MAHIPAL SINGH RANA Vs. STATE OF U.P. - Contempt of Court
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Crl.), 63 of 2006, Judgment Date: Jul 05, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 63 OF 2006
Mahipal Singh Rana, Advocate ….Appellant
VERSUS
State of Uttar Pradesh ....Respondent
J U D G M E N T
ANIL R. DAVE, J.
1. The present appeal is preferred under Section 19 of the Contempt of
Courts Act, 1971 (hereinafter referred to as “the Act”) against the
judgment and order dated 02.12.2005 delivered by the High Court of
Judicature at Allahabad in Criminal Contempt Petition No. 16 of 2004,
whereby the High Court found the appellant guilty of Criminal Contempt for
intimidating and threatening a Civil Judge (Senior Division), Etah in his
Court on 16.4.2003 and 13.5.2003 and sentenced him to simple imprisonment
of two months with a fine of Rs. 2,000/- and in default of payment of the
fine, the appellant to undergo further imprisonment of 2 weeks. The High
Court further directed the Bar Council of Uttar Pradesh to consider the
facts contained in the complaint of the Civil Judge (Senior Division) Etah,
and earlier contempt referred to in the judgement and to initiate
appropriate proceedings against the appellant for professional misconduct.
Reference to larger Bench and the Issue
2. On 27th January, 2006, this appeal was admitted by this Court and
that part of the impugned judgment, which imposed the sentence, was stayed
and the appellant was directed not to enter the Court premises at Etah
(U.P.). Keeping in view the importance of the question involved while
admitting the appeal on 27th January, 2006, notice was directed to be
issued to the Supreme Court Bar Association as well as to the Bar Council
of India. The matter was referred to the larger Bench. Learned Solicitor
General of India was requested to assist the Court in the matter.
3. On 6th March, 2013 restriction on entry of the appellant into the
court premises as per order dated 27th January, 2006 was withdrawn.
Thereby, the appellant was permitted to enter the court premises. The said
restriction was, however, restored later. On 20th August, 2015, notice was
issued to the Attorney General on the larger question whether on conviction
under the Contempt of Courts Act or any other offence involving moral
turpitude an advocate could be permitted to practise.
4. Thus following questions arise for consideration:
Whether a case has been made out for interference with the order passed by
the High Court convicting the appellant for criminal contempt and
sentencing him to simple imprisonment for two months with a fine of
Rs.2,000/- and further imprisonment for two weeks in default and debarring
him from appearing in courts in judgeship at Etah; and
Whether on conviction for criminal contempt, the appellant can be allowed
to practise.
The facts and the finding of the High Court
5. The facts of the present appeal discloses that the Civil Judge
(Senior Division), Etah made a reference under Section 15 (2) of the Act to
the High Court through the learned District Judge, Etah (U.P.) on 7.6.2003
recording two separate incidents dated 16.4.2003 and 13.5.2003, which had
taken place in his Court in which the appellant had appeared before him and
conducted himself in a manner which constituted “Criminal Contempt” under
Section 2 (c) of the Act.
6. The said letter was received by the High Court along with a
forwarding letter of the District Judge dated 7.6.2003 and the letters were
placed before the Administrative Judge on 7.7.2003, who forwarded the
matter to the Registrar General vide order dated 18.6.2004 for placing the
same before the Hon’ble Chief Justice of the High Court and on 11.7.2004,
the Hon’ble Chief Justice of the High Court referred the matter to the
Court concerned dealing with contempt cases and notice was also issued to
the appellant.
7. Facts denoting behaviour of the appellant, as recorded by the Civil
Judge (Senior Division), Etah, can be seen from the contents of his letter
addressed to the learned District Judge, Etah. The letter reads as under:-
“Sir,
It is humbly submitted that on 16.4.2003, while I was hearing the 6-Ga-2 in
Original Suit No.114/2003 titled as “Yaduveer Singh Chauhan vs. The Uttar
Pradesh Power Corporation”, Shri Mahipal Singh Rana, Advocate appeared in
the Court, and, while using intemperate language, spoke in a loud voice:
“How did you pass an order against my client in the case titled as “Kanchan
Singh vs. Ratan Singh”? How did you dare pass such an order against my
client?
I tried to console him, but he started shouting in a state of highly
agitated mind:
“Kanchan Singh is my relative and how was this order passed against my
relative? No Judicial Officer has, ever, dared pass an order against me.
Then, how did you dare do so? When any Judicial officer passes an order on
my file against my client, I set him right. I shall make a complaint
against you to Hon’ble High Court”, and he threatened me: “I will not let
you remain in Etah in future, I can do anything against you. I have
relations with highly notorious persons and I can get you harmed by such
notorious persons to the extent I want to do, and I myself am capable of
doing any deed (misdeed) as I wish, and I am not afraid of any one. In the
Court compound, even my shoes are worshipped and I was prosecuted in two
murder cases. And I have made murderous assaults on people and about 15 to
20 cases are going on against me. If you, in future, dare pass an order on
the file against my client in which I am a counsel, it will not be good for
you”.
Due to the above mentioned behaviour of Shri Mahipal Singh Rana, Advocate,
the judicial work was hindered and aforesaid act of Shri Mahipal Singh
falls within the ambit of committing the contempt of Court.
In this very succession, on 13.5.2003, while I was hearing 6-Ga-2 in the
O.S. No. No. 48/2003 titled as “Roshanlal v Nauvat Ram”, Shri Mahipal Singh
Rana Advocate appeared in the Court and spoke in a loud voice: “Why did you
not get the OS No. 298/2001 title as ‘Jag Mohan vs. Smt. Suman’ called out
so far, whereas the aforesaid case is very important, in as much as I am
the plaintiff therein”. I said to Shri Mahipal Singh Rana, Advocate:
“Hearing of a case is going on. Thereafter, your case will be called out
for hearing”, thereupon he got enraged and spoke: “That- case will be heard
first which I desire to be heard first. Nothing is done as per your desire.
Even an advocate does not dare create a hindrance in my case. I shall get
the case decided which I want and that case will never be decided, which I
do not want. You cannot decide any case against my wishes”. Meanwhile when
the counsel for Smt. Suman in O.S. No. 298/2001 titled as “Jag Mohan vs.
