Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION [C] NO. 612 OF 2016
R. MUTHUKRISHNAN … PETITIONER
VERSUS
THE REGISTRAR GENERAL OF THE
HIGH COURT OF JUDICATURE AT MADRAS … RESPONDENT
J U D G M E N T
ARUN MISHRA, J.
1. The petitioner, who is an Advocate, has filed the petition under Article
32 of the Constitution of India, questioning the vires of amended Rules 14
A, 14B, 14C and 14D of the Rules of High Court of Madras, 1970 made
by the High Court of Madras under section 34(1) of the Advocates’ Act, 1961
(hereinafter referred to as, ‘the Advocates’ Act’).
2. The High Court has inserted Rule 14A in the Rules of High Court of
Madras, 1970 empowering the High Court to debar an Advocate from
practicing. The High Court has been empowered to take action under Rule
Signature Not Verified
14B where any misconduct referred to under Rule 14A is committed by an
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.03.12
10:36:19 IST
Reason:
Advocate before the High Court then the High Court can debar him from
appearing before the High Court and all subordinate courts. Under Rule 14
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B(v) the Principal District Judge has been empowered to initiate action
against the Advocate concerned and debar him from appearing before any
court within such District. In case misconduct is committed before any
subordinate court, the concerned court shall submit a report to the
Principal District Judge and in that case, the Principal District Judge shall
have the power to take appropriate action. The procedure to be followed has
been provided in the newly inserted Rule 14C and pending inquiry, there is
power conferred by way of Rule 14D to pass an interim order prohibiting
the Advocate concerned from appearing before the High Court or the
subordinate courts. The amended provisions of Rule 14A, 14B, 14C and
14D are extracted hereunder:
“14A: Power to Debar:
(vii) An Advocate who is found to have accepted money in the name
of a Judge or on the pretext of influencing him; or
(viii) An Advocate who is found to have tampered with the Court
record or Court order; or
(ix) An Advocate who browbeats and/or abuses a Judge or Judicial
Officer; or
(x) An Advocate who is found to have sent or spread unfounded and
unsubstantiated allegations/petitions against a Judicial Officer or a
Judge to the Superior Court; or
(xi) An Advocate who actively participates in a procession inside the
Court campus and/or involves in gherao inside the Court Hall or
holds placard inside the Court Hall; or
(xii) An Advocate who appears in the Court under the influence of
liquor;
shall be debarred from appearing before the High Court or
Subordinate Courts permanently or for such period as the Court
may think fit and the Registrar 28 General shall thereupon report
the said fact to the Bar Council of Tamil Nadu.
14B: Power to take action:
(iv) Where any such misconduct referred to under Rule 14A is
committed by an Advocate before the High Court, the High Court
shall have the power to initiate action against the Advocate
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concerned and debar him from appearing before the High Court and
all Subordinate Courts.
(v) Where any such misconduct referred to under Rule 14A is
committed by an Advocate before the Court of Principal District
Judge, the Principal District Judge shall have the power to initiate
action against the Advocate concerned and debar him from
appearing before any Court within such District.
(vi) Where any such misconduct referred to under Rule 14A is
committed by an Advocate before any subordinate court, the Court
concerned shall submit a report to the Principal District Court
within whose jurisdiction it is situate and on receipt of such report,
the Principal District Judge shall have the power to initiate action
against the Advocate concerned and debar him from appearing
before any Court within such District.
14C: Procedure to be followed:
The High Court or the Court of Principal District Judge, as the case
may be, shall, before making an order under Rule 14A, issue to
such Advocate a summon returnable before it, requiring the
Advocate to appear and show cause against the matters alleged in
the summons and the summons shall if practicable, be served
personally upon him.
14D: Power to pass Interim Order:
The High Court or the Court of Principal District Judge may, before
making the Final Order under Rule 14C, pass an interim order
prohibiting the Advocate concerned from appearing before the High
Court or Subordinate Courts, as the case may be, in appropriate
cases, as it may deem fit, pending inquiry."
3. Rule 14A provides that an Advocate who is found to have accepted
money in the name of a Judge or on the pretext of influencing him; or who
has tampered with the court record or court order; or browbeats and/or
abuses a Judge or judicial officer; or is responsible for sending or spreading
unfounded and unsubstantiated allegations/petitions against a judicial
officer or a Judge to the superior court; or actively participates in a
procession inside the court campus and/or involves in gherao inside the
court hall, or holds placard inside the court hall or appears in the court
under the influence of liquor, the courts have been empowered to pass an
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interim order of suspension pending enquiry, and ultimately to debar him
from appearing in the High Court and all other subordinate courts, as the
case may be.
4. The aforesaid amended Rule 14A to 14D came into force with effect
from the date of its publication in the Gazette on 25.5.2016. Petitioner has
questioned the vires of amended Rules 14A to D on the ground of being
violative of Articles 14 and 19(1)(g) of the Constitution of India, as also
sections 30, 34(1), 35 and 49(1)(c) of the Advocates' Act, as the power to
debar for such misconduct has been conferred upon the Bar Council of
Tamil Nadu and Puducherry and the High Court could not have framed
such rules within ken of section 34(1) of the Advocates Act. The High Court
could have framed rules as to the ‘conditions subject to which an advocate
shall be permitted to practice in the High Court and the courts subordinate
thereto'. Debarment by way of disciplinary measure is outside the purview
of section 34(1) of the Act. The Bar Council enrolls Advocates and the power
to debar for misconduct lies with the Bar Council. The effort is to confer the
unbridled power of control over the Advocates which is against the rule of
law. Misconduct has been defined under section 35 of the Advocates Act.
Reliance has been placed on a Constitution Bench decision of this Court in
Supreme Court Bar Association v. Union of India & Anr. (1998) 4 SCC 409.
5. The High Court of Judicature at Madras in its counter affidavit has
pointed out that the rules are kept in abeyance for the time being and the
Review Committee is yet to take a decision in the matter of reviewing the
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rules. In the reply filed the High Court has justified the amendment made
to the rules on the ground that they have been framed in compliance with
the directions issued by this Court in R.K. Anand v. Registrar, Delhi High
Court (2009) 8 SCC 106 in which this Court has directed the High Courts to
frame rules under section 34 of the Advocates Act and to frame the rules for
having AdvocatesonRecord based on the pattern of this Court. It has been
further pointed out that the conduct and appearance of an advocate inside
the court premises are within the jurisdiction of a court to regulate. The
High Court has relied upon the decision in Pravin C. Shah v. K. A. Mohd. Ali
(2001) 8 SCC 650 in which vires of similar rule was upheld as such the
rules framed debarring the advocates for misconduct in court are thus
permissible.
6. The High Court has also relied upon the decision in ExCapt. Harish
Uppal v. Union of India (2003) 2 SCC 45 to contend that court has the power
to debar advocates on being found guilty of contempt and/or unprofessional
or unbecoming conduct, from appearing before the courts. The High Court
has referred to the decision in Bar Council of India v. High Court of Kerala
(2004) 6 SCC 311.
7. The High Court has contended that the rules have been framed within
the framework of the directions issued by this Court and in exercise of the
power conferred under section 34(1) of the Advocates Act. Pursuant to the
directions issued in R.K. Anand ’s case (supra), the matter was placed before
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the High Court’s Rule Committee on 17.3.2010. The Committee consisting
of Judges, Members of the Bar Council and members of the Bar was
formed, and the minutes were approved by the Full Court on 23.9.2010.
Thereafter the Chief Justice of the High Court of Madras on 2.9.2014
constituted a Committee consisting of two Judges, the Chairman of Bar
Council of Tamil Nadu & Puducherry, Advocate General of the High Court,
President, Madras Bar Association, President, Madras High Court
Advocates’ Association, and the President of Women Lawyers’ Association to
finalise the Rules.
8. The High Court has further contended in the reply that the Director,
Government of India, Ministry of Home Affairs vide communication dated
31.5.2007 enclosed a copy of the ‘Guidelines' and informed the Chief
Secretaries of the State Governments to review and strengthen the security
arrangements for the High Courts and District/subordinate courts in the
country to avoid any untoward incident. The High Court has further
contended that there have been numerous instances of abject misbehaviour
by the advocates within the premises of the High Court of Madras in the
year 2015. The advocates have rendered the functioning of the court utterly
impossible by resorting to activities like holding protests and waving
placards inside the court halls, raising slogans and marching down the
corridors of the court. Some advocates had resorted to using handheld
microphones to disrupt the proceedings of the Madurai Bench and even
invaded the chambers of the Judges. There were two incidents when there
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were bomb hoaxes where clocklike devices were smuggled into the court
premises and placed in certain areas. The Judges of the High Court were
feeling totally insecure. Even CISF had to be employed. Thus, there was an
urgent need to maintain the safety and majesty of the court and rule of law.
After various meetings, the Rules were framed and notified. Order 4 Rule 10
of the Supreme Court Rules, 2013 is similar to Rules which have been
framed. In Mohit Chaudhary, Advocate, In re , (2017) 16 SCC 78, this Court
had suspended the contemnor from practicing as an Advocate on Record for
a period of one month.
9. In Mahipal Singh Rana v. State of U.P. (2016) 8 SCC 335, the court has
observed that the Bar Council of India might require restructuring on the
lines of other regulatory professional bodies, and had requested the Law
Commission to prepare a report. An Advisory Committee was constituted by
the Bar Council of India. A SubCommittee on ‘Strikes, Boycotts &
Abstaining from Court Works' was also constituted. Law Commission had
finalized and published Report No.266 dated 23.3.2017 and has taken note
of the rules framed by the Madras High Court. Court has a right to regulate
the conduct of the advocates and the appearance inside the court. As such
it is not a fit case to exercise extraordinary jurisdiction and a prayer has
been made to dismiss the writ petition.
10. The petitioner in person has urged that rules are ultra vires and
impermissible to be framed within scope of section 34(1) of the Advocates
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Act. They take away the independence of the Bar and run contrary to the
Constitution Bench decision of this Court
in Supreme Court Bar Association
v. Union of India (supra).
11. Shri Mohan Parasaran, learned senior counsel appearing on behalf of
the High Court, has contended that the rules have been framed within the
ambit of section 34(1) and in tune with the directions issued by this Court
in R.K. Anand v. Registrar, Delhi High Court (supra). He has also referred to
various other decisions. It was submitted that under section 34 of the
Advocates Act, the High Court is empowered to frame rules to debar the
advocate in case of unprofessional and/or unbecoming conduct of an
advocate. Advocates have no right to go on strike or give a call of boycott,
not even on a token strike, as has been observed in
Ex.Capt. Harish Uppal
(supra). It was also observed that the court may now have to frame specific
rules debarring advocates, guilty of contempt and/or unprofessional or
unbecoming conduct, from appearing before the courts. Advocates appear
in court subject to such conditions as are laid down by the court, and
practice outside court shall be subject to the conditions laid down by the
Bar Council of India. He has also relied upon Bar Council of India v. High
Court of Kerala (2004) 6 SCC 311 in which the validity of Rule 11 of the
Rules framed by the High Court of Kerala came up for consideration.
Learned senior counsel has also referred to the provisions contained in
Order IV Rule 10 of the Supreme Court Rules, 2013 framed by this Court
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with respect to debarring an Advocate on Record who is guilty of
misconduct or of conduct unbecoming of an AdvocateonRecord, an order
may be passed to remove his name from the register of Advocates on Record
either permanently or for such period as the court may think fit. This Court
has punished an advocate on record and has debarred him for a period of
one month in the case of Mohit Chaudhary, Advocate (supra). The High
Court has framed the rules to preserve the dignity of the court and protect
rule of law. Considering the prevailing situation, it was necessary to bring
order in the premises of the High Court. Thus framing of rules became
necessary. The Bar Council of India and the State Bar Council have failed to
fulfil the duties enjoined upon them. Therefore, it became incumbent upon
the High Court to act as observed in (supra) by this
Mahipal Singh Rana
Court.
12. This Court has issued a notice on the petition on 9.10.2017 and on
4.9.2018. The Court observed that prima facie the rules framed by the High
Court appear to be encroaching on the disciplinary power of the Bar
Council. As the time was prayed by the High Court to submit the report of
the Review Committee, time was granted. In spite of the same, the Review
Committee has not considered the matter, considering the importance of
the matter and the stand taken justifying the rules. We have heard the
same on merits and have also taken into consideration the detailed written
submissions filed on behalf of the High Court.
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13. The Advocates Act has been enacted pursuant to the
recommendations of the All India Bar Committee made in 1953 after taking
into account the recommendations of the Law Commission on the subject of
the reforms of judicial administration. The main features of the Bill for the
enactment of the Act include the creation of autonomous Bar Council, one
for the whole of India and one for each State. The Act has been enacted to
amend and consolidate the law relating to the legal practitioners and to
provide for the constitution of the Bar Council and an All India Bar.
14. The legal profession cannot be equated with any other traditional
professions. It is not commercial in nature and is a noble one considering
the nature of duties to be performed and its impact on the society. The
independence of the Bar and autonomy of the Bar Council has been
ensured statutorily in order to preserve the very democracy itself and to
ensure that judiciary remains strong. Where Bar has not performed the
duty independently and has become a sycophant that ultimately results in
the denigrating of the judicial system and judiciary itself. There cannot be
existence of a strong judicial system without an independent Bar.
15. It cannot be gainsaid that lawyers have contributed in the struggle for
independence of the nation. They have helped in the framing of the
Constitution of India and have helped the Courts in evolving jurisprudence
by doing hard labor and research work. The nobility of the legal system is
to be ensured at all costs so that the Constitution remains vibrant and to
expand its interpretation so as to meet new challenges.
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16. It is basically the lawyers who bring the cause to the Court are
supposed to protect the rights of individuals of equality and freedom as
constitutionally envisaged and to ensure the country is governed by the rule
of law. Considering the significance of the Bar in maintaining the rule of
law, right to be treated equally and enforcement of various other
fundamental rights, and to ensure that various institutions work within
their parameters, its independence becomes imperative and cannot be
compromised. The lawyers are supposed to be fearless and independent in
the protection of rights of litigants. What lawyers are supposed to protect, is
the legal system and procedure of law of deciding the cases.
17. Role of Bar in the legal system is significant. The bar is supposed to
be the spokesperson for the judiciary as Judges do not speak. People listen
to the great lawyers and people are inspired by their thoughts. They are
remembered and quoted with reverence. It is the duty of the Bar to protect
honest judges and not to ruin their reputation and at the same time to
ensure that corrupt judges are not spared. However, lawyers cannot go to
the streets or go on strike except when democracy itself is in danger and the
entire judicial system is at stake. In order to improve the system, they have
to take recourse to the legally available methods by lodging complaint
against corrupt judges to the appropriate administrative authorities and not
to level such allegation in the public. The corruption is intolerable in the
judiciary.
18. The Bar is an integral part of the judicial administration. In order to
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ensure that judiciary remains an effective tool, it is absolutely necessary
that Bar and Bench maintain dignity and decorum of each other. The
mutual reverence is absolutely necessary. The Judges are to be respected
by the Bar, they have inturn equally to respect the Bar, observance of
mutual dignity, decorum of both is necessary and above all they have to
maintain selfrespect too.
19. It is the joint responsibility of the Bar and the Bench to ensure that
equal justice is imparted to all and that nobody is deprived of justice due to
economic reasons or social backwardness. The judgment rendered by a
Judge is based upon the dint of hard work and quality of the arguments
that are advanced before him by the lawyers. There is no room for arrogance
either for a lawyer or for a Judge.
20. There is a fine balance between the Bar and the Bench that has to be
maintained as the independence of the Judges and judiciary is supreme.
The independence of the Bar is on equal footing, it cannot be ignored and
compromised and if lawyers have the fear of the judiciary or from elsewhere,
that is not conducive to the effectiveness of judiciary itself, that would be
selfdestructive.
