Full Judgment Text
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CASE NO.:
Writ Petition (civil) 52 of 2002
PETITIONER:
Bar Council of India
RESPONDENT:
High Court of Kerala
DATE OF JUDGMENT: 27/04/2004
BENCH:
CJI, Brijesh Kumar & S.B. Sinha.
JUDGMENT:
J U D G M E N T
S.B. SINHA,J.
INTRODUCTION:
Constitutionality of Rule 11 of the Rules framed by the
High Court of Kerala forbidding a lawyer from appearing,
acting or pleading in any court till he got himself purged
of the Contempt by an order of the appropriate court is in
question in this writ petition.
BACKGROUND FACT:
The Bar Council of India is a statutory body
constituted under the Advocates Act, 1961 ("the Act"). In
terms of Section 34(1) of the Act, the High Court of Kerala
framed rules; Rule 11 whereof reads as under:
"No advocate who has been found guilty
of contempt of court shall be permitted
to appear, act or plead in any court
unless he has purged himself of the
contempt."
Contending that the said provision is violative of
Articles 14 and 19(1)(g) of the Constitution of India as
also Section 34(1) of the Advocates Act on the ground that
it seriously impinges upon and usurps the powers of
adjudication and punishment conferred on the Bar Councils
under the Act as also the principles of natural justice as
application thereof is automatic, this writ petition has
been filed by the Petitioner.
It is not in dispute that the validity of the said rule
came up for consideration before a Bench of this Court in
Pravin C. Shah Vs. K.A. Mohd. Ali and Another [(2001) 8 SCC
650] and therein it was upheld. The question appears to
have also been deliberated upon before a Constitution Bench
of this Court in Ex-Capt. Harish Uppal Vs. Union of India
and Another [(2003) 2 SCC 45].
SUBMISSIONS:
Despite the said decisions Mr. V.R. Reddy, learned
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senior counsel appearing on behalf of the writ petitioner,
would urge, relying on or on the basis of the decision of
this Court in Supreme Court Bar Association Vs. Union of
India and Another [(1998) 4 SCC 409], that as in terms of
the provisions of the Advocate Act, the Bar Council of India
is entitled to punish an Advocate counsel for commission of
misconduct \026 whether professional or otherwise \026 in terms of
Section 35 thereof; Rule 11 framed by the High Court of
Kerala cannot be sustained. The learned counsel would
strenuously contend that no prohibition can be imposed on a
lawyer to practice following and consequent upon a decision
of a court holding him guilty of commission of contempt. No
time limit for debarment of an advocate having been
prescribed under Rule 11 of the Rules, Mr. Reddy would
submit that the same is ultra vires Article 14 of the
Constitution of India. The learned counsel would argue that
in applying the provisions of Rule 11, the principles of
natural justice is violated as no other or further
opportunity of hearing is to be given therefor and in that
view of the matter too the impugned judgment cannot be
sustained.
Mr. T.L.V. Iyer, learned senior counsel appearing on
behalf of the High Court of Kerala, on the other hand, would
argue that the decision of the Constitution Bench itself in
Supreme Court Bar Association (supra) is sufficient to
uphold the validity of Rule 11 as therein the right of the
courts to regulate the conduct of advocates within the court
and to prescribe the conditions subject to which they can
practise before it has been preserved which is not
subservient to the disciplinary jurisdiction of the Bar
Council.
The learned counsel would submit that the dicta laid
down by the Constitution Bench has been referred to with
approval in Harish Uppal (supra) and in that view of the
matter too the right of the High Court to frame such a rule
must be held to have been upheld.
Mr. Iyer would further urge that an advocate can start
pleading and practising in court as soon as he purges
himself of contempt in relation whereto he must demonstrate
that a real and genuine remorse had been infused in him
about his conduct as a first step; whereafter, he may seek
pardon from the court concerned.
CONTEMPT JURISDICTION OF THE COURT:
Law of contempt both as regard its interpretation and
application had posed complex questions before the Court.
’No branch of law possibly has been more misconstrued or
misutilized within the contempt jurisdiction’; observed Lord
Denning. The contempt jurisdiction originates from the
Ecclesiastical Courts which goes back to the middle ages
while ethics and law were treated to be at par.
Inherent power of the Court to punish a person for
committing contempt of the court is universally recognised.
