Adi Pherozshah Gandhi Vs. H. M. Seervai, Advocate-General of Maharashtra, Bombay [1970] INSC 170 (21 August 1970)
21/08/1970 HIDAYATULLAH, M. (CJ) HIDAYATULLAH, M. (CJ) SHELAT, J.M.
MITTER, G.K.
VAIDYIALINGAM, C.A.
RAY, A.N.
CITATION: 1971 AIR 385 1971 SCR (2) 863 1970 SCC (2) 484
CITATOR INFO :
RF 1975 SC2092 (21,22,52,57) RF 1981 SC 116 (7) E 1982 SC 149 (606,963) F 1983 SC 990 (11)
ACT:
Advocate Act (25 of 1961) s. 37--'person aggrieved' ,meaning of--Advocate-General of State taking part in proceedings before Disciplinary Committee of Bar Council--If person aggrieved' with a right of appeal.
HEADNOTE:
The appellant was an advocate from Maharashtra. He was convicted by a Summary Court in London on a charge of pilfering from a Departmental Store and was sentenced to pay a fine. The State Bar Council called upon him sou motu to show cause why he should not be held guilty of misconduct.
he submitted his explanation and the Disciplinary Committee of the Bar Council was satisfied that there was no reason for holding him guilty of professional misconduct. The Advocate-General of the State who was sent a notice of the proceedings as required by s. 35(2) of the Advocates Act, 1961, and bad appeared before the Disciplinary Committee, filed an appeal to the Bar Council of India under s. 37 of the Act, under which, any person aggrieved by an order of the Disciplinary Committee of the State Bar Council made under s. 35 of the Act, may prefer an appeal to the Bar Council of India. The appellant objected that the AdvocateGeneral had no locus standi to file the appeal. The objection was overruled by the Disciplinary Committee of the Bar Council of India and the appellant was found guilty of professional misconduct.
in appeal to this Court, on the question of the competency of the Advocate-General to file the appeal under s. 37.
HELD : (Per Hidayatullah. C.J., Shelat and Mitter, JJ.) The was not a person aggrieved, within the meaning of 37 and therefore, the appeal filed by him was incompetent and hence, finding of the Disciplinary Committee of the Bar Council of India should be get aside. [887 H; 904 E] (Per Hidayatullah C.J.) (1) The expression person aggrieved' must be construed by reference to the context of the enactment in which it and all the circumstances. Under the Act, disciplinary proceedings before a State Bar Council commence on a complaint to it or suo motu and are referred to its Disciplinary Committee. The Disciplinary Committee can reject the matter summarily; but if it proceeds to hear it further, notice thereof is sent to the concerned advocate and to the advocate-General of the State. The AdvocateGeneral may appear personally or by counsel. If the Disciplinary Committee after giving the Advocate and the Advocate-General an opportunity to be heard holds hat the Advocate is not guilty of any misconduct it makes an order it her dismissing the complaint, or where the proceeding was started by in Bar Council makes an order that the matter may be filed.. If it finds the advocate guiltyit may either reprimand the advocate or suspend 864 the advocate from practice for a specified period or remove his name from the roll of Advocates. From the decision of the Disciplinary Committee of the State Bar Council an appeal lies to the Bar Council of India at the instance of a person aggrieved'. The appeal is heard by the Disciplinary Committee of the Bar Council of India and from its decision an appeal lies to this Court. [884 E-H; 885 A-B] (a) In these proceedings before the disciplinary committee the Advocate-General is not in the nature of a party having independent rights which lie can claim nor is he injured by the decision. The decision does not deny him anything nor does it ask him to do anything. He is also not intended to be bound by the decision. He does not represent the Bar nor has he a right to speak on behalf the body of the advocates. Such a privilege is neither expressly conferred on him nor can it be implied from the provisions of the Act.
[885 C-D; 886 A-B] (b) In the State Bar Councils (except in Delhi), the Advocate-General of the State is an ex-officio member, but his functions are not different from those of other members.
He has a right of pre-audience, but the Advocates Act does not confer any other right on him. When the Committee considers in limini to decide whether the matter should be proceeded with at all, the Advocate General's presence is not considered necessary. Therefore, the Advocate-General is not a prosecutor on behalf of the Bar Council. He is noticed and brought before the Committee because he is the Chief Counsel of the State and therefore his assistance at the hearing is useful. He is generally a lawyer of some standing having made a mark in the profession and his contribution to the deliberations of the Disciplinary Committee is welcome, because, thus the Disciplinary Committee is helped to reach a proper conclusion. The fact that he can appear through counsel shows that the intention is merely to have his opinion as an amicable curiae who is neither siding with the complainant nor with the Advocate and who will thus have an unbiased and impartial approach to the case. He must after he has done his duty leave the matter to the complainant and the advocate or the Bar Council to take the matter further if they choose. [883 C, E-F; 885 E-H; 886 A] (c) If he is not a person summoned to be bound by the order but a person who is heard in a dispute between others merely to be of assistance in reaching the right conclusion he can hardly have a grievance. Any person who feels disappointed with the result of a case is not a person aggrieved'. He must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something or must have a tendency to injure him. That the order is wrong or that it acquits some one who he thinks ought to be convicted does not by itself give rise to a legal grievance. [876 A-C] Therefore, it cannot be said that by reason of the provisions of the Advocates Act, the Advocate-General of the State enjoys such a position that be must necessarily be treated as a person aggrieved' entitling him to file an appeal. [882 H; 886 G] -In re. Sidebotham Ex. Sidebotham, (1880) 14 Ch. D.
458(C.A.). In re. Lamb Exp. Board of Trade, [1894] 2 O.B.D. 805, 812, In re. Kitson,, Exp. Sugden (Thomas) & Sons, Ltd. [1911] 2 K.B.' 109, 112-114. Bln. re. Brown Exp. Debtor v. official Receiver (1943) Ch. D. 177. Ellis Exp. Ellis (1876)2 Ch. D. 779, In re. Words Exp. Dalton (1874)40 L.T. 297(C.A.), R. v. London County Keepers of Peace and Justice [1890] 20 Q.B.D. 357, Jennings v. Kelly, [1940] A.C. 206 (H.L.). In 865 re. Reviere (1884) 2 Ch. D. 48, Robinson v. Currey [1881] 7 Q.B.D. 465, 470 (C.A.); Seven Oaks Urban District Council v. Twynham (1929) 2 K.B. 440,' 443, Eating-Corporation v.
Jones L. R. [1959] 1 Q.B.D. 384, B. M. Madani v. Commissioner of Workmen's Compensation Bombay, C.A. 877 of 1968 decided on October 10, 1968 and Municipal Corporation of the City of Bombay v. Chandulal Shamldas Patel, C.A. 1716 of 1967 decided on August 1, 1970, referred to.
