Assignment No.

02 Legislation Analysis

Identify any provision OR Section/s OR Contemporary relevant issue/s of the provided

legislation and assess it with the given below Rubrics.

a) The Advocates Act. 1961

b) Contempt of Court Act. 1971

A. THE ADVOCATES ACT, 1961

Misconduct and Disciplinary Proceedings Under Chapter V of the Advocates Act, 1961:
A Comprehensive Legal Study

Abstract: This research article explores in detail the legal framework governing misconduct
by advocates in India as codified under Chapter V of the Advocates Act, 1961. It evaluates
statutory provisions, disciplinary mechanisms, appellate procedures, relevant case laws, and
the intersection with the Limitation Act, 1963. Emphasis is placed on procedural safeguards,
accountability mechanisms, and judicial interpretations, notably in landmark cases such as
NG Dastane v. Srikant S. Shivde.

Keywords: Advocates Act, 1961; Misconduct; Disciplinary Committee; Bar Council of

India; Limitation Act, 1963; Legal Ethics; Case Law

Introduction
A strong, efficient legal system is essential to the smooth functioning of any democracy. In
India, the legal structure is one of the cornerstones of governance, ensuring justice, liberty,
and equality. Central to this system are the advocates who, by virtue of their position, hold
both power and responsibility. Recognizing this dual role, the Advocates Act, 1961,
particularly Chapter V (Sections 35 to 44), lays down rules and procedures concerning
professional and other forms of misconduct by advocates.

This paper provides a comprehensive analysis of these provisions, including the procedures
followed by State Bar Councils and the Bar Council of India in dealing with complaints
against advocates. The discussion also draws connections with the Limitation Act, 1963,
emphasizing the importance of procedural timelines in disciplinary matters. Furthermore, key
judgments like NG Dastane v. Srikant S. Shivde are critically analysed to understand judicial
interpretation of the statutory provisions.

The Right to Practice Law: Sections 29 and 30

Sections 29 and 30 of the Advocates Act grant advocates the exclusive right to practice law
throughout the territory of India. According to these sections, only individuals enrolled in the
State Bar Council have the right to appear in courts, tribunals, and before other legal
authorities. This exclusivity not only professionalizes the legal domain but also imposes an
inherent obligation to uphold legal and ethical standards.

However, these rights are not unconditional. They are subject to the advocate maintaining
professional decorum and abiding by the code of conduct. Any deviation from these
expectations can lead to punitive actions as prescribed under Chapter V of the Act.

Duties and Ethical Responsibilities of Advocates Towards Courts

Advocates owe a set of ethical and professional responsibilities to the courts, which are akin
to the obligations of employees towards their employers. These responsibilities include:

1. Maintaining Dignity and Respect: Advocates must uphold the dignity of the court
and avoid any action that could impede its functioning.

2. Adherence to Uniform Norms: Advocates are expected to wear prescribed attire

within court premises.

3. Avoiding Misrepresentation: Advocates must refrain from actions that might lead to
wrongful conviction or acquittal, thereby undermining public confidence in the
judicial process.

Section 35: Disciplinary Proceedings for Misconduct

Section 35 is pivotal in maintaining ethical conduct among advocates. It empowers State Bar
Councils to investigate complaints of professional and other misconduct. A complaint can be
filed either by an interested party or taken up suo motu by the Council.

Upon receiving a complaint, the State Bar Council must form a Disciplinary Committee to
conduct a hearing. The advocate accused is given an opportunity to present their defense.
After due consideration, the Committee may:

 Dismiss the complaint,

 Reprimand the advocate,
  Suspend the advocate from practice,
 Remove the advocate's name from the State roll (in extreme cases).

In cases of suspension or removal, the advocate's name is altered in the roll, and the
certificate issued under Section 22 is recalled.

Section 36: Powers of the Bar Council of India

Section 36 expands the disciplinary scope to advocates not enrolled in any particular State
roll. In such cases, the Bar Council of India (BCI) has the authority to initiate proceedings.
The procedural norms remain consistent with those under Section 35.

Significantly, the BCI can withdraw any pending disciplinary matter from a State Bar Council
and decide it independently. This ensures centralized control and uniformity in the handling
of critical misconduct cases.

Section 36A and 36B: Procedural Continuity and Timeliness

Section 36A ensures that when a disciplinary matter is transferred from one committee to
another, the new committee can continue proceedings without restarting them.

Section 36B emphasizes procedural efficiency. Disciplinary matters must be resolved within
one year of initiation. If not, they are transferred to the BCI. For older pending cases, the
disposal timeline is six months post the 1973 amendment.

