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2019 (2) TMI 198
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....incipal 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 extracted hereunder: "14-A: 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 ....
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....fluencing 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, as the case may be. 4. The aforesaid amended Rule 14-A to 14-D 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....
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....ursuant 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. 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 prem....
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....Anand v. Registrar, Delhi High Court (supra). He has also referred to various other decisions. It was submitted that under section 34 of the Advocates Act, the High Court is empowered to frame rules to debar the advocate in case of unprofessional and/or unbecoming conduct of an advocate. Advocates have no right to go on strike or give a call of boycott, not even on a token strike, as has been observed in Ex.-Capt. Harish Uppal (supra). It was also observed that the court may now have to frame specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Advocates appear in court subject to such conditions as are laid down by the court, and practice outside court shall be subject to the conditions laid down by the Bar Council of India. He has also relied upon Bar Council of India v. High Court of Kerala [2004] 6 SCC 311 in which the validity of Rule 11 of the Rules framed by the High Court of Kerala came up for consideration. Learned senior counsel has also referred to the provisions contained in Order IV Rule 10 of the Supreme Court Rules, 2013 framed by this Court with respect to debarring an Advocate on Recor....
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.... 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....
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....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 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 a....
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....n 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 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 decidin....
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....ection 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 particular due process and fair-trial guarantees. Following is the extract of the report of the United Nations: "Mandate In the report, Special Rapporteur Diego García-Sayán finds that associations should be independent and self-governing 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 ens....
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....ithout 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....
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.... 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 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 non-commitment to truths or values. Indeed the independence of the bar presupposes and r....
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....fession, 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 Stat....
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....tate, 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 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 o....
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....rs 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-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. 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 corrupt....
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....mber of Bar is elevated to bench first relief which is felt is of answerability to the client on aforesaid aspects which is in fact too inconvenient and embarrassing but still problem subsists and is writ large, it has to be solved every day. In such circumstances too, the tool of adjournment is used to kill justice. Adjournment poses a question mark whether such kind of advocacy is acceptable? 40. The Bar Council has the power to discipline lawyers and maintain nobility of profession and that power imposes great responsibility. The Court has the power of contempt and that lethal power too accompanies with greater responsibility. Contempt is a weapon like Brahmasatra to be used sparingly to remain effective. At the same time, a Judge has to guard the dignity of the Court and take action in contempt and in case of necessity to impose appropriate exemplary punishment too. A lawyer is supposed to be governed by professional ethics, professional etiquette and professional ethos which are a habitual mode of conduct. He has to perform himself with elegance, dignity, and decency. He has to bear himself at all times and observe himself in a manner befitting as an officer of the Court. He ....
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....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 in-court 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 re-affirm its traditional professional ideals and aspi....
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....ommencement 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 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 non-obstante clause that any Court, authority or person may permit any person, not enrolled as an advocate to appear before it or him....
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....: "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 ....
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....ttee 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 of change, the succeeding committee may continue the proceedings from the stage at which the proceedings were so left by its predecessor committee. Section 36B of the Advocates Act deals with disposal of the disciplinary committee. A disciplinary committee of the State Bar Council has to decide the case within a period of one year from the date of the receipt of the complaint or the date of institution of proceedings failing which the proceedings shall stand transferred to the Bar Council of India. Section 37 of the Act provides that any person aggrieved by an order of the disciplinary committee of the State Bar Council may prefer an appeal to the Bar Council of India. Section 38 provides for an appeal to the Supreme Court against the order made by the disciplinary committee of the Bar Council of India. 49. Se....
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....id 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 sub-section (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 Vice-Chairman 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 extra....
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....own 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. Ho....
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....hments specifically provided for under the Advocates Act, 1961, for proven "professional misconduct' of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commission of contempt of court. There is no cause of professional misconduct, properly so called, pending before the Court. This Court, therefore, in exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the disciplinary committee of the Bar Council of the State or the Bar Council of India to punish an advocate by suspending his licence, which punishment can only be imposed after a finding of 'professional misconduct' is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder. 41. When this Court is seized of a matter of contempt of court by an advocate, there is no "case, cause or matter" before the Supreme Court regarding his "professional misconduct" even though, in a given case, the contempt committed by an advocate may also amount to an abuse of the privilege granted to an advocate by virtue of the license to practice law but no issue relating to his suspension from practice is the....
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..... 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 49-50)....
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....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'. Si....
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....eding 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 19-5-1961, 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 constitute....
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....ible 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 t....
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....d 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 matte....
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.... 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....
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....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 cross-examining 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 v. Civil Judge, Bulandshahr and ors. AIR 1974 All 133 : (AIR p.136, para 9) "The High Court ha....