(2) It could not be said that in the present case there were several points of general public interest which needed to be solved and therefore, if the decision of the Disciplinary Committee of the State Bar Council was wrong, the Advocate-General, in public interest, could take the matter further. [886 G-H] Unlike the position of an Attorney General in a Crown Colony, the Advocate-General of a State in India does not represent the Executive or the Legislature or the Judiciary, or the Central Government in disciplinary proceedings before the Disciplinary Committee. The magniloquent phrases such as Leader of the Bar, Keeper of the, Conscience of the Bar have no meaning neither under the Advocates Act nor under the Bar Councils Act, 1926. They are just honorific titles given by the courtesy but are not grounded on law, the keepers of the conscience of the Bar being the Bar Councils.
[883 F-G; 886 C-D] In the present case the appellant was not precluded from questioning the charge in the disciplinary proceedings because of the decision of the Criminal Court in London.
His explanation was accepted by the Disciplinary Committee of the State Bar Council. They were also satisfied that the summary proceedings in the criminal trial in England offended against the principles of natural justice, and that therefore, the conviction of the appellant in England did not show any moral turpitude in the appellant. If the Advocate General's view on these matters were not accepted by the Disciplinary Committee he could not have any grievance. He could not make it his own cause or a cause on behalf of others whom he did not represent. He had done his duty and the matter should have rested there. [887 C-F] Attorney-General of Gambia v. Pierre Saar N'Jie, [1961] A.C.
617 (P.C.) referred to.
(3) (a) The facts that in Advocate-General of Bombay v. Phiroz Rustamji Barucha 37 Bom. L.R. 722 (P.C.) the standing of the Advocate-General to apply for special leave in a proceeding relating to professional misconduct of an Advocate was questioned before the Privy Council, but that the Privy Council refused special leave on a different ground cannot import a rejection of the objection as to the standing of the Advocate-General. [881-E] (b) The observations in B. Nageshwara Rao v. The Hon'ble Judges of the Madras High Court, [1955] 1 S.C.R. 1055 that in an appeal arising out of a proceeding under the Bar Councils Act, it was inappropriate to make the Judges respondent, and that the appropriate parties should be the concerned Advocate the complainant (if any), the Bar Council and the Advocate-General of the State, do not advance the case of the Advocate-General in this case. [882 E] (Per Shelat and Mitter, JJ.) (1) A State Bar Council consists of a number of members including the AdvocateGeneral of the State ex-officio. Under the provisions of the Advocates Act, subject to a right of appeal to this Court under s. 38, inquiries into charges of misconduct against L169CI/71-11 866 advocates are to be in the exclusive jurisdiction of the Bar Councils. If a complaint is received against an Advocate it is referred to the Disciplinary Committee ofthe Bar, Council or the Bar Council can take such a step suo motu.
It is however not obligatory to refer each and every complaint but only when the Bar Council is satisfied that there is a prima facie case for investigation. if it is not so satisfied it can throw out the complaint as frivolous. And it is only when the Disciplinary Committee does not summarily reject the complaint that a date has to be fixed for its hearing and notice thereof must be given to the advocate concerned and the Advocate-General of the State but it is not incumbent on the Advocate-General to appear in person; he can appear through another advocate and place his view-point before the Disciplinary Committee. The Advocate and a complainant who makes allegations against an advocate are persons aggrieved entitled to file an appeal under s. 37 if an order is made against the advocate, or the complaint is dismissed by the Disciplinary Committee. But the State Bar Council cannot be such a person as the order is made by itself and acting through its Disciplinary Committee. [889 B-C; 891 B-C] Generally speaking a person is said to be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right of appeal merely because the judgment or order contains some adverse remarks against him. A person who is not a party to a suit may prefer an appeal,, with the leave, of the appellate court when the judgment would be binding on him. But because a person has been given notice of some proceedings wherein he is given a right to appear and make his submissions, he does not without more, have a right of appeal from an order rejecting his contentions or submissions. To place the Advocate-General in the company of "persons aggrieved" one must be able to say that the Disciplinary Committee committed an error which it was his duty to attempt to set right because of some function attributable to him as the Advocate General or some obligation cast upon him by the Act or the general law of the land to safeguard and maintain standards of conduct of Advocates laid down by the Bar Council of India. [892 B-F] (a) The Advocate-General is entitled to a hearing if the complaint is not rejected summarily. But it is not obligatory on him to take part in the proceedings. It is only when he feels that a case requires a careful investigation and proper elucidation of the facts or the exposition of the law on the subject that he is called upon to render assistance. He has to take a fair and impartial attitude and render all assistance to the Bar Council to enable it to arrive at a proper decision. His role is not that of a prosecutor nor is he a defence counsel on behalf of the advocate. Ms duty is to put before the Disciplinary Committee the facts in their proper perspective and to advance the proper inference to be drawn. Once he does so there is an end of the matter so far as he is concerned; and he cannot have any grievance because the decision of the Bar Council is against his submission or not to his liking'.
[896 G-H; 897 A-C] (b) Article 165(2) of the Constitution epitomizes the functions and duties of the Advocate-General. It lays down that he has to discharge the functions conferred upon him by or under the Constitution or any other law for the time being in force. It is not open to the Advocate-General to intervene in any suit or legal proceeding apart from the provisions of the Codes of Civil and Criminal Procedure, merely because he thinks public interest is involved in the matter. Considering the matter 867 historically, the Legislature, while passing the Bar Councils Act, 1926, and the Advocates Act, 1961, thought that the Advocate-General should be heard inasmuch as he occupied the position of a general referee on points of professional etiquette very much like the Attorney-General in England. Once he does this duty enjoined upon him by the statute. of making such submissions as he thinks proper at the hearing, his functions qua the enquiry come to an end.
As a referee he has no further interest in the matter, and if the Disciplinary Committee makes an order -against the advocate which the Advocate-General considers harsh and unreasonable he is not called upon to file an appeal.
Neither is he interested in prosecuting the. matter further if he takes the view that the punishment meted out is not commensurate with the misconduct of the advocate. [897 D-E, G-H; 900 C-F] Robinson v. Currey, 7 Q.B.D. 465, Ex parte Side botham. In re Side botham, 14 Ch. D. 458 465, Ex parte Official Receiver. In re Read, Brown & Co. 19 Q.B.D. 174, 178, the Queen v. Keepers of the Peace and Justices of the County of London, 25 Q.B.D. 359, 361; Rex v. London Quarter Sessions, Exparte Westminster Corporation (1951) 2 Q.B.D. 508, Seven Oaks Urban District Council v. Twynham, (1929) 2 Q.B.D. 444, Ealing Corporation v. Jones, (1954) 1 K.B. 384, 390, referred to.