Appellate Provisions: Sections 37 and 38

Sections 37 and 38 provide appellate mechanisms. If dissatisfied with a State Bar Council's
decision, an advocate may appeal to the BCI within 60 days. If further aggrieved by the BCI’s
decision, an appeal can be made to the Supreme Court within six months.

These provisions enhance accountability and ensure advocates are not subjected to unjust or
arbitrary disciplinary actions.

Applicability of the Limitation Act, 1963

Sections 5 and 12 of the Limitation Act provide flexibility in procedural timelines. Section 5
allows for delay condonation if sufficient cause is shown. Section 12 excludes the time taken
for judgment preparation and decree from the limitation period.

Section 39 of the Advocates Act explicitly makes these provisions applicable to appeals under
Sections 37 and 38, thereby harmonizing the Advocates Act with general procedural law.
Section 40: Effect of Appeals on Orders
Section 40 clarifies that filing an appeal does not automatically stay the disciplinary order. A
stay must be specifically granted by the BCI or the Supreme Court. This provision ensures
that accountability is not diluted pending appeal.

Section 42 and 42A: Powers of the Disciplinary Committee

The Disciplinary Committee, both at the State and National levels, wields substantial quasi-
judicial powers equivalent to a Civil Court under the Civil Procedure Code (CPC). These
include:

 Summoning witnesses,
 Issuing commissions for evidence,
 Ordering document production,
 Receiving affidavits,
 Requisitioning public records.

However, special permissions are required to summon judicial officers or revenue officials.

Case Study: NG Dastane v. Srikant S. Shivde (AIR 2001 SC 2018)

This landmark judgment addressed procedural lapses in disciplinary proceedings. The
appellant, an agricultural scientist, filed a case of electricity theft. During trial, the cross-
examination was repeatedly delayed by the defense lawyers, allegedly to harass the witness.

After exhausting remedies with the State Bar Council and BCI, the appellant approached the
Supreme Court. The Court condemned the misuse of adjournments and ruled that such
behavior constituted professional misconduct. Importantly, the Court critiqued the phrase
"reason to believe" in Section 35 as overly restrictive, suggesting it should not obstruct
disciplinary proceedings.

This judgment reaffirmed the judiciary’s commitment to protecting litigants and witnesses
from procedural exploitation.

Case Law: Suresh Shiva Rao v. N.D. Upadhyaya (1998)

In this case, an advocate continued to practice despite suspension. The Disciplinary
Committee imposed a two-year suspension for misconduct, but the advocate not only
practiced unlawfully but also concealed his employment with a private company.
Due to procedural delays exceeding one year, the matter was transferred to the BCI under
Section 36B. The case highlighted the necessity of adhering to procedural timelines and
ensuring compliance with suspension orders.

Conclusion
Chapter V of the Advocates Act, 1961, embodies a well-defined framework for addressing
misconduct among advocates. It enshrines procedural safeguards, appellate rights, and
institutional mechanisms to balance professional freedom with accountability.

The provisions under this chapter, particularly Sections 35 to 44, emphasize that while
advocates enjoy exclusive rights to practice law, these rights are bounded by a code of
professional ethics. Mechanisms such as disciplinary committees, appellate bodies, and
review powers ensure that advocates uphold the dignity of their profession.

Case laws like NG Dastane v. Srikant S. Shivde and Suresh Shiva Rao v. N.D. Upadhyaya
further solidify the interpretative dimensions of the Act, making it not just a statutory
provision but a living document responsive to societal expectations and judicial insights.

Thus, the Advocates Act, 1961, particularly Chapter V, remains a cornerstone in regulating
legal practice in India, ensuring the sanctity and integrity of the judicial system.
B. CONTEMPT OF COURT ACT. 1971

Constitutional Validity of Section 2(C)(I), Contempt of Courts Act, 1971:

A Critical Analysis

Abstract: Freedom of speech and expression is a cornerstone of any democratic society, and
the Indian Constitution upholds this right as a fundamental one under Article 19(1)(a).
However, this freedom is not absolute and must be balanced with considerations such as
sovereignty, public order, decency, and morality. To safeguard the administration of justice
and uphold the dignity of courts, certain restrictions on this freedom are constitutionally
permissible, including in matters of contempt of court. The Contempt of Courts Act, 1971,
was enacted to define and regulate the powers of courts in addressing contempt and to outline
procedural guidelines.

