Professional Ethics In Law – Professional ethics encompasses an ethical code governing the conduct of persons engaged in the practice of law as well as persons engaged in the legal sector. All members of the legal profession have a paramount duty to the court and towards the administration of justice. This duty prevail over all other duties, especially in the circumstances where there may be a conflict of duties. It is important that legal practitioners conduct themselves with integrity, provide proper assistance to the court, and promote public confidence in the legal system. In carrying out their duties, they are required and expected to deal with other members of the legal profession with courtesy and integrity.[1] Advocates, apart from being professionals, are also officers of the court and play a vital role in the administration of justice. Accordingly, the set of rules that govern their professional conduct arise out of the duties that they owe to the court, the client, their opponents and other advocates. Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These Rules have been provided under section 49(1)(c) of the Advocates Act, 1961. Rules on an advocate’s duty towards the Court Act in a dignified manner An advocate must behave in a dignified manner during the time of his case as well as while acting before the court. He should conduct himself with self-respect. Whenever there is a ground for complaint against a judicial officer, the advocate has a duty to submit his grievance to the concerned authorities. Respect the Court The advocate must show his respect towards the Court. He/she has to keep in mind that the dignity and respect towards the judicial officer are essential for the survival of a free community. No communication in private The advocate should not communicate with the judicial officer in private regarding any matter pending before the court. The advocate should not influence the decision of a court in any matter through illegal or improper acts such as coercion, bribe, etc. Refusal to act in an illegal manner towards the opposition An advocate should not act in an illegal manner towards the opposing counsel or opposite party. He should use his best effort to restrain his client from acting an illegal, improper manner or perform any unfair practice towards the judiciary, opposing counsel or opposing party. Refusal to represent clients who insist on any unfair means of practice An advocate shall refuse to represent the client who insists on using unfair or improper means. He shall be dignified in using his language in correspondence and arguments in the court. He shall not scandalously damage the reputation of the parties on false grounds during the pleadings. Appear in proper dress code The advocate should be present at all times in the court only in the proper dress code prescribed by the Bar Council of India Rules, and the dress code must be presentable. Not represent the establishment of which he is a member An advocate should not appear in the court, for or against any establishment in which he is a member. But this rule does not apply in the case of appointment as an ‘Amicus Curiae’ or without a fee on behalf of the Bar Council. Not appear in matters with pecuniary interest The advocate should not act on behalf of any matter in which he has a financial interest. He should not accept a brief from a company in which he is a Director. Not stand as surety for the clients The advocate should not stand as a surety for his client, or certify the soundness of a surety that his client requires for the purpose of any legal proceedings. Seven Lamps of Advocacy A great position entails great responsibility, as like, an advocate being the authority qualified to plead should hold certain qualities and other pertinent skills. As far as India is concerned, legal ethics can be defined as the code of conduct stated either in written or unwritten provided for the regulation of advocates behaviour falls within the purview of Advocates Act, 1961. Rules on the professional standards that an advocate needs to be maintained are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been incorporated in Section 49(1) (c) of the Advocates Act, 1961. It is pertinent to note that this provision empowers the bar council of India (A statutory body established under Section 4 of the Advocates Act, 1961) to make and regulate rules on the standard of professional conduct and etiquette to be observed by advocates. Seven Lamps of Advocacy Through the eyes of Sir John Scott, 1st Earl of Eldon, To succeed as a lawyer, a man must work like a horse and live like a hermit. Former Chief Justice of India S H Kapadia expressed the same while emphasizing the necessary character, which aids an advocate to remain at the top in the legal profession. As follows, the quintessential phraseology that describes one of the essential qualities of a great legal practitioner is Jack of all trades, master of none. Both the usages prescribe the qualities of an advocate that one must possess as engaged in the legal sector. Withal, legal ethics are governed and rooted in the principle of the ‘Seven lamps of Advocacy’ Book authored by Justice Abbott Parry. Such qualities deal with Integrity, Wittiness, Proficiency, Competency, Braveness, Articulacy, Rationality, and all other skills that are every legal person needs to be master. 1. Honesty The statement that has always been used to lambast legal professionals, in general, is “lawyers are liars.” Nevertheless, one cannot overlook the reality that what layman concludes to be a lie maybe not be a lie in a genuine sense. Per contra, lawyers are supposed to be honest since they have a fiduciary duty to act in the best interest of their clients. Such honesty should be reflected in every single act of theirs viz. While delivering the Argument, thoughts, words, so on. Honesty and straightforwardness resemble the quality of not being relied on the leverage of deceit, dishonesty, cheating, or any other unethical or criminal behaviour. If so, it will amount to a kind of professional misconduct and vitiate their growth. Primarily, he should be a pioneer to reinforce justice in every possible way, not to be adept at deceiving. He should provide proper legal guidance to his clients. Honesty in the profession will efficiently help him to succeed in his field. 