Smt. Suman” handed some papers over to Shri Mahipal Singh Rana, Advocate
for receiving the same, he threw those papers away and misbehaved with the
counsel for Smt. Suman. Due to this act of Shri Mahipal Singh Rana, the
judicial work was hindered and his act falls within the ambit of committing
the contempt of Court.
Your good self is therefore requested that in order to initiate proceedings
relating to committing the contempt of Court against Shri Mahipal Singh
Rana, Advocate, my report may kindly be sent to the Hon’ble High Court by
way of REFERENCE”.
With regards,”
8. On the same day, the learned Civil Judge (Senior Division) also wrote
another letter to the Registrar-General of the High Court, giving some more
facts regarding contemptuous behaviour of the appellant with a request to
place the facts before the Hon’ble Chief Justice of the High Court so that
appropriate action under the Act may be taken against the appellant. As the
aforestated letters refer to the facts regarding behaviour of the
appellant, we do not think it necessary to reiterate the same here.
9. Ultimately, in pursuance of the information given to the High Court,
proceedings under the Act had been initiated against the appellant.
10. Before the High Court, it was contended on behalf of the appellant
that it was not open to the Court to proceed against the appellant under
the provisions of the Act because if the behaviour of the appellant was not
proper or he had committed any professional misconduct, the proper course
was to take action against the appellant under the provisions of the
Advocates Act, 1961. It was also contended that summary procedure under
the Act could not have been followed by the Court for the purpose of
punishing the appellant. Moreover, it was also submitted that the
appellant was not at all present before the learned Civil Judge (Senior
Division), Etah on 16.4.2003 and 13.5.2003.
11. Ultimately, after hearing the parties concerned, the High Court did
not accept the defence of the appellant and after considering the facts of
the case, it delivered the impugned judgment whereby punishment has been
imposed upon the appellant. The High Court observed:
“22. Extraordinary situations demand extraordinary remedies. The
subordinate courts in Uttar Pradesh are witnessing disturbing period. In
most of the subordinate courts, the Advocates or their groups and Bar
Associations have been virtually taken over the administration of justice
to ransom. These Advocates even threaten and intimidate the Judges to
obtain favourable orders. The Judicial Officers often belonging to
different districts are not able to resist the pressure and fall prey to
these Advocates. This disturbs the equilibrium between Bar and the Bench
giving undue advantage and premium to the Bar. In these extraordinary
situations the High Court can not abdicate its constitutional duties to
protect the judicial officers.
xxxxx
24. ……………The criminal history of the contemnor, the acceptance of facts in
which his actions were found contumacious and he was discharged on
submitting apologies on two previous occasions, and the allegations against
him in which he was found to continue with intimidating the judicial
officers compelled us to issue interim orders restraining his entry of the
contemnor in the judgeship at Etah. The Bar Council of Uttar Pradesh, is
fully aware of his activities but has chosen not to take any action in the
matter. In fact the Bar Council hardly takes cognizance of such matters at
all. The Court did not interfere with the statutory powers of the Bar
Council of Uttar Pradesh to take appropriate proceedings against the
contemnor with regard to his right of practice, and did not take away right
of practice vested in him by virtue of his registration with the Bar
Council. He was not debarred from practice but was only restrained to
appear in the judgeship at Etah in the cases he was engaged as an Advocate.
The repeated contumacious conduct, without any respect to the Court
committed by him repeatedly by intimidating and brow beating the judicial
officers, called for maintaining discipline, protecting the judicial
officers and for maintaining peace in the premises of judgeship at Etah.
25. Should the High Court allow such advocate to continue to terrorise,
brow beat and bully the judicial officers? It is submitted that he has a
large practice. We are not concerned here whether the contemnor or such
advocates are acquiring large practice by intimidating judicial officers.
These are questions to be raised before the Bar Council. We, however, must
perform our constitutional duty to protect our judicial officers. This is
one such case illustrated in para 78, of the Supreme Court Bar
Association's case (supra), in which the occasion had arisen to prevent the
contemnor to appear before courts at Etah. The withdrawal of such privilege
did not amount to suspending or revoking his licence to practice as an
advocate in other courts or tribunal, drafting the petitions and advising
his clients. It only prevented him from intimidating the judicial officers
and from vitiating the atmosphere conducive for administration of justice
in the judgeship at Etah.
31. The Supreme Court held that Section 20 of the Contempt of Courts Act,
has to be construed in a manner which would avoid anomaly and hardships
both as regards the litigant as also by placing a pointless fetter on the
part of the court to punish for its contempt. In Pallav Seth the custodian
received information of the appellant having committed contempt of taking
over benami concerns, transferring funds to these concerns and operating
their accounts, from a letter dated 5.5.1998, received from the Income Tax
Authorities. Soon thereafter on 18.6.1998 a petition was filed for
initiating action in contempt and notices were issued by the Court on
9.4.1999. The Supreme Court found that on becoming aware of the forged
applications the contempt proceedings were filed on 18.6.1998 well within
the period of limitation prescribed by Section 20 of the Act. The action
taken by the special court by its order dated 9.4.1999 directing the
applications to be treated as show cause notice, was thus valid and that
the contempt action was not barred by Section 20 of the Act.
32. In the present case the alleged contempt was committed in the court of
Shri Onkar Singh Yadav, Civil Judge (Senior Division) Etah on 16.4.2003 and
13.5.2003. The officer initiated the proceedings by making reference to the
High Court through the District Judge vide his letters dated 7.6.2003,
separately in respect of the incidents. These letters were received by the
Court with the forwarding letter of the District Judge dated 1.6.2003 and
were placed before Administrative Judge on 7.7.2003, who returned the
matter to the Registrar General with his order dated 18.6.2004 to be placed
before Hon'ble the Chief Justice and that by his order dated 11.7.2004,
Hon'ble the Chief Justice referred the matter to court having contempt
determination. Show cause notices were issued by the court to the contemnor
on 28.10.2004. In view of the law as explained in Pallav Seth (supra) the
contempt proceedings would be taken to be initiated on 7.6.2003 by the
Civil Judge (Senior Division) Etah, which was well within the period of one
year from the date of the incidents prescribed under Section 20 of the
Act.
xxxxxx
36. We do not find that the contemnor Shri Mahipal Singh Rana is suffering
from any mental imbalance. He is fully conscious of his actions and take
responsibility of the same. He suffers from an inflated ago, and has a
tremendous superiority complex and claims himself to be a champion for the
cause of justice, and would not spare any effort, and would go to the
extent of intimidating the judges if he feels the injustice has been done
to his client. We found ourselves unable to convince him that the law is
above every one, and that even if he is an able lawyer belonging to
superior caste, he could still abide by the dignity of court and the
decency required from an advocate appearing in any court of law.