(2) The Advocate-General of a State in India is not a representative of the Government. Neither the Constitution nor the Advocates Act holds him so nor is be a person representing public interest, unlike the Attorney-General in a Crown Colony' except as provided in statutes. He may draw the attention of the Bar Council to any misconduct of an advocate and appear at the hearing. Once the hearing is over and a finding is recorded he has done his duty and be cannot be said to be aggrieved within the meaning of s. 37.
Every day courts of law are called upon to decide questions of law inter parties which may be of general importance to the public. The Advocate-General cannot prefer an appeal merely because the question is one of considerable importance to the public inasmuch as he is not a party to it; and he has no locus stand to do so, even in a case where the statute only gives him an opportunity of appearing at a hearing and making his submission. A decision of the Disciplinary Committee cannot necessarily be said to raise a point of public interest merely because the Advocate General feels that it is erroneous or that he himself would have arrived at a different in India is not the guardian angel of the Bar, nor is he the champion of public interest in any matter save as specified in a statute. [902 D-G; 904 B-E] Attorney General of Gambia v. Pierre Saar N' Jie, (1961) A.C. 617, (P.C.), referred to.
(3)(a) The decision of the Judicial Committee in AdvocateGeneral, Bombay v. Phiroz Barucha, 37 B.L.R. 722 (P.C.) does not help the Advocate-General, because it did not decide the point as to the maintain ability of the appeal. [903 CD] (b) It did not appear that any argument was advanced in Nageswara Rao v. The Hon'ble Judges of the' Madras High Court, [1955] S.C.R. 1055, 1064 about the proper parties to the appeal before this Court arising from proceedings under the Bar Councils Act; and the point as to Whether the Advocate General was a person aggrieved was neither raised nor argued. Therefore. the observation in the case that 868 the Advocate-General of the state is an appropriate party in the appeal should, not be accepted. 1903 G-H] (Per Vaidialingam and Ray, JJ. dissenting) : The appeal filed by the Advocate-General of Maharashtra was competent as he was a person aggrieved' under s. 37 of the Advocates Act, 1961. [908 B-C; 920 G-H] (Per Vaidialingam, J.) : (1) The question whether the Advocate General is a person aggrieve& under s. 37 of the Advocates Act will have to be tackled with reference to the, scheme and provisions of the Act.' Under the Act, the State Bar Councils and the Bar Council of India have been made autonomous units and various functions regarding the legal profession have been entrusted to them including taking disciplinary action against delinquent members and conducting inquires. Barring a ,right of appeal to this Court under s. 38 the courts are completely out of the picture. Under ss. 3 (2) (a), 23 (4) and 35, the AdvocateGeneral of the State is given a very important and responsible position and the Act has given due recognition to his status by virtue of his being the highest law officer in the State, and as one who may be trusted to place a disinterested and dispassionate view before the Disciplinary Committee to enable it to come to a proper decision with respect to the advocate concerned and the legal profession.
Apart from being an ex officio member of the State Bar Council, he has also a right of pre-audience over other advocates. [909 D-G; 911 G-H; 912 B-D; 916 A] Under ss. 35 and 37, (i) the State Bar Council can suo motu or on receipt of a complaint, when it has reason to believe that an advocate has been guilty of professional or other misconduct, refer the caseto its Disciplinary Committee (ii) If the Committee does not summarily reject the complaint, it is bound to fix a date for its hearing and also bound to give notice to the advocate and the Advocate General of the State; (iii) The Committee is bound to give an opportunity of being heard to the Advocate and the Advocate-General and there is no distinction in the opportunity so afforded to both of them; (iv) The Advocate-General may appear in person or through counsel; (v) the Committee can pass one or other of the orders enumerated in s. 35(a) to (d) and the orders have to be communicated to the Advocate-General also, and under s. 37, any person aggrieved' is entitled to file an appeal to the Bar Council of India. Unlike under the Bar Councils Act, the Advocate General is associated with the disciplinary proceedings right from the stage of the inquiry by the Committee. The notice to the Advocate-General cannot be a formal and empty notice, because he should begin an opportunity of being heard. Even though there may be no lis' and the Advocate General may not be a party' in the usual sense, he is also entitled, like the advocate against whom the inquiry is being conducted, to place before the Committee all aspects of the matter in favour of and against the advocate. He is allowed to appear by counsel, because, he may not be able to appear personally and participate in all the disciplinary proceedings. He need not be vindictive or take sides, but by virtue of his special and dispassionate role he will be able to place all relevant material to enable the Committee to come to a proper and correct finding. [912 D-H; 913 A-H:
914 A-B] (a) The fact that the Advocate General does not allege an infringement of any legal rights of his own is of no consequence. It may be that in a particular case the Advocate General may feel that the finding arrived at either in favour of the advocate or against him or the punishment imposed on the advocate, is not justified by the evidence on record. Under such and similar circumstances the Advocate General will be competent, as a person aggrieved, to bring up the matter before the Appellate Committee so that justice may be done..[914-G; 915 A-C] 869 Sevenoaks Urban District Council,v. Twynham [1929] 2 K-B. Ealing Corporation v. Jones [1959] 1 Q.B. 584, Madani v. Commissioner of Workmen's Compensation, Bombay, C.A. 877 of 1968 decided on October 10, 1968.
Re. Sidebotham 14 Ch. D. 458, The Queen v. The Keepers of the, Peace and Justices of the County of London, 25 Q.B.D., 357, Re. Reed, Brown & Co. 19 Q.B. 174, Rex v. London Quarter Sessions (1951) 2 K.B. 508 and Municipal Corporation of the City of Bombay v. Chandulat Shamaldas Patel, C.A.
1716 of 1967 decided on August 1, 1970, referred to.
(b) The fact that the Legislature provided that the Advocate-General should be associated with the disciplinary proceedings from the very beginning of the inquiry brings him under s. 37 as a person aggrieved' and hence the fact that the Committee decided in favour of the Advocate has no bearing on the question. [914 G-H] (c) The fact that the Advocate-General is not given notice before rejecting a complaint summarily does not militate against the view that he is a person aggrieved' because, probably, the Legislature felt that if there was a wrongful summary rejection of a complaint, it could be set right by the Bar Council of India under a. 48A by exercising its signal powers. [916 FF] (d) In this view it is unnecessary to mention the Advocate General specifically a person aggrieved' in a. 37. [918 A] (2) Ile analogy of the Attorney-General in a Colony representing the Crown and being the guardian of public interest as stated in Attorney-General of Gambia v. Pierre Sarr N' Jie (1961) A-C. 617 cannot be brought in for interpreting s.37 of the Advocates Act, and the observations therein must be related to the particular legal provisions which were considered. But even that decision recognised that the words person aggrieved' are very wide and should not be subjected to any restrictive interpretation. (912 AB; 920 A-B, E] (3) The decisions in Advocate-General of Bombay v.