Despite its intent, one particular provision—Section 2(c)(i)—has sparked significant debate
due to its ambiguous wording. This paper critically examines the provision by applying the
test of reasonableness under the rights to equality (Article 14) and freedom of speech and
expression (Article 19(1)(a)). It delves into the judicial interpretation by the Supreme Court
regarding terms like "tendency to scandalise," exploring concerns over arbitrariness and
judicial discretion.

The analysis also extends to Article 19(2), which outlines reasonable restrictions on free
speech, assessing whether Section 2(c)(i) aligns with these constitutional limits. Comparative
perspectives from judicial approaches in the USA and UK are incorporated to evaluate the
scope of this provision further. The paper concludes by discussing the principle of due
process of law as a framework for determining the constitutional validity of statutes,
ultimately assessing whether Section 2(c)(i) withstands constitutional scrutiny.

“Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful,
even though outspoken, comments of ordinary men."- Lord Atkin

Introduction
Section 2(c)(i) of the Contempt of Courts Act, 1971 (the Act) puts forth the grounds for
criminal contempt.

The sub-section reads as follows:

(c) “criminal contempt” means the publication (whether by words, spoken or written, or by
signs, or by visible representations, or otherwise) of any matter or the doing of any other act
whatsoever which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court;

In the case of DC Saxena v. Chief Justice of India1 it was stated that this definition under this
impugned section not only guides suo motu proceedings allowed under Article 129 as well as
Article 215, but also guides the proceedings for contempt under the Act itself.

Article 14: Right to Equality, Rule of Law, and Protection Against Arbitrariness
Article 14 of the Indian Constitution guarantees protection against arbitrariness, unfettered
discretion, and violations of natural justice. It ensures equality not only in substantive laws
but also in procedural laws. Discrimination by either type of law is condemned under this
provision.

The concept of equality inherently opposes arbitrariness2. The principle of reasonableness,

which is both a legal and philosophical cornerstone of equality and non-arbitrariness, is
deeply embedded in Article 14 and serves as a guiding force throughout its application.3

Protection Against Arbitrariness Under Article 14

Any arbitrary or unreasonable exercise of discretion is a violation of Article 14 4. The
Supreme Court has consistently emphasized that arbitrariness negates equality, as any
arbitrary action inherently contradicts the principles of fairness and justice 5. The apex court
has further clarified that the rule of law ensures that no individual, regardless of their status,
is above the law6. Recognized as a fundamental aspect of the Constitution's basic structure,
the rule of law inherently excludes arbitrariness.

Article 14 provides protection against arbitrariness, unfettered discretion, and violations of

natural justice. It condemns discrimination not only in substantive laws but also in procedural
laws7. While Article 14 prohibits class legislation, it permits reasonable classification based
on two essential tests8:

1
(1996) 5 SCC 216.
2
EP Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
3
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
4
Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212
5
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
6
In Re: Ramlila Maidan Incident v. Home Secretary, Union of India & Ors., (2012) 5 SCC 1.
7
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613
8
Javed v. State of Haryana, (2003) 8 SCC 369.
 1. Intelligible Differentia: The classification must not be arbitrary or artificial; it should
rely on a substantial distinction that separates those included in the class from those
excluded.

2. Rational Nexus: The basis for classification must have a logical connection to the
objective sought by the statute.

Applying these principles, reasonable classifications may exist under certain laws. For
instance, the Contempt of Courts Act exempts innocent and fair publications from being
considered contemptuous. The test for reasonableness under this Act aligns with the
principles of freedom of speech and expression, ensuring a balance between constitutional
rights and legal restrictions.

Article 14 targets arbitrariness in state actions, ensuring fairness and equal treatment for all.
The principle of reasonableness is deeply ingrained in Article 14, serving as a fundamental
element of equality and non-arbitrariness. Equality and arbitrariness are inherently opposed;
where an act is arbitrary, it inherently implies inequality, both from a political and
constitutional standpoint. Consequently, such acts violate Article 14.

Vagueness, Ambiguity, and Arbitrariness of the Impugned Law

"We cannot countenance a situation where citizen's live in fear of the Court's arbitrary power
for words of criticism on the conduct of judges, in or out of court."9

It is unacceptable for citizens to live in fear of arbitrary judicial power when criticizing
judges' conduct, whether in or out of court. A core principle of legal jurisprudence dictates
that laws must be clear and specific; vague enactments that fail to define what is prohibited
are considered void. Such ambiguity leaves individuals uncertain about what is illegal,
leading to unfair entrapment of the innocent and inconsistent judgments in convictions and
sentencing.