The law of contempt is governed by the Statutes including
Contempt of Courts Act, 1971 or other statutory laws
relating thereto as, for example, Indian Penal Code and Code
of Criminal Procedure but the powers of the superior courts
are engrafted in the Constitution by reason of Articles 129
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and 215 thereof providing that the Supreme Court and the
High Court being a court of records shall have all the
powers of such a court including the power to punish for
contempt of itself. Apart from constitutional and statutory
provisions, the inherent power of the court in that behalf
is recognised. (See R.L. Kapur Vs. State of Madras (1972) 1
SCC 651).
The country is governed by rule of law. Disobedience
of the court’s order has, thus, been held to strike at the
very root of the said concept having regard to the system
upon which our government is based. (See Kapildeo Prasad Sah
and Others Vs. State of Bihar and Others (1999) 7 SCC 569)
An advocate is allowed considerable freedom in
conducting his case. In the interest of the client, he even
can cast reflections upon the character, conduct or credit
of parties or witnesses with impunity, provided such
comments are relevant to the issue before the court and the
same is not defamatory in character. So long the conduct of
the advocate does not amount to insult to the court, he may
not be held up for contempt.
Summary power of punishing for contempt is used
sparingly and only in serious cases. Such a power which a
court must of necessity possess but its usefulness depend
upon the wisdom and restraint with which it is exercised.
It is not used to suppress methods of advocacy. (See
Parashuram Detaram Shamdasani Vs. R. [1945] AC 264 at 270)
In Shamdasani’s case (supra) Lord Goddard, CJ,
suggested other ways in which an advocate could commit
contempt. He said:
"If in the course of a case a person
persists in a line of conduct or use of
language in spite of a ruling of the
presiding judge he may very property be
adjudged guilty of contempt of court,
but then the offence is the disregard of
the ruling and setting the court at
defiance. So, also, if a litigant or
advocate threatened or attempted
violence on his opponent, or conceivably
if he used language so outrageous and
provocative as to be likely to lead to a
brawl in court, the offence could be
said to have been committed."
In ’The Law of Contempt’ by Borrie and Lowe, at page
22, it is stated:
"Any advocate is likely to be punished
for contempt if he personally insults
the court and, as we have seen,
insulting the court includes not only
insults made to the judge, but also
insults made to a jury. However, as has
been stated already, a distinction must
be made between addressing the court and
addressing opposing counsel or litigant,
for, as Lord Goddard, C.J., said in
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Parashuram Detaram Shamdasani Vs. R.:
"It must be rare indeed for words used
in the course of argument, however
irrelevant, to amount to a contempt when
they relate to an opponent, whether
counsel or litigant."
Just as an advocate will not be
justified in using abusive language
neither will he be able to use
blasphemous language. Thus in R. Vs.
Davison a litigant conducting his own
case repeatedly used blasphemous
language and for this conduct he was
held guilty of contempt, even after
allowances had been made for the fact
that he was a layman. As Bayley, J.
said:
"The question is shortly this, whether,
for the future, decency and decorum
shall or shall not be preserved in
Courts of Justice; or whether, under
colour of defending himself against any
particular charge, a defendant is at
liberty to introduce new, mischievous,
and irrelevant matter upon the trial. I
agree that a defendant, in all cases,
should have every facility allowed him
in his address to the jury, provided he
confines himself within those rules
which decency and decorum require. In
every case, the subject of the
discussion before the jury is to be
considered, and a Judge is bound to see
that the arguments which are adduced,
are such as are consistent with decency
and decorum, and not foreign to the
matter on which the jury have to
decide."
In the said treatise, it has furthermore been noticed:
"Lord Goddard, C.J.’s last suggestion
of barristers using threatening or
abusive behaviour, or using provocative
language, have already been discussed
and need no further explanation, but as
regards his first suggestion, that
complete disregard of a Judge’s ruling
can amount to contempt, two cases may be
cited to illustrate this type of
contempt. The first is a recent
Australian case, Lloyd Vs. Biggin.
Lloyd, a barrister, wanted a magistrate
to rule whether or not certain evidence
was admissible but the magistrate
refused, stating that the question was
not for him to decide. Lloyd then said:
"But your Worship must determine ..."
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He was interrupted by the magistrate
saying: "Carry on with your case."
The discourse continued thus:
Lloyd: "Your Worship, with great
respect, I wish your Worship to
determine whether your Worship proposes
to rule..."