21. Independent Bar and independent Bench form the backbone of the
democracy. In order to preserve the very independence, the observance of
constitutional values, mutual reverence and selfrespect are absolutely
necessary. Bar and Bench are complementary to each other. Without
active cooperation of the Bar and the Bench, it is not possible to preserve
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the rule of law and its dignity. Equal and evenhanded justice is the
hallmark of the judicial system. The protection of the basic structure of the
Constitution and of rights is possible by the firmness of Bar and Bench and
by proper discharge of their duties and responsibilities. We cannot live in a
jungle raj.
22. Bar is the mother of judiciary and consists of great jurists. The Bar
has produced great Judges, they have adorned the judiciary and rendered
the real justice, which is essential for the society.
23. The role of Lawyer is indispensable in the system of delivery of justice.
He is bound by the professional ethics and to maintain the high standard.
His duty is to the court to his own client, to the opposite side, and to
maintain the respect of opposite party counsel also. What may be proper to
others in the society, may be improper for him to do as he belongs to a
respected intellectual class of the society and a member of the noble
profession, the expectation from him is higher. Advocates are treated with
respect in society. People repose immense faith in the judiciary and judicial
system and the first person who deals with them is a lawyer. Litigants
repose faith in a lawyer and share with them privileged information. They
put their signatures wherever asked by a Lawyer. An advocate is supposed
to protect their rights and to ensure that untainted justice delivered to his
cause.
24. The high values of the noble profession have to be protected by all
concerned at all costs and in all the circumstances cannot be forgotten even
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by the youngsters in the fight of survival in formative years. The nobility of
legal profession requires an Advocate to remember that he is not over
attached to any case as Advocate does not win or lose a case, real recipient
of justice is behind the curtain, who is at the receiving end. As a matter of
fact, we do not give to a litigant anything except recognizing his rights. A
litigant has a right to be impartially advised by a lawyer. Advocates are not
supposed to be money guzzlers or ambulance chasers. A Lawyer should not
expect any favour from the Judge and should not involve by any means in
influencing the fair decisionmaking process. It is his duty to master the
facts and the law and submit the same precisely in the Court, his duty is
not to waste the Courts' time.
25. It is said by Alexander Cockburn that “the weapon of the advocate is
the sword of a soldier, not the dagger of the assassin”. It is the ethical duty
of lawyers not to expect any favour from a Judge. He must rely on the
precedents, read them carefully and avoid corruption and collusion of any
kind, not to make false pleadings and avoid twisting of facts. In a
profession, everything cannot be said to be fair even in the struggle for
survival. The ethical standard is uncompromisable. Honesty, dedication
and hard work is the only source towards perfection. An Advocate conduct
is supposed to be exemplary. In case an Advocate causes disrepute of the
Judges or his colleagues or involves himself in misconduct, that is the most
sinister and damaging act which can be done to the entire legal system.
Such a person is definitely deadwood and deserves to be chopped off.
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26. Francis Bacon has said about the Judges that Judges ought to be
more learned than witty, more reverend than plausible, and more advised
than confident. Above all thingst, integrity is their portion and proper
virtue. Patience and gravity of hearing is an essential part of justice, and an
overspeaking judge is no welltuned cymbal.
27. The balancing of values, reverence between the Bar and the Bench is
the edifice of the independent judicial system. Time has come to restore the
glory and cherish the timetested enduring ideals and principles. For a
valuedriven framework, it is necessary that perspective is corrected in an
ethical and morally sound perspective. The perception of ambulance
chasers, money guzzlers and black sheep should not be presumptive. Such
public perception as to lawyers undermines the credibility of the legal
profession, all the evils from the system have to be totally weeded out. No
human institution is ever perfect. In order to drive towards more perfection,
one has to just learn from the mistakes of the past and build upon the
present days’ good work so as to make out a better tomorrow.
28. The background as to what has happened in the High Court at
Madras as projected in reply of the High Court, has prompted us to make
the aforesaid observations. While deciding the case, we have pointed out
the importance of the Bar just to remind it of its responsibilities and
significance in a democratic setup. The atmosphere that had been created
in Madras as projected in the counter affidavit filed by the High Court,
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would have prompted us also to take a stern view of the matter by invoking
Contempt of Courts Act, but for the time gap and things have settled by
now due to herculean effort of the High Court. It is not for this court much
less for the High Court to tolerate such intemperate behavior of the lawyers
as projected in the counter affidavit of the High Court. The acts complained
of are not only contemptuous but also tantamount to gross professional
misconduct.
29. There is no room for taking out the procession in the Court premises,
slogan raising in the Courts, use of loudspeakers, use of intemperate
language with the Judges or to create any kind of disturbance in the
peaceful, respectful and dignified functioning of the Court. Its sanctity is
not less than that of a holy place reserved for noble souls. We are shocked
to note that the instances of abject misbehavior of the advocates in the
premises of the High Court of Madras resulting into requisitioning of CISF
to maintain safety and majesty of the Court and rule of law. It has been
observed by this Court in Mahipal Singh Rana (supra) that Bar Council has
failed to discharge its duties on the disciplinary side. In our opinion, in
case such state of affairs continues and Bar Council fail to discharge duties
the Court shall have to supervise its functioning and to pass appropriate
permissible orders. Independence of Bar and Bench both are supreme,
there has to be balance inter se .
30. We now advert to main question whether disciplinary power vested in
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the Bar Council can be taken away by the Court and the international
scenario in this regard.
31. The legislature has reposed faith in the autonomy of the Bar while
enacting Advocates Act and it provides for autonomous Bar Councils at the
State and Central level. The ethical standard of the legal profession and
legal education has been assigned to the Bar Council. It has to maintain
the dignity of the legal profession and independence of Bar. The
disciplinary control has been assigned to the Disciplinary Committees of the
Bar Councils of various States and Bar Council of India and an appeal lies
to this Court under section 38 of the Act.
32. The bar association must be selfgoverning is globally recognised.
Same is a resolution of the United Nations also. Even Special Rapporteur
on the independence of Judges and lawyers finds that bar associations play
a vital role in safeguarding the independence and integrity of the legal
profession and its members. The UN's basic principles on the role of
lawyers published in 1990 noted that such institutions must possess
independence and its selfgoverning nature. The bar association has a
crucial role to play in a democratic society to ensure the protection of
human rights in particular due process and fairtrial guarantees. Following
is the extract of the report of the United Nations:
“ Mandate
In the report, Special Rapporteur Diego GarcíaSayán finds that
associations should be independent and selfgoverning because they
hold a general mandate to protect the independence of the legal
profession and the interests of its members.
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They should also be recognized under the law, the UN says.
“Bar associations have a crucial role to play in a democratic society
to enable the free and independent exercise of the legal profession,
and to ensure access to justice and the protection of human rights,
in particular, due process and fair trial guarantees," UN Secretary
General António Guterres says.
Selfgoverning
The UN’s Basic Principles on the Role of Lawyers (published in
1990) recognize that lawyers, like other citizens, have the right to
freedom of association and assembly, which includes the right to
form and join selfgoverning professional associations to represent
their interests. Since its publication, this universal document has
been referenced in wrangles between lawyers and governments.
Requirements
Existing legal standards do not provide a definition of what
constitutes a professional association of lawyers. They simply focus
on the necessary requirements that such institutions must possess,
such as independence and a selfgoverning nature.
The report recommends that: “In order to ensure the integrity of the
entire profession and the quality of legal services, it is preferable to
establish a single professional association regulating the legal
profession.”
Elected by peers
Another principle of the UN report is that: “In order to guarantee the
independence of the legal profession, the majority of members of the
executive body of the bar association should be lawyers elected by
their peers.”
It says that state control of bar associations or governing bodies is
“incompatible with the principle of the independence of the legal
profession”.”
(emphasis supplied)
33. In the conference of Presidents of Law Association in Asia, Law
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Council of Australia held 20 March, 2005 at Queensland, Australia,
Justice Michael Kirby AC CMG presented his papers on ‘Independence of
the Legal Profession: Global and Regional Challenges’ and pointed out the
importance of the independence of the bar in his papers thus:
“One of the features of the law that tends to irritate other sources of
power is the demand of the law's practitioners judges and lawyers
for independence. The irritation is often true of politicians, wealthy
and powerful people, government officials and media editors and
their columnists. Those who are used to being obeyed and feared
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commonly find it intensely annoying that there is a source of power
that they cannot control or buy the law and the courts. Yet the
essence of a modern democracy is observance of the rule of law. The
rule of law will not prevail without assuring the law's principal
actors judges and practicing lawyers and also legal academics a
very high measure of independence of mind and action.
An independent legal profession also requires that lawyers be free to
carry out their work without interference or fear of reprisal. Lawyers
have a duty, within the law, to advance the interests of their clients
fearlessly and to assist the courts in upholding the law. To enable
them to perform these duties it is necessary that lawyers enjoy
professional independence. Challenges to such independence may
arise where lawyers are not able to form independent professional
organizations; are limited in the clients whom they may represent;
are threatened with disciplinary action, prosecution or sanctions for
undertaking their professional duties; are in any other way
intimidated or harassed because of their clients or the work that
they undertake; or are subjected to unreasonable interference in the
way they perform their duties.
Independence is not provided for the benefit or protection of judges
or lawyers as such. Nor is it intended to shield them from being held
accountable in the performance of their professional duties and to
the general law. Instead, its purpose is the protection of the people,
affording them an independent legal profession as "... the bulwark of
a free and democratic society."
(emphasis supplied)
Justic e Kirby also pointed out in his papers that principle of
independence of the legal profession is recognized internationally. The
pursuit of the independence of the Judges and the lawyers are not,
therefore, merely an aspirational principle. It is a central tenet of
international human rights law of great practical importance. He has
further observed thus:
“…If all people are entitled to equal protection under the law,
without exception, lawyers must be able to represent unpopular
clients fearlessly and to advocate on behalf of unpopular causes, so
as to uphold legal rights. To ensure the supremacy of the law over
the arbitrary exercise of power a strong and independent legal
profession is therefore essential.
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In this way, an independent legal profession is an essential
guardian of human and other rights. By ensuring that no person is
beyond the reach of the law, the legal profession can operate as a
check upon the arbitrary or excessive exercise of power by the
government and its agents or by other powerful parties.”
(emphasis supplied)
He also emphasized in his papers to promote access to law, reform of
the law and its rules and the engagement of lawyers with ordinary people
and litigants to whom, ultimately, the law clearly belongs.
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34. The independence of the Bar came to be discussed in 28 Annual
Convention Banquet of the National Lawyers Guild held at San Francisco,
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California on 13 November 1965 in which Robert F. Drinan, S.J., Dean,
Boston College Law School, Brighton, Massachusetts pointed out the
independence of the Bar and its facets. He has pointed out that lawyers
have to be loyal to their client's interests and faithful to the maintenance of
the integrity and independence of the courts. It requires a commitment to
many moral and spiritual values. Lawyers boldly challenge the inequality
in every form. He also pointed out that independence of mind and heart is
necessary. The Bar cannot be a prisoner of passions and prejudices and
independence of judgment need to be construed and from an unreasonable
fear of the power of the judiciary is necessary and has observed that lawyer
should feel free to criticize judicial decisions of every Tribunal. At the same
time, he said to impugn the motives to Judges undermine the very essence
of every civilized society. A lawyer has to be detached from financial
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considerations. If lawyers are appreciated and embraced with these
sentiments, we would witness the full flowering of the indispensable
element of a truly free society – an independent Bench and an independent
Bar. He has observed:
“Members of the legal profession under the AngloAmerican system
of justice have been entrusted with dual and conflicting loyalties.
They must be simultaneously both loyal to their client's interests
and faithful to the maintenance of the integrity and independence of
the courts of which they are officers. The complex dualism inherent
in being both an advocate and an officer of the Court requires that
the lawyer have a unique independence, a detachment from any
excessive adherence to his client's interests as well as a freedom
from being inordinately attached to the rulings and interests of the
judicial system.
The independence of the bar does not mean, let us make it clear
immediately, a state of noncommitment to truths or values. Indeed
the independence of the bar presupposes and requires a
commitment to many moral and spiritual values which must be
served in whole or in part by America's legal institutions. The
spiritual value indispensable for an independent bar to which the:
National Lawyers' Guild in a particular way has lent its power and
prestige is the basic injustice of permitting false accusations to be
made by public bodies in the name of patriotism or loyalty to the
nation.
The lawyer whose mind is independent of the passions and
prejudices of his own generation or his own century transcends the
collective compromises of his own age and boldly challenges
inequality in every form. The lawyers who formed and fashioned the
American Republic had the independence of mind and heart
unparalleled by any subsequent generation of attorneys in America;
their vision and their courage are the legacies of every lawyer in
America. So few members of the bar recognize that legacy because,
being the prisoners of the passions and prejudices of their own age,
they have lost that independence of judgment without which a
lawyer cannot really identify himself or the noble profession of
which he is a member.
II. THE INDEPENDENCE OF THE BAR FROM JUDICIAL
PRECEDENT AND FROM FEAR OF THE JUDICIARY
If a lawyer cannot really fulfill his selfidentity or carry out his moral
mission unless he is independent of the prejudices and passions of
his age he is similarly impeded unless he can discover and maintain
22
an attitude of respectful independence from the judiciary. This
independence from the judiciary should prompt lawyers to feel free
to criticize judicial decisions consistently and courageously. This
criticism should not be confined to the higher courts but should be
applicable to every tribunal whose opinions are deficient in inherent
logic and a clear consistency.
Does constitutionally protected freedom of speech or freedom of the
press give immunity for slander and public defamation of the
nation's highest tribunal? And by what principle can an
independent bar justify its inaction towards those who, by calumny
and libel, impugn the motives of judges and undermine the very
essence of every civilized society the rule of law?
The bench generally speaking cannot be expected to rise above the
level of the bar. A bar that is subservient and servile to the bench
will tend to corrupt both the bench and the bar.
The independence of the legal profession, therefore, requires that
lawyers attain such an attitude of detachment both from their
duties as advocates and their role as officers of the court that they
can act objectively and dispassionately, as neither solely the
servants of their clients nor as exclusively the ministers of the
courts.”
(emphasis supplied)
35. In an article ‘the Importance of an Independent Bar’ by Stephen A.
Salzburg published in Scholarly Commons, GW Law Faculty Publications
and other works, referring to the Shakespeare it was pointed out that when
Dick the Butcher met to discuss the plan of attack and how they should go
about gaining the political control of England. It is during this meeting
that the sentence involving “kill all the lawyers” occurred. The exact
sentence in the play was “The first thing we do, let’s kill all the lawyers”.
Governments need fear lawyers and Judges only when they fear the truth.
This is true here and it is true throughout the world. The relevant portion
of the article is extracted hereunder:
“Attack on lawyers
23
It is from this perspective that I wish to express my concern as to
recent attacks on the legal profession that have occurred here in the
United States and elsewhere in the world. Attacks on the private bar
often are accompanied by attacks on the independence of the
judiciary, and these attacks are a frontal assault on the very notion
of the rule of law.
One law journal that views the play as I do concisely summarize it
as follows:
.…Before the plan was executed, Cade and his followers, among
whom was Dick the Butcher, met to discuss the plan of attack
and how they should go about gaining the political control of
England. It is during this meeting that the sentence involving
“kill all the lawyers” occurs. The exact sentence in the play was,
“The first thing we do, let’s kill all the lawyers.” We see, then,
that this sentence was uttered by a riotous anarchist whose
intent was to overthrow the lawful government of England.
Shakespeare knew that lawyers were the primary guardians of
individual liberty in democratic England. Shakespeare also
knew that an anarchical uprising from within was doomed to
fail unless the country’s lawyers were killed.