Furthermore, imposing or threatening criminal sanctions based on vague and arbitrary criteria
can stifle legitimate criticism of the judiciary. In cases like Kameshwar Prasad v. State of
Bihar10, overly broad rules have been invalidated for imposing blanket bans without
distinction. Similarly, the impugned subsection is too broad and subjective, potentially
penalizing publications merely for influencing public opinion against the court. Since these
parts of the offense cannot be separated, the entire provision may be deemed unconstitutional.
9
Vinod A. Bobde, Scandals and Scandalising, (2003) 8 SCC Journal 321.
10
AIR 1959 Pat 187.
It has been emphasized that convictions under this section should be approached with caution
and used sparingly to avoid undermining the principles of justice11.

Defining Contempt of Court and Its Limitations

While it is not the legislature's role to strictly define contempt of court, as this authority rests
with the courts themselves, not all criticism constitutes contempt 12. Criticism is subject to
limitations, including ensuring that it does not impose unreasonable restrictions on freedom
of speech and expression. Additionally, criticism must not interfere with the proper
administration of law or create public distrust in the courts.

The purpose of legislation like the Contempt of Courts Act, 1971, is to define, regulate, and
limit the courts' powers in punishing contempt. Ultimately, it is the court that determines
whether an act has undermined its authority. Factors such as the timing and context of a
statement can influence this decision13.

The Act provides several defences, including innocent publication and distribution 14, fair
criticism of judicial acts15, and the truth16. Acts that do not disrupt the justice process are not
punishable as contempt. Furthermore, there is a distinction between vilifying a judge
personally and undermining the court itself; only the latter is considered an offense.

Furthermore, in Rustom Cowasjee Cooper v. Union of India 17, the Supreme Court
emphasised:

a) There is no doubt that the court like any other institution does not enjoy immunity
from fair criticism.
b) The supremacy of the Legislature under a written Constitution is only within what is
in its powers. But what is within its powers and what is not, when any specific Act is
challenged, it is for the court to say.
c) While fair and temperate criticism of the court or any other court, even if strong, may
not be actionable, attributing improper motives or tending to bring Judges or court
into hatred and contempt or obstructing directly or indirectly with the functioning of
courts is serious contempt of which notice must and will be taken.

11
Baradakanta Mishra v. Registrar of Orissa High Court & Anr., (1974) 1 SCC 374.
12
State v. Padma Kant Malviya & Anr., AIR 1954 All 52.
13
Re Hira Lal Dixit & Ors, (1955) 1 SCR 677
14
Contempt of Court Act, No. 70 of 1971, Section 3.
15
Contempt of Court Act, No. 70 of 1971, Section 5.
16
Contempt of Court Act, No. 70 of 1971, Section 13
17
AIR 1970 SC 1318.
Scandalising The Court
Judiciary is not a "frail flower' and that the public in democracies must be trusted not to take
scurrilous comments seriously- Cory J.

The Mulgaonkar Principles and the Questionable Ground of "Scandalising the Court"

As highlighted in the case of Re: S. Mulgaonkar 18, courts should adopt a liberal approach by
ignoring minor and trivial offenses. This principle suggests that courts should not act
impulsively but rather consider a broader perspective, guided by constitutional considerations
when exercising their contempt powers.

A school of thought argues that the ground of "scandalising the court" is questionable and
outdated, rooted in colonial assumptions that neglect the fundamental principles of
democracy, equality, and freedom of speech 19. This offense has been deemed obsolete and
unconstitutional in jurisdictions like England and Canada. In Canada, it was noted that this
offense fails the proportionality test and burdens freedom of speech excessively. The UK 20
abolished this offense through the Crime and Courts Act, 2013 21, following recommendations
from the Law Commissions.

In contrast, India has a history of misusing this provision, such as in cases where individuals
have been punished for contempt for questioning judicial actions, like a traffic constable who
queried the authorization of a judge's car beacon. Allowing this ground for contempt
undermines the Contempt of Courts Act's goal of balancing free speech with judicial dignity
and the administration of justice. This provision is seen as unnecessary, uncertain, and
ambiguous, and its continuation as a basis for criminal contempt is argued to be unjustified.

Article 19- Reasonable Restriction And The Test Of Proportionality

Article 19(1)(a) provides the fundamental right of freedom of speech and expression limited
by reasonable restrictions imposed under Article 19(2). Although the right is not absolute, the
restrictions on it must be interpreted in the narrowest possible terms without casting a ‘wide
net’. Such restrictions are subject to the test of proportionality which must fulfil the following
conditions:

a) Legitimate state aim

b) Existence of a rational nexus between such aim and the infringement of the right
18
P.N. Duda v P. Shiv Shankar, (1978) 3 SCC 339
19
R. v. Kopyto, (1987) 62 O.R. (2d) 449 (C.A.)
20
Contempt of Court: Scandalising the Court, Law Commission Report, United Kingdom, 2012.
21
Crime and Courts Act, No. 22 of 2013, Section 33.
 c) That the infringement is the least restrictive measure available for the fulfilment of the
aim
d) That a balance is struck between the extent of the restriction and the benefit that the
state seeks to achieve through such imposition.