Pitambardas Gokuldas, 62 I.A. 235 and Advocate-General of Bombay v. Phiroz Rustomji barucha, 37 B.L.R. 722(P.C.) do not decide the question one way or the other, [917 A-D] (Per Ray, J.) : (1) The purpose and the provisions of the Advocates Act determine whether the Advocate-General is a person aggrieved within the meaning of s.37 of the Advocates Act. Under the Act, a State Bar Council is empowered to constitute a Disciplinary Committee. Where on receipt of a complaint or otherwise a State Bar Council has, reason to believe that an advocate on its roll is guilty of professional misconduct it shall refer the case for disposal to its Disciplinary Committee, and if the Committee does not summarily reject it, a date of hearing shall be fixed. The provisions relating to inquiries into professional misconduct of an advocate, establish first that the Advocate General entitled to a notice of the date of hearing, secondly, that no order can be made by the Disciplinary Committee without giving him an opportunity, and thirdly that he may appear in person or through an advocate and that he has a right of pre-audience. He may not choose to appear but if he does appear, his right is based on statute; and he does not appear as a mere friend of the court. He is heard because he is the head of the Bar in the State and the proceedings affect the discipline and dignity of the Bar and touch the professional 870 conduct of an advocate. Under Art. 165 of the Constitution the Advocate General has to discharge the functions conferred on him by the Constitution or any other law in force. The Advocates Act concerns an advocate and it is in the fitness of things that the Advocate General of the State is heard as a person representing the profession which assists the litigant public and the courts in the administration of justice. He is usually a person of high standing and experience and will pot adopt any partisan attitude in the proceedings. The purpose of the inquiry is not to redress the grievance of an individual complainant-in fact ss. 35 and 36 do not contemplate any notice to the complainant-but to find out whether there is any breach of professional standards and conduct.
[926 C-H; 827 F-H; 928 A-C] (a) It is not the intention of the statute that he would be merely a neutral observer before the Disciplinary Committee and that he would have no duty to perform. He would have to express his views, and if in a matter of sufficient gravity a totally inadequate punishment is imposed or if the punishment is too severe the Advocate General would be a person aggrieved', to have it corrected. The words person aggrieved' will be preferable to the Advocate, complainant, and the Advocate General or Attorney General as the case may be. The Advocate-General and the Attorney General will be persons aggrieved because they are interested in maintaining professional rectitude. [929 C-G] (b) Further if the proceedings were held without notice to the Advocate General or without giving him an opportunity of being heard he would be a person aggrieved. His participation in the proceedings does not alter the position. If he has a right to be heard, he may have a grievance as to the result of the hearing. [929 A-B] Re. Exparte Side botham 14 Ch. D. 458; Exparte Official Receiver, In re. Reed Bowen, 19, Q. B. D. 174, Sevenoaks Urban British Council v. Twynhan (192-9) 2 K. B. 104, Queen v. Keepers of the Peace and Justices of the County of London, 25 Q., B. D. 357 and Madani v. Commissioner of Workmen's Compensation, Bombay, C.A. 877 of 1968 decided on October 10, 1968, referred to.
(2) In disciplinary proceedings there is no party in the usual sense. The Advocate-General is not a party to a lis' and has no personal or pecuniary or proprietary interest in the matter. That is why the Act uses the words person aggrieved' and not party aggrieved'. But he is heard, not because he is a party, but because he represents the interest of the profession and for the purpose of upholding its purity and the preservation of correct standards and norms. From this point of view he will be an aggrieved person when he finds. that the interests of the Bar, which is a matter of public interest, is not properly safeguarded by the Disciplinary Committee. In Attorney General of Gambia v. Pierre Saar N' Jie. (1961) A.C. 617 the Judicial Committee construed the words person aggrieved' as not to be subjected to a restrictive interpretation but to include a person who has a genuine grievance because an order has been made which prejudicially affected his interest, and that the words would include the Attorney General of Gambia as representing the public interest. [927 E-F; 928 C-D, G-H;
929 G-H] (3) The decisions of the Judicial Committee in AdvocateGeneral of Bombay v. Phiroz Barucha, 62 I.A. 235 and of this Court in B. Nageshwara Rao v. The Hon'ble Judges of the Madras High Court, [1955] 1 S.C.R. 1055 indicate that the Advocate General under the Bar Councils Act, 1926 had locus standi to prefer an appeal. [925 D-E, G] 871
CIVIL APPELLATE JURISDICTION: Civil Appeal.No. 2259 of 1969.
Appeal under s. 38 of the Advocate's Act, 1961 from the order dated October 26, 1969 of the Disciplinary Committee of the Bar Council of India in D.C. Appeal No. 18 of 1968.
C. K. Daphtary, A. S. R. Chari, J. B. Dadachanji, O. C. Mathur, Ravinder Narain and S. Swarup, for the appellant., V. S. Desai and B. D. Sharma,, for respondent No. 1.
M. C. Bhandare and S. B. Wad, for Respondent No. 2.
V. A. Seyid Muhammad and S. P. Nayar, for. Attorney General for India.
A. V. Rangam, for Advocate-General for the Tamil Nadu.
M. C. Setalvad, Rameshwar Nath, for Bar Council of India.
O. P. Rana, for Advocate-General for the State of U.P. A. G. Pudissery, for Advocate-General for the State of Kerala.
K. Baldev Mehta, for Advocate-General for the State of Rajasthan.
A. P. S. Chauhan, A. D. Mathur and N. P. Jain, for Bar Council U.P. Sukumar Ghose and G. S. Chatterjee, for the Advocate General for the State of West Bengal.
P. Parmeswara Rao, for Advocate-General for the Andhra Pradesh.
I. N. Shroff, for Advocate-General for the State of Madhya Pradesh.
J. C. Medhi, Advocate-General for the State of Assam and Naunit Lal, for the Advocate-General for the State of Assam.
HIDAYATULLAH, C.J., and MITTER J. on behalf of SHELAT J.and himself delivered separate judgments. VAIDIALINGAM and RAY JJ. delivered separate dissenting opinions.
Hidayatullah, C.J.I agree with the judgment delivered by my brother Mitter but in view of the importance of the question and the difference between my brethren I have chosen to express myself separately.
