The Constitution of India - Article 32 - The Rules of High Court
of Madras, 1970 - Rules 14A, 14B, 14C and 14D of - The Advocates’ Act, 1961 - Section
34(1) - Autonomy of the Bar in the disciplinary matters cannot be taken over by the Courts.
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, which right cannot 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. 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.
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, which right cannot 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. 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.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
(Arun Mishra) and (Vineet Saran) JJ.
January 28, 2019
WRIT PETITION [C] NO. 612 OF 2016
R. MUTHUKRISHNAN … PETITIONER
VERSUS
THE REGISTRAR GENERAL OF THE HIGH COURT OF JUDICATURE AT MADRAS
… RESPONDENT
For Petitioner(s) Petitioner-in-person
For Respondent(s) Mr. Nikhil Nayyar, AOR
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 14A, 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 14B where any misconduct referred to under
Rule 14A is committed by an Advocate before the High Court then the High Court
can debar him from appearing before the High Court and all subordinate courts.
Under Rule 142 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 Advocateconcerned 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 aninterim 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 therules. 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 beforethe 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 therewere 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 AdvocatesAct. 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 Courtwith respect to debarring an
Advocate on Record who is guilty of misconduct or of conduct unbecoming of an Advocate-on-Record,
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 Mahipal Singh Rana (supra) by this 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.
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.
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 toensure 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 preservethe 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 evenby 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.
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,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 inthe 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.
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 SecretaryGeneral 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 Council of Australia held 20th 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 fearedcommonly 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)
Justice
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.
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.
34. The independence of the Bar
came to be discussed in 28th
Annual Convention Banquet of
the National Lawyers Guild held at San Francisco, California on 13th 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 financialconsiderations. 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 maintainan 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
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 individualcitizens 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:
“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 codependence.”
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 wellinformed 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 emergencycan 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.”
(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 beused 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 and Australian Bar Association
held in London on 4th
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 forthe 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 Mitchell
& Co. and the majority judgments in the High Court of
Australia in Gianarelli v. Wraith.
The Bar’s best response to
the new challenge which confronts it is to re30 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 forcarrying 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.(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:
“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 Advocate-General of the State.
(3) The disciplinary committee of a State Bar Council after
giving the advocate concerned and the Advocate-General 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
subsection (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 ofIndia 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
orthe 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 subsection (1), a disciplinary
committee may send to any civil court in the territories to which this Act
extends, any summons or other process, forthe 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.”
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 in 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.
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
asan 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 thedisciplinary
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 onlyan 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.
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 withthe 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. TheBar
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 beforethe 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 theestablished 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 Advocate-on-Record,
this court possesses jurisdiction, under the Supreme Court Rules itself, to
withdraw his privilege to practice as an AdvocateanRecord 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)
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. M.V. Dabholkar & Ors. (supra) that under Advocates
Act the power to grant 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.
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 conductof 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 doubtand 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 ExCapt. Harish Uppal
v. Union of India & Anr. (supra) while holdingthat 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 nonappearance 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 powerto 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 framerules, 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 beenframed 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 gotpurged 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 nota 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 BarAssociation 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 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:
“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 Advocate-on-Record,
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 Advocate-on-Record a summons
returnable before the Court or before a Special Bench to be constituted by the
Chief Justice, requiring the Advocate-on-Record 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
Advocate-on-Record without any further participation in the proceedings of the
case;
b) Absence of the Advocate-on-Record
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 Advocate-on-Record of actual appearances in
the Court.”
The aforesaid rule has been considered in Supreme Court Bar Association
v. Union of India (supra)
and it is observed that as this Court 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 ordignity 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 duringarguments
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.26377 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.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 exactcompliance 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 Advocate-on-Record
under the Rules has clearly been abused by the contemnor. The conduct was not
becoming of an advocate much less an Advocate-on-Record 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
Advocate-on-Record, the Court may make an order removing his name from the
register of Advocate-on-Record 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 Advocate-on-Record. The present case is clearly
one where this Court is of the opinion that the conduct of the contemnor is
unbecoming of an Advocate-on-Record. 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 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 1618,64 & 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 Prayag Das v. Civil Judge,
Bulandshahr, AIR 1974 All 133 (AIR p. 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 theHigh 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,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 1592012, 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 bottom50 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 Mahipal Singh Rana
(supra) the
advocate was found guilty of 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. Inthis 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 inexercising 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 againstan 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 keptpending 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 nonperformance 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 isnot 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 thesituation 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 ulteriormotives. 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 systemfrom 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.
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 Vinay Chandra Mishra (supra), which right cannot 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 inRule 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 14A 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.
Comments
Post a Comment