37. The due administration of law is of vastly greater importance than the
success or failure of any individual, and for that reason public policy as
well as good morals require that every Advocate should keep attention to
his conduct. An Advocate is an officer of the Court apart of machinery
employed for administration of justice, for meeting out to the litigants
the exact measure of their legal rights. He is guilty of a crime if he
knowingly sinks his official duty, in what may seem to be his own or his
clients temporary advantage.
38. We find that the denial of incidents and allegations of malafides
against Shri Onkar Singh Yadav, the then Civil Judge (Senior Division) Etah
have been made only to save himself from the contumacious conduct.
39. Shri Mahipal Singh Rana, the contemnor has refused to tender apologies
for his conduct. His affidavit in support of stay vacation/modification and
supplementary affidavit do not show any remorse. He has justified himself
again and again, in a loud and thundering voice.
40. We find that Shri Mahipal Rana the contemnor is guilty of criminal
contempt in intimidation and threatening Shri Onkar Singh Yadav the then
Civil Judge (Senior Division) Etah in his court on 16.4.2003 and 13.5.2003
and of using loud and indecent language both in court and in his pleadings
in suit No. 515/2002. He was discharged from proceeding of contempt in
Criminal Contempt Petition No. 21/1998 and Criminal Contempt No. 60 of 1998
on his tendering unconditionally apology on 3.8.1999 and 11.11.2002
respectively. He however did not mend himself and has rather become more
aggressive and disrespectful to the court. He has virtually become nuisance
and obstruction to the administration of justice at the Judgeship at Etah.
We are satisfied that the repeated acts of criminal contempt committed by
him are of such nature that these substantially interfere with the due
course of justice. We thus punish him under Section 12 of the Contempt of
Courts Act 1971, with two months imprisonment and also impose fine of Rs.
2000/- on him. In case non-payment of fine he will undergo further a period
of imprisonment of two weeks. However, the punishment so imposed shall be
kept in abeyance for a period of sixty days to enable the contemner Shri
Rana to approach the Hon'ble Supreme Court, if so advised.
41. We also direct the Bar Council of Uttar Pradesh to take the facts
constituted in the complaints of Shri Onkar Singh Yadav, the then Civil
Judge (Senior Division) Etah, the two earlier contempts referred in this
judgment, and to draw proceedings against him for professional misconduct.
42. Under the Rules of this Court, the contemnor shall not be permitted to
appear in courts in the Judgeship at Etah, until he purges the contempt.
43. The Registrar General shall draw the order and communicate it to the
Bar Council of Uttar Pradesh and Bar Council of India within a week. The
contemnor shall be taken into custody to serve the sentence immediately of
the sixty days if no restrain order is passed by the appellate court.”
Rival Contentions:
12. The learned counsel appearing for the appellant before this Court
specifically denied the instances dated 16.4.2003 and 13.5.2003 and further
submitted that the appellant had not even gone to the Court of the learned
Civil Judge (Senior Division), Etah on the aforestated two days and
therefore, the entire case made out against the appellant was false and
frivolous. The learned counsel, therefore, submitted that the High Court
had committed an error by not going into the fact as to whether the
appellant had, in fact, attended the Court of the learned Civil Judge
(Senior Division), Etah on 16.4.2003 and 13.5.2003. The learned counsel
further submitted that the High Court ought to have considered the fact
that the appellant had filed several complaints against the learned Judge
who was the complainant and therefore, with an oblique motive the entire
contempt proceedings were initiated against the appellant. The said
complaints ought to have been considered by the High Court. It was further
submitted that contempt proceedings were barred by limitation. The
incidents in question are dated 16th April, 2003 and 13th May, 2003 while
notice was ordered to be issued on 28th April, 2004.
13. The learned counsel, thus, submitted that the action initiated
against the appellant was not just and proper and the impugned judgment
awarding punishment to the appellant under the Act is bad in law and
therefore, deserved to be set aside. In the alternative, it is submitted
that the appellant was 84 years of age and keeping that in mind, the
sentence for imprisonment may be set aside and instead, the fine may be
increased.
14. On the other hand, the learned counsel appearing for the State of
Uttar Pradesh submitted that the impugned judgment was just, legal and
proper and the same was delivered after due deliberation and careful
consideration of the relevant facts. He submitted that looking at the
facts of the case, the High Court rightly came to the conclusion that the
appellant was not only present in the Court on those two days i.e. on
16.4.2003 and 13.5.2003, but the appellant had also misbehaved and
misconducted in such a manner that his conduct was contemptuous and
therefore, the proceedings under the Act had to be initiated against him.
The learned counsel also drew attention of the Court to the nature of the
allegations made by the appellant against the learned Judge and about the
contemptuous behaviour of the appellant. The learned counsel also relied
upon the report submitted to the learned District Judge and submitted that
the impugned judgment is just, legal and proper. He also submitted that
the misbehaviour and contemptuous act of the appellant was unpardonable and
therefore, the High Court had rightly imposed punishment upon the
appellant.
