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TMI Blog2001 (10) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the jurisdiction of that High Court so that presiding officers of all courts would get the information that a particular advocate is under the spell of the interdict contained in rule 11, until he purges himself of the contempt. - CIVIL APPEAL NO. 3050 OF 2000 - - - Dated:- 9-10-2001 - K.T. THOMAS AND S.N. VARIAVA, JJ. M.K.S. Menon and A. Raghunath for the Appellant. E.M. Sardul Anam and M.R. Ramesh Babu for the Respondent. JUDGMENT Thomas, J. We thought that the question involved in this appeal would generate much interest to the legal profession, and, hence, we issued notices to the Bar Council of India as well as the State Bar Council concerned. But the Bar Council of India did not respond to the notice. We, therefore, requested Mr. Dushyant A. Dave, Senior Advocate, to help us as amicus curiae . The learned senior counsel did a commendable job to help us by projecting a wide screen focussing on the full profiles of the subject with his usual felicity. We are beholden to him. 2. When an advocate is punished for contempt of court, can he appear thereafter as a counsel in the courts, unless he purges himself of such contempt ? If he cannot, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent-advocate challenged the order of the State Bar Council in an appeal filed before the Bar Council of India. By the impugned order, the Bar Council of India set aside the interdict imposed on him. 6. This appeal, in challenge of the aforesaid order of the Bar Council of India, is preferred by the same person at whose instance the State Bar Council initiated action against the respondent-advocate. 7. While imposing the interdict on the advocate, the Disciplinary Committee of the Bar Council of the State took into account rule 11 of the rules framed by the High Court of Kerala under section 34(1) of the Advocates Act, 1961, regarding conditions and practice of advocates (the rules). Rule 11 reads thus: "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." 8. The above rule shows that it was not necessary for the Disciplinary Committee of the Bar Council to impose the said interdict as a punishment for misconduct. Even if the Bar Council had not passed proceedings (which the Disciplinary Committee of the Bar Council of India has since set aside as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. In the impugned order, the Disciplinary Committee rightly stated that the exercise of the disciplinary powers over the advocates is exclusively vested with the Bar Council, and this power cannot be taken away by the High Court either by a judicial order or by making a rule . This is precisely the legal position adumbrated by the Constitution Bench of this Court in Supreme Court Bar Association v. Union of India [1998] 4 SCC 409. In fact, the relevant portions of the said decision have been quoted in the impugned order in extenso. But having informed themselves of the correct legal position regarding the powers of the Bar Council, the members of the Disciplinary Committee of the Bar Council of India embarked on a very erroneous concept when it observed the following: "But to say that an advocate who had been found guilty of contempt of court shall not be permitted to appear, act or plead in a court, unless he has purged himself of the contempt would amount to usurpation of powers of the Bar Council." 13. After examining rule 11, the Disciplinary Committee of the Bar Council of India held that there cannot be an automatic deprivation of the right of an advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Rule 11 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 an advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts, he can be consulted by his clients, he can give his legal opinion whenever sought for; he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, 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 the 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 practise, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . . ." (p. 136) 18. 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. 19. Lord Denning had observed as follows in Hadkinson v. Hadkinson [1952] 2 All ER 567: "I am of the opinion that the fact that a party to a cause had 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." 20. The observations can apply to the courts in India without any doubt, and at the same time, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... victed person undergoes punishment, or if he tenders the fine amount imposed on him, the purge would be completed. 24. We are told that a learned Single Judge of the Allahabad High Court has expressed a view that purging process would be completed when the contemnor undergoes the penalty Dr. Madan Gopal Gupta v. Agra University AIR 1974 All. 39. This is what the learned Single Judge said about it: "...In my opinion a party in contempt purged its contempt by obeying the orders of the court or by undergoing the penalty imposed by the court...." (p. 43) 25. Obeying the orders of the court would be a mode by which one can make the purging process in a substantial manner, when it is a civil contempt. Even for such a civil contempt, the purging process would not be treated as completed merely by the contemnor undergoing the penalty imposed on him, unless he has obeyed the order of the court or he has undone the wrong. If that is the position in regard to civil contempts, the position regarding criminal contempt must be stronger. Section 2 of the Contempt of Courts Act categorizes contempt of court into two categories. The first category is civil contempt which is the wilf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Punjab Haryana [1991] 3 SCC 600, while considering an apology tendered by an advocate in a contempt proceeding has stated thus: "And here is a member of the profession who has repeated his performance presumably because he was let off lightly on the first occasion. Soft justice is not the answer - not that the High Court has been harsh with him - what I mean is : he cannot be let off on an apology which is far from sincere. His apology was hollow, there was no remorse-no regret-it was only a device to escape the rigour of the law. What he said in his affidavit was that he had not uttered the words attributed to him by the learned Judge; in other words, the learned Judge was lying - adding insult to injury - and yet, if the court finds him guilty (he contested the matter tooth and nail), his unqualified apology may be accepted. This is no apology, it is merely a device to escape." 29. A four-Judge Bench of this Court in Mulk Raj v. State of Punjab [1972] 3 SCC 839, made the following observations which would throw considerable light on the question before us: " a. Apology is an act of contrition. Unless apology is offered at the earliest opportunity, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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