The government has strained to keep lawyers away from
Guantanamo as much as possible because it knows that their
presence means challenges to unfair proceedings, to secret
evidence, and to prolonged detentions. Lawyers have volunteered to
represent the detainees, but their ability to do so is greatly restricted
by the congressional elimination of both habeas corpus and the
right of detainees to bring actions challenging their detentions or the
conditions of their detentions.
I regret deeply what has happened in Guantanamo. After all,
governments need fear lawyers and judges only when they fear the
truth. This is true here and it is true throughout the world.
…..These lawyers and judges remind us that preserving the rule of
law is something never to be taken for granted. It often is a
challenge requiring selfsacrifice and risktaking.
The Supreme Court of Canada wrote eloquently in Canada (Attorney
General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307 at
33536:
The independence of the Bar from the state in all of its
pervasive manifestations is one of the hallmarks of a free
society. Consequently, regulation of these members of the law
profession by the state must, so far as by human ingenuity it
can be so designed, be free from state interference, in the
political sense, with the delivery of services to the individual
24
citizens in the state, particularly in fields of public and criminal
law. The public interest in a free society knows no area more
sensitive than the independence, impartiality, and availability
to the general public of the members of the Bar and through
those members, legal advice and services generally.
In another Canadian case, Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143 at pp. 18788: Justice McIntyre
wrote:
“I would observe that in the absence of an independent legal
profession, skilled and qualified to play its part in the
administration of justice and the judicial process, the whole
legal system would be in a parlous state. In the performance of
what may be called his or her private function, that is, in
advising on legal matters and in representing clients before the
courts and other tribunals, the lawyer is accorded great powers
not permitted to other professionals…... By any standard, these
powers and duties are vital to the maintenance of order in our
society and the due administration of the law in the interest of
the whole community.”
(emphasis supplied)
36. The International Bar Associations Presidential Task Force was
constituted to examine the question of independence of the legal profession.
In the report while discussing the indicators of independence, it has been
pointed out that a bar association is generally deemed to be independent
when it is mostly free from external influence and can withstand pressure
from external sources on matters such as the regulation of the profession,
disbarment proceedings and the right of lawyers to join the association.
Judicial independence ensures that lawyers are able to carry out their
duties in a free and secure environment and an independent judiciary also
acts as a check on the independence of lawyers and vice versa. The relevant
portion of the report of task force is extracted hereunder:
25
“Judicial independence ensures that lawyers are able to carry out
their duties in a free and secure environment, where they are able to
ensure access to justice and provide their clients with intelligent,
impartial and objective advice. An impartial and independent
judiciary is more likely to be tolerant and responsive to criticism,
which means that lawyers are able to freely criticize the judiciary,
without fear of retaliation, whether in the form of prosecution by the
government or unfavorable judicial decisions. An independent
judiciary also acts as a check on the independence of lawyers and
vice versa. Thus, the relationship between judicial independence
and the independence of lawyers is one of mutual reliance and co
dependence.”
There have to be clear and transparent rules on admission to the Bar,
disciplinary proceedings and disbarment. In this regard, the following
observation has been made by the IBA Task Force:
“4.2.2.2. Clear and transparent rules on admission to the Bar,
disciplinary proceedings and disbarment Clear and transparent
rules on admission, disciplinary proceedings and disbarment refers
to rules that are comprehensible and accessible, so that those who
are subject to the rules are able to easily access them, understand
their meaning and appreciate the implications of violating them. The
existence of comprehensible, clear and transparent rules on
admission to the Bar ensures that those seeking admission are well
informed of the requirements and are assessed on the basis of
objective criteria that apply equally to all candidates. Clear and
transparent rules reduce the risk of arbitrary disciplinary
proceedings and disbarment and also guarantee that lawyers are
held accountable and responsible for their actions. Lawyers, those
they represent and the general public should have access to
efficient, fair and functional mechanisms that allow for the
resolution of disputes between the profession and the public, an
imposition of disciplinary measures (where appropriate) and an
effective appeals system. This ensures that the rights of all parties
are protected in accordance with the rule of law.”
(emphasis supplied)
37. Complete lack of selfregulation can have a negative effect on the
independence of the lawyers and lawyers have to be free from fear of
prosecution in controversial or unpopular cases. Political, societal and, in
some circumstances, media pressure in times of war, terror, and emergency
26
can have a profound impact on the independence of the profession. They
can be attacked by unscrupulous persons for discharging their duties in a
fearless manner. That is why independence of the bar is imperative. There
is a need to organize seminars, training sessions on the current
development of law so as to maintain independence. It has also been
observed in the report of IBA Task Force that public often associates lawyers
with corruption, lying, deceit, excessive wealth and a lavish lifestyle. The
report has concluded thus:
“There is no greater issue affecting the legal profession worldwide
than the manifold threats to its independence. Without
independence, lawyers are left exposed to disciplinary proceedings,
arbitrary disbarment, physical violence, persecution, and even
death. Lawyers around the world have been targeted by
governments and by private actors simply for acting in the public
interest or for undertaking cases or causes that some, including the
government, find objectionable.”
38. The emphasis on the disciplinary control by the independent bodies
so as to maintain the purity, efficacy, and intellect of the judicial system
itself. The resolution of IBA standards for the independence of the legal
profession with respect to disciplinary proceedings is extracted hereunder:
“Disciplinary proceedings
21. Lawyers’ associations shall adopt and enforce a code of
professional conduct of lawyers.
22. There shall be established rules for the commencement and
conduct of disciplinary proceedings that incorporate the rules of
natural justice.
23. The appropriate lawyers’ association will be responsible for or be
entitled to participate in the conduct of disciplinary proceedings.
24. Disciplinary proceedings shall be conducted in the first instance
before a disciplinary committee of the appropriate lawyers’
association. The lawyer shall have the right to appeal from the
disciplinary committee to an appropriate and independent appellate
body.”
27
(emphasis supplied)
The IBA resolution emphasises on the disciplinary committee of the
Bar is necessary so as to maintain the independence of the Bar.
39. The members of the Bar are recognized as intellectual of the society.
They enjoy respect in the society being the protector of law as they fight for
equality. The advocate has to fearlessly uphold the interests of his clients
by all fair and honourable means without regard to any unpleasant
consequences to himself or any other. An advocate is supposed to find a
solution to the very real problem as ‘justice hurried is justice buried’ and
‘slow justice is no justice'. It has become professionally embarrassing and
personally demoralizing for an advocate to give an answer to his client as to
the outcome of the matter and why it is pending and when it is to come up
for hearing. When a member of Bar is elevated to bench first relief which is
felt is of answerability to the client on aforesaid aspects which is in fact too
inconvenient and embarrassing but still problem subsists and is writ large,
it has to be solved every day. In such circumstances too, the tool of
adjournment is used to kill justice. Adjournment poses a question mark
whether such kind of advocacy is acceptable?
40. The Bar Council has the power to discipline lawyers and maintain
nobility of profession and that power imposes great responsibility. The
Court has the power of contempt and that lethal power too accompanies
with greater responsibility. Contempt is a weapon like Brahmasatra to be
28
used sparingly to remain effective. At the same time, a Judge has to guard
the dignity of the Court and take action in contempt and in case of
necessity to impose appropriate exemplary punishment too. A lawyer is
supposed to be governed by professional ethics, professional etiquette and
professional ethos which are a habitual mode of conduct. He has to
perform himself with elegance, dignity, and decency. He has to bear
himself at all times and observe himself in a manner befitting as an officer
of the Court. He is a privileged member of the community and a
gentleman. He has to mainsail with honesty and sail with the oar of hard
work, then his boat is bound to reach to the bank . He has to be honest,
courageous, eloquent, industrious, witty and judgmental.
41. In a keynote address to the 1992 Conference of the English, Scottish
th
and Australian Bar Association held in London on 4 July, 1992 on the
‘Independence of the Bench; the Independence of the Bar and the Bar’s
Role in the Judicial System’, Sir Anthony Mason, AC, KBE, Chief Justice of
Australia has pointed out that for its independence the Court should be
responsible for its own administration and the expenditure of funds
appropriated to it by Parliament. He has also referred to one of the
recommendations made by an economist that financial incentives should
be offered to judges to expedite the disposition of cases, in that regard he
has observed that incentivebased remuneration, no matter how well
adapted it is to the football stadium and the production line has no place
in the courtroom. Judicial independence is a privilege of and protection for
29
the people. The appointment of the judges should be from the dedicated
advocates. With respect to the independence of the Bar, he has mentioned
that lawyers stand between the subject and the Crown, and between the
rich and the poor, the powerful and the weak. It is necessary that while
the Bar occupies an essential part in the administration of justice, the
lawyer should be completely independent and work entirely as an
individual, drawing on his own resources of learning, ability, and
intelligence. Next, he has referred to Sir Owen Dixon when he became the
Chief Justice of Australia, said:
“Because it is the duty of the barrister to stand between the subject
and the Crown, and between the rich and the poor, the powerful
and the weak, it is necessary that, while the Bar occupies an
essential part in the administration of justice, the barrister should
be completely independent and work entirely as an individual,
drawing on his own resources of learning, ability, and intelligence.”
(emphasis supplied)
A lawyer has to balance between the duty to the court and interests
of his clients. A lawyer has to be independent. He has observed thus:
“An important element in the relationship between the court and the
barrister is the special duty which the barrister owes to the court over and
above the duty which the barrister owes to the client. The performance of
that duty contributes to the efficient disposition of litigation. In the
performance of that duty the independence of the barrister, allied to his
familiarity with the judicial process, gives him a particular advantage. In
balancing his duty to the court and that owed to the client, the barrister is
free from the allegiances and interests and the closer and continuing
association which the solicitor has with the client. The significance of the
barrister’s special duty to the court and the expectation that it will be
performed played a part in the recognition of the common law’s immunity
of the barrister from incourt liability for negligence. That immunity is
founded partly on the existence of the duty and its performance with
beneficial consequences for the curial process. So much is clear from the
speeches in the House of Lords in Rondel v Worsley and Saif Ali v. Sydney
and the majority judgments in the High Court of Australia
Mitchell & Co.
in Gianarelli v. Wraith .
The Bar’s best response to the new challenge which confronts it is to re
30
affirm its traditional professional ideals and aspire to excellence. The
professional ideal is not the pursuit of wealth but public service. That is
the vital difference between professionalism and commercialism.
It is timely to repeat what O’Connor J (with whom Rehnquist CJ and
Scalia J agreed) said in Shapero v. Kentucky Bar Association :
One distinguishing feature of any profession, unlike other occupations
that may be equally respectable, is that membership entails an ethical
obligation to temper one's selfish pursuit of economic success by adhering
to standards of conduct that could not be enforced either by legal fiat or
through the discipline of the market. There are sound reasons to continue
pursuing the goal that is implicit in the traditional view of processional
life. Both the special privileges incident to membership in the professional
and the advantages those privileges give in the necessary task of earning a
living are means to a goal that transcends the accumulation of wealth.
Unless the Bar dedicates itself to the ideal of public service, it forfeits its
claim to treatment as a profession in the true sense of the term.
Dedication to public service demands not only attainment of a high
standard of professional skill but also faithful performance of duty to
client and court and a willingness to make the professional service
available to the public.”
42. Before dilating further on the issue, we take note of the provisions
contained in the Advocates Act. Section 9 provides for the constitution of
Disciplinary Committee by the Bar Council. A Disciplinary Committee
consists of three members, two of them are elected members of the Bar
Council and the third member has to be coopted by the Council amongst
Advocates. Section 9 is reproduced hereunder:
“9. Disciplinary Committees. (1) A Bar Council shall constitute one or
more disciplinary committees, each of which shall consist of three persons
of whom two shall be persons elected by the Council from amongst its
members and the other shall be person coopted by the Council from
amongst advocates who possess the qualifications specified in the proviso
to subsection (2) of section 3 and who are not members of the Council,
and the seniormost advocate amongst the members of a disciplinary
committee shall be the Chairman thereof.
(2) Notwithstanding anything contained in subsection (1), any
disciplinary committee constituted prior to the commencement of the
Advocates (Amendment) Act, 1964 may dispose of the proceedings pending
before it as if this section had not been amended by the said Act.”
43. Section 15 confers the power on the Bar Council to make rules for
31
carrying out the purposes of the Chapter II inter alia relating to disciplinary
committees. Chapter III deals with the provisions regarding enrolment of
advocates contained in Sections 16 to 28. Right to practice is conferred in
Section 29, which provides that advocates be the only recognized class of
persons entitled to practice law. Section 30 of the Advocates Act gives right
of advocates to practice throughout the territory in all Courts including the
Supreme Court before any Tribunal or person legally authorize to take
evidence and before any other authority or person before whom such
advocate is by or under any law for the time being in force entitled to
practice. Now with the enforcement of Section 30 on June 15, 2011, after
five decades, right to practice is available as provided under Section 30.
Section 32 contains a nonobstante clause that any Court, authority or
person may permit any person, not enrolled as an advocate to appear before
it or him in any particular case. The advocate has to enroll himself with the
State Bar Council in order to practice law as provided in Section 33 of the
Advocates Act.
44. Section 34 empowers the High Court to frame rules and provide
conditions subject to which an advocate shall be permitted to practice in
the High Court and the courts subordinate thereto. Section 34 is extracted
hereunder:
“34. Power of High Courts to make rules.—
(1) The High Court may 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.
32
(1A) The High Court shall make rules for fixing and regulating by
taxation or otherwise the fees payable as costs by any party in
respect of the fees of his adversary’s advocate upon all proceedings
in the High Court or in any Court subordinate thereto.
(2) Without prejudice to the provisions contained in subsection (1),
the High Court at Calcutta may make rules providing for the holding
of the Intermediate and the Financial examinations for articled
clerks to be passed by the persons referred to in section 58AG for
the purpose of being admitted as advocates on the State roll and
any other matter connected therewith.”
Section 34 clearly enables the High Courts to prescribe conditions to
practice. The provisions contained in Section 34(1A) empowers the High
Court to make rules regarding the fees payable as costs.
45. There can be certain conditions on right to practice and appear in a
case which can be imposed by the High Court under Section 34 such as
filing fresh vakalatnama , superseding the previous one that has to be done
as per the High Court rules, if any such provision has been made by the
High Court. Section 34 contained in chapter IV of the Act intends to
regulate the practice of the advocate in the High Court and subordinate
courts. It does not empower it to frame the rules for disciplinary control.
Within the purview of section 34 of the Act, a dress can also be prescribed
for an appearance in the Court. The High Court is free to frame the rules
for designation of the Senior Advocates and also the rules on similar pattern
as framed by this Court for Advocates on Record.
46. Chapter V deals with the conduct of advocates and disciplinary
control. Section 35 deals with the punishment of advocates for misconduct.
Section 35 is extracted hereunder:
33
“35. Punishment of advocates for misconduct.—(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.
(1A) The State Bar Council may, either of its own motion or on
application made to it by any person interested, withdraw a
proceeding pending before its disciplinary committee and direct the
inquiry to be made by any other disciplinary committee of that State
Bar Council.
(2) The disciplinary committee of a State Bar Council shall fix a date
for the hearing of the case and shall cause a notice thereof to be
given to the advocate concerned and to the AdvocateGeneral of the
State.
(3) The disciplinary committee of a State Bar Council after giving the
advocate concerned and the AdvocateGeneral an opportunity of
being heard may make any of the following orders, namely:—
(a) dismiss the complaint or, where the proceedings were initiated at
the instance of the State Bar Council, direct that the proceedings be
filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may
deem fit;
(d) remove the name of the advocate from the State roll of advocates.
(4) Where an advocate is suspended from practice under clause (c)
of subsection (3), he shall, during the period of suspension, be
debarred from practicing in any court or before any authority or
person in India.
(5) Where any notice is issued to the AdvocateGeneral under sub
section (2), the AdvocateGeneral may appear before the disciplinary
committee of the State Bar Council either in person or through any
advocate appearing on his behalf.