15. In response to the notice issued by this Court on 20th August, 2015
in respect of the question framed, the learned counsel appearing for the
Bar Council of India submitted that Section 24A of the Advocates Act, 1961
provides for a bar against admission of a person as an advocate if he is
convicted of an offence involving moral turpitude, apart from other
situations in which such bar operates. The proviso however, provides for
the bar being lifted after two years of release. However, the provision
did not expressly provide for removal of an advocate from the roll of the
advocates if conviction takes place after enrollment of a person as an
advocate. Only other relevant provision under which action could be taken
is Section 35 for proved misconduct. It is further stated that though the
High Court directed the Bar Council of Uttar Pradesh to initiate
proceedings for professional misconduct on 2.12.2005, the consequential
action taken by the Bar Council of the State of Uttar Pradesh was not
known. It is further stated that the term moral turpitude has to be
understood having regard to the nature of the noble profession of law which
requires a person to possess higher level of integrity. Even a minor
offence could be termed as an offence involving moral turpitude in the
context of an advocate who is expected to be aware of the legal position
and the conduct expected from him as a citizen is higher than others. It
was further submitted that only the State Bar Council or Bar Council of
India posses the power to punish an advocate for “professional misconduct”
as per the provisions of Section 35 of the Advocates Act, 1961 and
reiterated the law laid down by this Court in Supreme Court Bar Association
versus Union of India[1]. In addition, the counsel submitted that a general
direction to all the Courts be given to communicate about conviction of an
advocate for an offence involving moral turpitude to the concerned State
Bar Council or the Bar Council of India immediately upon delivering the
judgment of conviction so that proceedings against such advocates can be
initiated under the Advocates Act, 1961.
16. The Learned Additional Solicitor General of India appearing on behalf
of Union of India, submitted that normally in case of all professions, the
apex body of the professionals takes action against the erring professional
and in case of legal profession, the Bar Council of India takes
disciplinary action and punishes the concerned advocate if he is guilty of
any misconduct etc. Reference was made to Architects Act, 1972, Chartered
Accountants Act, 1949, Company Secretaries Act, 1980, Pharmacy Practice
Regulations, 2015, Indian Medical Council (Professional Conduct Etiquettes
and Ethics) Regulations, 2002, National Council for Teacher Education Act,
1993, Cost and Works Accountants Act, 1959, Actuaries Act, 2006, Gujarat
Professional Civil Engineers Act, 2006, Representation of Peoples Act,
1951, containing provisions for disqualifying a person from continuing in a
regulated profession upon conviction for an offence involving moral
turpitude. Reference was also made to Section 24A of the Advocates Act
which provides for a bar on enrolment as an advocate of a person who has
committed any offence involving moral turpitude. It was further submitted
that if a person is disqualified from enrolment, it could not be the
intention of the legislature to permit a person already enrolled as an
advocate to continue him in practice if he is convicted of an offence
involving moral turpitude. Bar against enrolment should also be deemed to
be bar against continuation. It was further submitted that Article 145 of
the Constitution empowers the Supreme Court to make rules for regulating
practice and procedure including the persons practicing before this Court.
Section 34 of the Advocates Act empowers the High Courts to frame rules
laying down the conditions on which an advocate shall be permitted to
practice in courts. Thus, there is no absolute right of an advocate to
appear in court. Appearance before Court is subject to such conditions as
are laid down by this Court or the High Court. An Advocate could be
debarred from appearing before the Court even if the disciplinary
jurisdiction for misconduct was vested with the Bar Council as laid down in
Supreme Court Bar Association (supra) and as further clarified in Pravin C.
Shah versus K.A. Mohd. Ali[2], Ex-Captain Harish Uppal versus Union of
India[3], Bar Council of India versus High Court of Kerala[4] and R.K.
Anand versus Registrar, Delhi High Court[5]. Thus, according to the
counsel, apart from the Bar Council taking appropriate action against the
appellant, this Court could debar him from appearance before any court.
17. Shri Dushyant Dave, learned senior counsel and President of the
Supreme Court Bar Association supported the interpretation canvassed by the
learned Additional Solicitor General. He submitted that image of the
profession ought to be kept clean by taking strict action against persons
failing to maintain ethical standards.
18. We have heard the learned counsel appearing for the parties and have
perused the judgments cited by them.
Consideration of the questions
We may now consider the questions posed for consideration:
Re: (i)
19. Upon going through the impugned judgment, we are of the view that no
error has been committed by the High Court while coming to the conclusion
that the appellant had committed contempt of Court under the provisions of
the Act.
20. We do not agree with the submissions of the learned counsel for the
appellant that the appellant did not appear on those two days before the
Court. Upon perusal of the facts found by the High Court and looking at
the contents of the letters written by the concerned judicial officers, we
have no doubt about the fact that the appellant did appear before the Court
and used the language which was contemptuous in nature.
21. So far as the allegations made by the appellant with regard to the
complaints made by him against the complainant judge, after having held
that the appellant had appeared before the Court and had made contemptuous
statements, we are of the opinion that those averments regarding the
complaints are irrelevant. The averments regarding the complaints cannot
be a defence for the appellant. Even if we assume those averments about
the complaints to be correct, then also, the appellant cannot use such
contemptuous language in the Court against the presiding Judge.
22. There is no merit in the contention of the appellant that there was
delay on the part of the complainant Judge in sending the reference and he
could have tried the appellant under Section 228 of the Indian Penal Code
and the procedure prescribed under Code of Criminal Procedure. It is for
the learned judge to decide as to whether action should be taken under the
Act or under any other law.
23. The High Court has rightly convicted the appellant under the Act
after having come to a conclusion that denial of the incidents and
allegations of malafides against the complainant Judge had been made by the
appellant to save himself from the consequences of contempt proceedings.
The appellant had refused to tender apology for his conduct. His affidavit
in support of stay vacation/modification and supplementary affidavit did
not show any remorse and he had justified himself again and again, which
also shows that he had no regards for the majesty of law.
