(Society Reg No-B/1L/55127)
Howrah District Court
Introduction
The Bar Association must be selfยญgoverning is globally recognised. The same is a resolution of the United Nations also. Even a Special Rapporteur on the independence of Judges and lawyers finds that bar associations play a vital role in safeguarding the independence and integrity of the legal profession and its members. The UN’s basic principles on the role of lawyers published in 1990 noted that such institutions must possess independence and its selfยญgoverning nature. The bar association has a crucial role to play in a democratic society to ensure the protection of human rights in particular due process and fairยญtrial guarantees. Following is the extract of the report of the United Nations:
โMandate In the report, Special Rapporteur Diego GarcรญaยญSayรกn finds that associations should be independent and selfยญgoverning because they hold a general mandate to protect the independence of the legal profession and the interests of its members.
They should also be recognized under the law, the UN says. โBar associations have a crucial role to play in a democratic society to enable the free and independent exercise of the legal profession, and to ensure access to justice and the protection of human rights, in particular, due process and fair trial guarantees,” UN Secretaryยญ General Antรณnio Guterres says.
Selfยญgoverning The UNโs Basic Principles on the Role of Lawyers (published in 1990) recognize that lawyers, like other citizens, have the right to freedom of association and assembly, which includes the right to form and join selfยญgoverning professional associations to represent their interests. Since its publication, this universal document has been referenced in wrangles between lawyers and governments. Requirements Existing legal standards do not provide a definition of what constitutes a professional association of lawyers. They simply focus on the necessary requirements that such institutions must possess, such as independence and a selfยญgoverning nature. The report recommends that: โIn order to ensure the integrity of the entire profession and the quality of legal services, it is preferable to establish a single professional association regulating the legal profession.โ Elected by peers Another principle of the UN report is that: โIn order to guarantee the independence of the legal profession, the majority of members of the executive body of the bar association should be lawyers elected by their peers.โ It says that state control of bar associations or governing bodies is โincompatible with the principle of the independence of the legal professionโ
The Bar Council of India is a statutory body created by Parliament to regulate and represent the Indian Bar under the Advocates Act 1961
In India, admittedly, social duty is cast upon the legal profession to show the people beckon (sic beacon) light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country [In R.D. Saxena vs. Balram Prasad Sharma, (2000) 7 SCC 264]. Even before its incorporation in the present form, The Howrah Bar Association has been working to uphold the above said principles of advocacy.
The purpose of the Bar Association is to promote and protect the privileges, rights, interests and prestige of the Association and its members to promote unity and cooperation amongst advocates and other Associations of Advocates; and to maintain an adequate library for the use of members and to provide other facilities to them.
Independent legal profession
An independent legal profession also requires that lawyers be free to carry out their work without interference or fear of reprisal. Lawyers have a duty, within the law, to advance the interests of their clients fearlessly and to assist the courts in upholding the law. To enable them to perform these duties it is necessary that lawyers enjoy professional independence. Challenges to such independence may arise where lawyers are not able to form independent professional organizations; are limited in the clients whom they may represent; are threatened with disciplinary action, prosecution or sanctions for undertaking their professional duties; are in any other way intimidated or harassed because of their clients or the work that they undertake; or are subjected to unreasonable interference in the way they perform their duties.
The independence of the Bar came to be discussed in 28 th Annual Convention Banquet of the National Lawyers Guild held at San Francisco, California on 13th November 1965 in which Robert F. Drinan, S.J., Dean, Boston College Law School, Brighton, Massachusetts pointed out the independence of the Bar and its facets. He has pointed out that lawyers have to be loyal to their client’s interests and faithful to the maintenance of the integrity and independence of the courts. It requires a commitment to many moral and spiritual values. Lawyers boldly challenge the inequality in every form. He also pointed out that independence of mind and heart is necessary.
The Bar cannot be a prisoner of passions and prejudices and independence of judgment need to be construed and from an unreasonable fear of the power of the judiciary is necessary and has observed that lawyer should feel free to criticize judicial decisions of every Tribunal. At the same time, he said to impugn the motives to Judges undermine the very essence of every civilized society. A lawyer has to be detached from financial considerations. If lawyers are appreciated and embraced with these sentiments, we would witness the full flowering of the indispensable element of a truly free society โ an independent Bench and an independent Bar. He has observed:
โMembers of the legal profession under the AngloยญAmerican system of justice have been entrusted with dual and conflicting loyalties. They must be simultaneously both loyal to their client’s interests and faithful to the maintenance of the integrity and independence of the courts of which they are officers. The complex dualism inherent in being both an advocate and an officer of the Court requires that the lawyer have a unique independence, ยญ a detachment from any excessive adherence to his client’s interests as well as a freedom from being inordinately attached to the rulings and interests of the judicial system.