872 We heard this appeal on a preliminary point raised by the appellant that the appeal of the Advocate-General of Maharashtra filed before the Bar Council of India was incompetent as the Advocate-General did not fall within the expression a person aggrieved' to whom alone is given the right of appeal under S. 37 of the Advocates Act of 1961, against the orders of the Disciplinary Committee of the Bar Council of the State.
The facts necessary to bring out the controversy may be briefly stated. The appellant is an advocate from Maharashtra. The Bar Council of the State of Maharashtra had called upon him suo motu to show cause why he should not be held guilty of misconduct. It appears that the appellant was convicted before a Summary Court in London on a charge of pilfering some articles from departmental stores and sentenced to a fine. The record of the proceedings in London was not before the Bar Council of the State and action was taken on the basis of a brief report of the incident in a newspaper. The appellant explained before the disciplinary committee of the Bar Council of the State that he was the victim of a misunderstanding but as he had no means of defending himself effectively, he was found guilty and received a light sentence of fine. He explained how he had fallen into this unfortunate predicament and did not know how to extricate himself. The order of the Summary Court was not a speaking order and the proceedings were summary. The disciplinary committee were satisfied that there was no reason to hold him guilty of professional or other misconduct. They, therefore, ordered that the proceedings be filed.
The Advocate-General of the State, who was sent a notice of the proceedings, as is required by the second sub-section of S. 35, and had appeared before the committee, purporting to act under s. 37 of the Act filed an appeal before the Bar Council of India. It was heard by the disciplinary committee of the Bar Council of India. The advocate objected that the Advocate-General had no locus standi to file the appeal. The objection was overruled and the appeal was accepted. The advocate was held guilty of misconduct and suspended for a year from practice. The advocate now appeals under s. 38 of the Act to this Court. His appeal raises questions of merit but he contends at the threshhold that the Advocate-General was not competent to file the appeal under s. 37 of the Act.
The point in controversy before the disciplinary committee of the Bar Council of India and now before us, is a short one. It is : whether the Advocate-General can be said to be a person aggrieved' by the order of the disciplinary committee of the Bar Council of the State Having heard this point in detail we took time to consider. I am of the opinion that it must be held in favour 873 of the advocate and the order of the disciplinary committee of the Bar Council of India, now under appeal before us, must be: set aside on this short ground without going into the merits of the-case.
Section 37 of the Advocates Act 1961 reads "37. Appeal to the Bar Council of India.
(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made under section 35 may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order thereon as it deems fit." The expression a person aggrieved' is not new, nor has it occurred for the first time in the Advocates Act. In fact it occurs in several Indian Acts and in British Statutes for more than a hundred years. In the latter a right of appeal to a person aggrieved' is conferred in diverse contexts.
It occurs in the Ale House Act, the Bankruptcy Acts, Copyright Act, Highway Act, Licensing Acts, Milk and Dairies (Amendment) Act, Rating and Valuation Act, Summary Jurisdiction Act, Union Committee Act, Local Acts, in certiorari proceedings and the Defence of Realm Regulations to mention only a few. The list of Indian Acts is equally long.
As a result of the frequent use of this rather vague phrase, which practice, as Lord Parker pointed out in Dealing Corporation v. Jones(1), has not been avoided, in spite of the confusion it causes, selections from the observations of judges expounding the phrase in the context of these varied statutes were cited before us for our acceptance. The observations often conflict since they were made in different contexts and involved the special standing of the party claiming the right of appeal. Yet these definitions are not entirely without value for they disclose a certain unanimity on the, essential features of this phrase, even in the diversity of the contexts. The font and origin of the discussion is the well-known definition of the phrase by James L.J. in Re Sidehotham Ex. j. Side botham (2). It was observed that the words person aggrieved' in s. 71 of the Bankruptcy Act of 1869 meant :
" not really a person who is disappointed of a benefit which he might have received, if some order had been (1) L. R. [1959] 1 Q. B. D. 384.
(2) (1880) 14 Ch. D. 458 C. A 874 made. A person aggrieved, must be a man who had suffered a legal grievance, a man against whom a decision has been pronounced which had wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something." The important words in this definition are a benefit which he might have received' and a legal grievance' against the decision which wrongfully deprives him of something' or affects his title to something.
The definition was held in later cases to be not exhaustive and several other features of the phrase were pointed out.
Thus under the Bankruptcy Acts, where the Board of Trade summoned to support the validity of the appointment of a trustee, went before the judge, and failed, it was considered a person aggrieved' on the principle that a person who is brought before the Court to :submit to its decision, but not a person who is heard in a dispute between others must be treated as a person aggrieved' (see In Re Lamb Ex., p. Board of Trade(1) per Lord Esher). Here again the words to notice are brought before the-court to submit to its decision that, is to say, a person who is in the nature of a party as contra-distinguished from a person who is next described as a person who is heard in a dispute between others. To distinguish between these two positions Ist may refer to a few more decisions. In In Re Kitson, Ex. p. Sugden (Thomas) & Sons Ltd.(2), it was further explained that.
"the mere fact that an order is wrongly made does not of itself give a grievance to a person not otherwise aggrieved." (per Phillimore J.) It was added that a person deprived of the fruits of litigation which he had instituted in the hope for them, is a person aggrieved'. Similarly, a creditor who did not wish an adjudication order, to be made was held not-to be a person aggrieved-See In Re Brown Ex. p. Debtor v. Official Receiver(3). The utmost that this series of cases goes is to be found in the observations of James L.J. in Ellis Ex. p. Ellis(4) that even a person not bound by the order of adjudication must be treated as a person aggrieved' if the order embarrasses him. In a later case (In Re Woods Ex. P. Ditton) (5) Cotton L.J. held that even so the person must be aggrieved by the very order and not by any of the consequences that ensue. This was clarified in R. v. London County Keepers of the Peace and Justices(6), by Lord Coleridge C.J.
while (1) [1894] 2 Q. B. D. 805 at 812.
(3) [1943] Ch. D. D. 177.
(5) [1879] 40 L. T. 297 C.A. 79..
(2) [1911] 2 K. B. 100 at 112-114.
(4) [1876] 2 Ch. D. 707.
(6) [1890] 20 Q. B. D. 357 at 361.
875 dealing with the Highway Act, denying the right of appeal in these words "Is a person who cannot succeed in getting a conviction against another a person aggrieved ? He may be annoyed at finding that what he thought was a breach of the law is not a breach of law; but is he aggrieved because someone is held not to have done wrong ? It is difficult to see that the section meant anything of the kind. The section does not give an appeal to anybody but a person who is by the direct act of the Magistrate aggrieved-that is who has had something done or determined against him by the Magistrate." These observations again show that the person must himself suffer a grievance, or must be aggrieved by the very order because it affects him.