24. It is a well settled proposition of law that in deciding whether
contempt is serious enough to merit imprisonment, the Court will take into
account the likelihood of interference with the administration of justice
and the culpability of the offender. The intention with which the act
complained of is done is a material factor in determining what punishment,
in a given case, would be appropriate. In the case at hand, the High Court
has rightly held that the appellant was guilty of criminal contempt. We are
however, inclined to set aside the sentence for imprisonment in view of
advance age of the appellant and also in the light of our further direction
as a result of findings of question No. (ii)
Re: (ii)
Court’s jurisdiction vis a vis statutory powers of the Bar Councils
25. This Court, while examining its powers under Article 129 read with
Article 142 of the Constitution with regard to awarding sentence of
imprisonment together with suspension of his practice as an Advocate, in
Supreme Court Bar Association (supra), the Constitution Bench held that
while in exercise of contempt jurisdiction, this Court cannot take over
jurisdiction of disciplinary committee of the Bar Council[6] and it is for
the Bar Council to punish the advocate by debarring him from practice or
suspending his licence as may be warranted on the basis of his having been
found guilty of contempt, if the Bar Council fails to take action, this
Court could invoke its appellate power under Section 38 of the Advocates
Act[7]. In a given case, this court or the High Court can prevent the
contemnor advocate from appearing before it or other courts till he purges
himself of the contempt which is different from suspending or revoking the
licence or debarring him to practise[8].
26. Reference may be made to the following observations in SCBA case
(supra):
“79. An advocate who is found guilty of contempt of court may also, as
already noticed, be guilty of professional misconduct in a given case but
it is for the Bar Council of the State or Bar Council of India to punish
that advocate by either debarring him from practice or suspending his
licence, as may be warranted, in the facts and circumstances of each case.
The learned Solicitor General informed us that there have been cases where
the Bar Council of India taking note of the contumacious and objectionable
conduct of an advocate, had initiated disciplinary proceedings against him
and even punished him for “professional misconduct”, on the basis of his
having been found guilty of committing contempt of court. We do not
entertain any doubt that the Bar Council of the State or Bar Council of
India, as the case may be, when apprised of 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 is drawn
by this Court to the contumacious and unbecoming conduct of an advocate
which has the tendency to interfere with due administration of justice. It
is possible for the High Courts also to draw the attention of the Bar
Council of the State to a case of professional misconduct of a contemner
advocate to enable the State Bar Council to proceed in the manner
prescribed by the Act and the Rules framed thereunder. There is no
justification to assume that the Bar Councils would not rise to the
occasion, as they are equally responsible to uphold the dignity of the
courts and the majesty of law and prevent any interference in the
administration of justice. Learned counsel for the parties present before
us do not dispute and rightly so that whenever a court of record records
its findings about the conduct of an advocate while finding him guilty of
committing contempt of court and desires or refers the matter to be
considered by the Bar Council concerned, appropriate action should be
initiated by the Bar Council concerned in accordance with law with a view
to maintain the dignity of the courts and to uphold the majesty of law and
professional standards and etiquette. Nothing is more destructive of public
confidence in the administration of justice than incivility, rudeness or
disrespectful conduct on the part of a counsel towards the court or
disregard by the court of the privileges of the Bar. In case the Bar
Council, even after receiving “reference” from the Court, fails to take
action against the advocate concerned, this Court might consider invoking
its powers under Section 38 of the Act by sending for the record of the
proceedings from the Bar Council and passing appropriate orders. Of course,
the appellate powers under Section 38 would be available to this Court only
and not to the High Courts. We, however, hope that such a situation would
not arise.
80. In a given case it may be possible, for this Court or the High Court,
to prevent the contemner advocate to appear before it till he purges
himself of the contempt but that is much different from suspending or
revoking his licence or debarring him to practise as an advocate. In a case
of contemptuous, contumacious, unbecoming or blameworthy conduct of an
Advocate-on-Record, this Court possesses jurisdiction, under the Supreme
Court Rules itself, to withdraw his privilege to practice as an Advocate-on-
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 licence to practice as an advocate in other courts or
tribunals.
81. We are conscious of the fact that the conduct of the contemner in V.C.
Mishra case [(1995) 2 SCC 584] was highly contumacious and even atrocious.
It was unpardonable. The contemner therein had abused his professional
privileges while practising as an advocate. He was holding a very senior
position in the Bar Council of India and was expected to act in a more
reasonable way. He did not. These factors appear to have influenced the
Bench in that case to itself punish him by suspending his licence to
practice also while imposing a suspended sentence of imprisonment for
committing contempt of court but while doing so this Court vested itself
with a jurisdiction where none exists. The position would have been
different had a reference been made to the Bar Council and the Bar Council
did not take any action against the advocate concerned. In that event, as
already observed, this Court in exercise of its appellate jurisdiction
under Section 38 of the Act read with Article 142 of the Constitution of
India, might have exercised suo motu powers and sent for the proceedings
from the Bar Council and passed appropriate orders for punishing the
contemner advocate for professional misconduct after putting him on notice
as required by the proviso to Section 38 which reads thus:
“Provided that no order of the Disciplinary Committee of the Bar Council of
India shall be varied by the Supreme Court so as to prejudicially affect
the person aggrieved without giving him a reasonable opportunity of being
heard.”
But it could not have done so in the first instance.”
27. In Pravin C. Shah (supra) this Court held that an advocate found
guilty of contempt cannot be allowed to act or plead in any court till he
purges himself of contempt. This direction was issued having regard to
Rule 11 of the Rules framed by the High Court of Kerala under Section 34
(1) of the Advocates Act and also referring to observations in para 80 of
the judgment of this Court in Supreme Court Bar Association (supra). 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 licence which could be done by the Bar
Council and on failure of the Bar Council, in exercise of appellate
jurisdiction of this Court. The observations are:
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 practise envelops a lot of acts to
be performed by him in discharge of his professional duties. Apart from
appearing in the courts he can be consulted by his clients, he can give his
legal opinion whenever sought for, he can draft instruments, pleadings,
affidavits or any other documents, he can participate in any conference
involving legal discussions etc. Rule 11 has nothing to do with all the
acts done by an advocate during his practice except his performance inside
the court. Conduct in court is a matter concerning the court and hence the
Bar Council cannot claim that what should happen inside the court could
also be regulated by the Bar Council in exercise of its disciplinary
powers. The right to practise, no doubt, is the genus of which the right to
appear and conduct cases in the court may be a specie. But the right to
appear and conduct cases in the court is a matter on which the court must
have the major supervisory 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 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 behaviour he hurled at the court, would erode the dignity of
the court and even corrode the majesty of it besides impairing the
confidence of the public in the efficacy of the institution of the courts.