Magistrate: "Carry on with your cross-
examination."
Lloyd: "I cannot carry on with any
cross-examination unless your Worship
informs me whether this..."
Magistrate: "I have had enough of your
impertinence. I have put up with it for
two days. You’re..."
Lloyd: "Would your Worship just hear
me?
Magistrate: "You’re fined #5 for
contempt of court. If you do anything
more I will commit you."
Lloyd:"Your Worship, if you would just
hear..."
Magistrate:"You’re committed.
Constable, remove that man and place him
in the watchtower for three hours."
The second case, Watt Vs.
Ligertwood shows that such defiance of a
judge’s ruling need not be solely
confined to the use of words. In this
case, contrary to the express orders of
the court, and despite a warning that
such conduct would amount to contempt,
an advocate removed a material document
from the court and proceeded to destroy
it by throwing it on a fire. For this
"gross and unjustifiable contempt" the
advocate was immediately imprisoned.
An advocate will be expected to
conduct his case honestly, and
deliberate deception of the court can
amount to contempt."
In Oswald’s Contempt of Court, 3rd edition, at pages
8-9, the law is stated in the following terms:
"It is now the undoubted right of a
Superior Court to commit for contempt.
The usual criminal process to punish
contempts was found to be cumbrous and
slow, and therefore the Courts at an
uncertain date assumed jurisdiction
themselves to punish the offence
summarily, the brevi manu, so that cases
might be fairly heard, and the
administration of justice not interfered
with. A Court of Justice without power
to vindicate its own dignity, to enforce
obedience to its mandates, to protect
its officers, or to shield those who are
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entrusted to its care, would be an
anomaly which could not be permitted to
exist in any civilized community."
When a person is punished by the superior court, the
right of freedom of speech conferred upon a citizen under
Article 19(1)(a) of Constitution of India cannot stand as a
bar as the power of this Court under the Article 129 and
that of the High Court under Article 215 are independent and
not subject to Article 19(1)(a); particularly when Clause
(2) thereof excludes the operation thereof. (See Dr. D.C.
Saxena Vs. Hon’ble the Chief Justice of India, (1996) 5 SCC
216).
An advocate does not enjoy absolute privilege when
acting in the course of his professional duties. The
dignity of the court is required to be maintained in all
situations. However, far-reaching implications the case may
have but a lawyer is not justified in making personal attack
upon the complainant or witnesses on matters not borne out
by the record nor in using language which is abusive or
obscene or in making vulgar gestures in court. An advocate
in no circumstances is expected to descend to the level of
appearing to support his view in a vulgar brawl.
Our view is only illustrative in nature to show that
the courts ordinarily exercise its power of contempt with
due care and caution and not mechanically and whimsically.
The power of contempt is not exercised only because it is
lawful to do so but when it becomes imperative to uphold the
rule of law.
ADVOCATES ACT:
The said Act was enacted to amend and consolidate the
law relating to legal practitioners and to provide for the
constitution of Bar Council and All India Bar. An
’advocate’ has been defined to mean a person entered in any
roll under the provisions of said Act. The expression
’prescribed’ has been defined in Section 2(j) to mean
prescribed by the rules made therein. Section 19 of the Act
empowers the Bar Councils to make rolls to carry out the
purposes of Chapter II. Section 30 of the Act reads as
under:
"30. Right of advocates to practice.\027
Subject to provisions of this Act,
every advocate whose name is entered in
the State roll shall be entitled as of
right to practise throughout the
territories to which this Act extends,--
-
(i) in all courts including the
Supreme Court;
(ii) before any tribunal or person
legally authorised to take
evidence; and
(iii) before any other
authority or person before whom
such advocate is by or under any
law for the time being in force
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entitled to practice."
This provision has not yet been brought into force.
Section 34 of the Act empowers the High Court to make
rules laying down the conditions subject to which an
advocate shall be permitted to practice in the High Court
and the courts subordinate thereto. Section 35 provides for
conduct of advocates; sub-Section (1) whereof is as under:
"35. Punishment of advocates for
misconduct.\027(1) Where on receipt of a
complaint or otherwise a State Bar
Council has reason to believe that any
advocate on its roll has been guilty of
professional or other misconduct, it
shall refer the case for disposal to its
disciplinary committee."
Section 36 provides for the disciplinary powers of Bar
Council of India.