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....in C. Shah (supra) operates when an Advocate is found guilty of committing contempt of court and then he can be debarred from appearing in court until he purges himself of contempt as per guidelines laid down therein, however, the power to suspend enrolment and debarring from appearance are different from each other. In case of debarment, enrolment continues but a person cannot appear in court once he is guilty of contempt of court until he purges himself as provided in the rule. Debarment due to having been found guilty of contempt of court is not punishment of suspending the license for a specified period or permanently removing him from the roll of Advocates. While guilty of contempt his name still continuous on the roll of concerned Bar Council unless removed or suspended by Bar Council by taking appropriate disciplinary proceedings. The observations made by Lord Denning in Hadkinson v. Hadkindon (supra) was also a case of disobedience of court order and the Court may refuse to hear him until impediment is removed or good reason to remove impediment exist. 57. In Ex- Capt. Harish Uppal v. Union of India & Anr. (supra) while holding that advocates have no right to go on 'strike....
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....ice is threatened. The rule of law is undermined. 33. The only exception to the general rule set out above appears to be the item (III). We accept that in such cases a strong protest must be lodged. We remain of the view that strikes are illegal and that courts must now take a very serious view of strikes and calls for boycott. However, as stated above, lawyers are part and parcel of the system of administration of justice. A protest on an issue involving dignity, integrity, and independence of the Bar and judiciary, provided it does not exceed one day, may be overlooked by courts, who may turn a blind eye for that one day. 34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in Court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practice in the Supreme Court and/or in ....
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....w 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 practi....
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.... 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 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 Ex-Capt. 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 Ex-Capt. 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 o....
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....sconduct and direct the Bar Council of India to proceed against the advocate but it is another thing to say that it may not allow an advocate to practice in his court unless he purges himself of contempt. 34. Although in a case of professional misconduct, this Court cannot punish an advocate in exercise of its jurisdiction under Article 129 of the Constitution of India which can be imposed on a finding of professional misconduct recorded in the manner prescribed under the Advocates Act and the rules framed thereunder but as has been noticed in the Supreme Court Bar Assn. professional misconduct of the advocate concerned is not a matter directly in issue in the matter of contempt case." (emphasis supplied) The Court referred to the observation in Supreme Court Bar Association v. Union of India, Ex-Capt. 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 v....
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....ervation 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 ....
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.... 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 advocate-on 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 R....
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.... 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 li....
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....ocate of the Supreme Court, In re AIR 1954 SC 557, who elucidated: "10. ...To use the language of the Army, an Advocate of this Court is expected at all times to comport himself in a manner befitting his status as an "officer and a gentleman". 26. It is as far back as in 1925 that an Article titled 'The Lawyer as an Officer of the Court' Virginia Law Review, Vol.11, No.4 (Feb 1925) pp.263-77 published in the Virginia Law Review, lucidly set down what is expected from the lawyer which is best set out in its own words: "The duties of the lawyer to the Court spring directly from the relation that he sustains to the Court as an officer in the administration of justice. The law is not a mere private calling but is a profession which has the distinction of being an integral part of the State's judicial system. As an officer of the Court the lawyer is, therefore, bound to uphold the dignity and integrity of the Court; to exercise at all times respect for the Court in both words and actions; to present all matters relating to his client's case openly, being careful to avoid any attempt to exert private influence upon either the judge or the jury; and to be frank and candid in all dealin....
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....nd 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 co-ordinate departments of the Government is administered by men selected only from one profession gives to that profession a certain pre-eminence 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 decept....
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....the contemnor is unbecoming of an Advocate-on-Record. The pre-requisites 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/ri....
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....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 order....
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....ther 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. 35-A, 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, app....
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....on 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 ....
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....n 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 Ass....
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....rred 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 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 14-A 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 14-C prescribes the procedure to be followed and Rule 14-D 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 fra....
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....is destroyed, Bar can never remain independent. Independence is constituted by the observance of certain ideals and if those ideals are lost, the independence would only remain on paper, not in real sense. 72. The situation is really frustrating if the repository of the faith in the Bar fails to discharge their statutory duties effectively, no doubt about it that the same can be and has to be supervised by the Courts. The obligatory duties of Bar Council have found statutory expression in Advocates Act and the rules framed thereunder with respect to disciplinary control and cannot be permitted to become statutory mockery, such non-performance or delayed performance of such duties is impermissible. The Bar Council is duty bound to protect Bar itself by taking steps against black sheeps and cannot bely expectation of Bar in general and spoil its image. The very purpose of disciplinary control by Bar Council cannot be permitted to be frustrated. In such an exigency, in a case where the Bar Council is 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 actio....
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....act the professional etiquettes and ethics which are not capable of being defined in a narrow compass. The statutory rules prohibit advocates from advertising and in fact to cater to the press/media, distorted versions of the court proceedings is sheer misconduct and contempt of court which has become very common. It is making it more difficult to render justice in a fair, impartial and fearless manner though the situation is demoralizing that something has to be done by all concerned to revamp the image of Bar. It is not open to wash dirty linen in public and enter in accusation/debates, which tactics are being adopted by unscrupulous elements to influence the judgments and even to deny justice with ulterior motives. It is for the Bar Council and the senior members of the Bar who have never forgotten their responsibility to rise to the occasion to maintain the independence of the Bar which is so supreme and is absolutely necessary for the welfare of this country and the vibrant democracy. 75. The separation of powers made by the forefathers, who framed the Constitution, ensured independent functioning. It is unfortunate without any rationale basis the independence of the system i....
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.... 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 t....