Two cases which may usefully be seen in the same context may next be mentioned. In Jennings v. Kelly(1) in relation to the Government of Ireland Act 1920, Lord Wright did say that if a person was treated in certiorari proceedings as a competent party and notice was served on him as being a proper party he would be a person aggrieved.' The point to bear in mind is that the person must be treated as a party.
However the force of the observation was considerably weakened because the party there was ordered to pay costs and the right of appeal was held to be available on that limited ground. Further qualification is to be found in Re Riviere (1884) 26 Ch. D. 48 where Lord Selborne observed pro rationed voluntas; the applicant must not come merely saying I do not like this thing to be done, it must be shown that it tends to his injury or to his damage, in the legal sense of the word." The locus standi of the person aggrieved must be found from his position in the first proceeding and his grievance must arise from that standing taken with the effect of the order on him.
These cases are of course far removed from the one before me and as Branwell L.J. observed in Robinson v. Currey(2) the expression is nowhere defined and, therefore, must be construed by reference to the context of the enactment in which it appears and all the circumstances. He pointed out that the words are ordinarily English words, which are to have the ordinary meaning put upon them., (1) [174] A. C. 206.
(2) [1881] 7 Q. B. D. 465, 470. C. A. 876 From these cases it is apparent that may person who feels disappointed with the result of the case is not a Person aggrieved. He must be disappointed of a benefit which he would have received if the order had gone the other way.
The,-order must cause him a legal grievance by wrongfully depriving him of something. It is no, doubt a legal grievance and not a grievance about material matters but his, legal grievance must be a tendency to injure That the order is wrong or that it acquits someone who he thinks ought to be convicted does not by itself give rise to a legal grievance. These principles are gathered from the cases cited and do not, as I shall show later, do violence to the context in which the phrase occurs in the Advocates Act. Although I am aware that in Seven Oaks Urban District Council v. Twynham(1) Lord Hewart C.J. uttered words of caution, again emphasised by Lord Parker C.J. in Ealing Corporation v. Jones(2), in applying too readily the definitions given in relation to other statutes but I do not think I am going beyond what Lord Hewart C.J. said and what Lord Parker C.J. did in the case. Lord Parker observed ".... As Lord Hewart C.J. pointed out in Seven Oaks Urban District Council v. Twynam : But as has been said again and again there is often little utility in seeking to interpret particular expressions in one statute by reference to decisions given upon similar expressions in different statutes which have been enacted alio intuitu. The problem with which we are concerned is not, what is the meaning of the expression aggrieved' in any one of a dozen other statutes, but what is its meaning in this part of this statute ?' Accordingly, I only look at the cases to which we have been referred to see if there are general-principles which can be extracted which will guide the court in approaching the question as to what the words person aggrieved' mean in any particular statute." If I may say respectfully I fully endorse this approach. I am now in a position to examine the Advocates' Act but before so I must refer to a case near in point to this case, than any considered before.
The case is reported in Attorney General of Gambia v.
Pierrie Saar N'jie(3). A legal practitioner was held guilty of professional misconduct but was acquitted on appeal and an appeal was taken to the Judicial Committee against the decision of the West African Court of Appeal. This involved consideration of (1) [1929] 2 K. B. 440, 443.
(3) [1961] A. C. 617.
(2) L. R. [1959] 1 Q. B. D. 384.
877 whether the Attorney General could be said to be a person aggrieved'. The facts need to be stated a little fully as both sides rely upon the observations of Lord Denning and they need to be explained carefully.
A barrister (a member of the English Bar) and also a Solicitor (the two professions appear to be united in the Gambia) practicing in the Supreme Court of the Gambia was charged with professional misconduct and an order was made, September 22, 1958, by the Deputy Judge (Abbot J.) striking off his name from the roll of that Court, and directing that the matter be reported to the Masters of the Bench of his Inn. On June 5, 1959 the West African Court of Appeal (Bairamian, Ag.P, Hurley Ag. J.A. and Ames Ag. J.A.) set aside the order on the ground that the Deputy Judge had no jurisdiction. The Attorney General of the Gambia thereupon sought leave to appeal to Her Majesty in Council but this was refused. Then a petition was made for. special leave.
Special leave was granted subject to the preliminary objection by the respondent that no appeal lay at the instance of the Attorney General. The preliminary objection was rejected.
Section 31 of the West African (Appeal to Privy Council) Order in Council 1949 under which special leave was asked reads :
,Nothing in this order contained shall be deemed to interfere with the right of His Majesty upon the humble petition of any person aggrieved by any judgment of the court, to admit his appeal therefrom upon such conditions as His Majesty in Council shall think fit to impose.
In the Gambia disciplinary jurisdiction over barristers and solicitors is embodied in Rules of the Supreme Court 1928. Under those rules the Supreme Court' Judge (and there is only one) admits and enroll barristers and solicitors of the Court, and Schedule I, Order 9, r. 7 says that :"The Judge shall have power, for reasonable cause, to suspend any barrister or solicitor from practising within the jurisdiction of the court for any specified period, or order his name to be struck off the roll of court." Then there is the West African Court of Appeal and it hears appeals from the Supreme Court' in civil and criminal matters. In an earlier case in which a certain Mr. Mccauley was struck off the roll of the Supreme Court of Sierra Leone and Mr. Mccauley sought to appeal to. the Full Court of West Africa it was ruled 878 by the Full Court that the decision of the Chief Justice was not a decision of the Supreme Court' and was, therefore, not appealable and that the only remedy was to obtain special leave to appeal to the Privy Council (see W. E. A.
Mccauley' v. Judges of the Supreme Court of Sierra Leone and Anr.(1). The legislature' then added s. 14 which provided:
"An appeal shall lie to the Court of Appeal from any order of the judge suspending a barrister or solicitor of the Supreme Court from practice or striking his name off the roll, and for the purposes.of any such appeal any such order shall be deemed to be an order of the Supreme Court." The words of the section show that the legislature did not regard a decision in disciplinary matters as a judgment of a court but only deemed it to be so.
The Full Court on the appeal of N'Jie from the order of the Deputy Judge held that a Deputy Judge could not deal with any matter which was not a proceeding in the court in the exercise of judicial power. The Judicial Committee held that this was exercise, of judicial power. Then the preliminary objection was considered. The objection was that the Attorney General had no locus standi not being a person aggrieved. This was overruled by the Judicial Committee.
Lord Denning referred to the definition of James L.J. in In Re Sidebotham Ex. p. Sidebotham,(2) and said that if the definition were to be regarded as exhaustive and were held applicable, an aggrieved person' would be only a person who was a party to a lis, a controversy inter partes and had a decision given against him. The Attorney General would not come within this restricted definition as there was no suit between two parties when disciplinary proceedings were started ex mero motu by the court or at the instance of the Attorney General or someone against a legal practitioner.
