aggrieved will have to be ascertained with reference to the purpose and the provisions of the statute. Some times, it is said that the words person aggrieved correspond to the requirement of locus standi which arises in relation to judicial remedies. Where a right of appeal to Courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words a person aggrieved may vary according to the con text of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been 'denied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh traditions and values in the profession, the State Bar Council is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bar The Bar Council is a person aggrieved for these reasons First, the words person aggrieved in the Act are of wide import in the context of the purpose and provisions of the statute. In disciplinary proceedings before the disciplinary committee there is no lis and there are no parties. therefore, the word person will embrace the Bar Council which represents the Bar of the State. Second, the Bar Council is a person aggrieved because it represents the collective conscience of the standards of professional conduct and etiquette. The Bar Council acts as the protector of the purity and dignity of the profession. Third, the function of the Bar Council in entertaining complaints against advocates is whn the Bar Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary committee is entrusted with such inquiry. Once an inquiry starts, the Bar Council has no control over its decision. The Bar Council may entrust it to another disciplinary committee or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this interest. A State Bar Council is composed primarily of members elected from amongst Advocates of a State. Its statutory functions are given in Section 6 of the Advocates Act, 1961 (hereinafter referred to as 'the Act'). Amongst these, we are especially concerned here with clauses (c) and (d) of Section 6(t) of the Act, which read as follows: (c) to entertain and determine cases of misconduct against advocates on its roll; (d) to safeguard the rights, privileges and interests; of advocate on its roll; Under Section 9 of the Act, the State Bar Council constitutes its Disciplinary Committee consisting of three persons of whom two shall be persons elected by the. Council from amongst its members and the other shall be a person elected by the Council from amongst Advocates who possess the qualifications specified.... . Under Section 10 it elects an Executive Committee of five members and an Enrolment Committee of three members. Thus, the State Bar Council operates through its Committees. Each Committee has distinct and separable functions. Each could, therefore, be said to have a persona and an identity of its own which is distinguishable from that of the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the allegedly delinquent Advocate towards the decision of which the proceedings are directed. The term lis is not confined to litigation by means of a suit in a Court of law. In Butler v. Mountgarret7 H. L. Ca. 641. it was held that a suit is not necessary to constitute lis . It was pointed out there that a family ..controversy capable of being litigated is a lis mota'. In B. Johnson Co. (Builders) v. Minister of Health([1947] 2 All.E. R. 39; At 399.), Lord Greene, M.R. said: ` Lis implies the conception of an issue joined between two parties, The decision of a lis.. is the decision of that issue . If the State Bar Council, acting through its through it Executive Committee, has found a prima facie case to be send and tried by its Disciplinary Committee, it performs the functions of a prosecuting agency. lt does so i the discharge of its duty to safeguard '`the rights, privileges and interests' of advocates as a whole on its roll which are affected by the misconduct of an advocate. There arc, therefore, triable issues between it and the; (, individual Advocate accused of misconduct. lt seems to mc that we could and should, therefore, hold that the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has notice of every complaint whenever it send it to its Disciplinary Committee. Its right to appeal in any event, as a person aggrieved , seems squarely covered by the provisions of Sections 37 and 38 of the Act. It may be mentioned here that the respondents themselves treated the Bar Council as a party interested in a list , so that it could become a person aggrieved by the setting aside of the orders against respondents, when they impleaded the State Bar Council as a respondent in their appeals to the Bar Council India. Its statutory right to appeal to this Court under Section 38 is not affected by the mere fact that it did not put in appearance before the Bar Council of India. KRISHNA IYER, J.