Advocates Act, 1961 - Chapter V: Conduct of Advocates

Section 38 of the Advocates Act, 1961: Appeal to the Supreme Court

Section 38 of the Advocates Act, 1961 provides a statutory appeal to the Supreme Court from specified disciplinary orders of the Bar Council of India made under Section 36 or Section 37.

Text and structure of Section 38

Meaning and explanation of Section 38

1. Section 38 is the statutory Supreme Court appeal in Bar Council disciplinary matters

The appeal lies against an order of the Bar Council of India disciplinary committee made under Section 36 or Section 37.

2. Who may appeal?

Section 38 expressly recognizes the right of an aggrieved person to appeal. It also gives an appeal right, depending on the case, to the Attorney-General of India or the Advocate-General of the State concerned.

3. The limitation period is 60 days from communication

The statutory period is calculated from the date on which the BCI disciplinary order is communicated to the appellant. Supreme Court decisions have distinguished this wording from provisions that run limitation merely from the date of the order.

4. The Supreme Court has broad appellate power

The Court may pass such order as it considers fit within the statutory appeal. The Act expressly includes the power to vary the punishment imposed by the BCI disciplinary committee.

5. Punishment may be increased only after hearing

Where a proposed variation would prejudicially affect the aggrieved person, the proviso to Section 38 requires reasonable opportunity of hearing before the Supreme Court makes such an order.

Section 38 appeal at a glance

Section 38 and the Limitation Act, 1963

Section 39 applies Sections 5 and 12 of the Limitation Act, 1963, so far as may be, to appeals under Sections 37 and 38. This is relevant to exclusion of time and applications for condonation of delay.

Does a Section 38 appeal automatically stay the disciplinary order?

No. Under Section 40, filing an appeal under Section 37 or Section 38 does not by itself stay the order appealed against. The Supreme Court may, for sufficient cause and on appropriate terms, stay the operation of the order.

Section 38 and variation of punishment

The Supreme Court has exercised Section 38 jurisdiction both to examine findings of professional misconduct and to consider the proper disciplinary consequence. The statutory power is therefore appellate in substance and includes review of the punishment imposed by the Bar Council of India.

Relationship with Section 37

Section 37 is the first statutory appeal from a State Bar Council disciplinary order under Section 35 to the BCI. Section 38 is the further statutory appeal to the Supreme Court from the relevant BCI disciplinary order.

Related provisions

• Section 35 - Punishment of advocates for misconduct.
• Section 36 - Disciplinary powers of the Bar Council of India.
• Section 36B - Disposal and transfer of disciplinary proceedings.
• Section 37 - Appeal to the Bar Council of India.
• Section 39 - Application of Sections 5 and 12 of the Limitation Act, 1963.
• Section 40 - Stay of order.
• Section 41 - Alteration in roll of advocates.
• Section 42 - Powers of disciplinary committees.
• Section 44 - Review of disciplinary committee orders.

Official legal sources

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

A Supreme Court decision discussing limitation under Sections 37 and 38 and the significance of communication of the disciplinary order may be checked here: Supreme Court of India - Judgment on limitation and communication of disciplinary orders.

A Supreme Court decision illustrating appellate scrutiny under Section 38 may be checked here: Supreme Court of India - Section 38 disciplinary appeal judgment.