[Explanation.—In this section, [section 37 and section 38], the
expressions “AdvocateGeneral” and AdvocateGeneral of the State”
shall, in relation to the Union territory of Delhi, mean the Additional
Solicitor General of India.]”
47. Section 36 deals with disciplinary powers of Bar Council of India.
Where a lawyer whose name is not on any State roll and a complaint is
received that he is guilty of professional misconduct, the Bar Council of
34
India shall refer the case for disposal to its disciplinary committee. Bar
Council of India can withdraw any pending inquiry before itself and decide
it. Section 36 is extracted hereunder:
“36. Disciplinary powers of Bar Council of India.—(1) Where on
receipt of a complaint or otherwise the Bar Council of India has
reason to believe that any advocate whose name is not entered on
any State roll has been guilty of professional or other misconduct, it
shall refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the
disciplinary committee of the Bar Council of India may, either of its
own motion or on a report by any State Bar Council or on an
application made to it by any person interested, withdraw for
inquiry before itself any proceedings for disciplinary action against
any advocate pending before the disciplinary committee of any State
Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India, in
disposing of any case under this section, shall observe, so far as
may be, the procedure laid down in section 35, the references to the
AdvocateGeneral in that section being construed as references to
the AttorneyGeneral of India.
(4) In disposing of any proceedings under this section the
disciplinary committee of the Bar Council of India may make any
order which the disciplinary committee of a State Bar Council can
make under subsection (3) of section 35, and where any
proceedings have been withdrawn for inquiry before the disciplinary
committee of the Bar Council of India the State Bar Council
concerned shall give effect to any such order.”
48. Section 36A provides for the procedure on the change in the
constitution of disciplinary committees. In case of change, the succeeding
committee may continue the proceedings from the stage at which the
proceedings were so left by its predecessor committee. Section 36B of the
Advocates Act deals with disposal of the disciplinary committee. A
disciplinary committee of the State Bar Council has to decide the case
within a period of one year from the date of the receipt of the complaint or
35
the date of institution of proceedings failing which the proceedings shall
stand transferred to the Bar Council of India. Section 37 of the Act provides
that any person aggrieved by an order of the disciplinary committee of the
State Bar Council may prefer an appeal to the Bar Council of India. Section
38 provides for an appeal to the Supreme Court against the order made by
the disciplinary committee of the Bar Council of India.
49. Section 42 deals with powers of the disciplinary committee. The
Presiding Officer of the Court can be summoned with permission of the
High Court to prove misconduct against advocate and proceedings are
deemed to be judicial one as provided in Section 42(2), which is extracted
hereunder:
“42. Powers of disciplinary committee.— (1) The disciplinary committee of
a Bar Council shall have the same powers as vested in a civil court under
the Code of Civil Procedure, 1908, in respect of the following matters,
namely:—
(a) summoning and enforcing the attendance of any person and examining
him on oath;
(b) requiring discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copies thereof from any court or
office;
(e) issuing commission for the examination of witnesses or documents;
(f) any other matter which may be prescribed:
Provided that no such disciplinary committee have the right to require the
attendance of—
(a) any presiding officer of a Court except with the previous sanction of the
High Court to which such court is subordinate; (b) any officer of a revenue
court except with the previous sanction of the State Government.
(2) All proceedings before a disciplinary committee of a Bar Council shall
be deemed to be judicial proceedings within the meaning of sections 193
and 228 of the Indian Penal Code and every such disciplinary committee
shall be deemed to be a civil court for the purposes of sections 480, 482
and 485 of the Code of Criminal Procedure, 1898.
(3) For the purposes of exercising any of the powers conferred by sub
section (1), a disciplinary committee may send to any civil court in the
territories to which this Act extends, any summons or other process, for
36
the committee or any commission which it desires to issue, and the civil
court shall cause such process to be served or such commission to be
issued, as the case may be, and may enforce any such process as if it were
a process for attendance or production before itself.
(4) Notwithstanding the absence of the Chairman or any member of a
disciplinary committee on a date fixed for the hearing of a case before it,
the disciplinary committee may, if it so thinks fit, hold or continue the
proceedings on the date so fixed and no such proceedings and no order
made by the disciplinary committee in any such proceedings shall be
invalid merely by reason of the absence of the Chairman or member
thereof on any such date:
Provided that no final orders of the nature referred to in subsection (3) of
section 35 shall be made in any proceeding unless the Chairman and
other members of the disciplinary committee are present.
(5) Where no final orders of the nature referred to in subsection (3) of
section 35 can be made in any proceedings in accordance with the opinion
of the Chairman and the members of a disciplinary committee either for
want of majority opinion amongst themselves or otherwise, the case, with
their opinion thereon, shall be laid before the Chairman of the Bar Council
concerned or if the Chairman of the Bar Council is acting as the Chairman
or a member of the disciplinary committee, before the ViceChairman of
the Bar Council, as the case may be, after such hearing as he thinks fit,
shall deliver his opinion and the final order of the disciplinary committee
shall follow such opinion.”
50. The order of the cost of proceedings before the Disciplinary Committee
is executable as provided in Section 43. Section 44 deals with the review of
orders of the disciplinary committee. Sections 43 and 44 are extracted
hereunder:
“43. Cost of proceedings before a disciplinary committee.— The
disciplinary committee of a Bar Council may make such order as to
the cost of any proceedings before it as it may deem fit and any
such order shall be executable as if it were an order—
(a) in the case of an order of the disciplinary committee of the Bar
Council of India, of the Supreme Court;
(b) in the case of an order of the disciplinary committee of a State
Bar Council, of the High Court.
44. Review of orders of disciplinary committee.—The disciplinary
committee of a Bar Council may of its own motion or otherwise
review any order within sixty days of the date of that order passed
by it under this Chapter.
Provided that no such order of review of the disciplinary committee
of a State Bar Council shall have effect unless it has been approved
by the Bar Council of India.”
37
51. It is apparent from the aforesaid provisions and scheme of the Act that
Advocates Act has never intended to confer the disciplinary powers upon
the High Court or upon this Court except to the extent dealing with an
appeal under Section 38.
52. By amending the High Court Rules, 1970, the High Court of Madras
has inserted impugned Rules 14(A) to 14(D). The rules have been framed in
exercise of the power conferred under Section 34 of the Advocates Act.
Section 34 of the Act does not confer such a power to frame rules to debar
lawyer for professional misconduct. The amendment made by providing
Rule 14(A)(vii) to (xii) is not authorized under the Advocate Act. The High
Court has no power to exercise the disciplinary control. It would amount
to usurpation of the power of Bar Council conferred under Advocates Act.
However, the High Court may punish advocate for contempt and then debar
him from practicing for such specified period as may be permissible in
accordance with law, but without exercising contempt jurisdiction by way of
disciplinary control no punishment can be imposed. As such impugned
rules could not have been framed within the purview of Section 34.
Provisions clearly impinge upon the independence of the Bar and encroach
upon the exclusive power conferred upon the Bar Council of the State and
the Bar Council of India under the Advocates Act. The amendment made to
the Rules 14(A) to 14(D) have to be held to be ultra vires of the power of the
High Court.
38
53. We now analyze the proposition laid down by this Court in various
decisions relating to the aforesaid aspect.
In reference: Vinay Chandra
Mishra, (1995) 2 SCC 584 , this Court rejected the argument that the powers
of suspending and removing the advocate from practice is vested exclusively
in the disciplinary committee of the State Bar Council and the Bar Council
of India and the Supreme Court is denuded of its power to impose such
punishment both under Articles 129 and 142. The Court observed that the
power of the Supreme Court under Article 129 cannot be trammeled in any
way by any statutory provision including the provisions of the Advocates Act
or the Contempt of Courts Act. This Court imposed the punishment on the
then Chairman of the Bar Council suspended sentence of imprisonment for
a period of six weeks. The sentence was suspended for four years which
may be activated in case the contemnor is convicted for any other offense of
contempt of court within the said period. The contemnor was also
suspended from practicing as an advocate for a period of three years with
the consequence that all elective and nominated offices/posts held by him
in his capacity as an advocate, shall stand vacated by him forthwith.
54. However, the decision was held not to be laying down a good law in a
writ petition filed by the Supreme Court Bar Association v . Union of India and
another, (supra). Supreme Court Bar Association filed a petition under
Article 32 of the Constitution of India aggrieved by the direction in V.C.
Mishra 's case that the contemnor shall stand suspended from practicing as
39
an advocate for a period of three years issued by this Court while invoking
powers under Articles 129 and 142 of the Constitution. A prayer was made
to hold that the disciplinary committee of the Bar Councils set up under the
Advocates Act alone have exclusive jurisdiction to inquire into and suspend
or debar an advocate from practicing law for professional or other
misconduct. The question posed for consideration in Supreme Court Bar
Association v. Union of India (supra) before this Court is extracted
hereunder:
“5. The only question which we are called upon to decide in this petition is
whether the punishment for established contempt of court committed by
an advocate can include punishment to debar the advocates concerned
from practice by suspending his license (sanad) for a specified period, in
exercise of its power under Article 129 read with Article 142 of the
Constitution of India."
The Constitution Bench of Court has observed:
37. The nature and types of punishment which a court of record can
impose, in a case of established contempt, under the common law have
now been specifically incorporated in the contempt of Courts Act, 1971 in
so far as the High Courts are concerned and therefore to the extent the
contempt of Courts Act 1971 identifies the nature of types of punishments
which can be awarded in the case of established contempt, it does not
impinge upon the inherent powers of the High Court under Article 215
either. No new type of punishment can be created or assumed.
39. Suspending the license to practice of any professional like a lawyer,
doctor, chartered accountant etc. When such a professional is found guilty
of committing contempt of court, for any specified period, is not a
recognized or accepted punishment which a court of record either under
the common law or under the statutory law can impose, on a contemner,
in addition to any of the other recognized punishments.
40. The suspension of an Advocate from practice and his removal from the
State roll of advocates are both punishments specifically provided for
under the Advocates Act, 1961, for proven "professional misconduct' of an
advocate. While exercising its contempt jurisdiction under Article 129, the
only cause or matter before this Court is regarding commission of
contempt of court. There is no cause of professional misconduct, properly
so called, pending before the Court. This Court, therefore, in exercise of its
jurisdiction under Article 129 cannot take over the jurisdiction of the
40
disciplinary committee of the Bar Council of the State or the Bar Council
of India to punish an advocate by suspending his licence, which
punishment can only be imposed after a finding of 'professional
misconduct' is recorded in the manner prescribed under the Advocates Act
and the Rules framed thereunder.
41. When this Court is seized of a matter of contempt of court by an
advocate, there is no "case, cause or matter" before the Supreme Court
regarding his "professional misconduct" even though, in a given case, the
contempt committed by an advocate may also amount to an abuse of the
privilege granted to an advocate by virtue of the license to practice law but
no issue relating to his suspension from practice is the subject matter of
the case. The powers of this Court, under Article 129 read with Article 142
of the Constitution, being supplementary powers have "to be used in
exercise of its jurisdiction" in the case under consideration by this Court.
Moreover, a case of contempt of court is not stricto sensu a cause or a
matter between the parties inter se. It is a matter between the court and
the contemner. It is not, strictly speaking, tried as an adversarial
litigation. The party, which brings the contumacious conduct of the
contemner to the notice of the court, whether a private person or the
subordinate court, is only an informant and does not have the status of a
litigant in the contempt of Court case.
42. The contempt of court is a special jurisdiction to be exercised sparingly
and with caution, whenever an act adversely effects the administration of
justice or which tends to impede its course or tends to shake public
confidence in the judicial institutions. This jurisdiction may also be
exercised when the act complained of adversely effects the Majesty of Law
or dignity of the courts. The purpose of contempt jurisdiction is to uphold
the majesty and dignity of the Courts of law. It is an unusual type of
jurisdiction combining "the jury, the judge and the hangman" and it is so
because the court is not adjudicating upon any claim between litigating
parties. This jurisdiction is not exercised to protect the dignity of an
individual judge but to protect the administration of justice from being
maligned. In the general interest of the community, it is imperative that
the authority of courts should not be imperiled and there should be no
unjustifiable interference in the administration of justice. It is a matter
between the court and the contemner and third parties cannot intervene.
It is exercised in a summary manner in aid of the administration of
justice, the majesty of law and the dignity of the courts. No such act can
be permitted which may have the tendency to shake the public confidence
in the fairness and impartiality of the administration of justice.
43. The power of the Supreme Court to punish for contempt of court,
though quite wide, is yet limited and cannot be expanded to include the
power to determine whether an advocate is also guilty of "Professional
misconduct" in a summary manner, giving a go bye to the procedure
prescribed under the Advocates Act. The power to do complete justice
under Article 142 is in a way, corrective power, which gives preference to
equity over law but it cannot be used to deprive a professional lawyer of
the due process contained in the Advocates Act 1961 by suspending his
license to practice in a summary manner, while dealing with a case of
contempt of court.
41
44. In Re, V.C. Mishra case, while imposing the punishment of suspended
simple imprisonment, the Bench, as already noticed, punished the
contemner also by suspending his license to practice as an advocate for a
specified period. The Bench dealing with that aspect opined: (SCC p.624,
para 51)
“It is not disputed that suspension of the advocate from practice and
his removal from the State roll of advocates are both punishments.
There is no restriction or limitation on the nature of punishment that
this Court may award while exercising its contempt jurisdiction and
the said punishments can be the punishments the Court may impose
while exercising the said jurisdiction.”
45. In taking this view, the Bench relied upon Articles 129 and 142 of the
Constitution besides Section 38 of the Advocates Act, 1961. The Bench
observed: (SCC p.624, paras 4950)
"Secondly, it would also mean that for any act of contempt of court, if
it also happens to be an act of professional misconduct under the
Bar Council of India Rules, the courts including this Court, will have
no power to take action since the Advocates Act confers exclusive
power for taking action for such conduct on the disciplinary
committees of the State Bar Council and the Bar Council of India, as
the case may be. Such a proposition of law on the face of it observes
rejection for the simple reason that the disciplinary jurisdiction of the
State Bar council and the Bar Council of India to take action for
professional misconduct is different from the jurisdiction of the
Courts to take action against the advocates for the contempt of
Court. The said jurisdiction coexist independently of each other. The
action taken under one jurisdiction does not bar an action under the
other jurisdiction.”
The contention is also misplaced for yet another and equally, if
not more, important reason. In the matter of disciplinary jurisdiction
under the Advocates Act, this Court is constituted as the final
Appellate authority under Section 38 of the act as pointed out earlier.
In that capacity, this court can impose any of the punishments
mentioned in Section 35(3) of the Act including that of removal of the
name of the Advocate from the State roll and of suspending him from
practice. If that be so, there is no reason why this court while
exercising its contempt jurisdiction under Article 129 read with
Article 142 cannot impose any of the said punishments. The
punishment so imposed will not only be not against the provisions of
any statute but in conformity with the substantive provisions of the
advocates Act and for conduct which is both a professional
misconduct as well as the contempt of Court. The argument has,
therefore, to be rejected."
46. These observations, as we shall presently demonstrate and we say so
with utmost respect, are too widely stated and do not bear closer scrutiny.
After recognising that the disciplinary jurisdiction of the State Bar Council
and the Bar Council of India to take action for professional misconduct is
different from the jurisdiction of the courts to take action against the
advocates for the contempt of court, how could the court invest itself with
42
the jurisdiction of the disciplinary committee of the Bar Council to punish
the advocate concerned for "professional misconduct" in addition to
imposing the punishment of suspended sentence of imprisonment for
committing contempt of court.
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.