The independence of the bar does not mean, let us make it clear immediately, a state of nonยญcommitment to truths or values. Indeed the independence of the bar presupposes and requires a commitment to many moral and spiritual values which must be served in whole or in part by America’s legal institutions. The spiritual value indispensable for an independent bar to which the: National Lawyers’ Guild in a particular way has lent its power and prestige is the basic injustice of permitting false accusations to be made by public bodies in the name of patriotism or loyalty to the nation.
The lawyer whose mind is independent of the passions and prejudices of his own generation or his own century transcends the collective compromises of his own age and boldly challenges inequality in every form. The lawyers who formed and fashioned the American Republic had the independence of mind and heart unparalleled by any subsequent generation of attorneys in America; their vision and their courage are the legacies of every lawyer in America. So few members of the bar recognize that legacy because, being the prisoners of the passions and prejudices of their own age, they have lost that independence of judgment without which a lawyer cannot really identify himself or the noble profession of which he is a member.
This independence from the judiciary should prompt lawyers to feel free to criticize judicial decisions consistently and courageously. This criticism should not be confined to the higher courts but should be applicable to every tribunal whose opinions are deficient in inherent logic and a clear consistency.
Does constitutionally protected freedom of speech or freedom of the press give immunity for slander and public defamation of the nation’s highest tribunal? And by what principle can an independent bar justify its inaction towards those who, by calumny and libel, impugn the motives of judges and undermine the very essence of every civilized society ยญ the rule of law?
The bench generally speaking cannot be expected to rise above the level of the bar. A bar that is subservient and servile to the bench will tend to corrupt both the bench and the bar.
The independence of the legal profession, therefore, requires that lawyers attain such an attitude of detachment both from their duties as advocates and their role as officers of the court that they can act objectively and dispassionately, ยญ as neither solely the servants of their clients nor as exclusively the ministers of the courts.
Punishment of advocates for misconduct
Chapter V of the Advocates Act deals with the conduct of advocates and disciplinary control. Section 35 deals with the punishment of advocates for misconduct. Section 35 is extracted hereunder:
โ35. Punishment of advocates for misconduct.โ(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.
(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the AdvocateยญGeneral of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the AdvocateยญGeneral an opportunity of being heard may make any of the following orders, namely:โ
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
(4) Where an advocate is suspended from practice under clause (c) of subยญsection (3), he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.
(5) Where any notice is issued to the AdvocateยญGeneral under subยญ section (2), the AdvocateยญGeneral may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.
[Explanation.โIn this section, [section 37 and section 38], the expressions โAdvocateยญGeneralโ and AdvocateยญGeneral of the Stateโ shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.]โ
Section 36 deals with disciplinary powers of Bar Council of India.
In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing “professional misconduct” depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an Advocate, by suspending his licence or by removal of his name from the roll of the State Bar Council, for proven professional misconduct, vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts.
After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for “professional misconduct “has been conferred on the State Bar Council concerned and the Bar Council of India. That Act contains a detailed and complete mechanism for suspending or revoking the license of an advocate for his “professional misconduct’. Since, the suspension or revocation of license of an advocate has not only civil consequences but also penal consequences, the punishment being in the nature of penalty, the provisions have to be strictly construed. Punishment by way of suspending the license of an advocate can only be imposed by the competent statutory body after the charge is established against the Advocate in a manner prescribed by the Act and the Rules framed thereunder [In Bar Council of Maharashtra v. M.V. Dabholkar & Ors., (1975) 2 SCC 702]
Regulation on Appearance
A Division Bench of the Allahabad High Court in Prayag Das vs. Civil Judge, Bulandshahr and ors. AIR 1974 All 133 : (AIR p.136, para 9) “The High Court has the power to regulate the appearance of advocates in courts. The right to practise and the right to appear in courts are not synonymous. An advocate may carry on chamber practice or even practise in courts in various other ways, e.g. drafting and filing of pleadings and Vakalatnama for performing those acts. For that purpose, his physical appearance in courts may not at all be necessary. For the purpose of regulating his appearance in courts, the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act, it must be inferred that the High Court has the power to make rules for regulating the appearance of Advocates and proceedings inside the courts. The High Court is the only appropriate authority to be entrusted with this responsibility.
Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in Court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practice in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless selfยญrestraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the courts.
The right of the advocate to practice envelopes a lot of acts to be performed by him in the discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in the exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate.
A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to the law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practice law. While the Bar Council can exercise control over the latter, the courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above.
However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including interยญalia rules as to persons practicing before this Court. Similarly, Section 34 of the Advocates Act empowers High Courts to frame rules, interยญalia to lay down conditions on which an advocate shall be permitted to practice in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.
Again in Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650, this Court held that an advocate found guilty of contempt cannot be allowed to act or plead in any court until he purges himself of contempt. This direction was issued having regard to Rule 11 of the Rules framed by the High Court of Kerala under Section 34(1) of the Advocates Act and also referring to the observations in para 80 of the judgment of this Court in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409. It was explained that debarring a person from appearing in court was within the purview of the jurisdiction of the Court and was different from suspending or terminating the license which could be done by the Bar Council and on the failure of the Bar Council, in exercise of appellate jurisdiction of this Court.
The Howrah Bar Association Rules
Under construction
Society Reg No-B/1L/55127
Rules and Regulation of The Howrah Bar Association-1956
[As amended in 2007]
w.e.f- 1.4.2008
1-Name- The association shall be called “The Howrah Bar Association”
2-Office- The office of the said Association shall ordinarily be located in the Howrah Civil Court Building.
3-Objects- The objects of the Association are as below:
(a) To provide for its members a common place where all the members of the Association may gather together and have all facilities for conducting their profession.
(b) To provide for the use of its member books and Journals for the spreading of knowledge with special reference to the legal profession and to maintain a well-equipped and updated library.
(c) To provide scope for discussion of all matters of legal interest, matters of public interest as well as matters affecting the members of the profession individually or collectively.
(m) To maintain professional integrity and propriety amongst lawyers.
(n) To take effective measures against judicial excess and departmental excess to uphold the dignity of Justice.
4-Membership- The membership of the Association shall consist of persons entitled to practice as Advocate and entitled under the terms and conditions hereinafter mentioned.
(a) The membership of the Association shall be given only to the Advocate, who is properly enrolled with the Bar Council of West Bengal. The Association is not bound to provide with the Chiar/Locker in the Library Room to any member.
Associate Member/Donor Member
(b)
5-Admission-
Subscription-
(a)
(d)
6- Honorary Membership-
7-Life Members- Any general member who is eligible for membership as per rule 4 may be admitted as a Life Member on Payment of Rs 4000/ at a time (together with the admission fee of Rs 700/-in case of a New member)
8-Withdrawal of Membership/Cessation of Membership-
Definition of Misconduct
Misconduct means any conduct amiss, to mismanage, to commit wrong or is guilty of improper conduct, bad behaviour or conduct. It includes malfeasance, misdemeanour, deliquence offence and disobedience to the decision of the Ascension.
9 (A) Effect of Misconduct –If a member is found guilty of unprofessional conduct by a Judicial Enquiry or by a Bar Council or of any offence the name of such member shall be struck off from the Membership Registrar
9 (B) Code of conduct
(i) to (xi)
Disciplinary Sub-Committee
(C) The Executive Committee shall elect a Disciplinary Sub Committee consisting of three members who disposed of the complaints and the allegations made against any person relating to Profession.
Procedure to be Adopted
(D)
Power of the Executive Committee
10-Office-Bearers and Executive Committee
The office Bearers of the Association shall consist of one President, three Vice-Presidents, one Secretary and three Assistant Secretaries and twelve executive members. They shall be elected every year by the members in the Annual General Meeting.
(a)
(b)
11-Library and Librarian and Staff
12-Conduct of The Staff
13-Annual General Meeting
(a) to (g)
14-Power of the Committee
(A)
(B)
15-Requisition Meeting and Procedure
(A)
(B)
16-Quorum
In all General Meetings 40 members and in the meeting of the Executive Committee 8 members shall form the quorum of such meeting.
17-Executive Committee Meeting
18-Conduct of Meetings
(A)
(B)
(C)
19-Accounts/Accounting Period
20-Power of Spending Money
(A)
(B)
21-Books of the Library
There shall be a Catalogue of Books, Journals etc.
22-Use of Books and its Procedure
(A) to (G)
23-Properties of Association
24-Expression of Opinion
25-Suggestion and Complaint Book
26-Alteration of Rules
27-Provident Fund
28-Annual Get-Together
29-Development and Benefit Fund
Additional Rules
Full Court Reverence
Car Parking Policy
The Diary
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