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TMI Blog2019 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred 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 14-C and pending inquiry, there is power conferred by way of Rule 14-D 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 extracte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if practicable, be served personally upon him. 14-D: Power to pass Interim Order:- The High Court or the Court of Principal District Judge may, before making the Final Order under Rule 14-C, 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 14-A provides that an Advocate who is found to have accepted money in the name of a Judge or on the pretext of influencing him; or who has tampered with the court record or court order; or browbeats and/or abuses a Judge or judicial officer; or is responsible for sending or spreading unfounded and unsubstantiated allegations/petitions against a judicial officer or a Judge to the superior court; or actively participates in a procession inside the court campus and/or involves in gherao inside the court hall, or holds placard inside the court hall or appears in the court under the influence of liquor, the courts have been empowered to pass an interim order of suspension pending enquiry, and ultimately to debar him from appearing in the High Court and all other subordinate courts, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rish Uppal v. Union of India [2003] 2 SCC 45 to contend that court has the power to debar advocates on being found guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. The High Court has referred to the decision in Bar Council of India v. High Court of Kerala [2004] 6 SCC 311. 7. The High Court has contended that the rules have been framed within the framework of the directions issued by this Court and in exercise of the power conferred under section 34(1) of the Advocates Act. Pursuant to the directions issued in R.K. Anand s case (supra), the matter was placed before the High Court s Rule Committee on 17.3.2010. The Committee consisting of Judges, Members of the Bar Council and members of the Bar was formed, and the minutes were approved by the Full Court on 23.9.2010. Thereafter the Chief Justice of the High Court of Madras on 2.9.2014 constituted a Committee consisting of two Judges, the Chairman of Bar Council of Tamil Nadu Puducherry, Advocate General of the High Court, President, Madras Bar Association, President, Madras High Court Advocates Association, and the President of Women Lawyers Association to finalise the Rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner 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 (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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 self-destructive. 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 self-respect are absolutely necessary. Bar and Bench are complementary to each other. Without active cooperation of the Bar and the Bench, it is not possible to preserve the rule of law and its dignity. Equal and even-handed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 well-tuned 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 time-tested enduring ideals and principles. For a value-driven framework, it is necessary that perspective is corrected in an ethical and morally sound perspective. The perception of ambulance chasers, money guzzlers and black sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bar in his papers thus: One of the features of the law that tends to irritate other sources of power is the demand of the law s practitioners - judges and lawyers - for independence. The irritation is often true of politicians, wealthy and powerful people, government officials and media editors and their columnists. Those who are used to being obeyed and feared commonly find it intensely annoying that there is a source of power that they cannot control or buy the law and the courts. Yet the essence of a modern democracy is observance of the rule of law. The rule of law will not prevail without assuring the law s principal actors - judges and practicing lawyers and also legal academics - a very high measure of independence of mind and action. An independent legal profession also requires that lawyers be free to carry out their work without interference or fear of reprisal. Lawyers have a duty, within the law, to advance the interests of their clients fearlessly and to assist the courts in upholding the law. To enable them to perform these duties it is necessary that lawyers enjoy professional independence. Challenges to such independence may arise where lawyers are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and its facets. He has pointed out that lawyers have to be loyal to their client s interests and faithful to the maintenance of the integrity and independence of the courts. It requires a commitment to many moral and spiritual values. Lawyers boldly challenge the inequality in every form. He also pointed out that independence of mind and heart is necessary. The Bar cannot be a prisoner of passions and prejudices and independence of judgment need to be construed and from an unreasonable fear of the power of the judiciary is necessary and has observed that lawyer should feel free to criticize judicial decisions of every Tribunal. At the same time, he said to impugn the motives to Judges undermine the very essence of every civilized society. A lawyer has to be detached from financial considerations. If lawyers are appreciated and embraced with these sentiments, we would witness the full flowering of the indispensable element of a truly free society an independent Bench and an independent Bar. He has observed: Members of the legal profession under the Anglo-American system of justice have been entrusted with dual and conflicting loyalties. They must be simultaneously both loyal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us that preserving the rule of law is something never to be taken for granted. It often is a challenge requiring self-sacrifice and risk-taking. The Supreme Court of Canada wrote eloquently in Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307 at 335-36: The independence of the Bar from the state in all of its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law. The public interest in a free society knows no area more sensitive than the independence, impartiality, and availability to the general public of the members of the Bar and through those members, legal advice and services generally. In another Canadian case, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at pp. 187-88: Justice McIntyre wrote: I would observe that in the absence of an independent legal profession, skilled and qualifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary proceedings and disbarment Clear and transparent rules on admission, disciplinary proceedings and disbarment refers to rules that are comprehensible and accessible, so that those who are subject to the rules are able to easily access them, understand their meaning and appreciate the implications of violating them. The existence of comprehensible, clear and transparent rules on admission to the Bar ensures that those seeking admission are