2. Courage The nexus between courage and honesty are irrefutable. Refined legal knowledge, skills, and other qualities of truthfulness will enhance the ability to remain fearless under pressure and pain. But why advocates are supposed to possess this quality? This is not an open-ended question since courage is the defined quality of great lawyers attributable to eloquent speech, persuasive writings, and critical thinking. Good lawyers always combine extraordinary work ethics with compassion. No matter how talented and result-oriented is an advocate; he can never find himself as an expert in this field unless and until he has courage. Courage connotes pacifists with a strong moral compass and the capacity to uphold their clients in front of the bench. Thus, lawyers should not back off his action even it might be a dissent one out of fear or danger advancing towards them. 3. Wit Wit denotes the keen perception and cleverly apt expression of those connections between ideas that awaken amusement and pleasure. In other words, it is the capacity to think clearly and speak concisely with an ingenious expression of thoughts. The phraseology wit lightens the darkness of advocacy implies the significance of this lamp. But why an advocate must possess this quality? Because, it imparts a great deal of critical analyzing skills as it is the outcome of cleverness, intelligence, smartness, and keen-mindedness. Withal, Advocacy is the art of conducting cases in court, which comprises arguments, producing evidence, cross-examinations, and convincing the jury or the court. Substantially, a planned and prepared speech will never help you out in court, but quick-wittedness will. But, it is pertinent to note that people often compare law with the spider web because of its analogy to the latter’s entanglement feature i.e. it only entangles and holds the poor and weak, while the rich and powerful will easily break through them. An advocate must possess sufficient wit to bridge this gap. 4. Industry This lamp recommends advocates to be excelled at all the required skill set to sustain or succeed in the field of law. Law is not static but dynamic as it evolves with the needs of society and adapts to the changing status quo. Pursuant to this, an advocate should update himself in compliance with the adage ‘There is no alternative to hard work. At the same time, no one can become a master in law, as Savigny opined “law is like a language which develops with the life of people” i.e. “law grows with the growth and strength with the strength of people and its standard of excellence will generally found at any given period to be complete harmony with the prevailing ideas of the best class of citizens.” Thus, if the law gets amended in compliance with societal needs, lawyers should also be acquainted with the latest law. 5. Eloquence This lamp plays a pivotal role in assessing the abilities of an advocate, which determines his career success rate. Eloquence is the art of speaking; in fact, it is a panacea for all other incompetence. But, one must know that an eloquent speech is way more different than mere deliverable speech as it holds a long-lasting effect on the bench as well as the clients and the listeners. In general, the word eloquence implies an error-free fluent communication that has a persuasive effect but never prescribes to deliver a grandiloquent speech that sounds better than the actuality. Fluency of speech can be developed, but it is a continual process that demands an acquired keen knowledge on the subject, followed by the practitioner. 6. Judgement It is the most important of all the Seven Lamps of Advocacy. Judgment in advocacy is a skill by which an advocate ascertains the collective case facts by discerning both merits and demerits of the case at hand. Anticipating the possible counterarguments and tackling the same by having an intellectual capacity to see the right turning point of the case. Basically, it is the deed of translating good sense into good action. An advocate is obliged to inform the true legal status of the case to his clients. He should be adept at picking option which seems righter at the time of the decision, withal, figuring out all the possible contingencies that will arise. 7. Fellowship While conducting the lawsuits advocates obviously opposes the other to uphold the interests of their clients. But, such a battle of words in the court hall shall not bother the friendly relation between them, because they are opponents but not enemies. To facilitate this interest, after having obtained a Certificate of Enrollment under section 22 of the Advocates Act, 1961, advocates are made required to obtain membership in bar associations. Duties Of Advocate: Advocacy is a noble profession. It cannot be compared with any other profession like trade, business etc. because it is a part and parcel of judiciary and administration of justice. Bar and bench are two eyes of the ‘Justice'. There are judicial ethics and etiquette for judges. There are professional ethics and etiquette for advocates. Every advocate should follow them in his profession. An advocate is also a key person in conducting a proceeding before the court. While conducting a proceeding the advocate should function intelligently. There are several functions entrusted to the advocate. There are five most important functions. They are[3]: Briefing Counseling Pleadings, drafting and Conveyancing Examination, Cross – examination, chief examination of witness and Arguments. Beside them, an advocate has to do several functions which are necessary in conducting proceedings. While carrying out these functions an advocate must act prudently, legally and cautiously. There are several ethics and etiquette controlling the conduct of the advocates. These ethics and etiquette impose certain duties upon the advocates. Ethics and etiquette mean ethics are morals, a moral philosophy or moral science. It is the first stage of society. Etiquette is the second stage, which formulates the rules of behavior standard in polite society. Humans have experienced ethics in their life. They are inherent in every religion. Along with the civilization of humans there were Ethics. Every religion preached morals and ethics. Etiquette is restricted to kind of profession. It is nothing but regularization of ethics. In simple words ethics are bundle of habits whereas etiquette is bundle of rules of ethics. These rules have statutory force. As stated above, the important duties that have to be followed by the advocate are - Advocate's Duty to the Court Advocate's Duty to the Client Advocate's Duty to the Opponent Advocate. Advocate's Duty to the Cross Examination Advocate's Duty to the Colleagues Advocate's Duty to The Court: An advocate is considered as an officer of the court, honored member of the community, and a gentleman, thinking that to become a member of the bar he has to be lawful and moral not only in his professional capacity but also in his non – professional capacity. An advocate has to courageously support the interest of his client and also have to follow the principles of ethics and etiquette both in correspondence. The bar council of India rules, State Bar Council rules mention certain canons of conduct and etiquette as general guides. Section I of Chapter – II of Part – IV OF THE Bar Council of India Rules explaining the rules pertaining to “Advocate's Duty to the Court”. Following Are the Duties Of Advocate Towards To Court- 1. An advocate while presenting his case should conduct himself with dignity and self-respect 2. Respectful attitude must be maintained by the advocate. He has to keep in mind the dignity of the judge. 3. An advocate should not, by any improper means should influence the decision given by the court. 4. It is the duty of the advocate to prevent his client from resorting to unfair practices and also the advocate himself should not do any of such acts. 5. Dress code has to be maintained by the advocate while appearing before the court. 6. An advocate should not take up any case of his family members and relatives. 7. No bands or gowns had to be worn by the advocate in the public places. It is only limited to the court premises. 8. An advocate cannot be as a surety for his client. 9. It is the duty of the advocate to cooperate with the bench in the court. 10. It is the duty of the advocate to perform his functions in such a manner that due to his acts the honor, dignity and integrity of the courts shall not be affected. 