Advocates Act, 1961 - Chapter V: Conduct of Advocates
Section 40 of the Advocates Act, 1961: Stay of Disciplinary Order
Section 40 of the Advocates Act, 1961 governs stay of disciplinary orders during the appellate process. The central rule is that merely filing an appeal under Section 37 or Section 38 does not automatically suspend the order appealed against.
In brief: A disciplinary order continues to operate unless a competent authority grants stay. After an appeal is filed, the Bar Council of India disciplinary committee or the Supreme Court may grant stay for sufficient cause. Before the appeal period expires, the disciplinary committee that made the order may also grant a temporary stay.
Text and structure of Section 40
Section 40 - Stay of order
(1) An appeal made under Section 37 or Section 38 does not operate as a stay of the order appealed against. However, the disciplinary committee of the Bar Council of India or the Supreme Court, as the case may be, may for sufficient cause direct stay of the order on such terms and conditions as it considers fit.
(2) Where an application for stay is made before expiry of the time allowed for filing an appeal under Section 37 or Section 38, the disciplinary committee of the State Bar Council or the disciplinary committee of the Bar Council of India, as the case may be, may for sufficient cause stay its order on such terms and conditions as it considers fit.
Meaning and explanation of Section 40
1. Filing an appeal does not automatically stay the order
Section 40(1) expressly rejects an automatic-stay rule. A suspension, reprimand, removal or other disciplinary consequence continues to operate unless a competent appellate or disciplinary forum separately grants stay.
2. Stay after appeal is filed
If the appeal is under Section 37, the disciplinary committee of the Bar Council of India may grant stay. If the appeal is under Section 38, the Supreme Court may grant stay.
3. Stay before the appeal is filed
Section 40(2) creates a separate interim mechanism during the appeal period. Before that period expires, the disciplinary committee that made the order may stay it for sufficient cause, enabling the affected person to seek temporary protection while preparing the statutory appeal.
4. Sufficient cause must be shown
Both sub-sections require "sufficient cause." Stay is therefore discretionary rather than automatic. The applicant must place circumstances before the competent forum that justify suspension of the disciplinary order pending further proceedings.
5. Terms and conditions may be imposed
Section 40 allows the competent forum to grant stay on terms and conditions it considers fit. The precise conditions depend on the nature of the disciplinary order and the circumstances of the case.
Two stay stages under Section 40
| Stage | Who may grant stay? | Requirement |
|---|---|---|
| After filing Section 37 appeal | Disciplinary committee of the Bar Council of India | Sufficient cause; terms and conditions may be imposed |
| After filing Section 38 appeal | Supreme Court of India | Sufficient cause; terms and conditions may be imposed |
| Before expiry of Section 37 appeal period | Disciplinary committee of the State Bar Council that made the order | Stay application before expiry of appeal time and sufficient cause |
| Before expiry of Section 38 appeal period | Disciplinary committee of the Bar Council of India that made the order | Stay application before expiry of appeal time and sufficient cause |
Section 40 and disciplinary suspension
Under Section 35(4), an advocate suspended from practice is debarred during the suspension period from practising in any court or before any authority or person in India. Because Section 40 states that an appeal does not automatically operate as a stay, that consequence continues unless an effective stay order is granted.
Section 40 and limitation
Section 39 applies Sections 5 and 12 of the Limitation Act, 1963, so far as may be, to appeals under Sections 37 and 38. Section 40 serves a different function: it regulates whether the disciplinary order remains operative while an appeal is being prepared or heard.
Stay does not decide the appeal
A stay order is interim in nature. Grant or refusal of stay does not by itself decide whether the finding of misconduct or the punishment is ultimately correct. Those issues are determined in the substantive appeal under Section 37 or Section 38.
Related provisions
- Section 35 - Punishment of advocates for misconduct.
- Section 36 - Disciplinary powers of the Bar Council of India.
- Section 37 - Appeal to the Bar Council of India.
- Section 38 - Appeal to the Supreme Court.
- Section 39 - Application of Sections 5 and 12 of the Limitation Act, 1963.
- Section 41 - Alteration in roll of advocates.
- Section 42 - Powers of disciplinary committees.
- Section 44 - Review of disciplinary committee orders.
Official legal source
The current text of the Advocates Act, 1961 may be checked on India Code: India Code - Advocates Act, 1961.
Legal note: Section 40 does not prescribe an automatic stay merely because an appeal has been filed or is intended. A stay application should address sufficient cause, the nature and immediate effect of the disciplinary order, the stage of the appeal process and any terms the competent forum considers appropriate.