58. After the coming into force of the Advocates Act, 1961, exclusive power
for punishing an advocate for "professional misconduct "has been
conferred on the State Bar Council concerned and the Bar Council of
India. That Act contains a detailed and complete mechanism for
suspending or revoking the license of an advocate for his "professional
misconduct'. Since, the suspension or revocation of license of an advocate
has not only civil consequences but also penal consequences, the
punishment being in the nature of penalty, the provisions have to be
strictly construed. Punishment by way of suspending the license of an
advocate can only be imposed by the competent statutory body after the
charge is established against the Advocate in a manner prescribed by the
Act and the Rules framed thereunder.
70. In Bar Council of Maharashtra v. M.V. Dabholkar & Ors., (1975) 2 SCC
702 , a Seven Judge Bench of this Court analyzed the scheme of the
Advocates Act 1961 and inter alia observed: (SCC p.709, para 24)
"24. The scheme and the provisions of the Act indicate that the
Constitution of State Bar Councils and Bar Council of India is for one
of the principal purposes to see that the standards of professional
conduct and etiquette laid down by the Bar Council of India are
observed and preserved. The Bar Councils, therefore, entertain cases
of misconduct against advocates. The Bar Councils are to safeguard
the rights, privilege, and interests of advocates. The Bar Council is a
body corporate. The disciplinary committees are constituted by the
Bar Council. The Bar Council is not the same body as its disciplinary
committee. One of the principal functions of the Bar Council in
regard to standards of professional conduct and etiquette of
advocates is to receive complaints against advocates and if the Bar
Council has reason to believe that any advocate has been guilty of
professional or other misconduct it shall refer the case for disposal to
its disciplinary committee. The Bar Councils of a State may also of its
own motion if it has reason to believe that any advocate has been
guilty of professional or other misconduct it shall refer the case for
disposal to its disciplinary committee. It is apparent that a state Bar
Council not only receives a complaint but is required to apply its
mind to find out whether there is any reason to believe that any
advocate has been guilty of professional or other misconduct. The
43
Bar Council of a State acts on that reasoned belief. The Bar Council
has a very important part to play, first in the reception of complaints,
second, informing reasonable belief of guilt of professional or other
misconduct and finally in making reference of the case to its
disciplinary committee. The initiation of the proceeding before the
disciplinary committee is by the Bar Council of a State. A most
significant feature is that no litigant and no member of the public
can straightway commence disciplinary proceedings against an
advocate. It is the Bar Council of a State which initiates the
disciplinary proceedings.
71. Thus, after the coming into force of the Advocates Act, 1961 with effect
from 1951961, matters connected with the enrolment of advocates as
also their punishment for professional misconduct is governed by the
provisions of that Act only. Since, the jurisdiction to grant license to a law
graduate to practice as an advocate vest exclusively in the Bar Councils of
the State concerned, the jurisdiction to suspend his license for a specified
term or to revoke it also vests in the same body.
72. The letters patent of the Chartered High Courts as well of the other
High Courts earlier did vest power in those High Courts to admit an
advocate to practice. The power of suspending from practice being
incidental to that of admitting to practice also vested in the High Courts.
However, by virtue of Section 50 of the Advocates Act, with effect from the
date when a State Bar Council is constituted under the Act, the provisions
of the Letters patent of any High Court and "of any other law" in so far as
they relate to the admission and enrolment of a legal practitioner or confer
on the legal practitioner the right to practice in any court or before any
authority or a person as also the provisions relating to the "suspension or
removal" of legal practitioners, whether under the letters patent of any
High Court or of any other law. have been repealed. These powers now
vest exclusively, under the Advocates Act, in the Bar Council of the State
concerned. Even in England, the courts of justice are now relieved from
disbarring advocates from practice after the power of calling to the Bar has
been delegated to the Inns of Court. The power to disbar the advocate also
now vests exclusively in the Inns of Court and a detailed procedure has
been laid therefor.
76. This Court is indeed the final appellate authority under Section 38 of
the Act but we are not persuaded to agree with the view that this Court
can in exercise of its appellate jurisdiction, under Section 38 of the Act,
impose one of the punishments, prescribed under that Act, while
punishing a contemner advocate in a contempt case. 'Professional
misconduct' of the advocate concerned is not a matter directly in issue in
the contempt of court case. While dealing with the contempt of court case,
this court is obliged to examine whether the conduct complained of
amounts to contempt of court and if the answer is in the affirmative, then
to sentence the contemner for contempt of court by imposing any of the
recognised and accepted punishments for committing contempt of court.
Keeping in view the elaborate procedure prescribed under the Advocates
Act 1961 and the Rules framed thereunder it follows that a complaint of
professional misconduct is required to be tried by the disciplinary
committee of the Bar Council, like the trial of a criminal case by a court of
law and an advocate may be punished on the basis of evidence led before
44
the disciplinary committee of the Bar Council after being afforded an
opportunity of hearing. The delinquent advocate may be suspended from
practice for a specified period or even removed from the rolls of the
advocates or imposed any other punishment as provided under the Act.
The inquiry is a detailed and elaborate one and is not of a summary
nature. It is, therefore, not permissible for this court to punish an
advocate for "professional misconduct" in exercise of the appellate
jurisdiction by converting itself as the statutory body exercising "original
jurisdiction". Indeed, if in a given case the Bar Council concerned on being
apprised of the contumacious and blameworthy conduct of the advocate
by the High Court or this Court does not take any action against the said
advocate, this court may well have the jurisdiction in exercise of its
appellate powers under Section 38 of the Act read with Article 142 of the
Constitution to proceed suo moto and send for the records from the Bar
Council and pass appropriate orders against the advocate concerned. In
an appropriate case, this Court may consider the exercise of appellate
jurisdiction even suo moto provided there is some cause pending before
the Bar Council concerned, and the Bar Council does "not act" or fails to
act, by sending for the record of that cause and pass appropriate orders.
77. However, the exercise of powers under the contempt jurisdiction
cannot be confused with the appellate jurisdiction under Section 38 of the
Act. The two jurisdictions are separate and distinct. We are, therefore,
unable to persuade ourselves to subscribe to the contrary view expressed
by the Bench in V.C. Mishra case because in that case, the Bar Council
had not declined to deal with the matter and take appropriate action
against the advocate concerned. Since there was no cause pending before
the Bar Council, this court could not exercise its appellate jurisdiction in
respect of a matter which was never under consideration of the Bar
Council.
78. Thus, to conclude we are of the opinion that this Court cannot in
exercise of its jurisdiction under Article 142 read with Article 129 of the
Constitution, while punishing a contemner for committing contempt of
court, also impose a punishment of suspending his license to practice,
where the contemner happens to be an Advocate. Such a punishment
cannot even be imposed by taking recourse to the appellate powers under
Section 38 of the Act while dealing with a case of contempt of court (and
not an appeal relating to professional misconduct as such). To that extent,
the law laid down in Vinay Chandra Mishra, Re is not good law and we
overrule it.
79. An Advocate who is found guilty of contempt of court may also, as
already noticed, be guilty of professional misconduct in a given case but it
is for the Bar Council of the State or Bar Council of India to punish that
Advocate by either debarring him from practice or suspending his license,
as may be warranted, in the facts and circumstances of each case. The
learned Solicitor General informed us that there have been cases where
the Bar Council of India taking note of the contumacious and
objectionable conduct of an advocate, had initiated disciplinary
proceedings against him and even punished him for "professional
misconduct", on the basis of his having been found guilty of committing
contempt of court. We do not entertain any doubt that the Bar Council of
the State or Bar Council of India, as the case may be when apprised of the
45
established contumacious conduct of an advocate by the High Court or by
this Court, would rise to the occasion, and take appropriate action against
such an advocate. Under Article 144 of the Constitution "all authorities
civil and judicial, in the territory of India shall act in aid of the Supreme
Court". The Bar Council which performs a public duty and is charged with
the obligation to protect the dignity of the profession and maintain
professional standards and etiquette is also obliged to act "in aid of the
Supreme Court". It must, whenever, facts warrant rise to the occasion and
discharge its duties uninfluenced by the position of the contemner
advocate. It must act in accordance with the prescribed procedure,
whenever its attention is drawn by this Court to the contumacious and
unbecoming conduct of an advocate which has the tendency to interfere
with due administration of justice. It is possible for the High Courts also to
draw the attention of the Bar Council of the State to a case of professional
misconduct of a contemner advocate to enable the State Bar Council to
proceed in the manner prescribed by the Act and the rules framed
thereunder. There is no justification to assume that the Bar Councils
would not rise to the occasion, as they are equally responsible to uphold
the dignity of the courts and the majesty of law and prevent any
interference in the administration of justice. Learned counsel for the
parties present before us do not dispute and rightly so that whenever a
court of record, records its findings about the conduct of an Advocate
while finding him guilty of committing contempt of court and desires or
refers the matter to be considered by the Bar Council concerned,
appropriate action should be initiated by the Bar Council concerned in
accordance with law with a view to maintain the dignity of the courts and
to uphold the majesty of law and professional standards and etiquette.
Nothing is more destructive of public confidence in the administration of
justice than incivility, rudeness or disrespectful conduct on the part of a
counsel towards the court or disregard by the court of the privileges of the
bar. In case the Bar Council, even after receiving 'reference' from the
court, fails to take action against the advocate concerned, this court might
consider invoking its powers under Section 38 of the Act by sending for
the record of the proceedings from the Bar Council and passing
appropriate orders. Of Course, the appellate powers under Section 38
would be available to this Court only and not to the High Courts. We,
however, hope that such a situation would not arise.
80. In a given case it may be possible, for this Court or the High Court, the
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 license or debarring him to practice as an advocate. In a case of
contemptuous, contumacious, unbecoming or blameworthy conduct of an
AdvocateonRecord, this court possesses jurisdiction, under the Supreme
Court Rules itself, to withdraw his privilege to practice as an Advocatean
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 license to practice as an advocate in other courts or
Tribunals.”
(emphasis supplied)
46
The Court has observed that in a given case an Advocate found guilty
of committing contempt of court may at the same time be guilty of
committing “professional misconduct” but the two jurisdictions are
separate, distinct and exercisable by different forums by following different
procedures. Exclusive power for punishing an Advocate for professional
misconduct is with Bar Councils. Punishment for suspending the license of
an Advocate can only be imposed by a competent statutory body. Relying
upon the SevenJudges Bench decision in Bar Council of Maharashtra v.
(supra) that under Advocates Act the power to grant
M.V. Dabholkar & Ors.
licenses is with Bar Council, the jurisdiction to suspend the licence or to
debar him vests in the same body. Though appeal lies to this Court under
Section 38, it cannot convert it to statutory body exercising "original
jurisdiction". This Court, in the exercise of jurisdiction under Articles 142
and 129 while punishing in the contempt of court, cannot suspend a licence
to practice. The Court further held that it is possible for this Court or the
High Court to prevent contemnor Advocate to appear before it till he purges
himself of contempt but that is different from suspending or revoking his
licence to practice or debarring him from practice for misconduct. This
Court also held in case of Advocate on Record that the Supreme Court
possesses jurisdiction under its rules to withdraw the privilege to practice
as Advocate on record as that privilege is conferred by this Court. The
withdrawal of that privilege does not tantamount to suspending or revoking
the licence.
47
55. Shri Mohan Parasaran learned senior counsel has relied on the matter
of Pravin C. Shah v. K.A. Mohd. Ali & Anr. (supra) in which the question was
whether an Advocate found guilty of contempt of court can appear in court
until and unless he purges himself of contempt, the court held that an
Advocate found guilty of contempt of court must purge himself before being
permitted to appear. Rule 11 of the Rules framed by the High Court of
Kerala under section 34 (1) of Advocates Act reads thus:
"11. 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."
This Court has relied upon in Supreme Court Bar Association v. Union
of India (supra) in Pravin C. Shah v. K.A. Mohd. Ali & Anr. (supra) and
observed thus:
16. Rule 11 of the Rules is not a provision intended for the Disciplinary
Committee of the Bar Council of the State r the Bar Council of India. It is a
matter entirely concerning the dignity and the orderly functioning of the
courts. The right of the advocate to practice envelopes a lot of acts to be
performed by him in the discharge of his professional duties. Apart form
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 etc. Rule 11 has nothing to do with all the acts
done by an advocate during his practice except his performance insides
the court. 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.
17. When the rules stipulate that a person who committed contempt of
court cannot have the unreserved right to continue to appear and plead
and conduct cases in the courts without any qualm or remorse, the Bar
Council cannot overrule such a regulation concerning the orderly conduct
48
of court proceedings. Courts of law are structured in such a design as to
evoke respect and reverence for 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 was
found guilty of contempt of court on the previous hour, standing in the
court and arguing a case or crossexamining a witness on the same day,
unaffected by the contemptuous behavior he hurled at the court, would
erode the dignity of the court and even corrode the majesty of it besides
impairing the confidence of the public in the efficacy of the institution of
the courts. This necessitates vesting of power with the High Court to
formulate rules for regulating the proceeding inside the court including
the conduct of advocates during such proceedings. That power should not
be confused with the right to practice law. While the Bar Council can
exercise control over the latter the High Court should be in control of the
former.
18. In the above context, it is useful to quote the following observations
made by a Division Bench of the Allahabad High Court in Prayag Das vs.
Civil Judge, Bulandshahr and ors. AIR 1974 All 133 : (AIR p.136, para 9)
"The High Court has a power to regulate the appearance of advocates
in courts. The right to practise and the right to appear in courts are
not synonymous. An advocate may carry on chamber practice or even
practise in courts in various other ways, e.g. drafting and filing of
pleadings and Vakalatnama for performing those acts. For that
purpose, his physical appearance in courts may not at all be
necessary. For the purpose of regulating his appearance in courts the
High Court should be the appropriate authority to make rules and on
a proper construction of Section 34(1) of the Advocates Act it must be
inferred that the High Court has the power to make rules for
regulating the appearance of Advocates and proceedings inside the
courts. Obviously, the High Court is the only appropriate authority to
be entrusted with this responsibility."
19. In our view, the legal position has been correctly delineated in the
above statements made by the Allahabad High Court. The context for
making those statements was that an advocate questioned the powers of
the High Court in making dress regulations for the advocates while
appearing in courts.
20. Lord Denning had observed as follows in Hadkinson vs. Hadkinson
1952 (2) All ER 567: (All ER p.575BC)
"…I am of the opinion that the fact that a party to a cause has
disobeyed an order of the court is not of itself a bar to his being
heard, but if his disobedience is such that, so long as it continues, it
impedes the course of justice in the cause, by making it more
difficult for the court to ascertain the truth or to enforce the orders
which it may make, then the court may in its discretion refuse to
hear him until the impediment is removed or good reason is shown
why it should not be removed."
21. The observations can apply to the courts in India without any doubt
49
and at the same time without impeding the disciplinary powers vested in
the Bar Councils under the Advocate Act.
35. It is still open to the respondent Advocate to purge himself of the
contempt in the manner indicated above. But until that process is
completed respondent Advocate cannot act or plead in any court situated
within the domain of the Kerala High Court, including the subordinate
courts thereunder. The Registrar of the High Court of Kerala shall intimate
all the courts about this interdict as against the respondentadvocates.”
(emphasis supplied)
56. The decision in Pravin C. Shah (supra) operates when an Advocate is
found guilty of committing contempt of court and then he can be debarred
from appearing in court until he purges himself of contempt as per
guidelines laid down therein, however, the power to suspend enrolment and
debarring from appearance are different from each other. In case of
debarment, enrolment continues but a person cannot appear in court once
he is guilty of contempt of court until he purges himself as provided in the
rule. Debarment due to having been found guilty of contempt of court is not
punishment of suspending the license for a specified period or permanently
removing him from the roll of Advocates. While guilty of contempt his name
still continuous on the roll of concerned Bar Council unless removed or
suspended by Bar Council by taking appropriate disciplinary proceedings.