11. An advocate should not laugh or speak loudly in the court room especially when the proceedings are going on. 12. When an advocate accepts a brief, he should attend all adjournments properly. If he has any other work in another court, he should first obtain the permission from the court concerned. Particularly in criminal cases, it is the first and foremost duty of an advocate to attend. 13. While the case is going on, the advocate cannot leave the court without court's permission and without putting another man in charge, preferably his colleague or junior or friend advocate. Advocate's Duty To The Client- Chapter – II of Part IV of Bar Council of India Rules (Rule 11 to 33) provides the provisions relating to advocate's duty to client. Advocate's profession is a noble and honorable profession in the society. It is a public service. But at the same time it should be kept in mind that it is not a bed of roses especially for the new entrants. An advocate has several duties to his clients. The clients generally prefer an advocate who is hard working. They mostly trust on the workmanship of the advocate, whom they can easily reach and explain their difficulties. Most of the clients prefer an advocate who dedicates his entire time to the clients and especially who is polite with the clients. The duty- consciousness lawyer, once his engagement is final, sticks to the preparation of that case in facts and laws with such tenacity that he leaves no efforts from his side to win the case of his clients on merits by all legal means. It is the duty of the lawyer to take up the particular file and has to start making preparation even if the client is present or not. Such preparation of the file has to take place with the views that are already shared by his clients. The duty of the advocate is to never shrikes from devoting time, not only in the interest of his client, but also to satisfy his own duty- conscious nature which singles him out from his profession. The relationship between the advocate and client is of two types. They are: Contractual Relationship: It basically arises and ends only till the period of contract exist. In India, the relationship between the advocate and his client arises primarily from contractual obligations. A client chooses an advocate for his case depending upon his professional success, with strong desire that he is the fit person to defend his cause. After hearing the cause, the advocate decides whether to take the case or not. If he wants to take up the case, he will offer the client with certain amount of fee. If the client agrees to pay the sum, the advocate takes up the case. Thus, a matter of contract shall be reached between an advocate and a client. If a client fails to pay the remuneration, the advocate can sue him or has a right of lien on the documents of his client. In Kothi Jairam vs Vishwanath, the Supreme Court has held that an agreement made by his client to pay his lawyer according to the result of the case is against public policy. The Supreme Court observes that it is professional misconduct for an advocate to stipulate for or agree with his client to accept as his fee or remuneration as share of the property sued or other matter in litigation upon the successful issue thereof. In England, a lawyer cannot sue for his fee. If a lawyer behaves negligently, he can be sued for his negligence, in India whereas in England, he cannot be sued. Fiduciary Relationship: Fiduciary relationship is the relationship which never ends. If a client approaches the advocate and discloses the confidential information of his life then this kind of information comes under fiduciary relationship which the advocate has to keep it as a secret and not disclose it all his life. An advocate shall not change the parties. Rule 33 of the bar council of India rules provides for the same. It is also professional ethics. For example, if there are two rival parties A and B. A approaches X- an advocate, and seeks his advice after explaining all the facts of the case, weaknesses and strengths. After obtaining his opinion, A gives his case to Z – another advocate. If B approaches X asking him to defend on his behalf, it is professional ethics of X to refuse the brief of B, being fully informed about the case by A. It is the duty of the advocate to give proper advice to his client. Rule 32 of the bar council of India provides that an advocate is not supposed to lend his money to his client for any kind of legal proceedings. But there is an explanation which says that and advocate cannot be pronounced as guilty if he does something that breaches the above said rule. It is more like an exception but given as explanation. • Bound to accept briefs. • Not withdraw from service. • Not appear in matters in which he is a witness. • Full and frank disclosure to the client. • Uphold interest of the client. • Not suppress any material of evidence. • Not disclose any information of his client and himself. • Not receive any interest in actionable claim. • Not charge depending on the success of matters. • Keep proper accounts etc. • Advocate's Duty to The Opponent Advocate - An advocate and his opponent are like brothers in the profession but representing the different interests of different clients. Clients are not permanent they come with the case and leave, once the case is done but advocates adhere to the court and see each other or meet each other frequently in the court. If an advocate quarrels with another, they cannot face each other or work together happily. Their difference and grudge spoil the atmosphere. It also affects their clients. If it creeps to the court it spoils the administration of justice. In the court, advocate is not the decision maker, judge is the decision maker. An advocate must always try to convince the court by the law and precedents. He must be in a position to defeat his opponent advocate by using law and precedents. For this purpose there must always healthy competition between an advocate and his opponent. Leaving this highway, if an advocate starts fighting with his opponent as an ordinary person by using scurrilous language, it does not help his carrier. Moreover it spoils his clients, and further degrades the court. Advocates are the part and parcel of the administration of justice. They fight for justice. They struggle for the welfare and good of their clients. It does not mean that the advocate and the opponent advocate are enemies with each other. There is a controversy and discrimination on the issue but not between them. Their conflict ends as soon as they come out of the court premises. If they quarrel with each other like ordinary persons it affects the bar- bench relations. It may lead to the groups in the bar. Finally it badly vitiates the peaceful atmosphere of the court. Every advocate has a right to cross examination, arguments, verification of documents etc. while doing so he shall not be interrupted unnecessarily. Like him, the opponent advocate shall enjoy the same right therefore, any advocate shall not interrupt his opponent in cross examination, arguments unnecessarily. Interruption of the opponent is improper. This destroys the decorum of the court. It obstructs the ideas of the opponent. If necessary, an advocate may raise any objection with the permission of judge. No advocate has the right to prevent a judge following the course of argument of the opposite advocate. A dispute is submitted before a judge by two parties. Each advocate will definitely work hard to get the judgement in