An appeal lies to the Bar Council of India against a
decision made under Section 35 whereas an appeal lies to
this Court against an order made by the Bar Council of
India.
CODE OF CRIMINAL PROCEDURE:
Section 345 of the Code of Criminal Procedure provides
for when an offence as is described under Sections 175, 178,
179 and 180 or 228 of the Indian Penal Code is committed in
the view or in the presence of any civil, criminal or
revenue court before rising of the court may detain the
offender in custody and take cognizance of the offence and
after giving the offender a reasonable opportunity of
showing cause why he should not be punished to a fine of Rs.
200/- or imprisonment in default for one month.
Section 346 provides for the procedure where the Court
is of the opinion that the offender should be imprisoned
otherwise than in default of payment of fine or that a fine
exceeding two hundred rupees should be imposed on him or
such court is for any reason of opinion that the case should
not be disposed of under Section 345, such court after
recording the facts constituting the offence and the
statement of the accused may forward the case to a
Magistrate having jurisdiction to try the same, and may
require security to be given for the appearance of such
person before such Magistrate or if sufficient security is
not given, shall forward such person in custody to such
Magistrate.
Section 345 of the Code of Criminal Procedure deals
with five classes of contempt, namely, (i) Intentional
omission to produce a document by a person legally bound to
do so; (ii) refusal to take oath when duly required to take
one; (iii) refusal to answer questions by one legally bound
to state the truth; (iv) refusal to sign a statement made to
a public servant when legally required to do so; and (v)
intentional insult or interruption to a public servant at
any stage of a judicial proceeding.
An advocate practicing in the Court can also be
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punished under the aforementioned provisions.
DISTINCTION BETWEEN CONTEMPT OF COURT AND MISCONDUCT BY AN
ADVOCATE:
Punishment for commission of contempt and punishment
for misconduct, professional or other misconduct, stand on
different footings. A person does not have a fundamental
right to practice in any court. Such a right is conferred
upon him under the provisions of the Advocates Act which
necessarily would mean that the conditions laid down therein
would be applicable in relation thereto. Section 30 of the
Act uses the expressions "subject to" which would include
Section 34 of the Act.
In Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr.
[2004 (1) SCALE 224] this Court noticed:
"Subject to" is an expression whereby
limitation is expressed. The order is
conclusive for all purposes.
This Court further noticed the dictionary meaning of
"subject to" stating:
"Furthermore, the expression ’subject
to’ must be given effect to.
In Black’s Law Dictionary, Fifth
Edition at page 1278 the expression
"Subject to" has been defined as
under :
"Liable, subordinate, subservient,
inferior, obedient to; governed or
affected by; provided that;
provided, answerable for. Homan v.
Employers Reinsurance Corp,., 345
Mo. 650, 136 S.W. 2d 289, 302"
CASE LAWS:
A Constitution Bench of this Court in Supreme Court Bar
Association (supra) no doubt overruled its earlier decision
in Vinay Chandra Mishra, Re [(1995) 2 SCC 584] so as to hold
that this Court in exercise of its jurisdiction under
Article 142 of the Constitution of India is only empowered
to proceed suo motu against an advocate for his misconduct
and send for the records and pass an appropriate orders
against the advocate concerned.
But it is one thing to say that the Court can take suo
motu cognizance of professional or other misconduct and
direct the Bar Council of India to proceed against the
advocate but it is another thing to say that it may not
allow an advocate to practise in his court unless he purges
himself of contempt.
Although in a case of professional misconduct, this
Court cannot punish an advocate in exercise of its
jurisdiction under Article 129 of the Constitution of India
which can be imposed on a finding of professional misconduct
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recorded in the manner prescribed under the Advocates Act
and the rules framed thereunder but as has been noticed in
the Supreme Court Bar Association (supra); professional
misconduct of the advocate concerned is not a matter
directly in issue in the matter of contempt case.
In Supreme Court Bar Association (supra),however, this
Court held:
"57. In a given case, an advocate found
guilty of committing contempt of court
may also be guilty of committing
"professional misconduct", depending
upon the gravity or nature of his
contumacious conduct, but the two
jurisdictions are separate and distinct
and exercisable by different forums by
following separate and distinct
procedures. The power to punish an
advocate by suspending his licence or by
removal of his name from the roll of the
State Bar Council for proven
professional misconduct vests
exclusively in the statutory authorities
created under the Advocates Act, 1961,
while the jurisdiction to punish him for
committing contempt of court vests
exclusively in the courts."