The observations made by Lord Denning in Hadkinson v. Hadkindon (supra)
was also a case of disobedience of court order and the Court may refuse to
hear him until impediment is removed or good reason to remove
impediment exist.
57. In Ex Capt. Harish Uppal v. Union of India & Anr. (supra) while holding
50
that advocates have no right to go on ‘strike’, the Court observed:
"20. Thus the law is already well settled. It is the duty of every Advocate
who has accepted a brief to attend the trial, even though it may go on day
to day and for a prolonged period. It is also settled law that a lawyer who
has accepted a brief cannot refuse to attend Court because a boycott call
is given by the Bar Association. It is settled law that it is unprofessional as
well as unbecoming for a lawyer who has accepted a brief to refuse to
attend Court even in pursuance of a call for strike or boycott by the Bar
Association or the Bar Council. It is settled law that Courts are under an
obligation to hear and decide cases brought before them and cannot
adjourn matters merely because lawyers are on strike. The law is that it is
the duty and obligation of Courts to go on with matters or otherwise it
would tantamount to becoming privy to the strike. It is also settled law
that if a resolution is passed by Bar Associations expressing want of
confidence in judicial officers, it would amount to scandalizing the Courts
to undermine its authority and thereby the advocates will have committed
contempt of Court. Lawyers have known, at least since Mahabir Singh
case (supra) that if they participate in a boycott or a strike, their action is
exfacie bad in view of the declaration of law by this Court. A lawyer's duty
is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also
known, at least since Ramon Services case, that the advocates would be
answerable for the consequences suffered by their clients if the non
appearance was solely on grounds of a strike call.
22. It was expected that having known the wellsettled law and having
seen that repeated strikes and boycotts have shaken the confidence of the
public in the legal profession and affected the administration of justice,
there would be selfregulation. The abovementioned interim order was
passed in the hope that with selfrestraint and selfregulation the lawyers
would retrieve their profession from lost social respect. The hope has not
fructified. Unfortunately, strikes and boycott calls are becoming a frequent
spectacle. Strikes, boycott calls, and even unruly and unbecoming
conduct are becoming a frequent spectacle. On the slightest pretense
strikes and/or boycott calls are resorted to. The judicial system is being
held to ransom. Administration of law and justice is threatened. The rule
of law is undermined.
33. The only exception to the general rule set out above appears to be the
item ( III ). We accept that in such cases a strong protest must be lodged.
We remain of the view that strikes are illegal and that courts must now
take a very serious view of strikes and calls for boycott. However, as stated
above, lawyers are part and parcel of the system of administration of
justice. A protest on an issue involving dignity, integrity, and
independence of the Bar and judiciary, provided it does not exceed one
day, may be overlooked by courts, who may turn a blind eye for that one
day.
34. One last thing which must be mentioned is that the right of
appearance in courts is still within the control and jurisdiction of courts.
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
51
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 selfrestraint 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
practice envelopes a lot of acts to be performed by him in the 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 a 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 the 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 be and are not divested of control or 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 the 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 its 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 practice 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 practise 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 interalia rules as to persons practicing before this Court.
Similarly, Section 34 of the Advocates Act empowers High Courts to frame
52
rules, interalia 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 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 the
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.
45. Further, appropriate rules are required to be framed by the High
Courts under Section 34 of the Advocates Act by making it clear that
strike by advocate/advocates would be considered interference with the
administration of justice and advocate/advocates concerned may be
barred from practicing before courts in a district or in the High Court."
(emphasis supplied)
The question involved in the aforesaid case was as to strike and
boycott of Courts by Lawyers. In that context argument was raised that
such an act tantamounts to contempt of court and the court must punish
the party coercing others also to desist from appearance. The Court cannot
be privy to boycott or strike. The decision in Supreme Court Bar Association
v. Union of India (supra) has been reiterated. The Court pointed out that let
bar take notice of the fact that unless selfrestraint is exercised, the court
may have to frame rules under Section 34 of the Advocates Act debarring
advocates guilty of contempt of court/ unprofessional or unbecoming
conduct from appearing in Courts. The Court observed that in case of Bar
Council fail to act, Court may be compelled to frame appropriate Rules
under Section 34 of the Act. The Court has observed about the rules that
may be framed but not on the validity of rules that actually have been
53
framed and takes away disciplinary control of Bar Council. The power to
debar due to contempt of court is a different aspect than suspension of
enrolment or debarment by way of disciplinary measure. This Court did not
observe that decision in Supreme Court Bar Association v. Union of India
(supra) is bad in law for any reason at the same time Court has relied upon
the same in ExCapt. Harish Uppal (supra), and laid down that Bar Council
can exercise control on right to practice. The Court also observed that
power to control proceedings within the Court cannot be affected by
enforcement of Section 30.
58. In our opinion, the decision in ExCapt. Harish Uppal v. Union of India
& Anr. (supra) does not lend support to vires of Rule 14A to 14D as
amended by the High Court of Madras. The decision follows the logic of the
Supreme Court Bar Association v. Union of India as contempt of court may
involve professional misconduct if committed inside Court Room and takes
it further with respect to the debarring appearance in Court, which power is
distinct from suspending enrolment that lies with Bar Council as observed
in ExCapt. Harish Uppal (supra) also in aforesaid para 34, the decision is of
no utility to sustain the vires of impugned rules.
59. In Bar Council of India v. High Court of Kerala , (supra) vires of Rule 11
of the rules framed by the High Court of Kerala under section 34(1) of
Advocates Act came to be impinged which debarred Advocate found guilty of
contempt of court from appearing, acting or pleading in court till he got
54
purged himself of the contempt. The court considered the Contempt of
Courts Act, Advocates Act, Code of Criminal Procedure, and significantly
distinction between Contempt of Court and misconduct by an Advocate and
observed:
“29. 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.
30. In Ashok Leyland Ltd. v. State of Tamil Nadu and Anr. (2004) 3 SCC 1
this Court noticed:
"Subject to" is an expression whereby limitation is expressed. The
order is conclusive for all purposes.”
31. This Court further noticed the dictionary meaning of "subject to"
stating (SCC p. 38, paras 9293):
" 92 . Furthermore, the expression 'subject to' must be given effect to.
93 . 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 SW 2d 289,
302)’"
Caselaw
32. A Constitution Bench of this Court in Supreme Court Bar Assn.,(1998)
4 SCC 409 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.
33. 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 practice in his court unless he purges himself of
contempt.
34. 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 recorded in the manner prescribed under the Advocates Act
and the rules framed thereunder but as has been noticed in the Supreme
Court Bar Assn. professional misconduct of the advocate concerned is not
55
a matter directly in issue in the matter of contempt case.”
(emphasis supplied)
The Court referred to the observation in Supreme Court Bar
Association v. Union of India, ExCapt. Harish Uppal (supra) and held that in
a case of professional misconduct Court cannot punish an advocate under
Article 129 which has to be done under Advocates Act by the Bar Council.
In Contempt of Court Act, misconduct is directly not in issue. After
considering principles of natural justice the court observed that it cannot be
stretched too far and Rule 11 cannot be said to be violative of provisions
contained in Article 14 of the Constitution of India.
60. In R.K. Anand v. Registrar, Delhi High Court (supra) relied on by the
respondents, the witnesses were tampered with by the appellant. A sting
operation was conducted by the T.V. Channel in connection with BMW hit
and run case. Advocate R.K. Anand was found to be guilty of contempt of
Court. He was debarred from appearing in Court for a certain period. The
Court also dealt with a motivated application filed for recusal. The Court
expressed concern and sharp deprecation of such tendencies and practices
of Members of Bar and held that such prayer for recusal ordinarily should
be viewed as interference in the due course of justice leading to penal
consequences. The submission was raised that professional misconduct is
dealt with under Advocates Act. The Delhi High Court Rules do not provide
that Advocate on conviction for Contempt of Court would be barred from
appearing in Court. This Court noted decisions in Supreme Court Bar
56
Association v. Union of India (supra), upheld the order of the High Court and
directed the High Courts to frame the Rules under Section 34 without
further delay. This Court has observed:
“237. In both Pravin C. Shah v. K.A. Mohammed Ali, (2001) 8 SCC 650 and
Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45 , the earlier
Constitution Bench decision in Supreme Court Bar Assn. v. Union of India,
(1998) 4 SCC 409 was extensively considered. The decision in Ex. Capt.
Harish Uppal was later followed in a threejudge Bench decision in Bar
Council of India v. The High Court of Kerala (2004) 6 SCC 311.
238. In Supreme Court Bar Assn. the direction prohibiting an advocate
from appearing in court for a specified period was viewed as a total and
complete denial of his right to practice law and the bar was considered as
a punishment inflicted on him. In Ex. Capt. Harish Uppal it was seen not
as punishment for professional misconduct but as a measure necessary to
regulate the court's proceedings and to maintain the dignity and orderly
functioning of the courts. We may respectfully add that in a given case a
direction disallowing an advocate who is convicted of criminal contempt
from appearing in court may not only be a measure to maintain the
dignity and orderly functioning of the courts but may become necessary
for the selfprotection of the court and for preservation of the purity of
court proceedings. Let us, for example, take the case where an advocate is
shown to have accepted money in the name of a judge or on the pretext of
influencing him; or where an advocate is found tampering with the court's
record; or where an advocate is found actively taking part in faking court
orders (fake bail orders are not unknown in several High Courts!); or
where an advocate has made it into a practice to browbeat and abuse
judges and on that basis has earned the reputation to get a case
transferred from an “inconvenient” court; or where an advocate is found to
be in the habit of sending unfounded and unsubstantiated allegation
petitions against judicial officers and judges to the superior courts.
Unfortunately, these examples are not from imagination. These things are
happening more frequently than we care to acknowledge.
239. We may also add that these illustrations are not exhaustive but there
may be other ways in which a malefactor's conduct and actions may pose
a real and imminent threat to the purity of court proceedings, cardinal to
any court's functioning, apart from constituting a substantive offense and
contempt of court and professional misconduct. In such a situation the
court does not only have the right but it also has the obligation cast upon
it to protect itself and save the purity of its proceedings from being
polluted in any way and to that end bar the malefactor from appearing
before the courts for an appropriate period of time.
240. It is already explained in Ex. Captain Harish Uppal that a direction of
this kind by the Court cannot be equated with punishment for
professional misconduct. Further, the prohibition against appearance in
courts does not affect the right of the lawyer concerned to carry on his
legal practice in other ways as indicated in the decision. We respectfully
57
submit that the decision in ExCapt. Harish Uppal v. Union of India places
the issue in correct perspective and must be followed to answer the
question at issue before us.
242. Ideally, every High Court should have rules framed under Section 34
of the Advocates Act in order to meet with such eventualities but even in
the absence of the rules, the High Court cannot be held to be helpless
against such threats. In a matter as fundamental and grave as preserving
the purity of judicial proceedings, the High Court would be free to exercise
the powers vested in it under Section 34 of the Advocates Act
notwithstanding the fact that Rules prescribing the manner of exercise of
power have not been framed. But in the absence of statutory Rules
providing for such a course an advocate facing the charge of contempt
would normally think of only the punishments specified under Section 12
of the Contempt of Courts Act. He may not even imagine that at the end of
the proceeding he might end up being debarred from appearing before the
court. The rules of natural justice, therefore, demand that before passing
an order debarring an advocate from appearing in courts he must be
clearly told that his alleged conduct or actions are such that if found guilty
he might be debarred from appearing in courts for a specific period. The
warning may be given in the initial notice of contempt issued under
Section 14 or Section 17 (as the case may be) of the Contempt of Courts
Act. Or such a notice may be given after the proceedee is held guilty of
criminal contempt before dealing with the question of punishment.
243. In order to avoid any such controversies in future, all the High
Courts that have so far not framed rules under Section 34 of the
Advocates Act are directed to frame the rules without any further delay. It
is earnestly hoped that all the High Courts shall frame the rules within
four months from today. The High Courts may also consider framing rules
for having Advocates on Record on the pattern of the Supreme Court of
India."
(emphasis supplied)
61. The decision in R.K. Anand (supra) is not a departure from aforesaid
other decisions but rather affirms them. It was a case of debarring advocate
for a particular period from the appearance on being found guilty of
contempt of court, not a case of suspension of enrolment by way of
disciplinary proceedings which power lies with the Bar Council.
62. The provisions contained in Order IV Rule 10 of the Supreme Court
Rules have been pressed into service so as to sustain the amended rules.
Rule 10 reads as follows:
58
“10. When, on the complaint of any person or otherwise, the Court is of
the opinion that an advocateon record has been guilty of misconduct or of
conduct unbecoming of an advocateonrecord, the Court may make an
order removing his name from the register of Advocates on record either
permanently or for such period as the Court may think fit and the
Registrar shall thereupon report the said fact to the Bar Council of India
and to State Bar Council concerned:
Provided that the Court shall, before making such order, issue to such
advocateonrecord a summons returnable before the Court or before a
Special Bench to be constituted by the Chief Justice, requiring the
AdvocateonRecord to show cause against the matters alleged in the
summons, and the summons shall, if practicable, be served personally
upon him with copies of any affidavit or statement before the Court at the
time of the issue of the summons.
Explanation: For the purpose of these Rules, misconduct or conduct
unbecoming of an Advocate on Record shall include
a) Mere name lending by an AdvocateonRecord without any further
participation in the proceedings of the case;
b) Absence of the AdvocateonRecord from the Court without any
justifiable cause when the case is taken up for hearing;
and;
c) Failure to submit appearance slip duly signed by the Advocateon
Record of actual appearances in the Court.”
The aforesaid rule has been considered in Supreme Court Bar
(supra) and it is observed that as this Court
Association v. Union of India
enrolls Advocate on Record it has the power to remove his name from the
register of Advocate on Record either permanently or for a specific period.
That does not tantamount to the suspension of enrolment made by Bar
Council under Advocates Act which can be ordered by Bar Council only.
63. The decision in Mohit Chowdhary, Advocate, IN RE, (supra) has also
been relied upon in which this Court considered Rule 10 and debarred
advocate to practice as Advocate on Record for a period of one month from
the date of order. At the same time, this Court has observed that lawyer is
under obligation to do nothing that shall detract from the dignity of the
Court. Contempt jurisdiction is for the purpose of upholding honor or
59
dignity of the court, to avoid sharp or unfair practices. An Advocate shall
not to be immersed in a blind quest of relief for his client. "Law is not trade,
briefs no merchandise". His duty is to legitimately present his side of the
case to assist in the administration of justice. The Judges are selected from
Bar and purity of Bench depends on the purity of the Bar. Degraded Bar
result degraded bench. The Court has referred to Articles and standard of
processional conduct and etiquettes thus:
20. Warvelle's Legal Ethics , 2nd Edn. at p.182 sets out the obligation of a
lawyer as:
“A lawyer is under obligation to do nothing that shall detract from
the dignity of the court, of which he is himself a sworn officer and
assistant. He should at all times pay deferential respect to the Judge,
and scrupulously observe the decorum of the courtroom".
21. The contempt jurisdiction is not only to protect the reputation of the
Judge concerned so that he can administer justice fearlessly and fairly but
also to protect "the fair name of the judiciary". The protection in a manner
of speaking, extends even to the Registry in the performance of its task
and false and unfair allegations which seek to impede the working of the
Registry and thus the administration of justice, made with oblique motives
cannot be tolerated. In such a situation in order to uphold the honor and
dignity of the institution, the Court has to perform the painful duties
which we are faced with in the present proceedings. Not to do so in the
words of P.B. Sawant, J. in Ministry of Information & Broadcasting, In re ,
(1995) 3 SCC 619 would: (SCC p.635, para 20)
“20. …. The present trend unless checked is likely to lead to a
stage when the system will be found wrecked from within before
it is wrecked from outside. It is for the members of the profession
to introspect and take the corrective steps in time and also spare
the courts the unpleasant duty. We say no more.”