his favour but it is not possible to a judge to give the judgement in favour of both the parties. He will give his judgement to anyone of the parties based on the facts of the case. One party is defeated and another party will win the case. Therefore, each advocate must have a spirit of a sports man. All advocates are equal before the court. An advocate should not have contacts and engagements with the opposite party especially on the issue which is pending before the court. If necessary, an advocate may contact his opposite party with the permission or with notice to his opposite advocate. An advocate should not be stubborn on the minor matters. For example, if the opponent advocate has asked the adjournment of a case on genuine grounds. In such case, an advocate should not prolong the matter and create nuisance before the court. It is the duty of advocate to not take advantage of temporary difficulties of the opponent advocate. The combating between them must be fair and in a legitimate manner. The duty of the advocate is to show proper courtesy to the opposite counsel. Advocate's Duty During Cross Examination According to Sec 138 of Indian Evidence Act, 1872 the examination of witness by adverse party is known as cross examination. It is the right of an advocate to cross-examine the opponent party and his witnesses. The object of cross examination is that if cross examination is conducted effectively and efficiently, it discovers the truth. When a fact is stated in examination- in- chief and there is no cross examination on that point naturally it leads to the inference that the other party accepts the truth of the statement. Cross examination of witnesses is a procedural matter. Cross examination is mostly done according to the provisions of the Indian Evidence Act, Civil Procedure Code, Criminal Procedural Code and other provisions of the law. Besides these procedural matters; legal ethics are also concerned with what the advocate should do or should not do, while he is performing cross – examination. It has to be done with an objective to obtain the real facts from the witnesses and the opposite party. While cross examining and advocate must not offend the religious or personal feelings of the opposite party. He should not mis-utilise the opportunity of cross examining. He has no right to disgrace and bully a witness by putting offensive questions. Questions which affect the integrity of a witness by making aggressive comments on his character, but are not otherwise relevant to the actual enquiry, ought not to be asked unless the cross – examiner has reasonable grounds for thinking that the imputation conveyed by the question is true. Such questions should only be asked if in the opinion of the cross – examiner, the answers would or might materially affect the credibility of the witness and if the allegation conveyed by the question relates to matters so remote in time or of such a character that it would not affect or would not materially affect the credibility of the witness, the question should not be asked. In all cases, it is the duty of the advocate to guard against being made the channel for questions which are only intended to insult or annoy either the witness or any other person, and to exercise his own judgement both as to substance and the form of the questions asked. Advocate's Duty to The Colleagues Section IV of Chapter II of Part VI of Br Council of India lays down the provisions about the ‘Advocate's duty to the colleagues. Rules 36 to 39 provides for advocate's duty to the court. An Advocate cannot appear in a case where a memo is filed by the name of the other advocate. To do so he has to first take consent from the advocate and in case if such consent is not given then he has to apply to the court stating the reasons as to why he need consent. All advocates are part and parcel of the administration of justice. They are court officers. They take the fee of the services rendered. But the fee is not the criteria its only secondary their service is basically a public service and each advocate's office is known as public office. The primary concern of the advocate should be aiming for justice for the welfare of people. There should not be any kind of unhealthy competition between the colleagues. All are equal and each of them to mutually respect each other. An advocate is not supposed to advertise himself. If any client brings a case from another advocate to an advocate asking him to appear for the case, then this new advocate should not readily accept the case; first he has to go through the background of the case, details of the case and most importantly he must know the reasons as to why the client wants to change the previous advocate. If all the reasons stated by the client are proper then he must ask the client to bring a no objection certificate from the previous advocate; then only it is appropriate for him to take up the case. All members of the bar association are known as colleagues. An advocate has to respect all his colleagues and should not criticize co advocates. An arrogant attitude of an advocate towards his colleagues is always observed by the clients and public present in the court. This kind of behavior affects his profession, bar and bench relations, court proceedings and finally the whole administration of justice. Bar bench relationship Bar can be a collective term for all the Attorneys who are licensed to practice within the Courts, or a specific court of any particular State. Bench means all the Judges taken together as one but different from the Bar. Bench is that part of the Court, which is considered in its official scope, while the Judges are sitting. Bar The earlier meaning of ‘Bar’ also contained a part of the Bench. Also, in the present time the term Bar is even applied for the attorney’s part of the court and this term is also used for the judicial officer’s part. The term Bar was originated in England with the partition of Bar fixed for dividing the court room into two different parts for the aim of separating lawyers and officers of the court from the suitors and the general public. According to the Black’s Law Dictionary Bar is the railing that differentiates the front area of the court where the Judges sit, court personnel, lawyers, and witnesses of the court matters; from the rear are which provides sitting for the observers. Bar is as important as the Bench in the courtroom. Bench Bench in the legal concept can have different meanings. Firstly, it simply indicates the location where the Judges normally sit. Second, the term Bench could be a metonym to describe the members of the Judiciary collectively, or the Judges of a specific court, like the Queen’s Bench or the Common Bench in England as well as in Wales. Third, this term is employed to differentiate the Judges from the Attorneys or the Barristers. The Bench is a collective term for all the Judges together whereas the term Bar denotes all the lawyers. Lastly, the term ‘full bench’ is when all the Judges of a particular court sit together in order to decide a case, as said in the phrase ‘before the full bench’ which is also observed as ‘en blanc’. The Bench is actually an elevated desk area that allows a Judge to look at the entire courtroom. The Bench was an exemplary feature of the Courts of the order of St. John in Malta, like the Castellania, where Judges along with the nominated college of Advocates sat for the court proceedings and to review