well-informed of the requirements and are assessed on the basis of objective criteria that apply equally to all candidates. Clear and transparent rules reduce the risk of arbitrary disciplinary proceedings and disbarment and also guarantee that lawyers are held accountable and responsible for their actions. Lawyers, those they represent and the general public should have access to efficient, fair and functional mechanisms that allow for the resolution of disputes between the profession and the public, an imposition of disciplinary measures (where appropriate) and an effective appeals system. This ensures that the rights of all parties are protected in accordance with the rule of law. ( emphasis supplied) 37. Complete lack of self-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntain 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 mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and the third member has to be co-opted 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 co-opted by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (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 sub-section (1), any disciplinary committee constituted prior to the commencement of the Advocates (Amendment) Act, 1964 may dispose of the proceedings pending before it as if this section had not been amended by the said Act. 43. Section 15 confers the power on the Bar Council to make rules for carrying out the purposes of the Chapter II inter alia relating to disciplinary committees. Chapter III deals with the provisions regarding enrolment of advocates contained in Sections 16 to 28. Right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperseding 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linary 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 Advocate-General in that section being construed as references to the Attorney-General 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 sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) For the purposes of exercising any of the powers conferred by sub-section (1), a disciplinary committee may send to any civil court in the territories to which this Act extends, any summons or other process, for the committee or any commission which it desires to issue, and the civil court shall cause such process to be served or such commission to be issued, as the case may be, and may enforce any such process as if it were a process for attendance or production before itself. (4) Notwithstanding the absence of the Chairman or any member of a disciplinary committee on a date fixed for the hearing of a case before it, the disciplinary committee may, if it so thinks fit, hold or continue the proceedings on the date so fixed and no such proceedings and no order made by the disciplinary committee in any such proceedings shall be invalid merely by reason of the absence of the Chairman or member thereof on any such date: Provided that no final orders of the nature referred to in sub-section (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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 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, prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aligned. 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Article 142 cannot impose any of the said punishments. The punishment so imposed will not only be not against the provisions of any statute but in conformity with the substantive provisions of the advocates Act and for conduct which is both a professional misconduct as well as the contempt of Court. The argument has, therefore, to be rejected. 46. These observations, as we shall presently demonstrate and we say so with utmost respect, are too widely stated and do not bear closer scrutiny. After recognising that the disciplinary jurisdiction of the State Bar Council and the Bar Council of India to take action for professional misconduct is different from the jurisdiction of the courts to take action against the advocates for the contempt of court, how could the court invest itself with the jurisdiction of the disciplinary committee of the Bar Council to punish the advocate concerned for professional misconduct in addition to imposing the punishment of suspended sentence of imprisonment for committing contempt of court. 57. In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing professional misconduct depending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. The Bar Councils of a State may also of its own motion if it has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. It is apparent that a state Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. The Bar Council of a State acts on that reasoned belief. The Bar Council has a very important part to play, first in the reception of complaints, second, informing reasonable belief of guilt of professional or other misconduct and finally in making reference of the case to its disciplinary committee. The initiation of the proceeding before the disciplinary committee is by the Bar Council of a State. A most significant feature is that no litigant and no member of the public can straightway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in the affirmative, then to sentence the contemner for contempt of court by imposing any of the recognised and accepted punishments for committing contempt of court. Keeping in view the elaborate procedure prescribed under the Advocates Act 1961 and the Rules framed thereunder it follows that a complaint of professional misconduct is required to be tried by the disciplinary committee of the Bar Council, like the trial of a criminal case by a court of law and an advocate may be punished on the basis of evidence led before the disciplinary committee of the Bar Council after being afforded an opportunity of hearing. The delinquent advocate may be suspended from practice for a specified period or even removed from the rolls of the advocates or imposed any other punishment as provided under the Act. The inquiry is a detailed and elaborate one and is not of a summary nature. It is, therefore, not permissible for this court to punish an advocate for professional misconduct in exercise of the appellate jurisdiction by converting itself as the statutory body exercising original jurisdiction . Indeed, if in a given case the Bar Council concerned on being apprised of the contumacious an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for professional misconduct , on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution all authorities civil and judicial, in the territory of India shall act in aid of the Supreme Court . The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act in aid of the Supreme Court . It must, whenever, facts warrant rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his license to practice as an advocate in other courts or Tribunals. (emphasis supplied) 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 Seven-Judges 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed. 21. The observations can apply to the courts in India without any doubt and at the same time without impeding the disciplinary powers vested in the Bar Councils under the Advocate Act. 35. It is still open to the respondent Advocate to purge himself of the contempt in the manner indicated above. But until that process is completed respondent Advocate cannot act or plead in any court situated within the domain of the Kerala High Court, including the subordinate courts thereunder. The Registrar of the High Court of Kerala shall intimate all the courts about this interdict as against the respondent-advocates. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t least since Ramon Services case, that the advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call. 22. It was expected that having known the well-settled 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 self-regulation. The abovementioned interim order was passed in the hope that with self-restraint and self-regulation 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 self-restraint is exercised, the court may have to frame rules under Section 34 of the Advocates Act debarring advocates guilty of contempt of court/ unprofessional or unbecoming conduct from appearing in Courts. The Court observed that in case of Bar Council fail to act, Court may be compelled to frame appropriate Rules under Section 34 of the Act. The Court has observed about the rules that may be framed but not on the validity of rules that actually have been framed and takes away disciplinary control of Bar Council. The power to debar due to contempt of court is a different aspect than suspension of enrol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to stating (SCC p. 38, paras 92-93): 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) Case-law 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Assn. v. Union of India, (1998) 4 SCC 409 was extensively considered. The decision in Ex. Capt. Harish Uppal was later followed in a three-judge 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 self-protection 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pension of enrolment made by Bar Council under Advocates Act which can be ordered by Bar Council only. 63. The decision in Mohit Chowdhary, Advocate, IN RE, (supra) has also been relied upon in which this Court considered Rule 10 and debarred advocate to practice as Advocate on Record for a period of one month from the date of order. At the same time, this Court has observed that lawyer is under obligation to do nothing that shall detract from the dignity of the Court. Contempt jurisdiction is for the purpose of upholding honor or dignity of the court, to avoid sharp or unfair practices. An Advocate shall not to be immersed in a blind quest of relief for his client. Law is not trade, briefs no merchandise . His duty is to legitimately present his side of the case to assist in the administration of justice. The Judges are selected from Bar and purity of Bench depends on the purity of the Bar. Degraded Bar result degraded bench. The Court has referred to Articles and standard of processional conduct and etiquettes thus: 20. Warvelle s Legal Ethics, 2nd Edn. at p.182 sets out the obligation of a lawyer as: A lawyer is under obligation to do nothing that shall detract from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout 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 pre-requisites of the proviso are met by the reason of the Bench be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued 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. 658-62, paras 16-18, 24 27-28) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, para 9) [T]he High Court has the power to regulate the appearance of advocates in courts. The right to practice and the right to appear in courts are not synonymous. An advocate may carry on chamber practice or even practice in courts in various other ways e.g. drafting and filing of pleadings and vakalatnama for performing those acts. For that purpose, his physical appearance in courts may not at all be necessary. For the purpose of regulating his appearance in courts the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of advocates and proceedings inside the courts. Obviously, the High Court is the only appropriate authority to be entrusted with this responsibility. ** ** ** 24. Purging is a process by which an undesirable element is expelled either from one s own self or from society. It is a cleaning process. Purge is a word which acquired implications first in theological connotations. In the case of a sin, purging of such sin is made through the expression of sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 percent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called 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 ill-equipped 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 so-called 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 freed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m; or an advocate who is found to have tampered with the Court record or Court order; or an advocate who browbeats and/or abuses a Judge or Judicial Officer; or an advocate who is found to have sent or spread unfounded and unsubstantiated allegations/petitions against a judicial officer or a Judge to the Superior Court; or an advocate who actively participates in a procession inside the Court campus and/or involves in gherao inside the Court Hall or holds placard inside the Court Hall; or an advocate who appears in the Court under the influence of liquor may be debarred by Court. However, it is not provided that Court would do so in exercising Contempt Jurisdiction. The debarment is sought to be done by way of disciplinary control, which is not permissible. 68. Rule 14-B as amended provides for power to take action. Rule 14-B(iv) states that where any such misconduct referred to under Rule 14-A 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the disciplinary committee of the Bar Councils, as observed by this Court in Mahipal Singh Rana and Mohit Chowdhary (supra), has failed to deliver the good. It is seen that the disciplinary control of the Bar Council is not as effective as it should be. The cases are kept pending for a long time, then after one year they stand transferred to the Bar Council of India, as provided under the Advocates Act and thereafter again the matters are kept pending for years together. It is high time that the Bar Council, as well as the various State Bar Councils, should take stock of the situation and improve the functioning of the disciplinary side. It is absolutely necessary to maintain the independence of the Bar and if the cleaning process is not done by the Bar itself, its independence is in danger. The corrupt, unwanted, unethical element has no place in Bar. If nobility of the profession is destroyed, Bar can never remain independent. Independence is constituted by the observance of certain ideals and if those ideals are lost, the independence would only remain on paper, not in real sense. 72. The situation is really frustrating if the repository of the faith in the Bar fails to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 even-handed 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this great country and deal with every tear in the eye of poor and down-trodden 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 hesitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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