22. Now turning to the "Standards of Professional Conduct and Etiquette"
of the Bar Council of India Rules contained in Section I of Chapter II, Part
VI, the duties of an advocate towards the Court have been specified. We
extract the 4th duty set out as under:
"4. An advocate shall use his best efforts to restrain and prevent
his client from resorting to sharp or unfair practices or from doing
anything in relation to the court, opposing counsel or parties
which the advocate himself ought not to do. An advocate shall
refuse to represent the client who persists in such improper
conduct. He shall not consider himself a mere mouthpiece of the
client, and shall exercise his own judgment in the use of
restrained language in correspondence, avoiding scurrilous
attacks in pleadings, and using intemperate language during
60
arguments in court.”
23. In the aforesaid context the aforesaid principle in different words was
set out by Crampton, J. in R. v. O' Connell, 7 Irish Law Reports 313 as
under:
"The advocate is a representative but not a delegate. He gives to his
client the benefit of his learning, his talents and his judgment; but all
through he never forgets what he owes to himself and to others. He
will not knowingly misstate the law, he will not willfully misstate the
facts, though it be to gain the case for his client. He will ever bear in
mind that if he be an advocate of an individual and retained and
remunerated often inadequately, for valuable services, yet he has a
prior and perpetual retainer on behalf of truth and justice and there
is no Crown or other licenses which in any case or for any party or
purpose can discharge him from that primary and paramount
retainer."
24. The fundamentals of the profession thus require an advocate not to be
immersed in a blind quest of relief for his client. The dignity of the
institution cannot be violated in this quest as "law is no trade, briefs no
merchandise" as per Krishna Iyer, J in Bar Council of Maharashtra v. M.V.
Dabholkar (1976) 2 SCC 291.
25. It is also pertinent to note at this point, the illuminating words of
Vivian Bose, J. in 'G' a Senior Advocate of the Supreme Court, In re AIR
1954 SC 557, who elucidated:
“10. …To use the language of the Army, an Advocate of this Court is
expected at all times to comport himself in a manner befitting his
status as an "officer and a gentleman".
26. It is as far back as in 1925 that an Article titled 'The Lawyer as an
Officer of the Court' Virginia Law Review , Vol.11, No.4 (Feb 1925) pp.263
77 published in the Virginia Law Review, lucidly set down what is expected
from the lawyer which is best set out in its own words:
"The duties of the lawyer to the Court spring directly from the
relation that he sustains to the Court as an officer in the
administration of justice. The law is not a mere private calling but is
a profession which has the distinction of being an integral part of the
State's judicial system. As an officer of the Court the lawyer is,
therefore, bound to uphold the dignity and integrity of the Court; to
exercise at all times respect for the Court in both words and actions;
to present all matters relating to his client's case openly, being
careful to avoid any attempt to exert private influence upon either the
judge or the jury; and to be frank and candid in all dealings with the
Court, "using no deceit, imposition or evasion," as by misreciting
witnesses or misquoting precedents. "It must always be understood,"
says Mr. Christian Doerfler, in an address before the Milwaukee
County Bar Association, in December, 1911, "that the profession of
law is instituted among men for the purpose of aiding the
administration of justice. A proper administration of justice does not
mean that a lawyer should succeed in winning a lawsuit. It means
that he should properly bring to the attention of the Court everything
by way of fact and law that is available and legitimate for the purpose
of properly presenting his client's case.
61
His duty as far as his client is concerned is simply to legitimately
present his side of the case. His duty as far as the public is
concerned and as far as he is an officer of the Court is to aid and
assist in the administration of justice.”
In this connection, the timely words of Mr. Warvelle may also well
be remembered:
"But the lawyer is not alone a gentleman; he is a sworn minister of
justice. His office imposes high moral duties and grave
responsibilities, and he is held to a strict fulfillment of all that these
matters imply. Interests of vast magnitude are entrusted to him;
confidence is imposed in him; life, liberty, and property are
committed to his care. He must be equal to the responsibilities which
they create, and if he betrays his trust, neglects his duties, practices
deceit, or panders to vice, then the most severe penalty should be
inflicted and his name stricken from the roll."
That the lawyer owes a high duty to his profession and to his fellow
members of the Bar is an obvious truth. His profession should be his
pride, and to preserve its honor pure and unsullied should be among his
chief concerns. "Nothing should be higher in the estimation of the
advocate," declares Mr. Alexander H. Robbins, "next after those sacred
relations of home and country than his profession. She should be to him
the 'fairest of ten thousand' among the institutions of the earth. He must
stand for her in all places and resent any attack on her honor as he
would if the same attack were to be made against his own fair name and
reputation. He should enthrone her in the sacred places of his heart, and
to her, he should offer the incense of constant devotion. For she is a
jealous mistress.
Again, it is to be borne in mind that the judges are selected from
the ranks of lawyers. The purity of the Bench depends upon the purity of
the Bar.
“The very fact, then, that one of the coordinate departments of the
Government is administered by men selected only from one profession
gives to that profession a certain preeminence which calls for a high
standard of morals as well as intellectual attainments. The integrity of the
judiciary is the safeguard of the nation, but the character of the judges is
practically but the character of the lawyers. Like begets like. A degraded
Bar will inevitably produce a degraded Bench, and just as certainly may
we expect to find the highest excellence in a judiciary drawn from the
ranks of an enlightened, learned and moral Bar.”
27. He ends his Article in the following words:
“No client, corporate or individual, however powerful, nor any cause
civil or political, however important, is entitled to receive, nor should
any lawyer render, any service or advice involving disloyalty to the
law whose ministers we are, or disrespect of the judicial office, which
we are bound to uphold, or corruption of any person or persons
exercising a public office or private trust, or deception or betrayal of
the public. When rendering any such improper service or advice, the
lawyer invites and merits stern and just condemnation.
Correspondingly, he advances the honor of his profession and the
best interests of his client when he renders service or gives advice
tending to impress upon the client and his undertaking exact
62
compliance with the strictest principles of moral law. He must also
observe and advise his client to observe the statute law, though until
a statute shall have been construed and interpreted by competent
adjudication, he is free and is entitled to advise as to its validity and
as to what he conscientiously believes to be its just meaning and
extent. But, above all, a lawyer will find his highest honor in a
deserved reputation for fidelity to private trust and to public duty, as
an honest man and as a patriotic and loyal citizen.”
28. On examination of the legal principles, an important issue emerges:
what should be the end of what the contemnor had started but has
culminated in an impassioned plea of Mr. K.K. Venugopal, learned senior
advocate supported by the representatives of the Bar present in Court,
marking their appearance for the contemnor. We are inclined to give due
consideration to such a plea but are unable to persuade ourselves to let
the contemnor go scotfree, without any consequences. We are thus not
inclined to proceed further in the contempt jurisdiction except to caution
the contemnor that this should be the first and the last time of such a
misadventure. But the matter cannot rest only at that.
30. We are of the view that the privilege of being an AdvocateonRecord
under the Rules has clearly been abused by the contemnor. The conduct
was not becoming of an advocate much less an AdvocateonRecord in the
Supreme Court.
32. The aforesaid Rule makes it clear, that whether on the complaint of
any person or otherwise, in case of misconduct or a conduct unbecoming
of an AdvocateonRecord, the Court may make an order removing his
name from the register of AdvocateonRecord permanently, or for a
specified period. We are not referring to the right to practice as an
advocate, and the name entered on the rolls of any State Bar Council,
which is a necessary requirement before a person takes the examination of
AdvocateonRecord. The present case is clearly one where this Court is of
the opinion that the conduct of the contemnor is unbecoming of an
AdvocateonRecord. The prerequisites of the proviso are met by the
reason of the Bench being constituted itself by the Chief Justice, and the
contemnor being aware of the far more serious consequences, which could
have flowed to him. The learned Senior Counsel representing the petitioner
has thrown him at the mercy of the Court. We have substantively accepted
the request but lesser consequences have been imposed on the
contemnor."
64. Reliance was placed on the decision Mahipal Singh Rana v. State of
Uttar Pradesh, (supra) by the respondents. This Court dealt with the
question when advocate has been convicted for criminal contempt as to the
sanctions/punishment that may be imposed in addition to punishments
that may be imposed for criminal contempt under the Contempt of Courts
63
Act, 1971. This Court held that regulation of right of appearance in courts
is within jurisdiction of courts and not Bar Councils, thus, Court can bar
Advocate convicted for contempt from appearing/pleading before any court
for an appropriate period of time, till convicted advocate purges himself of
the contempt, even in absence of suspension or termination of
enrolment/right to practice/licence to practice. Secondly, this Court also
held that bar on appearance/ pleadings in any court till contempt is purged
can be imposed by the Court in terms of the High Court Rules framed under
Section 34 of the Advocates Act, if such Rules exist. However, even if there
is no such rule framed under said Section 34, unless convicted advocate
purges himself of contempt or is permitted by Court, Court may debar an
Advocate as conviction results in debarring such advocate from
appearing/pleading in court, even in absence of suspension or termination
of enrolment/right to practise/licence to practise. This Court held thus:
“4.1. ( i ) Whether a case has been made out for interference with the order
passed by the High Court convicting the appellant for criminal contempt
and sentencing him to simple imprisonment for two months with a fine of
Rs 2000 and further imprisonment for two weeks in default and debarring
him from appearing in courts in Judgeship at Etah; and
4.2. ( ii ) Whether on conviction for criminal contempt, the appellant can be
allowed to practice.
32. In Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650, this Court held
that an advocate found guilty of contempt cannot be allowed to act or
plead in any court until he purges himself of contempt. This direction was
issued having regard to Rule 11 of the Rules framed by the High Court of
Kerala under Section 34(1) of the Advocates Act and also referring to the
observations in para 80 of the judgment of this Court in Supreme Court
Bar Assn. v. Union of India, (1998) 4 SCC 409. It was explained that
debarring a person from appearing in court was within the purview of the
jurisdiction of the Court and was different from suspending or terminating
the license which could be done by the Bar Council and on the failure of
the Bar Council, in exercise of appellate jurisdiction of this Court. The
observations are: ( Pravin C. Shah case , SCC pp. 65862, paras 1618, 24
64
& 2728)
“ 16 . Rule 11 of the Rules is not a provision intended for the
Disciplinary Committee of the Bar Council of the State or the Bar
Council of India. It is a matter entirely concerning the dignity and the
orderly functioning of the courts. The right of the advocate to practice
envelops a lot of acts to be performed by him in the 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, etc. Rule 11 has nothing to do with all the acts done by
an advocate during his practice except his performance inside the
court. 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.
17 . When the Rules stipulate that a person who committed contempt
of court cannot have the unreserved right to continue to appear and
plead and conduct cases in the courts without any qualm or remorse,
the Bar Council cannot overrule such a regulation concerning the
orderly conduct of court proceedings. Courts of law are structured in
such a design as to evoke respect and reverence for the majesty of
law and justice. The machinery for the 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 was found guilty of
contempt of court on the previous hour, standing in the court and
arguing a case or crossexamining a witness on the same day,
unaffected by the contemptuous behaviour he hurled at the court,
would erode the dignity of the court and even corrode the majesty of
it besides impairing the confidence of the public in the efficacy of the
institution of the courts. This necessitates vesting of power with the
High Court to formulate rules for regulating the proceedings inside
the court including the conduct of advocates during such
proceedings. That power should not be confused with the right to
practice law. While the Bar Council can exercise control over the
latter, the High Court should be in control of the former.
18 . In the above context it is useful to quote the following
observations made by a Division Bench of the Allahabad High Court
in v. , AIR 1974 All 133 (AIR p.
Prayag Das Civil Judge, Bulandshahr
136, para 9)
‘[T]he High Court has the power to regulate the appearance of
advocates in courts. The right to practice and the right to appear in
courts are not synonymous. An advocate may carry on chamber
practice or even practice in courts in various other ways e.g. drafting
and filing of pleadings and vakalatnama for performing those acts.
For that purpose, his physical appearance in courts may not at all be
necessary. For the purpose of regulating his appearance in courts the
65
High Court should be the appropriate authority to make rules and on
a proper construction of Section 34(1) of the Advocates Act it must be
inferred that the High Court has the power to make rules for
regulating the appearance of advocates and proceedings inside the
courts. Obviously, the High Court is the only appropriate authority to
be entrusted with this responsibility.'
*
24 . Purging is a process by which an undesirable element is expelled
either from one's own self or from society. It is a cleaning process.
Purge is a word which acquired implications first in theological
connotations. In the case of a sin, purging of such sin is made
through the expression of sincere remorse coupled with doing the
penance required. In the case of a guilt, purging means to get himself
cleared of the guilt. The concept of purgatory was evolved from the
word "purge", which is a state of suffering after this life in which
those souls, who depart this life with their deadly sins, are purified
and rendered fit to enter into heaven where nothing defiled enters
(vide Words and Phrases , Permanent Edn., Vol. 35A, p. 307). In
Black’s Law Dictionary the word “purge” is given the following
meaning: ‘To cleanse; to clear. To clear or exonerate from some
charge or imputation of guilt, or from a contempt.’ It is preposterous
to suggest that if the convicted person undergoes punishment or if he
tenders the fine amount imposed on him the purge would be
completed.
*
27 . We cannot, therefore, approve the view that merely undergoing
the penalty imposed on a contemnor is sufficient to complete the
process of purging himself of the contempt, particularly in a case
where the contemnor is convicted of criminal contempt. The danger
in giving accord to the said view of the learned Single Judge in the
aforecited decision is that if a contemnor is sentenced to a fine he
can immediately pay it and continue to commit contempt in the same
court, and then again pay the fine and persist with his contemptuous
conduct. There must be something more to be done to get oneself
purged of the contempt when it is a case of criminal contempt.
28 . The Disciplinary Committee of the Bar Council of India
highlighted the absence of any mode of purging oneself of the guilt in
any of the Rules as a reason for not following the interdict contained
in Rule 11. Merely because the Rules did not prescribe the mode of
purging oneself of the guilt it does not mean that one cannot purge
the guilt at all. The first thing to be done in that direction when a
contemnor is found guilty of criminal contempt is to implant or
infuse in his own mind real remorse about his conduct which the
court found to have amounted to contempt of court. Next step is to
seek pardon from the court concerned for what he did on the ground
that he really and genuinely repented and that he has resolved not to
commit any such act in future. It is not enough that he tenders an
apology. The apology tendered should impress the court to be
genuine and sincere. If the court, on being impressed of his
genuineness, accepts the apology then it could be said that the
contemnor has purged himself of the guilt."
33. In Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311 ,
66
constitutionality of Rule 11 of the Rules framed by the High Court of
Kerala for barring a lawyer from appearing in any court till he got himself
purged of contempt by an appropriate order of the court, was examined.
This Court held that the rule did not violate Articles 14 and 19(1)( g ) of the
Constitution nor amounted to usurpation of power of adjudication and
punishment conferred on the Bar Councils and the result intended by the
application of the Rule was automatic. It was further held that the Rule
was not in conflict with the law laid down in Supreme Court Bar Assn.
judgment. Referring to the Constitution Bench judgment in Harish Uppal
v. Union of India, (2003) 2 SCC 45 , it was held that regulation of right of
appearance in courts was within the jurisdiction of the courts. It was
observed, following Pravin C. Shah , that the court must have major
supervisory power on the right to appear and conduct in the court. The
observations are: ( Bar Council of India case , SCC p. 323, para 46)
“ 46 . 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
offenses carry minimum sentence. The gravity of such offenses, thus,
is recognized by the legislature. The courts do not have any role to
play in such a matter."
