Appeals under Section 38 of the Advocates Act, 1961: Order XXIII Supreme Court Rules
Order XXIII regulates statutory appeals to the Supreme Court against orders of the Disciplinary Committee of the Bar Council of India under Sections 36 and 37 of the Advocates Act, 1961. It contains 14 rules covering limitation, petition requirements, preliminary hearing, appearance, records, final hearing and costs.
Statutory provisions explained
Section 35: Governs disciplinary action for professional or other misconduct by advocates before State Bar Councils. Section 36: Deals with the disciplinary powers of the Bar Council of India, including withdrawal of specified disciplinary proceedings from a State Bar Council. Section 37: Provides an appeal to the Bar Council of India against an order of a State Bar Council disciplinary committee. Section 38: Permits a further appeal to the Supreme Court against a Bar Council of India disciplinary committee order made under Section 36 or 37, ordinarily within 60 days of communication of the order.
Section 39: Applies Sections 5 and 12 of the Limitation Act, 1963, so far as applicable, to appeals under Sections 37 and 38, including extension for sufficient cause and exclusion of prescribed time. Section 40: Provides that an appeal does not automatically stay the disciplinary order; a stay must be granted by the competent authority or Court on sufficient cause.
For the governing text, see the Advocates Act, 1961 (India Code) and the Supreme Court Rules and amendments (official Supreme Court portal).
Order XXIII: Rules 1 to 14
- Rule 1: Who may appeal and the 60-day limitation
- Rule 2: Memorandum of appeal and supporting affidavit
- Rule 3: Paragraphs and petition paper
- Rule 4: Court fee and signature
- Rule 5: Documents and spare sets
- Rule 6: Registration and notice to Bar Council of India
- Rule 7: Preliminary hearing and issuance of notice
- Rule 8: Transmission of original disciplinary record
- Rule 9: Appearance after admission
- Rule 10: Proceeding ex parte
- Rule 11: Preparation of appeal paper books
- Rule 12: Listing for final hearing
- Rule 13: Default and dismissal for non-prosecution
- Rule 14: Costs of proceedings
Rule 1: Who may appeal and the 60-day limitation
An appeal from an order made by the Disciplinary Committee of the Bar Council of India under section 36 or section 37 of the Advocates Act, 1961 (25 of 1961) shall be lodged in the Court by the aggrieved person, or the Attorney General for India, or the Advocate General of the State concerned, as the case may be, within sixty days from the date on which the order complained of is communicated to aggrieved person: Provided that in computing the period of sixty days the time requisite for obtaining an authenticated copy of the order sought to be appealed from shall be excluded.
Rule 2: Memorandum of appeal and supporting affidavit
The memorandum of appeal shall be in the form of a petition. It shall state succinctly and clearly all the relevant facts leading up to the order complained of, and shall set forth in brief the objections to the decision appealed from and the grounds relied on in support of the appeal. The petition shall also state the date on which the order complained of was received by the appellant. The allegations of facts contained in the petition which cannot be verified by reference to the duly authenticated copies of the documents accompanying it shall be supported by affidavit of the appellant.
Rule 3: Paragraphs and petition paper
The petition shall be divided into paragraphs, numbered consecutively, each paragraph being confined to a distinct portion of the subject and shall be typed or photocopied or printed on one side of standard petition paper, demy-foolscape size, or on paper of equally superior quality.
Rule 4: Court fee and signature
The petition shall be made on a court-fee stamp of the value of five thousand rupees and shall be signed by the appellant, where the appellant appears in person, or by a duly authorised advocate-on-record on his behalf.
Rule 5: Documents and spare sets
The petition of appeal shall be accompanied by- (i) an authenticated copy of the decision sought to be appealed from; and (ii) at least seven spare sets of the petition and the papers filed with it.
Rule 6: Registration and notice to Bar Council of India
The Registrar after satisfying himself that the petition of appeal is in order, shall endorse thereon the date of presentation, register the same as an appeal and send a copy thereof to the Secretary, Bar Council of India, for record.
Rule 7: Preliminary hearing and issuance of notice
On the registration of the petition of appeal, the Registrar shall, after notice to the appellant or his advocate-on-record, if any, post the appeal before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that no prima facie case has been made out for its interference, may dismiss the appeal, and, if not so satisfied, direct that notice of the appeal be issued to the Advocate General of the State concerned or to the Attorney-General for India or to both and to the respondent.
Rule 8: Transmission of original disciplinary record
Within ten days of the receipt by him of the intimation of admission of appeal under rule 7, the Secretary of the Bar Council of India shall transmit to the Court the entire original record relating to the case and such number of copies of the paper books prepared for the use of the Disciplinary Committee of the Bar Council of India as may be available.
Rule 9: Appearance after admission
Within fifteen days of the service of the notice of admission of appeal under rule 7 the Advocate General of the State or the Attorney-General or the respondent may cause an appearance to be entered either personally or by an advocate-on-record on his behalf.
Rule 10: Proceeding ex parte
Where a respondent does not enter appearance within the time limited under rule 9, the appeal shall be set down for hearing ex-parte as against him on the expiry of the period of one month from the receipt by him of the notice of the admission of appeal.
Rule 11: Preparation of appeal paper books
After the receipt of the original record the Registrar shall with all convenient speed, in consultation with the parties to the appeal, select the documents necessary and relevant for determining the appeal and cause sufficient number of copies of the said record to be typed or photocopied or printed at the expense of the appellant.
Rule 12: Listing for final hearing
Unless otherwise ordered by the Court, every appeal under this Order shall be made ready and if possible posted for hearing before the Court within four months of the registration thereof.
Rule 13: Default and dismissal for non-prosecution
Where the appellant fails to take any steps in the appeal within the time fixed for the purpose by these rules or unduly delays in bringing the appeal to a hearing, the Registrar shall call upon him to explain his default and if no Explanation is offered, or if the Explanation offered is, in the opinion of the Registrar, insufficient, the Registrar may after notifying all the parties who have entered appearance, place the appeal before the Court for orders on the default, and the Court may dismiss the appeal for want of prosecution, or give such directions in the matter as it may think fit and proper.
Rule 14: Costs of proceedings
The costs of and incidental to all proceedings in the appeal shall be in the discretion of the Court.
Practical filing checklist
Confirm the date the disciplinary order was communicated, obtain an authenticated copy, identify the objections and grounds of appeal, verify facts by affidavit where necessary, arrange the petition and accompanying sets, and seek a separate stay where the disciplinary order must be suspended. The original Rule 4 specifies a court-fee stamp of Rs. 5,000 and Rule 5 specifies at least seven spare sets; any subsequent operative amendments, electronic filing directions and Registry instructions should be checked before submission.
Official resources
Supreme Court of India | Supreme Court Rules and amendments | India Code | Bar Council of India