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Advocates Act, 1961 - Chapter V: Conduct of Advocates

Section 42 of the Advocates Act, 1961: Powers of Disciplinary Committee

Section 42 of the Advocates Act, 1961 gives a Bar Council disciplinary committee specified powers similar to those of a civil court. These powers support the fair and effective conduct of disciplinary inquiries involving advocates.

In brief: A disciplinary committee may summon witnesses, examine persons on oath, require discovery and production of documents, receive affidavit evidence, requisition public records and issue commissions. The section also regulates judicial-proceeding status, service of process through civil courts, hearings when a member is absent and the procedure where the committee cannot reach a final majority opinion.

Text and structure of Section 42

Section 42 - Powers of disciplinary committee

(1) The disciplinary committee of a Bar Council has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of specified matters, including:

(a) summoning and enforcing the attendance of any person and examining that person on oath;

(b) requiring discovery and production of documents;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copies from any court or office;

(e) issuing commissions for examination of witnesses or documents; and

(f) any other matter that may be prescribed.

The proviso restricts compulsory attendance of a presiding officer of a court unless the High Court to which that court is subordinate gives previous sanction, and of an officer of a Revenue Court unless the State Government gives previous sanction.

(2) Proceedings before a Bar Council disciplinary committee are deemed to be judicial proceedings for the purposes specified in the statutory text, and the committee is deemed to be a civil court for the limited criminal-procedure purposes stated in that sub-section.

(3) For exercising the powers in sub-section (1), the disciplinary committee may send summons, process or a commission to a civil court, which shall cause the process to be served or commission to be issued and may enforce it as if it were its own process.

(4) The disciplinary committee may hold or continue proceedings on a fixed hearing date despite absence of the Chairman or a member. However, no final order of the kind referred to in Section 35(3) may be made unless the Chairman and the other members of the disciplinary committee are present.

(5) If no final order under Section 35(3) can be made because there is no majority opinion or for another reason, the matter and the members' opinions are placed before the Chairman of the Bar Council concerned, or the Vice-Chairman where the Chairman of the Bar Council is acting as Chairman or member of the disciplinary committee. After such hearing as considered fit, that Chairman or Vice-Chairman gives an opinion, and the final order follows that opinion.

Meaning and explanation of Section 42

1. The disciplinary committee has limited civil-court-type powers

Section 42 does not make the disciplinary committee a civil court for every purpose. It gives the committee civil-court powers only for the procedural matters listed in sub-section (1), together with the specific deeming provisions in sub-section (2).

2. Summoning and examination on oath

The committee can compel attendance of a person and examine that person on oath when necessary for a disciplinary inquiry. This power supports fact-finding where oral evidence is required.

3. Discovery and production of documents

The committee may require discovery and production of documents relevant to the disciplinary proceeding. This enables documentary evidence to be brought formally into the inquiry.

4. Affidavit evidence and public records

The committee may receive affidavit evidence and may requisition a public record or copy from a court or office. These powers facilitate proof without requiring every evidentiary step to be undertaken through ordinary civil litigation.

5. Commissions for witnesses or documents

Section 42 allows commissions to be issued for examination of witnesses or documents. This is useful where direct attendance or production before the committee is impracticable or where a commission is otherwise appropriate.

Special safeguards for judicial and revenue officers

The committee cannot compel attendance of a presiding officer of a court without prior sanction of the relevant High Court, nor compel attendance of an officer of a Revenue Court without prior sanction of the State Government. These safeguards protect institutional independence while preserving disciplinary fact-finding powers.

Proceedings are treated as judicial proceedings

Section 42(2) gives disciplinary proceedings a statutory judicial character for the limited purposes stated in that sub-section. This underlines the seriousness of evidence and conduct before a disciplinary committee.

Current criminal-law note: The published text of Section 42(2) still contains historical references to provisions of the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1898. India Code continues to reproduce that statutory wording. From 1 July 2024, the Bharatiya Nyaya Sanhita, 2023 and Bharatiya Nagarik Suraksha Sanhita, 2023 form the general current criminal-law framework. Accordingly, the legacy cross-references in Section 42(2) should be read with the applicable repeal, savings and construction provisions rather than being silently rewritten in the bare text.

Use of civil courts to serve process

Under Section 42(3), a disciplinary committee may transmit summons, other process or a commission to a civil court. The civil court then serves, issues or enforces it as though the process were for proceedings before that civil court itself.

Can a hearing continue if a member is absent?

Yes. Section 42(4) permits the committee to hold or continue a proceeding on a scheduled hearing date despite the absence of the Chairman or a member. However, a final disciplinary order under Section 35(3) cannot be made unless the Chairman and the other members are present.

What happens if the committee cannot reach a majority?

Section 42(5) provides a statutory tie-breaking mechanism. If no final order can be made because of lack of majority or otherwise, the matter goes to the Chairman of the Bar Council, or to the Vice-Chairman where the Chairman is already participating in the disciplinary committee. The final order follows the opinion delivered under that mechanism.

Section 42 powers at a glance

Provision Power or rule
Section 42(1)(a) Summon and enforce attendance; examine on oath.
Section 42(1)(b) Require discovery and production of documents.
Section 42(1)(c) Receive evidence on affidavits.
Section 42(1)(d) Requisition public records or copies.
Section 42(1)(e) Issue commissions for witnesses or documents.
Section 42(1)(f) Exercise any other prescribed procedural power.
Section 42(3) Use civil courts to serve or enforce process and issue commissions.
Section 42(4) Continue hearings despite absence of Chairman/member, subject to final-order attendance requirement.
Section 42(5) Resolve inability to reach a final majority opinion through Chairman/Vice-Chairman mechanism.

Relationship with Section 42A

Section 42A applies Section 42, so far as may be, to the Bar Council of India, the enrolment committee, election committee, legal aid committee and other committees of a Bar Council.

Related provisions

Official legal sources

The current published text of the Advocates Act, 1961 may be checked on India Code: India Code - Advocates Act, 1961.

The current criminal-procedure framework from 1 July 2024 may be checked here: India Code - Bharatiya Nagarik Suraksha Sanhita, 2023.

The current substantive criminal-law framework from 1 July 2024 may be checked here: India Code - Bharatiya Nyaya Sanhita, 2023.

Legal note: Section 42 is primarily procedural. Its powers must be used within the disciplinary jurisdiction created by the Advocates Act and subject to natural justice, the Bar Council of India Rules, applicable court procedure and binding judicial decisions.