The constitution Bench, however, in no uncertain terms
observed:
"80. In a given case it may be
possible, for this Court or the High
Court, to prevent the contemner advocate
to appear before it till he purges
himself of the contempt but that is much
different from suspending or revoking
his licence or debarring him to practise
as an advocate. In a case of
contemptuous, contumacious, unbecoming
or blameworthy conduct of an Advocate-
on-Record, this Court possesses
jurisdiction, under the Supreme Court
Rules itself, to withdraw his privilege
to practice as an Advocate-on-Record
because that privilege is conferred by
this Court and the power to grant the
privilege includes the power to revoke
or suspend it. The withdrawal of that
privilege, however, does not amount to
suspending or revoking his licence to
practice as an advocate in other courts
or tribunals."
The Constitution Bench of this Court in Harish Uppal
(supra) noticed the aforementioned observations stating:
"25...Thus a Constitution Bench of this
Court has held that the Bar Councils are
expected to rise to the occasion as they
are responsible to uphold the dignity of
Courts and majesty of law and to prevent
interference in administration of
justice. In our view it is the duty of
Bar Councils to ensure that there is no
unprofessional and/or unbecoming
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conduct."
Holding that the right of appearance in courts is still
within the control and jurisdiction of courts, this Court
noticed:
"34...Section 30 of the Advocates Act
has not been brought into force and
rightly so. Control of conduct in Court
can only be within the domain of Courts.
Thus Article 145 of the Constitution of
India gives to the Supreme Court and
Section 34 of the Advocates Act gives to
the High Court power to frame rules
including rules regarding condition on
which a person (including an Advocate)
can practice in the Supreme Court and/or
in the High Court and Courts subordinate
thereto. Many Courts have framed rules
in this behalf. Such a rule would be
valid and binding on all. Let the Bar
take note that unless self restraint is
exercised, Courts may now have to
consider framing specific rules
debarring Advocates, guilty of contempt
and/or unprofessional or unbecoming
conduct, from appearing before the
Courts. Such a rule if framed would not
have anything to do with the
disciplinary jurisdiction of Bar
Councils. It would be concerning the
dignity and orderly functioning of the
Courts. The right of the advocate to
practise envelopes a lot of acts to be
performed by him in discharge of his
professional duties. Apart from
appearing in the Courts he can be
consulted by his clients, he can give
his legal opinion whenever sought for,
he can draft instruments, pleadings,
affidavits or any other documents, he
can participate in any conference
involving legal discussions, he can work
in any office or firm as a legal
officer, he can appear for clients
before an arbitrator or arbitrators etc.
Such a rule would have nothing to do
with all the acts done by an advocate
during his practice. He may even file
Vakalat on behalf of client even though
his appearance inside the Court is not
permitted. Conduct in Court is a matter
concerning the Court and hence the Bar
Council cannot claim that what should
happen inside the Court could also be
regulated by them in exercise of their
disciplinary powers. The right to
practice, no doubt, is the genus of
which the right to appear and conduct
cases in the Court may be a specie. But
the right to appear and conduct cases in
the Court is a matter on which the Court
must and does have major supervisory and
controlling power. Hence Courts cannot
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be and are not divested of control of
supervision of conduct in Court merely
because it may involve the right of an
advocate. A rule can stipulate that a
person who has committed contempt of
Court or has behaved unprofessionally
and in an unbecoming manner will not
have the right to continue to appear and
plead and conduct cases in Courts. The
Bar Councils cannot overrule such a
regulation concerning the orderly
conduct of Court proceedings. On the
contrary it will be their duty to see
that such a rule is strictly abided by.
