2019 (2) TMI 198 - SC - Indian Laws

Vires of amended Rules 14-A, 14-B, 14-C and 14-D of the Rules of High Court of Madras, 1970 - section 34(1) of the Advocates Act, 1961 - Bar on Advocate from practicing - The petitioner in person has urged that rules are ultra vires and impermissible to be framed within scope of section 34(1) of the Advocates Act. They take away the independence of the Bar and run contrary to the Constitution Bench decision of this Court in Supreme Court Bar Association v. Union of India 1998 (4) TMI 531 - SUPREME COURT . Whether disciplinary power vested in the Bar Council can be taken away by the Court and the international scenario? - Held that - 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 - The bar association must be self-governing 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 self-governing 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 fair-trial guarantees. 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. Complete lack of self-regulation can have a negative effect on the independence of the lawyers and lawyers have to be free from fear of prosecution in controversial or unpopular cases. Political, societal and, in some circumstances, media pressure in times of war, terror, and emergency can have a profound impact on the independence of the profession. They can be attacked by unscrupulous persons for discharging their duties in a fearless manner. That is why independence of the bar is imperative. The 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 - 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. The High Court is not authorized by the provisions of the Advocates Act to frame such rules. Section 34 does not confer such power of debarment by way of disciplinary methods or disciplinary inquiry as against an advocate as that has to be dealt with by the Bar Council as provided in other sections in a different chapter of the Act. It is only when the advocate is found guilty of contempt of court, as provided in Rule 14 as existed in the Madras High Court Rules, 1970 takes care of situation until and unless an advocate who has committed contempt of court purges himself of contempt shall not be entitled to appear or act or plead in the Court - 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 14-A to 14-D as amended in 2016. That is a clear usurpation of the power of the Bar Council and is wholly impermissible. The very purpose of disciplinary control by Bar Council cannot be permitted to be frustrated. In such an exigency, in a case where the Bar Council is not taking appropriate action against the advocate, it would be open to the High Court to entertain the writ petition and to issue appropriate directions to the Bar Council to take action in accordance with the law in the discharge of duties enjoined upon it. But at the same time, the High Court and even this Court cannot take upon itself the disciplinary control as envisaged under the Advocates Act. No doubt about it that the Court has the duty to maintain its decorum within the Court premises, but that can be achieved by taking appropriate steps under Contempt of Courts Act in accordance with law as permitted under the decisions of this Court and even by rule making power under Section 34 of the Advocates Act. An advocate can be debarred from practicing in the Court until and unless he purges himself of contempt. 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. Thus, there is no hesitation to strike down impugned Rules 14-A to 14-D 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. Petition allowed.

Summary

Issues Involved:
1. Vires of amended Rules 14-A, 14-B, 14-C, and 14-D of the Rules of High Court of Madras, 1970.
2. Whether the High Court can debar an advocate from practicing as a disciplinary measure under Section 34 of the Advocates Act.
3. The distinction between the High Court's power to regulate court proceedings and the Bar Council's disciplinary control over advocates.

Issue-wise Detailed Analysis:

1. Vires of Amended Rules 14-A to 14-D:
The petitioner, an advocate, challenged the vires of amended Rules 14-A to 14-D of the Rules of High Court of Madras, 1970, under Article 32 of the Constitution, arguing that these rules are violative of Articles 14 and 19(1)(g) of the Constitution and sections 30, 34(1), 35, and 49(1)(c) of the Advocates Act. The High Court inserted these rules to empower itself and subordinate courts to debar advocates for misconduct. The petitioner contended that such disciplinary power lies exclusively with the Bar Council.

2. High Court's Power to Debar Advocates:
The Supreme Court analyzed whether the High Court could debar an advocate from practicing as a disciplinary measure under Section 34 of the Advocates Act. The Court observed that Section 34 allows the High Court to frame rules regarding the conditions under which an advocate can practice in the High Court and subordinate courts but does not extend to disciplinary control, which is the domain of the Bar Council under Sections 35 and 36 of the Advocates Act. The Court held that the High Court overstepped its jurisdiction by framing rules that usurp the Bar Council's disciplinary powers.

3. Distinction Between Court Regulation and Bar Council's Disciplinary Control:
The Court distinguished between the High Court's power to regulate court proceedings and the Bar Council's disciplinary control over advocates. It emphasized that while the High Court can regulate the conduct of advocates within the court premises and take action under the Contempt of Courts Act, it cannot exercise disciplinary control by debarring advocates from practice, which is the exclusive domain of the Bar Council. The Court reiterated that the power to suspend or remove an advocate from practice for professional misconduct lies with the Bar Council, as established in the Supreme Court Bar Association v. Union of India and other precedents.

Conclusion:
The Supreme Court concluded that the amended Rules 14-A to 14-D of the Rules of High Court of Madras, 1970, are ultra vires to Section 34 of the Advocates Act and quashed them. The Court emphasized the importance of maintaining the independence of the Bar and the exclusive jurisdiction of the Bar Council in disciplinary matters. The writ petition was allowed, and the impugned rules were struck down.