the laws as well. What Judge requires from an Advocate? An Advocate is found to be useful and effective by the Judge if he satisfies all the requirements of the Judge, and a Judge requires an Advocate to assist him in reaching the conclusion of the case and thereby helping within the performance of his own role. it’s impossible for an advocate to try and do so unless he’s equipped with the specified skills. The bar commonly refers to the community. With a modifier, it should sit down with a branch or division of the profession: as an example, lawyers who concentrate on filing civil suits for damages. In conjunction with the Bench, Bar may differentiate lawyers who represent clients (the bar) from Judges or members of a judiciary (the bench). The phrase bench and bar denote all judges and lawyers collectively. Attainment of justice for all the parties of the case and therefore the society at an outsized is that the main objective of our scheme. The Bar and Bench are the essential partners for fulfilling this objective of our judiciary, with the Judiciary at the highest of a vibrant bar. Both the partners must have sympathy and respect between one another, and every partner has its duties which they ought to perform diligently and effectively so as to enable the system to function in its best way. Failure of performing any duty by anyone partner will affect the opposite partner naturally. Thus, it is the duty of both the parties i.e., the Bench and Bar to perform their work diligently effectively, and honestly so as to attain justice in society. Functioning relationship between the Bar and the Bench The courtroom where the cases are discussed comprises two parts namely, the place where the Judges sit is known as Bench and the place where the Advocates sit is known as the Bar. So, the term ‘Bench’ refers to the judges and also the ‘Bar’ refers to the Advocates. The faith on the judiciary to the final public and therefore the speedy justice mainly depends on the cordial relation between the Judges and also the Advocates. In the Administration of justice, the role of Advocates are equally important like the role of the Judges. Rendering justice in the court is their joint responsibility. Without the assistance of Advocates, it is highly difficult for the Judges to arrive to an accurate decision during a dispute. If good relation exists between the Judges and Advocates, then delay in rendering justice and high expenses for getting justice may be considerably reduced. To strengthen this good relationship both should have some good qualities and mutual responsibilities. Administration of Justice is not something that just involves the presence of the Bench. To preserve the cordial ties between the Bar and also the Bench, mutual respect is a very important aspect between both the parties. Lawyers and Judges must constantly support each other. The bar is considered as the primary recruiting ground for Judges and they both are considered a member of the identical culture. Bar and Bench will have cordial relationships with one another. But thanks to the character of the duties to be performed by Advocates and Judges, occasionally, funny, often heated and infrequently harsh, they will enter into dialogue. Scandalizing the court by an Advocate also pollutes the very basis of justice and such behavior by a lawyer gives disrepute to the full administration of justice. An Advocate’s attitude towards the Tribunal should be one amongst universal reverence, no matter the Court’s position. Advocates Private opinion about the presiding Judge should not be harsh and defaming because he must preserve the integrity of the judiciary as an establishment, he must not demonstrate in his actions. Likewise, it’s the Judiciary’s duty to not only to be respectful towards the Bar members but to try and do everything possible to push the high traditions of the Bar. A lawyer or Judge’s uncourteous conduct or wrongdoing can amount to contempt of the court, there are two kinds of contempt of the court. For instance, to use insulting language against a judge or to threaten him with transfer or removal or to approach the judge in an exceedingly loose manner or to challenge his authority to ask questions or to form scandalous allegations against a Judge etc. Such incidents amount to Contempt of Court. The Court’s contempt punishment is meant to safeguard public trust within the Administration of Justice system. What is the Bar Council? The Bar Councils of India have been established under Section 4 of the Advocates Act 1961 on the recommendation of the All India Bar Committee in the year 1961 to operate on the national level along with the respective State Bar Councils. The State Bar Councils have been established under Section 3 of the Act. The Bar Council of India consists of members that are elected from each State Bar Council and the Attorney General of India and the solicitor of India who are ex-officio members. The members of the State Bar Councils are elected for a period of five years. The Council has the power to elect its own Chairman and Vice- Chairman for a period of two years from amongst its members. The current chairman of the Bar Council is Senior Advocate Manan Kumar Mishra. Legal Provisions The Advocates Act provides for the constitution of the Bar Councils as well as the All-India Bar. More specifically, Section 3 of the Act talks about the State Bar Council and Section 4 mentions the Bar Council of India. Section 4 also talks about the composition and the structure of the Bar Council of India. Section 5 of the Act establishes the Bar Council of India as a corporate body and states that it will have perpetual succession and a common seal. It also empowers the Bar Council to sue by the name by which it is known. The Bar Council of India Rules are the rules and regulations laid down to exercise the procedure and manner of conduct in which the Bar Council of India and the State Bar Councils are supposed to function. The Bar Council of India Rules lays down the procedure for the election and the termination of the members of the council. It lays down the conditions for the qualifications and conditions for the selection of various members of the staff.it also specifies the procedure of the meetings of the council or the meetings of the committees and their reports. Functions of the Bar Council of India Section 7 of the Act specifies the functions of the Bar Council of India (hereinafter as the BCI). An amendment was made by Act 60 of 1973 due to which more functions were inserted in Section 7. Section 7 also gives power to the Bar Council of India to become a member of international legal bodies such as the International Bar Association. The functions of the bar council as per Section 7 of the Advocates Act 1961 is as follows: • To lay down standards of professional conduct and etiquette for advocates as well as protect and safeguard their rights, privileges and interests. • The BCI lays down the procedure to be followed by its own disciplinary committee along with the disciplinary committee of each State Bar Council. The Bar council exercises general supervision and control over all the State Bar Councils. The Bar Council of India also has the power to deal with or dispose of any matter under the Advocates Act which may be referred to it by the State Bar Council. • The BCI recognizes the Universities in and outside the country whose degrees in law shall be allowed as a qualification