But the definition of James L.J. was not exhaustive and the words person aggrieved, were of wide import and should not be subjected to a restricted interpretation. They included not a busy body but certainly one who had a genuine grievance because an order had been made which prejudicially affected his interests. Posing the question did the Attorney General have a sufficient interest', the Judicial Committee answered he had. The Attorney General in a Colony represented the Crown as the guardian of public interest and it was his duty to bring before the Judge a case of misconduct to warrant action. Then Lord Denning proceeded to distinguish two kind-, of cases to determine if the Attorney General would be a person aggriev(1) L. R. [1928J A. C. 344.
(2) [1880] 40 Ch. D. 458 (C. A.) 879 ed.' The first was a case where the judge acquitted the practitioner. In such a case no appeal was open to the Attorney General under the Supreme Court Ordinance, and Lord Denning added "He has done his duty and is not aggrieved".
In other words, he did not come within the words of the 31st section of the Order in Council. The Attorney General could not, therefore, ask for special leave as a person aggrieved'. But the case was different if the judge found the practitioner guilty and a Court of Appeal reversed the decision on a ground which went to the root of the jurisdiction of the judge or was otherwise a point in which the public interest was involved. In that case the Attorney General was a person aggrieved'.
The observations of Lord Denning clearly meant that the Attorney General could not pose as a person aggrieved' to seek to bring a simple case of acquittal for reversal by the Judicial Committee under the 31st section of the Order in Council for he could not be regarded as a person aggrieved'. The remark was made perhaps to repel an argument that every case of acquittal would make the Attorney General an aggrieved person'. Lord, Denning said that this was not the true position. The Attorney General could only move the judge and there his duty ended. The law gave him no express right of appeal and he could not claim to be a person aggrieved'. He could only invoke the 31st section if he could make out his grievance and it was found to be as a person representing the Crown and the guardian of public interest seeking to get reversed a decision which struck at the root of the jurisdiction of the disciplinary judge, by denying that the Deputy Judge was exercising judicial power under s. 7 of the Supreme Court Ordinance.
The Crown was aggrieved by this decision and the, Attorney General representing the Crown was an-aggrieved person.
The scheme of the law under which the disciplinary action was taken and the appeal to the Privy Council was brought gave the true connotation of the expression person aggrieved'. In those cases in which no question of public interest was involved the Attorney General even if he had moved the judge and got an adverse decision could not be regarded as aggrieved but in a case in which, apart from the merits of the case against the practitioner, some grave I question of public importance was involved, the Attorney General representing the Crown could be regarded as. a person aggrieved'.
It was presumably after reading this case and understanding it as I have done, that the Advocate-General set about making 880 out a question of public importance. He did not seem only to get the decision overturned on facts. This is what he said :
"The appellant has filed this appeal as the Advocate General of Maharashtra. Under the Advocates Act, 1961, (as under the Indian Bar Councils Act, 1926), the Advocate General represents the public interest in every disciplinary inquiry. Under sec. 35 of the Advocates Act, 1961, the Advocate General is entitled to notice in respect of every disciplinary inquiry, is entitled to have an opportunity of being heard before the disciplinary committee passes any order. This appeal raises very important questions of principle as regards the effect of a conviction of an Indian Advocate of an offence recognised by all civilised countries as an offence involving moral turpitude. The question raised also related to the requirements of natural justice in a criminal court, and the effect of the judgments of the Supreme Court on the subject. It raises the further question whether an Indian Advocate convicted of an offence involving moral turpitude by a Court outside India is immune from disciplinary action because a minor differences of procedure in such countries where such trial has been held, in complete accord with principles of natural justice. The profession of an advocate is an honourable profession and the disciplinary provisions of the Advocates Act are designed to secure that per guilty of offences involving moral turpitude are subject to appropriate disciplinary action." It is obvious that the Advocate-General has attempted to use the observations of Lord Denning in the Gambia case and wishes to plead that he enjoys a special position in the Bar and under the Advocates Act and therefore is entitled to appeal as a ' person aggrieved'. This was the line adopted by Mr. M. C. Setalvad, counsel for the Bar Council of India.
On the other band, Mr. V. S. Desai appearing for the Advocate General argued that the Advocate-General having notice of disciplinary proceedings, in any event, must be treated as a person aggrieved' within ss. 35 and 38 of the Advocates Act. I shall consider the narrow question presented by Mr. Setalvad latter. I shall first take up for consideration the larger question and the more general ,application of the expression person aggrieved.-, In support of his contention Mr. V. S. Desai cited three cases from this Court, one from the Judicial Committee and one from the Bombay High Court. They all relate to disciplinary proceedings and I may begin by considering them.
881 The case of the privy Council reported in Advocate General of Bombay & Ors. v. Phiroz Rustamji Bharucha (1) was next cited. It was an application for special leave by the Advocate General of Bombay in a proceeding relating to professional misconduct of an advocate. The standing of the Advocate General was questioned. The report in the Bombay Law Reporter Series(2) reproduces more fully the arguments than. the official report and we were referred to the arguments. The point was not debated and there does not appear to be a pronouncement on this point either during the course of argument or in the judgment since special leave was refused on another ground. Mr. Desai says that if the Judicial Committee had found substance in this objection they would have ruled out the Advocate General on this ground alone. There is no reason to think that the objection was considered at all. I cannot derive any assistance from this ruling because the prerogative of the Crown to grant special leave as of grace in any case was always there irrespective of the standing of the Advocate General. The Privy Council often granted special leave and even heard appeals on certificates wrongly granted. (See Sevak Jeranchod Bhogilal v. Dakore Temple Committee(2) and the cases collected in Halsbury Laws of England (3rd Edn.) Vol. 9 p. 380 paragraph 886 note (h). This prerogative the Judicial Committee has exercised on behalf of the Crown particularly in cases of general interest see ibid p. 379 s.
885 note (s). The provisions of the former s. 112 of the Code of Civil Procedure show the extent of the prerogative.
Therefore. because the Privy Council refused special leave on one ground rather than another cannot import a rejection of the objection as to the standing of the Advocate General.
Next we have an unreported decision of a Division Bench of this Court reported in B. M. Madani v. Commissioner of Workmen's, Compensation. Bombay(3). In that case the anneal was taken by the Commissioner for enhancement of penalties against the delinquent advocate and the penalty was in fact increased. This Court held that he was entitled to do so as a -person aggrieved. The Particular misconduct was committed in relation to a claimant before the Commissioner.