35. In R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 it was held that
even if there was no rule framed under Section 34 of the Advocates Act
disallowing an advocate who is convicted of criminal contempt, is not only
a measure to maintain dignity and orderly function of courts, it may
become necessary for the protection of the court and for preservation of
the purity of court proceedings. Thus, the court not only has a right but
also an obligation to protect itself and save the purity of its proceedings
from being polluted, by barring the advocate concerned from appearing
before the courts for an appropriate period of time. This Court noticed the
observations about the decline of ethical and professional standards of the
Bar, and the need to arrest such trend in the interests of administration of
justice. It was observed that in the absence of unqualified trust and
confidence of people in the Bar, the judicial system could not work
satisfactorily. Further observations are that the performance of the Bar
Councils in maintaining professional standards and enforcing discipline
did not match its achievements in other areas. This Court expressed hope
and expected that the Bar Council will take appropriate action for the
restoration of high professional standards among the lawyers, working of
their position in the judicial system and the society.
42. We may also refer to certain articles on the subject. In “ Raising the Bar
for the Legal Profession ”, published in The Hindu newspaper dated 159
2012, Dr. N.R. Madhava Menon wrote:
"… Being a private monopoly, the profession is organised like a
pyramid in which the top 20 per cent command 80 per cent of paying
work, the middle 30 per cent managing to survive by catering to the
needs of the middle class and government litigation, while the bottom
67
50 percent barely survive with legal aid cases and cases managed
through undesirable and exploitative methods! Given the poor quality
of legal education in the majority of the socalled law colleges (over a
thousand of them working in small towns and panchayats without
infrastructure and competent faculty), what happened with
uncontrolled expansion was the overcrowding of illequipped lawyers
in the bottom 50 per cent of the profession fighting for a piece of the
cake. In the process, being too numerous, the middle and the bottom
segments got elected to professional bodies which controlled the
management of the entire profession. The socalled leaders of the
profession who have abundant work, unlimited money, respect, and
influence did not bother to look into what was happening to the
profession and allowed it to go its way—of inefficiency, strikes,
boycotts, and public ridicule. This is the tragedy of the Indian Bar
today which had otherwise a noble tradition of being in the forefront
of the freedom struggle and maintaining the rule of law and civil
liberties even in difficult times."
54. Further, in exercise of appellate jurisdiction under Section 38 of the
Advocates Act, we direct that the license of the appellant will stand
suspended for a further period of five years. He will also remain debarred
from appearing in any court in District Etah even after five years unless he
purges himself of contempt in the manner laid down by this Court in Bar
Council of India and R.K. Anand and as directed by the High Court.
Question ( ii ) stands decided accordingly.”
(emphasis supplied)
65. In the advocate was found guilty of
Mahipal Singh Rana (supra)
criminal contempt as such punishment for debarring from the Court was
first passed and reliance has been placed for that purpose on the decision of
Constitution Bench of this Court in Supreme Court Bar Association (supra) .
Thus, the decision has no application to sustain vires of Rules 14(A) to
14(D) as amended by the High Court of Madras.
66. Shri Mohan Parasaran, learned senior counsel supported the Rules
pointing out that grave situation has been created in the High Court of
Madras as well as at its Madurai Bench, which compelled the Court to take
action on the judicial side to ensure the modicum of security. The High
Court had to order the security of the Court to be undertaken by CISF. In
68
this regard, orders were passed in Suo Moto Writ Petition No.29197 of 2015
by the High Court of Madras on 14.9.2015, 12.10.2015 and 30.10.2015.
The following incidents were noticed in the judicial orders:
i.
Holding protests and waving placards within the Court
premises;
ii. Raising slogans and marching down the corridors of the Court.
iii. The use of handheld microphones to disrupt Court
proceedings.
iv. Attempting to and in some cases successfully entering the
Chambers of the Puisne Judges of the Madurai Bench of the
High Court.
v.
Two instances of hoax bombs in the form of broken mechanical
clocks being placed at areas in the Court to ensure disruptions.
The High Court, in our opinion, could have taken action under
Contempt of Courts Act for aforesaid misconduct.
67. Rule 14A provides for power to debar an advocate from appearing
before the High Court and the subordinate courts in case an advocate who
is found to have accepted money in the name of a Judge or on the pretext of
influencing him; or an advocate who is found to have tampered with the
Court record or Court order; or an advocate who browbeats and/or abuses
a Judge or Judicial Officer; or an advocate who is found to have sent or
spread unfounded and unsubstantiated allegations/petitions against a
judicial officer or a Judge to the Superior Court; or an advocate who actively
participates in a procession inside the Court campus and/or involves in
gherao inside the Court Hall or holds placard inside the Court Hall; or an
advocate who appears in the Court under the influence of liquor may be
debarred by Court. However, it is not provided that Court would do so in
69
exercising Contempt Jurisdiction. The debarment is sought to be done by
way of disciplinary control, which is not permissible.
68. Rule 14B as amended provides for power to take action. Rule
14B(iv) states that where any such misconduct referred to under Rule 14A
is committed by an advocate before the High Court, the High Court shall
have the power to initiate action against the advocate concerned and debar
him from appearing before the High Court and all subordinate courts; or
where any such misconduct is committed before the Court of Principal
District Judge, the Principal District Judge shall have the power to initiate
action against the advocate concerned and debar him from appearing before
any Court within such district; or where any such misconduct referred to
under Rule 14A is committed before any subordinate court, the Court
concerned shall submit a report to the Principal District Court and the
Principal District Judge shall have the power to initiate action against the
advocate concerned and debar him from appearing before any Court within
such district. Rule 14C prescribes the procedure to be followed and Rule
14D authorizes the High Court or Principal District Judge to pass an
interim order prohibiting the advocate concerned from appearing before the
High Court or subordinate Courts, as the case may be, pending inquiry.
69. The High Court is not authorized by the provisions of the Advocates
Act to frame such rules. Section 34 does not confer such power of
debarment by way of disciplinary methods or disciplinary inquiry as against
70
an advocate as that has to be dealt with by the Bar Council as provided in
other sections in a different chapter of the Act. It is only when the advocate
is found guilty of contempt of court, as provided in Rule 14 as existed in the
Madras High Court Rules, 1970 takes care of situation until and unless an
advocate who has committed contempt of court purges himself of contempt
shall not be entitled to appear or act or plead in the Court.
Rule 14 is extracted hereunder:
“ 14. 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 contempt.”
70. The debarment cannot be ordered by the High Court until and unless
advocate is prosecuted under the Contempt of Courts Act . It cannot be
resorted to by undertaking disciplinary proceedings as contemplated under
the Rules 14A to 14D as amended in 2016. That is a clear usurpation of
the power of the Bar Council and is wholly impermissible in view of the
decision of this Court in Supreme Court Bar Association vs. Union of India
(supra) that has been followed in all the subsequent decisions as already
discussed. There is no doubt about it that the incidents pointed out were
grim and stern action was required against the erring advocates as they
belied the entire nobility of the lawyer’s profession.
71. It is also true that the disciplinary committee of the Bar Councils, as
observed by this Court in Mahipal Singh Rana and Mohit Chowdhary
(supra) , has failed to deliver the good. It is seen that the disciplinary control
of the Bar Council is not as effective as it should be. The cases are kept
71
pending for a long time, then after one year they stand transferred to the
Bar Council of India, as provided under the Advocates Act and thereafter
again the matters are kept pending for years together. It is high time that
the Bar Council, as well as the various State Bar Councils, should take
stock of the situation and improve the functioning of the disciplinary side.
It is absolutely necessary to maintain the independence of the Bar and if
the cleaning process is not done by the Bar itself, its independence is in
danger. The corrupt, unwanted, unethical element has no place in Bar. If
nobility of the profession is destroyed, Bar can never remain independent.
Independence is constituted by the observance of certain ideals and if those
ideals are lost, the independence would only remain on paper, not in real
sense.
72. The situation is really frustrating if the repository of the faith in the
Bar fails to discharge their statutory duties effectively, no doubt about it
that the same can be and has to be supervised by the Courts. The
obligatory duties of Bar Council have found statutory expression in
Advocates Act and the rules framed thereunder with respect to disciplinary
control and cannot be permitted to become statutory mockery, such non
performance or delayed performance of such duties is impermissible. The
Bar Council is duty bound to protect Bar itself by taking steps against black
sheeps and cannot bely expectation of Bar in general and spoil its image.
The very purpose of disciplinary control by Bar Council cannot be permitted
to be frustrated. In such an exigency, in a case where the Bar Council is
72
not taking appropriate action against the advocate, it would be open to the
High Court to entertain the writ petition and to issue appropriate directions
to the Bar Council to take action in accordance with the law in the
discharge of duties enjoined upon it. But at the same time, the High Court
and even this Court cannot take upon itself the disciplinary control as
envisaged under the Advocates Act. No doubt about it that the Court has
the duty to maintain its decorum within the Court premises, but that can
be achieved by taking appropriate steps under Contempt of Courts Act in
accordance with law as permitted under the decisions of this Court and
even by rule making power under Section 34 of the Advocates Act. An
advocate can be debarred from practicing in the Court until and unless he
purges himself of contempt.
73. It has been seen from time to time that various attacks have been
made on the judicial system. It has become very common to the members
of the Bar to go to the press/media to criticize the judges in person and to
commit sheer contempt by attributing political colours to the judgments. It
is nothing less than an act of contempt of gravest form. Whenever any
political matter comes to the Court and is decided, either way, political
insinuations are attributed by unscrupulous persons/advocates. Such acts
are nothing, but an act of denigrating the judiciary itself and destroys the
faith of the common man which he reposes in the judicial system. In case
of genuine grievance against any judge, the appropriate process is to lodge a
complaint to the concerned higher authorities who can take care of the
73
situation and it is impermissible to malign the system itself by attributing
political motives and by making false allegations against the judicial system
and its functionaries. Judges who are attacked are not supposed to go to
press or media to ventilate their point of view.
74. Contempt of court is a weapon which has to be used sparingly as
more is power, same requires more responsibility but it does not mean that
the court has fear of taking action and its repercussions. The hallmark of
the court is to provide equal and evenhanded justice and to give an
opportunity to each of the system to ensure that it improves upon.
Unfortunately, some advocates feel that they are above the Bar Council due
to its inaction and they are the only champion of the causes. The hunger
for cheap publicity is increasing which is not permitted by the noble ideals
cherished by the great doyens of the bar, they have set by their conduct
what should be in fact the professional etiquettes and ethics which are not
capable of being defined in a narrow compass. The statutory rules prohibit
advocates from advertising and in fact to cater to the press/media, distorted
versions of the court proceedings is sheer misconduct and contempt of
court which has become very common. It is making it more difficult to
render justice in a fair, impartial and fearless manner though the situation
is demoralizing that something has to be done by all concerned to revamp
the image of Bar. It is not open to wash dirty linen in public and enter in
accusation/debates, which tactics are being adopted by unscrupulous
elements to influence the judgments and even to deny justice with ulterior
74
motives. It is for the Bar Council and the senior members of the Bar who
have never forgotten their responsibility to rise to the occasion to maintain
the independence of the Bar which is so supreme and is absolutely
necessary for the welfare of this country and the vibrant democracy.
75. The separation of powers made by the forefathers, who framed the
Constitution, ensured independent functioning. It is unfortunate without
any rationale basis the independence of the system is being sought to be
protected by those who should keep aloof from it. Independence of each
system is to come from within. If things are permitted to be settled by
resorting to the unscrupulous means and institution is maligned by
creating pressure of any kind, the very independence of the system would
be endangered. Cases cannot be decided by media trial. Bar and Bench in
order to protect independence have their own inbuilt machinery for
redressal of grievance if any and they are supposed to settle their grievances
in accordance therewith only. No outside interference is permissible.
Considering the nobility, independence, dignity which is enjoined and the
faith which is reposed by the common man of the country in the judiciary, it
is absolutely necessary that there is no maligning of the system. Mutual
respect and reverence are the only way out. A lot of sacrifices are made to
serve the judiciary for which one cannot regret as it is with a purpose and
to serve judiciary is not less than call of military service. For the protection
of democratic values and to ensure that the rule of law prevails in the
country, no one can be permitted to destroy the independence of the system
75
from within or from outside. We have to watch on Bar independence. Let
each of us ensure our own institution is not jeopardized by the blame game
and make an endeavor to improve upon its own functioning and
independence and how individually and collectively we can deliver the good
to the citizen of this great country and deal with every tear in the eye of poor
and downtrodden as per constitutional obligation enjoined on us.
76. Soul searching is absolutely necessary and the blame game and
maligning must stop forthwith. Confidence and reverence and positive
thinking is the only way. It is pious hope that the Bar Council would
improve upon the function of its disciplinary committees so as to make the
system more accountable, publish performance audit on the disciplinary
side of various bar councils. The same should be made public. The Bar
Council of India under its supervisory control can implement good ideas as
always done by it and would not lag behind in cleaning process so badly
required. It is to make the profession more noble and it is absolutely
necessary to remove the black sheeps from the profession to preserve the
rich ideals of Bar and on which it struggled for the values of freedom. It is
basically not for the Court to control the Bar. It is the statutory duty of Bar
to make it more noble and also to protect the Judges and the legal system,
not to destroy the Bar itself by inaction and the system which is important
pillar of democracy.
76
77. We have no hesitation to hold that the High Court has overstretched
and exceeded its power even in the situation which was so grim which
appears to have compelled it to take such a measure. In fact, its powers are
much more in Contempt of Courts Act to deal with such situation court
need not look for Bar Council to act. It can take action, punish for
Contempt of Courts Act in case it involves misconduct done in
Court/proceedings. Circumstances may be grim, but the autonomy of the
Bar in the disciplinary matters cannot be taken over by the Courts. It has
other more efficient tools to maintain the decorum of Court. In case power
is given to the Court even if complaints lodged by a lawyer to the higher
administrative authorities as to the behaviour of the Judges may be correct
then also he may be punished by initiating disciplinary proceedings as
permitted to be done in impugned Rules 14 A to D that would be making
the Bar too sycophant and fearful which would not be conducive for fair
administration of justice. Fair criticism of judgment and its analysis is
permissible. Lawyers' fearlessness in court, independence, uprightness,
honesty, equality are the virtues which cannot be sacrificed. It is duty of
the lawyer to lodge appropriate complaint to the concerned authorities as
observed by this Court in (supra), which right cannot
Vinay Chandra Mishra
be totally curtailed, however, making such allegation publicly tantamounts
to contempt of court and may also be a professional misconduct that can be
taken care of either by the Bar Council under the Advocates Act and by the
Court under the Contempt of Courts Act. The misconduct as specified in
77
Rule 14A may also in appropriate cases tantamount to contempt of court
and can be taken care of by the High Court in its contempt jurisdiction.
78. Resultantly, we have no hesitation to strike down impugned Rules 14
A to 14D as framed in May, 2016 by the High Court of Madras as they are
ultra vires to Section 34 of the Advocates Act and are hereby quashed. The
writ petition is allowed. No costs.
………………………….J.
(Arun Mishra)
New Delhi; .....……………………..J.
January 28, 2019. (Vineet Saran)
78
ITEM NO.1501 COURT NO.5 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 612/2016
R. MUTHUKRISHNAN Petitioner(s)
VERSUS
THE REGISTRAR GENERAL OF
THE HIGH COURT OF JUDICATURE AT MADRAS Respondent(s)
Date : 28-01-2019 This petition was called on for Judgment today.
For Petitioner(s) Petitioner-in-person
For Respondent(s) Mr. Nikhil Nayyar, AOR
Hon’ble Mr. Justice Arun Mishra pronounced the reportable
Judgment of the Bench comprising His Lordship and Hon’ble Mr.
Justice Vineet Saran.
The writ petition is allowed.
Pending interlocutory application(s), if any, is/are disposed
of.
(JAYANT KUMAR ARORA) (JAGDISH CHANDER)
COURT MASTER BRANCH OFFICER
(Signed reportable Judgment is placed on the file)