for enrollment as an advocate. The BCI also has the power to visit and inspect the universities for this purpose. • The BCI promotes legal education and lays down the standards for such education by consulting the Universities in India that impart such education. Section 9 of the Advocates Act sets up a legal education committee for the same. This committee goes for inspecting the various Universities and reports to the BCI. • The BCI has the power to promote and support various law reforms and give their suggestions or recommendations about the same. • The BCI conducts and organizes seminars and talks on various legal topics by eminent jurists and publishes journals and papers of legal interest. • The BCI has the power to manage and invest the funds of the Bar Council. The BCI may give financial assistance to organize social welfare schemes for the disables, poor and for other Advocates. The BCI can use the funds for the establishment of legal aid centers and law libraries. The BCI receives grants, donations and gifts for the abovementioned purposes. • The BCI has the power to appoint various committees such as Disciplinary committees, Educational committees etc. • The BCI conducts regular elections to elect the members of the Bar Council. Case laws Bar Council of Maharashtra v. M.V Dabholkar and others[1] Facts: The Respondents were lawyers practicing in the criminal courts and were charged with professional misconduct under Section 35(1) of the Advocates Act 1961. They stood outside the Magistrate courts and tried to snatch briefs from potential litigants in an ugly scrimmage. They even engaged in physical fights and promised undercut fees to the litigants to secure work for themselves. The High Court brought this to the attention of the Bar Council of Maharashtra who considered the said complaint and referred the matter to its Disciplinary Committee for further probe. Held: The ethics for advocates do not permit advocates to advertise even by way of soliciting, scrambling or any other obnoxious practices therefore it was held that the Respondents were guilty of professional misconduct and suspended them from practicing for a period of three years. D. Saibaba v. Bar Council of India and another[2] Facts: Smt. D Anuradha was the Respondent No.1 in the civil appeal. She was the wife of D Saibaba who was the appellant therein. The marriage had broken down and the spouses were on cross ends with each other. The wife filed a complaint under Section 35 of the Advocates Act complaining of professional misconduct on the grounds that the appellant was running a telephone booth under the handicap quota in spite of being enrolled as an Advocate. The appellant said that he was indeed handicap and had started the said telephone booth before he was enrolled as an Advocate due to certain financial constraints and following that, the booth was being run by his old parents. He also submitted that the complaint was malicious and had come from a disgruntled wife who was merely trying to harass him and had also filed false criminal cases against him. Held: The Bar Council of India directed the appellant to surrender the telephone booth, presumably forming an opinion that irrespective of who was running the booth, the booth was registered under the handicap quota in the name of the appellant and the surrender of the booth would by itself bring an end to the controversy so far as his conduct as an advocate was concerned. The appellant sought some time for the collection of certain dues which could not be collected if the telephone booth was surrendered. As the appellant eventually failed to surrender the STD booth, the Bar Council passed an order advising the State Bar Council under which the appellant was registered to delete his name from the rolls of Advocates. Powers of the Bar Council of India The Bar Council of India has the power to make rules under the provisions of Section 15 of the Advocates Act. The Act provides certain rules for the election of the members of the Bar Council, chairman and vice- chairman, election disputes, filling of casual vacancies in the Bar council, powers and functions of chairman, vice chairman and other members of the council. The Bar Council has the power to manage and invest the funds given to them and use and invest them at their own discretion for organizing seminars, workshops, and legal aid. The Bar council also has the power to set up various committees for the smooth functioning and the distribution of various powers. Some of the committees of the Bar Council are as follows: • Legal Education Committee– This was established by the Bar Council of India under Section 10(2)(b) of the Advocates Act 1961 for the purpose of legal academics. The Education Committee is responsible for supervising the Universities imparting legal education in India and abroad. They also decide the Universities whose law degrees will be recognized by the Bar Council of India. • Bar Council of India Trust– the Bar Council of India introduced a public welfare and charitable organization, namely, The Bar Council of India Trust 1974. Their main purpose of this committee is to establish standardized law schools in the country and to enhance legal research. • Directorate of Legal Education– The Directorate of the Legal Education was established for the purpose of running, initiate, upheld, organizing and administering: • Training for the teachers. • Certainty of Legal education. • Advanced specialized professional courses of legal research. • Workshop programs from Indian students who are seeking for the registration from the foreign universities after completing their law degree by the Bar Council of India. What Is Contempt of Court? Contempt of court is any behavior or wrongdoing that conflicts with or challenges the authority, integrity, and superiority of the court. These acts might include failure to comply with requests, witness tampering, withholding evidence, interruption of proceedings, or defying a court order. These wrongful acts may be committed by attorneys, officers of the court, court personnel, jurors, witnesses, protestors, or any party involved in a court proceeding. Essentials of Contempt of Court If a person named Akash has to prove that the other person named Sita is guilty of committing an act which is an offence in a court of law. Then he has to show the court that the offence which Sita has done is fulfilling the essential required to commit that act or not. If the essentials of that will be fulfilled, then he will be liable for that act. Similarly, every offence has certain exceptions that has to be fulfilled for making the person liable for doing that act. Contempt of Court also has certain essentials, and these are as follows: 1. Disobedience to any type of court proceedings, its orders, judgment, decree, etc should be done ‘willfully’ in case of Civil Contempt. 2. In Criminal Contempt ‘publication’ is the most important thing and this publication can be either spoken or written, or by words, or by signs, or by visible representation. 3. The court should make a ‘valid order’ and this order should be in ‘knowledge’ of the respondent. 4. The action of contemnor should be deliberate and also it should be clearly disregard of the court’s order. These essentials should be fulfilled while making someone accused of Contempt of Court. Types of Contempt of Court in India Depending on the nature of the case in India, Contempt of Court is of two types. 