This necessitates vesting of power with the High Court to formulate rules
for regulating the proceedings inside the court including the conduct of
advocates during such proceedings. That power should not be confused with
the right to practise law. While the Bar Council can exercise control over
the latter, the High Court should be in control of the former.
18. In the above context it is useful to quote the following observations
made by a Division Bench of the Allahabad High Court in Prayag Das v. Civil
Judge, Bulandshahr {AIR 1974 All 133] : (AIR p. 136, para 9)
“The High Court has a power to regulate the appearance of advocates in
courts. The right to practise and the right to appear in courts are not
synonymous. An advocate may carry on chamber practice or even practise in
courts in various other ways, e.g., drafting and filing of pleadings and
vakalatnama for performing those acts. For that purpose his physical
appearance in courts may not at all be necessary. For the purpose of
regulating his appearance in courts the High Court should be the
appropriate authority to make rules and on a proper construction of Section
34(1) of the Advocates Act it must be inferred that the High Court has the
power to make rules for regulating the appearance of advocates and
proceedings inside the courts. Obviously the High Court is the only
appropriate authority to be entrusted with this responsibility.”
xxxxx
24. Purging is a process by which an undesirable element is expelled either
from one’s own self or from a 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.
xxxxx
27. We cannot therefore approve the view that merely undergoing the penalty
imposed on a contemnor is sufficient to complete the process of purging
himself of the contempt, particularly in a case where the contemnor is
convicted of criminal contempt. The danger in giving accord to the said
view of the learned Single Judge in the aforecited decision is that if a
contemnor is sentenced to a fine he can immediately pay it and continue to
commit contempt in the same court, and then again pay the fine and persist
with his contemptuous conduct. There must be something more to be done to
get oneself purged of the contempt when it is a case of criminal contempt.
28. The Disciplinary Committee of the Bar Council of India highlighted the
absence of any mode of purging oneself of the guilt in any of the Rules as
a reason for not following the interdict contained in Rule 11. Merely
because the Rules did not prescribe the mode of purging oneself of the
guilt it does not mean that one cannot purge the guilt at all. The first
thing to be done in that direction when a contemnor is found guilty of a
criminal contempt is to implant or infuse in his own mind real remorse
about his conduct which the court found to have amounted to contempt of
court. Next step is to seek pardon from the court concerned for what he did
on the ground that he really and genuinely repented and that he has
resolved not to commit any such act in future. It is not enough that he
tenders an apology. The apology tendered should impress the court to be
genuine and sincere. If the court, on being impressed of his genuineness,
accepts the apology then it could be said that the contemnor has purged
himself of the guilt.”
28. In Bar Council of India versus High Court of Kerala[9],
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 the SCBA judgment (supra).
Referring to the Constitution Bench judgment in Harish Uppal (supra), 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
(supra), that the court must have major supervisory power on the right to
appear and conduct in the court. The observations are:
“46. Before a contemner 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 offences carry minimum sentence. The gravity of such offences,
thus, is recognised by the legislature. The courts do not have any role to
play in such a matter.”
29. Reference was also made to the following observations in Harish Uppal
(supra):
“34………The right to practise, no doubt, is the genus of which the right to
appear and conduct cases in the court may be a specie. But the right to
appear and conduct cases in the court is a matter on which the court must
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 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 practise law. While the Bar Council can exercise
control over the latter, the courts are in control of the former. This
distinction is clearly brought out by the difference in language in Section
49 of the Advocates Act on the one hand and Article 145 of the Constitution
of India and Section 34(1) of the Advocates Act on the other. Section 49
merely empowers the Bar Council to frame rules laying down conditions
subject to which an advocate shall have a right to practise i.e. do all the
other acts set out above. However, Article 145 of the Constitution of India
empowers the Supreme Court to make rules for regulating this practice and
procedure of the court including inter alia rules as to persons practising
before this Court. Similarly Section 34 of the Advocates Act empowers High
Courts to frame rules, inter alia to lay down conditions on which an
advocate shall be permitted to practise in courts. Article 145 of the
Constitution of India and Section 34 of the Advocates Act clearly show that
there is no absolute right to an advocate to appear in a court. An advocate
appears in a court subject to such conditions as are laid down by the
court. It must be remembered that Section 30 has not been brought into
force and this also shows that there is no absolute right to appear in a
court. Even if Section 30 were to be brought into force control of
proceedings in court will always remain with the court. Thus even then the
right to appear in court will be subject to complying with conditions laid
down by courts just as practice outside courts would be subject to
conditions laid down by the Bar Council of India. There is thus no conflict
or clash between other provisions of the Advocates Act on the one hand and
Section 34 or Article 145 of the Constitution of India on the other.”
30. In R.K. Anand (supra) it was held that even if there was no rule
framed under Section 34 of the Advocates Act disallowing an advocate who is
convicted of criminal contempt is not only a measure to maintain dignity
and orderly function of courts, it may become necessary for the protection
of the court and for preservation of the purity of court proceedings.
Thus, the court not only has a right but also an obligation to protect
itself and save the purity of its proceedings from being polluted, by
barring the advocate concerned from appearing before the courts for an
appropriate period of time[10]. This court noticed the observations about
the decline of ethical and professional standards of the Bar, and need to
arrest such trend in the interests of administration of justice. It was
observed that in absence of unqualified trust and confidence of people in
the bar, the judicial system could not work satisfactorily. Further
observations are that the performance of the Bar Councils in maintaining
professional standards and enforcing discipline did not match its
achievements in other areas. This Court expressed hope and expected that
the Bar Council will take appropriate action for the restoration of high
professional standards among the lawyers, working of their position in the
judicial system and the society. It was further observed:
“331. The other important issue thrown up by this case and that causes us
both grave concern and dismay is the decline of ethical and professional
standards among lawyers. The conduct of the two appellants (one convicted
of committing criminal contempt of court and the other found guilty of
misconduct as Special Public Prosecutor), both of them lawyers of long
standing, and designated Senior Advocates, should not be seen in isolation.