The right to freedom of speech and expression, though not absolute, cannot be restricted
unless there is an immediate and tangible threat of harm. It is unconstitutional to limit this
freedom based on vague possibilities or arbitrary consequences, such as a mere "tendency" to
undermine the court's authority. Suppression of expression is only justified when there is a
clear and actual harm that is not speculative or remote, and this harm must directly threaten
the community's interests. There must be a direct link between the expression and the threat
to public interest, akin to a spark igniting a powder keg22.

Unless such a nexus or actual harm exists, criminalizing actions under the guise of
"reasonable restriction" as outlined in Article 19(2) is not permissible. The U.S. Supreme
Court's "clear and present danger test" in Bridges v. California 23 illustrates this principle,
requiring that the potential harm be extremely serious and imminent before speech can be
punished.

Restricting contempt actions through sweeping criminalization, as seen in Section 2(c)(i),

amounts to a prior restraint on speech. Such systems are presumed unconstitutional, and it is
the state's burden to justify these restraints24.

Even when restrictions are justified under Article 19(2) due to threats to public order, these
threats must be real, immediate, and directly linked to the publication in question 25. Punishing
based on a mere "tendency" or possibility to undermine the court's authority fails the
proximate cause test and does not constitute a reasonable restriction. This approach can
suppress dissent and criticism by instilling fear of criminal penalties on flimsy grounds,
leading to an impermissible chilling effect on freedom of speech and expression, which can
erode the health of a democratic system.

The term "reasonable" must be evaluated using the proportionality test and interpreted
qualitatively and relatively26. The court has emphasized that the test of reasonableness should

22
S Rangarajan v. P Jagjivan Ram, (1989) 2 SCC 574.
23
341 US 242 (1941).
24
New York Times v. US, 403 U.S. 713 (1971)
25
Ram Manohar Lohia v. State of Bihar, (1996) 1 SCR 709
26
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
be applied individually to each statute, without assigning a general or abstract meaning to the
term. Guidelines for Article 19(2) include ensuring that restrictions are not arbitrary or
excessive, that there is a rational nexus, and that the notion is not abstract.

While freedom of speech is crucial, it does not grant a license to make unfounded or reckless
allegations against the judiciary27. The Supreme Court has clarified that Article 19(1)(a) does
not apply in contempt cases, and Article 129 empowers the Supreme Court to punish
contempt of itself as a court of record28.

When assessing reasonable restrictions, several factors must be considered, including the
nature of the right in question, the purpose of the restrictions, the extent of the problem being
addressed, the proportionality of the measures, and the prevailing circumstances at the time.
The Supreme Court has previously clarified that it is futile to argue that contempt laws
inherently impose unreasonable restrictions on freedom of speech and expression.

Moreover, the Constitution vests the courts with the responsibility of safeguarding
fundamental rights. Consequently, the courts would not enforce laws that impose
unreasonable restrictions on the right to freedom of speech and expression, as this would
contradict their role as guardians of these constitutional guarantees.

Conclusion
The context of the concept of the procedure established by law under Art. 21 has evolved
through time and it is essential that no person shall be deprived of their life or personal liberty
except when that procedure established by law is just, fair and reasonable. The essence of the
‘procedure established by law’ has now evolved into the due process of law 29. It is therefore
important to note that the evolution has led to a shift from justice according to law, to law
according to justice. The essence of contempt of court was first incorporated in a legislative
form through the Constitution as per Art. 19(2) which provides for reasonable restrictions to
curb contempt of court, that disrespects the sanctity of the court. Thus, the legislation as a
whole may not be violative of the Constitution, as the legislature derives its validity from an
express provision of the Constitution itself. However, certain terms and phrases mentioned in
the legislation has the scope of being interpreted differently by different individuals, namely,
the judges and the parties involved therein. While the scope of the law has been interpreted
by the Supreme Court in various cases, in order to avoid further confusion, and conflicts.

27
Radha Mohan Lal v. Rajasthan High Court, AIR 2003 SC 1467.
28
CK Daphtary Sr. Advocate & Ors v. OP Gupta & Ors, AIR 1971 SC 1132.
29
Maneka Gandhi v. Union of India, AIR 1978 SC 597