1. Civil Contempt 2. Criminal Contempt Civil Contempt Section 2(a) of the Contempt of Court Act, 1971 states Civil Contempt as wilful disobedience to the order, decree, direction, any judgment or writ of the Court by any person or willfully breach of undertakings by a person given to a Court. Since Civil Contempt deprives a party of the benefit for which the order was made so these are the offences essential of private nature. In other words, a person who is entitled to get the benefit of the court order, this wrong is generally done to this person. There is a case on the willful disobedience of the court order which a person should know. Defenses to Civil Contempt A person who is accused of Civil Contempt of case can take the following defences: 1. Lack of Knowledge of the order: A person can not be held liable for Contempt of Court if he does not know the order given by the court or he claims to be unaware of the order. There is a duty binding on the successful party by the courts that the order that has passed should be served to the Individual by the post or personally or through the certified copy. It can be successfully pleaded by the contemner that the certified copy of the order was not formally served to him. 2. The disobedience or the breach done should not be : If someone is pleading under this defence then he can say that the act done by him was not done willfully, it was just a mere accident or he/she can say that it is beyond their control. But this plead can only be successful if it found to be reasonable otherwise your plead can be discarded. 3. The order that has disobeyed should be vague or ambiguous: If the order passed by the court is vague or ambiguous or this order is not specific or complete in itself then a person can get the defence of contempt if he says something against that order. In R.N. Ramaul v. State of Himachal Pradesh [5], this defence has been taken by the respondent. In this case, the Supreme Court has directed the corporation of the respondent to restore the promotion of the petitioner from a particular date in the service. But the respondent has not produced the monetary benefit for the given period and a complaint was filed against him for Contempt of Court. He pleads for the defence on the given evidence that it has not mentioned by the court in order to pay the monetary benefit. Finally, he gets the defence. 4. Orders involve more than one reasonable interpretation: If the contempt of any order declared by the court and the order seems to be given more than one reasonable and rational interpretation and the respondent adopts one of those interpretations and works in accordance with that then he will not be liable for Contempt of Court. 5. Command of the order is impossible: If compliance of the order is impossible or it can not be done easily then it would be taken as a defence in the case of Contempt of Court. However, one should differentiate the case of impossibility with the case of mere difficulties. Because this defence can be given only in the case of the impossibility of doing an order. Criminal Contempt According to Section 2(c) of the Contempt of Court Act, 1971, Criminal Contempt is Defined as (i) the publication of any matter by words, spoken or written, or by gesture, or by signs, or by visible representation or (ii) doing of any act which includes: a) Scandalize or tends to scandalize, or lowers or tends to lower the authority of any court, or b) Biasness, interferes or tends to interfere with the due course of any type of Judicial proceedings, or c) obstructs or tends to obstruct, interfere, or tend to interfere with the administration of justice in any manner. Case on Scandalizing the Court: Jaswant Singh v. Virender Singh In this case an advocate caste derogatory and scandalous attack on the judge of the High Court. An application was filed an election petitioner in the High Court, who was an advocate. He wanted to seek to stay for further arguments in an election petition and also the transfer of election petitions. These things cause an attack on the judicial proceeding of the High Court and had the tendency to scandalize the Court. It was held in this case that it was an attempt to intimidate the judge of the High Court and cause an interface in the conduct of a fair trial. Punishment for Contempt of Court Section 12 of the Contempt of Court Act, 1971 deals with the punishment for Contempt of Court. High Court and the Supreme Court have been given the power to punish someone for the Contempt of Court. Section 12(1) of this Act states that a person who alleged with the Contempt of Court can be punished with simple imprisonment and this imprisonment can extend to six months, or with fine which may extend to two thousand rupees or can be of both type punishment. However, an accused may be discharged or the punishment that was awarded to him maybe remitted on the condition that if he makes an apology and this apology should satisfy the court then only he can be exempted from the punishment of Contempt of Court. Explanation of this sentence is that if the accused made an apology in the bona fide then this apology shall not be rejected on the ground that it is conditional or qualified. The court cannot impose a sentence for Contempt of Court in excess of what is prescribed under the given section of this Act either in respect of itself or of a court subordinate to it. Contempt committed outside the court Criminal Contempt rather than Civil Contempt committed outside the Court. Section 15(1) of the Contempt of Court Act, 1971 deals with the notice of Criminal Contempt by Court of Record such as the Supreme Court and the High Court. Following manners can be taken by the Supreme Court and the High Court for cognizance of the Criminal Contempt: 1. On the motion of court of records. 2. On the motion of the Advocate General of the Supreme Court and the High Court. 3. If any person proceeds the motion with the consent of the Advocate General in writing. 4. If the law officer who is related to the High Court for the Union Territory of Delhi as the Central Government notify proceeds the motion. Then it can be considered as contempt committed outside the court. Section 15(2) of this Act states that in the criminal contempt of the subordinate court, the high court may take certain actions in the manner given in this Act. Vishaka and others v/s State of Rajasthan Vishaka & Ors. v State of Rajasthan is a milestone judgement given by the honourable Supreme Court of India that deals with aspects of sexual harassment of women in the workplace. The supreme court formulated the very famous Vishaka guidelines and made it mandatory for both private and public sectors to establish mechanisms to redress sexual harassment complaints. Citation: (1997) 6 SCC 241 Court: Supreme Court Of India Bench: Chief Justice J.S. Verma, Justice Sujata V. Manohar And Justice B.N. Kirpal. Facts of the case Bhanwari Devi, a lady from Bhateri, Rajasthan started working under the Women’s Development Project (WDP) run by the Government of Rajasthan, in 1985. In 1992, Bhanwari took up an issue based on the government’s campaign against child marriage as part of her job. The villagers were ignorant of the matter and supported child marriages despite knowing that it was illegal. In the meantime, the family of Ram Karan Gurjar decided to conduct such a marriage, of his infant daughter. Bhanwari attempted to convince the family not to perform