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Report No. 266

Chapter -V

Judicial Pronouncements and the Law

5.1 The full bench judgment of the Jharkhand High Court in the case of K K Jha "Kamal" & Anr. v. Pankaj Kumar & Anr.3, the full bench judgment of the Allahabad High Court in the case of Sadhna Upadhyay v. State of U.P.4, and the recent judgment of the Apex Court in the case of Mahipal Singh Rana v. State of UP5, are pointers in relation to professional misconduct of lawyers that ultimately resulted in a direction by the Supreme Court asking the Law Commission of India to go into all relevant aspects relating to regulation of legal profession in consultation with all concerned at an early date. It also requested Parliament to consider enactment of the law that would effectively empower the authorities for such effective regulation.

5.2 The Courts have been making observations and commenting on the effective application and working of the provisions of the Advocates Act, particularly in respect of regulation of disciplinary proceedings against advocates. In Mahipal Singh Rana6, the appellant therein was found guilty of criminal contempt for intimidating and threatening a Civil Judge (Sr. Division), by the High Court of Judicature at Allahabad. He was awarded a sentence of a short term imprisonment along with fine and was also restrained from entering the court premises, and was debarred from appearing and practicing in the District Court of Etah, in U.P. He preferred an appeal before the Supreme Court and the Court considering that an important legal issue was involved, referred it to a larger bench.

5.3 The Supreme Court upheld the judgment and order of the High Court observing that superior courts have supervisory powers to regulate the right of an advocate to appear in court, and even in the absence of any rule framed under section 34(1) of the Advocates Act, the Court can restrain an advocate from appearing for a specific period of time. The Court further observed that it was undesirable for a convicted person to perform important public functions in view of section 24A of the Advocates Act and that there was an urgent need to amend the provisions so that the bar applicable at the entry level could be extended to a situation post enrolment where the delinquent advocate had already been enrolled by the Bar Council concerned. Further, due to failure of the State Bar Council to take action against the appellant therein, the Court exercised its suo motu powers under section 38 of the Advocates Act and suspended the licence of the appellant for a period of 5 years.

5.4 Being dismayed with the unsatisfactory regulatory mechanism governing the advocates, the Supreme Court expressed its anguish observing that there was an urgent need to review the provisions of the Advocates Act, particularly dealing with the regulatory mechanism for the legal profession and other identical issues in consultation with all concerned. And, thus the matter has been referred to the Law Commission of India asking to go into all relevant aspects relating to regulation of the legal profession and submit its report.

Advocates Act, 1961 - Regulation of Legal Profession Back

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