- My concurrence the opinion which has been handed down by the learned Chief Justice is ordinarily dissuasive of a separated long note, save when a fresh perspective is to be presented or new frontiers are to be drawn by doing so. Partially, my supplementary has this apology. The tow-day long arguments in this case have been devoted to a construction of two simple words in common use forming the expression 'person aggrieved'. Precedential erudition and traditional approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plexity. At a time when our Courts are on trial for delayed disposals and mystifying processes, this desideratum becomes all the more urgent. Otherwise, why should decoding a single expression- 'person aggrieved' take two days of learned length ? Even. in England, so well-known a Parliamentary draftsman as Francis Bennion has recently pleaded in the Manchester Guardian against incomprensible law forgetting 'that it is fundamentally important in a free society that the law should be readily ascertainable and reasonably clear, and that otherwise it is oppressive and deprives the citizen of one of his basic rights'. It is also needlessly expensive and wasteful. Reed Dickerson, the famous American Draftsman. said: 'lt cost the Government and the public many millions of dollars annually'. The Renton Committee, in England, has reported on drafting reform but it is unfortunate that India is unaware of this problem and in a post-Independence statute like the Advocates Act legislators should still get entangled in these drafting mystiques and judges forced lo play a linguistic game when the country has an illiterate laity as consumers of law and the rule of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... birth an. interest, to the aristocracy by habit and taste'. Thus the profession is the connecting link between the community and the Administration given an enlightened, goal-oriented group outgrowing its elitist mores indeed today lawyers are recruited also from the lower brackets. India has huge number of law men who can be a force. What Prof. Brabanti observed about the Pakistan Bar has some, only some though, relevance to India, and I quote: The sheer size of the legal community, strongly organised into bar associations and closely allied with equally strong courts has not only been a major source for the diffusion and regeneration of norms generally, but by weight of numbers has enabled the courts to remain strong and has prevented the rise of administrative lawlessness. There is s curious anomaly here. The legal community, while often antagonistic to government and constraining executive action, is nevertheless closely identified normatively and culturally with the bureaucratic elite. This identification curiously coupled with health antagonism actually enhances the strength of the legal community. It derives popular support from its ostensible opposition to Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efitting an honourable order. If pathological cases of member misbehaviour occur, the reputation and credibility of the Bar suffer a mayhem and who, out the Bar Council, is more concerned with and sensitive to this potential disrepute The few black sheep bring about? The official heads of the Bar i.e., the Attorney General and the Advocates-General too are distressed if a lawyer 'stoops to conquer' by resort to soliciting, touting and other corrupt practices. I may now refer to A. P. Gandhi v. H. M. Seervai ([197] I S C. R. 863.) where diver gent opinions were delivered but all concurred in treating the Bar Council as an 'aggrieved person'. The earlier decision in Bhataraju ([1955] 1 S. C.R. 1055,1064) strikes a note in consonance with this view. No hesitancy inhibits me from hazarding the opinion that the social canvas must be spread wide when making out the profile of a statute like the Advocates Act for the good reason that the Bar has a share in being the sentinel on the qui vive when the legal dykes of Right and justice are breached by authoritarianism or citizen-wrong- doing. Nor do I conceal my halfhorror at any professional tribunal glossing over 'sna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsibilities, tho public interest is paramount. It must be remembered, the Court cautioned, that railways are public corporations organized for public purposes....They all primarily owe duties to the public of a higher nature even than that of earning large dividends for their shareholders. (Review by James 1;. Simon of Bangor Aroostook R. R v. Bangor Punta operations, Inc (Bangor Aroostook), 482 F.2d 865 (Ist Cir. 1973), cert. granted, 94 S.Ct. 863 (1974) Columbia Law Review Vol. 74 No. 3, April 197 p. 528 at pp. 531-532). Similarly, the American Supreme Court relaxed from the restrictive attitude towards 'standing' in public action in Baker v. Carr (369 U.S. 186 (1962), vide Maryland Law Review, Vol. XXXIII 1973 p.506: In Baker, voters challenged the failure of the Tennessee legislature to reapportion itself since 1901; the plaintiffs lived l. in countries which had become under-represented under the old law. The Supreme Court held that these voters had the requisite standing to challenge the inaction of the legislature The Court expanded the notion cf direct injury to include mere 'debasement' of a vote, rather than the total deprivation which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him. (Quoted ill 'Standing Justifiability' by V. S. Deshpande- Journal of the Indian Law Institute-April- June 1971- Vol. 13, No. 2, p. 174) Professor H.W.R. Wade has observed: In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis.This is because it looks beyond the personal rights A of tho applicant; it is designed to keep the machinery of justice in proper working order by presenting inferior tribunals and public authorities from abusing their powers. (Standing and Justiciability bid, p. 175) The possible apprehension that widening legal standing With a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system. In this very case, to grant an exclusionary windfall on the respondents is to cripple the Bar Council in its search for justice and insistence on standards. I have been long on a short point, but brevity, where there is some thing to speak, is not th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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