The bitter truth is that the facts of the case are manifestation of the
general erosion of the professional values among lawyers at all levels. We
find today lawyers indulging in practices that would have appalled their
predecessors in the profession barely two or three decades ago. Leaving
aside the many kinds of unethical practices indulged in by a section of
lawyers we find that even some highly successful lawyers seem to live by
their own rules of conduct.
xxxxxxxx
333. We express our concern on the falling professional norms among the
lawyers with considerable pain because we strongly feel that unless the
trend is immediately arrested and reversed, it will have very deleterious
consequences for the administration of justice in the country. No judicial
system in a democratic society can work satisfactorily unless it is
supported by a Bar that enjoys the unqualified trust and confidence of the
people, that shares the aspirations, hopes and the ideals of the people and
whose members are monetarily accessible and affordable to the people.
xxxxxxxx
335. Here we must also observe that the Bar Council of India and the Bar
Councils of the different States cannot escape their responsibility in this
regard. Indeed the Bar Council(s) have very positively taken up a number of
important issues concerning the administration of justice in the country.
It has consistently fought to safeguard the interests of lawyers and it has
done a lot of good work for their welfare. But on the issue of maintaining
high professional standards and enforcing discipline among lawyers its
performance hardly matches its achievements in other areas. It has not
shown much concern even to see that lawyers should observe the statutory
norms prescribed by the Council itself. We hope and trust that the Council
will at least now sit up and pay proper attention to the restoration of the
high professional standards among lawyers worthy of their position in the
judicial system and in the society.”
31. In Re: Sanjiv Dutta & Ors.[11], it was observed that the members of
legal profession are required to maintain exemplary conduct in and outside
of the Court. The respect for the legal system was due to role played by
the stalwarts of the legal profession and if there was any deviation in the
said role, not only the profession but also the administration of justice
as a whole would suffer. In this regard, relevant observations are :
“20. The legal profession is a solemn and serious occupation. It is a noble
calling and all those who belong to it are its honourable members. Although
the entry to the profession can be had by acquiring merely the
qualification of technical competence, the honour as a professional has to
be maintained by the its members by their exemplary conduct both in and
outside the court. The legal profession is different from other professions
in that what the lawyers do, affects not only an individual but the
administration of justice which is the foundation of the civilised society.
Both as a leading member of the intelligential of the society and as a
responsible citizen, the lawyer has to conduct himself as a model for
others both in his professional and in his private and public life. The
society has a right to expect of him such ideal behavior. It must not be
forgotten that the legal profession has always been held in high esteem and
its members have played an enviable role in public life. The regard for the
legal and judicial systems in this country is in no small measure due to
the tiredness role played by the stalwarts in the profession to strengthen
them. They took their profession seriously and practised it with dignity,
deference and devotion. If the profession is to survive, the judicial
system has to be vitalised. No service will be too small in making the
system efficient, effective and credible. The casualness and indifference
with which some members practise the profession are certainly not
calculated to achieve that purpose or to enhance the prestige either of the
profession or of the institution they are serving. If people lose
confidence in the profession on account of the deviant ways of some of its
members, it is not only the profession which will suffer but also the
administration of justice as a whole. The present trend unless checked is
likely to lead to a stage when the system will be found wrecked from within
before it is wrecked from outside. It is for the members of the profession
to introspect and take the corrective steps in time and also spare the
courts the unpleasant duty. We say no more.”
32. In Bar Council of Maharashtra versus M.V. Dabholkar[12] following
observations have been made about the vital role of the lawyer in
administration of justice.
“15. Now to the legal issue bearing on canons of professional conduct. The
rule of law cannot be built on the ruins of democracy, for where law ends
tyranny begins. If such be the keynote thought for the very survival of our
Republic, the integral bond between the lawyer and the public is
unbreakable. And the vital role of the lawyer depends upon (his probity and
professional life style. Be it remembered that the central function of the
legal profession is to promote the administration of justice. If the
practice of law is thus a public utility of great implications and a
monopoly is statutorily granted by the nation, it obligates the lawyer to
observe scrupulously those norms which make him worthy of the confidence of
the community in him as a vehicle of justice-social justice. The Bar cannot
behave with doubtful scruples or strive to thrive on litigation. Canons of
conduct cannot be crystallised into rigid rules but felt by the collective
conscience of the practitioners as right:
It must be a conscience alive to the proprieties and the improprieties
incident to the discharge of a sacred public trust. It must be a conscience
governed by the rejection of self-interest and selfish ambition. It must be
a conscience propelled by a consuming desire to play a leading role in the
fair and impartial administration of justice. to the end that public
confidence may be kept undiminished at all times in the belief that we
shall always seek truth and justice in the preservation of the rule of law.
It must be a conscience, not shaped by rigid rules of doubtful validity,
but answerable only to a moral code which would drive irresponsible judges
from the profession. Without such a conscience, there should be no judge.
and, we may add, no lawyer.
Such is the high standard set for professional conduct as expounded by
courts in this country and elsewhere.”
33. In Jaswant Singh versus Virender Singh[13], it was observed :
“36. …………. An advocate has no wider protection than a layman when he
commits an act which amounts to contempt of court. It is most unbefitting
for an advocate to make imputations against the Judge only because he does
not get the expected result, which according to him is the fair and
reasonable result available to him. Judges cannot be intimidated to seek
favorable orders. Only because a lawyer appears as a party in person, he
does not get a license thereby to commit contempt of the Court by
intimidating the Judges or scandalising the courts. He cannot use language,
either in the pleadings or during arguments, which is either intemperate or
unparliamentary. These safeguards are not for the protection of any Judge
individually but are essential for maintaining the dignity and decorum of
the Courts and for upholding the majesty of law. Judges and courts are not
unduly sensitive or touchy to fair and reasonable criticism of their
judgments. Fair comments, even if, out-spoken, but made without any malice
or attempting to impair the administration of justice and made in good
faith in proper language do not attract any punishment for contempt of
court. However, when from the criticism a deliberate, motivated and
calculated attempt is discernible to bring down the image of judiciary in
the estimation of the public or to impair the administration of justice or
tend to bring the administration of justice into disrepute the courts must
bistre themselves to uphold their dignity and the majesty of law. The
appellant, has, undoubtedly committed contempt of the Court by the use of
the objectionable and intemperate language. No system of justice can
tolerate such unbridled licence on the part of a person, be he a lawyer, to
permit himself the liberty of scandalising a Court by casting unwarranted,
uncalled for and unjustified aspersions on the integrity, ability,
impartiality or fairness of a Judge in the discharge of his judicial
functions as it amounts to an interference with the dues course of
administration of justice.”