Courts of law are structured in such a
design as to evoke respect and reverence
to the majesty of law and justice. The
machinery for dispensation of justice
according to law is operated by the
Court. Proceedings inside the Courts are
always expected to be held in a
dignified and orderly manner. The very
sight of an advocate, who is guilty of
Contempt of Court or of unbecoming or
unprofessional conduct, standing in the
Court would erode the dignity of the
Court and even corrode the majesty
besides impairing the confidence of the
public in the efficacy of the
institution of the Courts. The power to
frame such rules should not be confused
with the right to practise law. While
the Bar Council can exercise control
over the latter, the Courts are in
control of the former. This distinction
is clearly brought out by the difference
in language in Section 49 of the
Advocates Act on the one hand and
Article 145 of the Constitution of India
and Section 34(1) of the Advocates Act
on the other. Section 49 merely empowers
the Bar Council to frame rules laying
down conditions subject to which an
Advocate shall have a right to practice
i.e. do all the other acts set out
above. However, Article 145 of the
Constitution of India empowers the
Supreme Court to make rules for
regulating this practice and procedure
of the Court including inter alia rules
as to persons practising before this
Court. Similarly Section 34 of the
Advocates Act empowers High Courts to
frame rules, inter alia to lay down
conditions on which an Advocate shall be
permitted to practice in Courts. Article
145 of the Constitution of India and
Section 34 of the Advocates Act clearly
show that there is no absolute right to
an Advocate to appear in a Court. An
Advocate appears in a Court subject to
such conditions as are laid down by the
Court. It must be remembered that
Section 30 has not been brought into
force and this also shows that there is
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no absolute right to appear in a Court.
Even if Section 30 were to be brought
into force control of proceedings in
Court will always remain with the Court.
Thus even then the right to appear in
Court will be subject to complying with
conditions laid down by Courts just as
practice outside Courts would be subject
to conditions laid down by Bar Council
of India. There is thus no conflict or
clash between other provisions of the
Advocates Act on the one hand and
Section 34 or Article 145 of the
Constitution of India on the other."
This Court is bound by the aforementioned decisions.
The question came up directly for consideration in
Pravin C. Shah (supra). Thomas, J. speaking for the Bench
inter alia observed that Rule 11 does not bind the
disciplinary committee or any other organ of the Bar
Council. It is in no way involved. It, however, may have a
duty to inform a delinquent advocate of the Bar under Rule
11.
’Rule 11 concerns dignity and the orderly functioning
of the courts’, the court held and further observed:
"16...Conduct in court is a matter
concerning the court and hence the Bar
Council cannot claim that what should
happen inside the court could also be
regulated by the Bar Council in exercise
of its disciplinary powers. The right to
practice, no doubt, is the genus of
which the right to appear and conduct
cases in the court may be a specie. But
the right to appear and conduct cases in
the court is a matter on which the court
must have the major supervisory power.
Hence the court-cannot be divested of
the control or supervision of the court
merely because it may involve the right
of an advocate."
Pointing out the difference between maintenance of
dignity of court and corroding the majesty of it as also
impairing the confidence of the public in the efficacy of
the court vis-‘-vis the professional misconduct of the
lawyers, the Court held that Rule 11 is a self-operating
provision. Addressing the question as to how a contemnor
can purge himself of contempt, this Court held that obeying
the orders of the court or undergoing the penalty imposed by
it may not be necessarily sufficient to complete purging of
the contemnor of the contempt, particularly, when the
contemnor is convicted of criminal contempt it was observed
that there must be something more to be done to get oneself
purged of the criminal contempt. As regard tendering of
apology, it was opined:
"31. Thus a mere statement made by a
contemnor before court that he
apologises is hardly enough to amount to
purging himself of the contempt. The
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court must be satisfied of the
genuineness of the apology. If the court
is so satisfied and on its basis accepts
the apology as genuine the court has to
make an order holding that the contemnor
has purged himself of the contempt. Till
such an order is passed by the court the
delinquent advocate would continue to be
under the spell of the interdict
contained in Rule 11 of the Rules."
The said decision governs the field. We do not see any
reason to depart from the views taken therein.
ARTICLE 19(1)(g):
Bar Council of India is not a citizen entitling it to
raise the question of validity of the Rules on the
touchstone of Article 19(1)(a) of the Constitution. It has
no such fundamental right. No person aggrieved who is a
citizen of India is before us. The contention of Mr. Reddy
that Rule 11 of the Rules is violative of Article 19(1)(g)
of Constitution of India is, thus, misplaced. We cannot
permit the Bar Council to raise the said contention.
NATURAL JUSTICE:
Principle of natural justice is required to be observed
by a court or Tribunal before a decision is rendered
involving civil consequences. It may only in certain
situation be read into Article 14 of the Constitution of
India when an order is made in violation of the rules of
natural justice. Principle of natural justice, however,
cannot be stretched too far. Its application may be subject
to the provisions of a statute or statutory rule.