the marriage, however, her endeavours brought about being vain. The family chose to proceed with the marriage. On 5th May 1992, the sub-divisional officer along with the Deputy Superintendent of Police (DSP) went and stopped the said marriage. However, the marriage was performed the next day and no police action was taken against it. Later, it was established by the villagers that the police visits were a result of Bhanwari Devi’s actions. This led to boycotting Bhanwari Devi and her family whereby she lost her job. To seek revenge, on 22nd September 1992, five men i.e, four from the above-mentioned Gurjar family- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar along with one Shravan Sharma, attacked Bhanwari Devi’s husband and brutally gang-raped her. The police had attempted to play all dirty tricks to prevent her from filing any complaint due to which there was a delay in the investigation as well as medical examination which was deferred for 52 hours only to find that no reference of rape was mentioned in the report. At the police station, she was continually and grossly taunted by the women countable for the whole of midnight. In past midnight she was been asked by the policeman to leave her lehnga as the evidence of that incident and go back to her village. She was just left with the bloodstained dhoti of her husband to wrap her body, because of which they needed to go through their entire night in that police station. In the absence of adequate proof and with the help of the local MLA Dhanraj Meena, all the accused managed to get an acquittal in the Trial Court. Women activists and organisations chose not to be silent and raised strong protests and voices against the acquittal. A PIL was filed by a women’s rights organisation known as ‘Vishaka’ which focused on the enforcement of the fundamental rights of women at the workplace under the provisions of Article 14, 15, 19, and 21 of the Constitution of India and the need to protect their sexual harassment at the workplace. Issues If formal guidelines were required to deal with incidents involving sexual harassment at the workplace? Whether sexual harassment at the workplace amounts to the violation of the fundamental rights of a woman? If the employer has any responsibility in cases of sexual harassment by its employee or to its employees at a workplace? Contentions by the Petitioner Although the judgement does not provide separate arguments made by both the parties, some arguments were to consider while delivering the judgement: The writ petition filed by Vishaka put forth the argument that sexual harassments at workplaces at common and the employer often gets away with it in the absence of adequate legislation. Such acts violate the fundamental rights of the woman enshrined under Article 14, 15, 19(1)(g) and 21 of the Constitution of India. A request was made at the Hon’ble Court to frame guidelines for preventing sexual harassment at the workplace. Contentions by the Respondents It is astonishing to note that the Solicitor General appearing on behalf of the respondents supported the petitioners. The respondent assisted the Hon’ble court in sorting out an effective method to curb sexual harassment and formulate guidelines to prevent it. Fali S. Nariman, the amicus curiae, Ms. Naina Kapur and Ms. Meenakshi provided valuable assistance to the court. Judgement The court held that sexual harassment at the workplace was indeed violative of the fundamental rights guaranteed under Article 14, 15, 19(1)(g) and 21 of the Constitution of India. The court also defined sexual harassment as unwelcome “sexually determined behaviour (whether directly or indirectly) like physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature”. The honourable court also acknowledged the lack of adequate legislation and loopholes which allowed such heinous crimes to thrive. The Court also took reference from the international conventions to give a deeper analysis. Article 11(1), (a) and (f) and Article 24 of Convention on the Elimination of All Forms of Discrimination against Women was cited. The court made a special mention that “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right.” Therefore, it was the court’s responsibility to show light in that regard and it was their obligation under Article 32 to ensure that fundamental rights were protected at any cost. The court also noted that it was discriminatory when the woman has reasonable grounds to believe that objecting to sexual harassment would disadvantage her in her employment in terms of recruiting or promotion or the creation of a hostile work environment. Thus, sexual harassment need not involve physical contact. Any act that creates a hostile work environment, by cracking lewd jokes, verbal abuse, circulating rumours etc can be considered as sexual harassment. The Hon’ble Supreme Court outlined the rules to forestall sexual harassment at the Workplace, known as ‘Vishaka Guidelines’, that should have been treated as law under Article 141 of the Indian Constitution to allow time-bound treatment of complaints. These rules provided the foundation for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Vishaka Guidelines 1. Employers should take preventive measures like an express preclusion of harassment and provide healthy work conditions in the matters of hygiene, comfort and health. 2. If there is an event of the infringement of administration rules in the workplace, suitable disciplinary action should be made. 3. If the offences submitted fall under the domain of the Indian Penal Code, 1860, the employer must report to the authorities. 4. An organization should have a redressal committee to address harassments. This should be independent of the way that whether the demonstration establishes an offence under the Indian Penal Code, 1860, or some other law. Such a committee must have women as more than half of its members and its head must also be a woman including a counselling facility. A report must also be sent to the government annually on the development of the committee 5. The business should take proper measures to spread awareness on the said issue. Conclusion The constitutional principles of equality and liberty have been upheld by the Hon’ble Supreme Court of India in the Vishaka Judgement. The Supreme Court of India’s judgement only proposed guidelines to alleviate the problem of sexual harassment. India finally enacted a law on the prevention of sexual harassment against female employees at the workplace, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Sexual Harassment Act”) which came into effect on 23 April 2013. Constitution of the Disciplinary Committee The Bar Council shall constitute a disciplinary committee as per Section 9 of the Advocates Act, 1961. This section provides that the one or more disciplinary committee are required to be formed and each of these disciplinary committee shall consist of three members. The election of two from the three members of the disciplinary committee shall be done by the Council from the members of the Bar Council of India itself. The third member shall be co-elected by the Council outside of the members of the Bar Council but who shall be an advocate and possess qualifications as prescribed in Section 3(2) of the Advocates Act, 1961. The section further states that the senior most advocate shall be the chairman of the committee. The term of members of this committee shall be not more than 3 years.