Advocates Act, 1961 - Chapter V: Conduct of Advocates
Section 36 of the Advocates Act, 1961: Disciplinary Powers of the Bar Council of India
Section 36 of the Advocates Act, 1961 defines important disciplinary powers of the Bar Council of India. It gives the BCI disciplinary jurisdiction in the limited category stated in sub-section (1), permits withdrawal of pending disciplinary proceedings from a State Bar Council, and authorizes the BCI disciplinary committee to pass the same kinds of orders available under Section 35.
In brief: The BCI may directly refer certain misconduct cases to its disciplinary committee, may withdraw a pending State Bar Council disciplinary case to itself, must broadly follow Section 35 procedure, and may dismiss, reprimand, suspend or remove an advocate from the State roll where the statutory conditions are met.
Text and structure of Section 36
Section 36 - Disciplinary powers of Bar Council of India
(1) Where, on receipt of a complaint or otherwise, the Bar Council of India has reason to believe that an advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in Chapter V, the disciplinary committee of the Bar Council of India may, either on its own motion, on a report by a State Bar Council or on an application made by any interested person, withdraw for inquiry before itself any disciplinary proceeding against an advocate pending before the disciplinary committee of a State Bar Council and dispose of it.
(3) In disposing of a case under Section 36, the disciplinary committee of the Bar Council of India shall, so far as may be, follow the procedure laid down in Section 35. References in Section 35 to the Advocate-General are read as references to the Attorney-General of India.
(4) The disciplinary committee of the Bar Council of India may make any order that a State Bar Council disciplinary committee may make under Section 35(3). Where a proceeding has been withdrawn to the BCI, the concerned State Bar Council must give effect to the BCI's order.
Meaning and explanation of Section 36
1. Original BCI disciplinary jurisdiction under sub-section (1)
Section 36(1) gives the Bar Council of India direct disciplinary jurisdiction in the category expressly identified by the statute. Where the statutory threshold is met, the BCI must refer the case to its disciplinary committee.
2. BCI may withdraw a pending State Bar Council case
Section 36(2) is a separate and broader procedural power. The BCI disciplinary committee may withdraw a pending disciplinary proceeding from a State Bar Council disciplinary committee and inquire into and dispose of the matter itself.
3. Withdrawal may occur in three ways
- on the BCI disciplinary committee's own motion;
- on a report from a State Bar Council; or
- on an application by an interested person.
4. Section 35 procedure broadly applies
Under Section 36(3), the BCI disciplinary committee must, so far as may be, follow the procedure in Section 35. For BCI proceedings, references to the Advocate-General are treated as references to the Attorney-General of India.
5. BCI may pass the same disciplinary orders as a State Bar Council disciplinary committee
Section 36(4) incorporates the range of orders in Section 35(3). Depending on the case, the BCI disciplinary committee may dismiss the complaint or file the proceeding, reprimand the advocate, suspend the advocate from practice, or remove the advocate's name from the State roll.
Section 36 powers at a glance
| Power | Statutory basis | Effect |
|---|---|---|
| Direct disciplinary reference | Section 36(1) | BCI refers the specified category of misconduct case to its disciplinary committee. |
| Withdraw State Bar Council proceeding | Section 36(2) | BCI disciplinary committee takes over the pending disciplinary proceeding. |
| Apply Section 35 procedure | Section 36(3) | BCI broadly follows Section 35, with the Attorney-General substituted for the Advocate-General. |
| Pass disciplinary orders | Section 36(4) | BCI may pass any order available under Section 35(3). |
| Implementation after withdrawal | Section 36(4) | The concerned State Bar Council must give effect to the BCI's order. |
Relationship with Section 35
Section 35 is the principal State Bar Council disciplinary provision. Section 36 supplements that system by defining when the Bar Council of India itself may exercise disciplinary jurisdiction or take over a proceeding pending before a State Bar Council.
Relationship with Section 36A and Section 36B
Section 36A ensures continuity when one disciplinary committee is succeeded by another. Section 36B addresses timely disposal and statutory transfer of certain proceedings to the Bar Council of India.
Appeals from BCI disciplinary orders
A disciplinary order made by the Bar Council of India under Section 36 is subject to the statutory appeal framework in Section 38, which provides an appeal to the Supreme Court subject to the prescribed conditions and limitation period.
Related provisions
- Section 35 - Punishment of advocates for misconduct.
- Section 36A - Changes in constitution of disciplinary committees.
- Section 36B - Disposal of disciplinary proceedings.
- Section 37 - Appeal to the Bar Council of India.
- Section 38 - Appeal to the Supreme Court.
- Section 40 - Stay of order.
- Section 42 - Powers of disciplinary committees.
- Section 44 - Review of disciplinary committee orders.
Official legal source
The current Advocates Act, 1961 and subordinate rules may be checked on India Code: India Code - Advocates Act, 1961.
Legal note: Section 36 should be read with Sections 35, 36A, 36B, 38, 42 and the applicable Bar Council of India Rules. Questions concerning transfer of a pending matter, hearing procedure, evidence, proportionality of punishment and appellate remedies depend on the facts and the current disciplinary framework.