Before a contemnor is punished for contempt, the court
is bound to give an opportunity of hearing to him. Even
such an opportunity of hearing is necessary in a proceeding
under Section 345 of the Code of Criminal Procedure. But if
a law which is otherwise valid provides for the consequences
of such a finding, the same by itself would not be violative
of Article 14 of the Constitution of India inasmuch as only
because another opportunity of hearing to a person, where a
penalty is provided for as a logical consequence thereof,
has been provided for. Even under the penal laws some
offences carry minimum sentence. The gravity of such
offences, thus, is recognized by the Legislature. The
courts do not have any role to play in such a matter.
Rule 11 framed by the Kerala High Court is legislative
in character. As validity of the said rule has been upheld,
it cannot be said that the same by itself, having not
provided for a further opportunity of hearing the contemnor,
would attract the wrath of Article 14 of the Constitution of
India.
In Mohinder Singh Gill and another Vs. the Chief
Election Commissioner, New Delhi and Others [AIR 1978 SC
851], this Court observed:
"43. Indeed, natural justice is a
pervasive facet of secular law where a
spiritual touch enlivens legislation,
administration and adjudication, to make
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fairness a creed of life. It has many
colours and shades, many forms and
shapes and, save where valid law
excludes it, applies when people are
affected by acts of Authority. It is the
hone of healthy government, recognised
from earliest times and not a mystic
testament of Judge-made law. Indeed,
from the legendary days of Adam - and of
Kautilya’s Arthasastra - the rule of law
has had this stamp of natural justice
which makes it social justice. We need
not go into these deeps for the present
except to indicate that the roots of
natural justice and its foliage are
noble and not new-fangled. Today its
application must be sustained by current
legislation, case-law or other extant
principle, not the hoary chords of
legend and history. Our jurisprudence
has sanctioned its prevalence even like
the Anglo-American system."
In N.K. Prasada Vs. Government of India and Ors. [Civil
Appeal No. 3137 of 1999] disposed of on 12th April, 2004,
this Court observed:
"The principles of natural justice, it
is well-settled, cannot be put into a
strait-jacket formula. Its application
will depend upon the facts and
circumstances of each case. It is also
well-settled that if a party after
having proper notice chose not to
appear, he a later stage cannot be
permitted to say that he had not been
given a fair opportunity of hearing.
The question had been considered by a
Bench of this Court in Sohan Lal Gupta
(Dead) through LRs. and Others Vs. Asha
Devi Gupta (Smt.) and Others [(2003) 7
SCC 492] of which two of us (V.N. Khare,
CJI and Sinha, J.) are parties wherein
upon noticing a large number of
decisions it was held:
"29.The principles of natural
justice, it is trite, cannot be
put in a straitjacket formula. In
a given case the party should not
only be required to show that he
did not have a proper notice
resulting in violation of
principles of natural justice but
also to show that he was seriously
prejudiced thereby..."
The principles of natural justice,
it is well-settled, must not be
stretched too far."
(See also Marda Chemicals Ltd. etc. etc. v. Union of
India & Ors. etc. etc. [ (2004) 4 Scale 338] and Canara Bank
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and Others Vs. Debasis Das and Others [(2003) 4 SCC 557])
In Union of India and Another Vs. Tulsiram Patel
[(1985) 3 SCC 398] whereupon reliance has been placed by Mr.
Reddy, this Court held:
"97. Though the two rules of natural
justice, namely, nemo judex in causa sua
and audi alteram partem, have now a
definite meaning and connotation in law
and their content and implications are
well understood and firmly established,
they are nonetheless not statutory
rules. Each of these rules yields to and
changes with the exigencies of different
situations. They do not apply in the
same manner to situations which are not
alike. These rules are not cast in a
rigid mould nor can they be put in a
legal strait-jacket. They are not
immutable but flexible. These rules can
be adapted and modified by statutes and
statutory rules and also by the
constitution of the Tribunal which has
to decide a particular matter and the
rules by which such Tribunal is
governed..."
The ratio of the said decisions, therefore, does not
support the proposition canvassed by Mr.Reddy.
Furthermore, the contemnor could also get an
opportunity of hearing while purging his conduct. Rule 11
of the Rules, therefore, is not also ultra vires Article 12
of the Constitution.
CONCLUSION:
We, therefore, are of the opinion that Rule 11 of the
Rules framed by Kerala High Court is not unconstitutional.
There is no merit in this writ petition which is accordingly
dismissed. There shall be no order as to costs.