The Advocate had pocketed the travelling allowance granted by the Commissioner to the widow of a deceased workman.
There may be some doubt whether the Commissioner was a person aggrieved' by the Denalty imposed in the first instance but I do not pursue this matter. The case can be justified on the dictum in some cases that a party which moves the court or a Person brought before the court to be bound by its order May be a person aggrieved., See for example the case of the Official Receiver in Re Payne Ex p.
Castle Mail Packets (1) 37 Bom. L. R. 722 (PC) (2) A. I. R. 1915 P. C.
155.
(3) C. A. 877 of 1968 decided on October 10, 1968.
69Sup.CI(P)71-12 882 Co.(1), and In Re Lamb Ex. p. Board of Trade already considered by me. Madani's case does not help to resolve the dispute centering round the Advocate-General.
The next case is reported in Bhataraju Nageshwara Rao v. The Hon'ble Judges of the Madras High Court and others(2).
That case arose under the Bar Councils Act, 1926 when the Judges exercised disciplinary power. In the case before the Supreme Court the Judges of the Madras High Court were shown as respondents. This Court observed at page 1064 as follows "Before parting with this appeal we desire to say that it appears to us that it was wholly wrong and inappropriate for the appellant to have made the Honourable Judges of the Madras High Court respondents to this appeal. It appears that in some cases involving contempt of Court the Honourable Judges have been made parties. It is not necessary for us to express any opinion on this occasion as to the propriety of that procedure in contempt cases but we are clearly of the opinion that in an appeal arising out of a proceeding under the Bar Councils Act the appropriate parties should be the advocate concerned, the complainant, if any, the Bar Council or the secretary thereof and the Advocate General of the State concerned to whom notice have to be issued under section 12(3) of the Indian Bar Councils Act." This does not advance the case of the Advocate General of Maharashtra any further.
The last case of this Court is Municipal Corporation of the City of Bombay v. Chandulal Shamaldas Patel and Ors.(8). In land acquisition cases started for the benefit of the Municipal Corporation certain notifications issued under the Land Acquisition Act were set aside by the High Court, and the Municipal Corporation sought to appeal. It was held not to be a person grieved'. This case, even if I were toaccept it as correctly decided, does not assist us in relation to our Act passed with a different intent and purpose and using the words in another context.
The last case is from Bombay but it did not discuss the point and cannot be held to have laid down a precedent. It is useless to refer to it.
I now proceed to examine the larger question whether by reason of the provisions of the Advocates Act the Advocate General of the State enjoys such position that he must necessarily be treated (1) [1886] 18 Q. B. D. 154 C. A. (2) [1955] 1 S. C. R. 1055.
(3) C. A. No. 1716 of 1967 decided on August 1, 1970.
883 as a person aggrieved entitling him to file an appeal For this purpose we have to examine critically the provisions of the Act to discover if the claim can be entertained.
The Advocates Act was passed to amend and consolidate the law relating to legal practitioners and to provide for the constitution of bar Councils and an All India Bar. It replaced the earlier Acts governing the legal profession particularly the Indian Bar Councils Act 1926. Prior to the passing of the Advocates Act, the enrollment and discipline of legal practitioners was in the hands of the courts and in the case of the advocates the High Court entertained and determined cases of misconduct against them. Now this jurisdiction is completely transferred to the Bar Councils of the States and the Bar Council of India. In the Bar Councils of the States (except Delhi) the Advocate-General of the State is an ex officio member. In Delhi the Additional Solicitor-General takes the place of the Advocate-General. Other members are elected. In the Bar Council of India, the Attorney-General and the Solicitor General are ex officio members and the other members are elected one each by the State Bar Councils. In the Union Territory of Delhi the Additional Solicitor-General is ex officio member. The functions of the Advocate-General are not different from those of the other members in so far as the affairs of the Bar Council are concerned. The only matters where the Advocate-General, the Attorney-General and the Solicitor-General and the Additional Solicitor-General are mentioned are these. The Act gives a right of pre audience over other advocates to the Attorney-General, the Solicitor-General, the Additional Solicitor-General and the Advocate-General. The right of pre-audience gives them a standing for hearing of cases but does not confer on them any other rights. The magniloquent phrases such as Leader of the Bar, Keeper of the Conscience of the Bar have no meaning neither now, nor before under the Bar Councils Act of 1926. They are just honorific titles given by courtesy but are not grounded on law. Indeed the Keepers of the Conscience of the Bar are the Bar Councils and the Leader of the Bar may be someone who may even have refused to accept Advocate-Generalship.
The functions of the Bar Councils of the States and the Bar Council of India throw some light on the remaining functions of the Advocate-General and may first be seen. Section 6 of the Act lays down the functions of the State Bar Council and s. 7 those of the Bar Council of India. Apart from certain administrative functions. which these councils, which, are bodies corporate, perform, their functions in relation to the Bar are somewhat different. Both have their own rolls and they prepare and 884 maintain the rolls. The State Bar Council entertains and determines cases of misconduct of advocates oil its roil and safeguards the rights, privileges and interests of advocates on its roll. The Bar council of India lays down the standards of professional conduct and etiquette of, advocates, the procedure to be followed by its disciplinary committee and the disciplinary committee of each of the State Bar Councils. The Bar Council of India also safeguards the rights and privileges and interests of advocates and exercises general supervision and control over State Bar Councils. It also deals with and disposes of any matter arising under the Advocates Act which may be referred to it by a State Bar Council. There are other functions which relate to the education etc. of those who wish to join the legal profession. The Bar Council of India maintains a common roll of advocates. The Bar Councils also decide in relation to their rolls all questions of seniority. The State Bar Councils and the Bar Council of India constitute one or more disciplinary committees and under Chapter V questions of the conduct of advocates on their respective rolls are referred to them. The disciplinary committee of the Bar Council of India exercises superior powers inasmuch as it hears appeals from the orders of the disciplinary committees of the State Bar Councils and may even of its own motion withdraw for inquiry before itself for disposal, any proceeding for disciplinary action against an advocate pending before the disciplinary committee of any State Bar Council.
The disciplinary proceedings commence both before the State Bar Council and the Bar Council of India on a complaint or otherwise made respectively to the State Bar Council or the Bar Council of India. The Bar Councils in either case refer them for disposal to their respective disciplinary committees. The disciplinary committee in each case can reject the complaint summarily, but if it proceeds to hear the matter further it causes a notice thereof to be sent to the advocate concerned and to the Advocate-General of the State or the Attorney-General of India, as the case may be.
The disciplinary committee after giving the advocate concerned and the Advocate-General or the, Attorney General, as the case may be, an opportunity to be heard" makes an orde