34. In Subrata Roy Sahara v. Union of India[14], it was observed :
“188. The number of similar litigants, as the parties in this group of
cases, is on the increase. They derive their strength from abuse of the
legal process. Counsel are available, if the litigant is willing to pay
their fee. Their percentage is slightly higher at the lower levels of the
judicial hierarchy, and almost non-existent at the level of the Supreme
Court. One wonders what is it that a Judge should be made of, to deal with
such litigants who have nothing to lose. What is the level of merit, grit
and composure required to stand up to the pressures of today’s litigants?
What is it that is needed to bear the affront, scorn and ridicule hurled at
officers presiding over courts? Surely one would need superhumans to handle
the emerging pressures on the judicial system. The resultant duress is
gruelling. One would hope for support for officers presiding over courts
from the legal fraternity, as also, from the superior judiciary up to the
highest level. Then and only then, will it be possible to maintain
equilibrium essential to deal with complicated disputations which arise for
determination all the time irrespective of the level and the stature of the
court concerned. And also, to deal with such litigants.”
35. In Amit Chanchal Jha versus Registar, High Court of Delhi[15] this
Court again upheld the order of debarring the advocate from appearing in
court on account of his conviction for criminal contempt.
36. We may also refer to certain articles on the subject. In “Raising the
Bar for the Legal Profession” published in the Hindu newspaper dated 15th
September, 2012, Dr. N.R.Madhava Menon wrote:
“……..Being a private monopoly, the profession is organised like a pyramid
in which the top 20 per cent command 80 per cent of paying work, the middle
30 per cent managing to survive by catering to the needs of the middle
class and government litigation, while the bottom 50 per cent 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 freedom struggle and
maintaining the rule of law and civil liberties even in difficult times.
37. In “Browbeating, prerogative of lawyers”, published in the Hindu
newspaper dated 7th June, 2016, Shri S. Prabhakaran, Co-Chairman of Bar
Council of India and Senior Advocate, in response to another Article “Do
not browbeat lawyers”, published in the said newspaper on June 03, 2016,
writes :
“……The next argument advanced against the rules is that the threat of
action for browbeating the judges is intended to silence the lawyers. But
the authors have forgotten very conveniently that (i) when rallies and
processions were taken out inside court halls obstructing the proceedings,
(ii) when courts were boycotted for all and sundry reasons in violation of
the law laid down by the Supreme Court in Ex-Capt. Harish Uppal, (iii) when
two instances of murder of very notorious lawyers inside the Egmore court
complex took place on the eve of elections to the Bar Associations, (iv)
when a lady litigant who came to the Family Court in Chennai was physically
assaulted by a group of lawyers who also coerced the police to register a
complaint against the victim, (v) when a group of lawyers barged into the
chamber of a magistrate in Puducherry and wrongfully confined him till he
released a lawyer on his own bond in a criminal complaint of sexual assault
filed by a lady, (vi) when a group of lawyers gheraoed a magistrate for not
granting bail and one of them spat on his face, leading to strong protests
by the Association of Judicial Officers, and (vii) when very recently, a
lady litigant was physically assaulted by a group of lawyers for sitting in
the chair intended for lawyers inside the court hall, lawyers such as the
authors of the article under response maintained a stoic silence.
Even lawyers who claim to be human rights activists choose to be silent
when the human rights of millions of litigants are affected by boycott of
courts. It shows that some lawyers, like the authors of the article under
response, have always maintained silence and do not mind being silenced by
a few unruly members of the Bar who go on the rampage at times. But they do
not want to be silenced by any rule prescribing a decent code of conduct in
court halls. The raison d'être appears to be that browbeating is the
prerogative of the lawyers and it shall be allowed with impunity.”
Undesirability of convicted person to perform important public functions:
38. It may also be appropriate to refer to the legal position about
undesirability of a convicted person being allowed to perform important
public functions. In Union of India versus Tulsiram Patel[16] it was
observed that it was not advisable to retain a person in civil service
after conviction.[17]. In Rama Narang versus Ramesh Narang[18] reference
was made to Section 267 of the Companies Act barring a convicted person
from holding the post of a Managing Director in a company. This Court
observed that having regard to the said wholesome provision, stay of
conviction ought to be granted only in rare cases. In Lily Thomas versus
UOI[19], this Court held that an elected representative could not continue
to hold the office after conviction[20]. In Manoj Narula versus UOI[21]
similar observation was made. In Election Commission versus Venkata
Rao[22] the disqualification against eligibility for contesting election
was held to operate for continuing on the elected post.
Interpretation of Section 24-A: Need to amend the provision
39. Section 24A of the Advocates Act is as follows:
“24A. Disqualification for enrolment.—
(1) No person shall be admitted as an advocate on a State roll—
(a) if he is convicted of an offence involving moral turpitude;
(b) if he is convicted of an offence under the provisions of the
Untouchability (Offences) Act, 1955 (22 of 1955); 2[(c) if he is dismissed
or removed from employment or office under the State on any charge
involving moral turpitude. Explanation.—In this clause, the expression
“State” shall have the meaning assigned to it under Article 12 of the
Constitution:] Provided that the disqualification for enrolment as
aforesaid shall cease to have effect after a period of two years has
elapsed since his 3[release or dismissal or, as the case may be, removal.
(2) Nothing contained in sub-section (1) shall apply to a person who having
been found guilty is dealt with under the provisions of the Probation of
Offenders Act, 1958 (20 of 1958).”
40. Dealing with the above provision, the Division Bench of the Gujarat
High Court in C. versus Bar Council[23] observed:
“2. … …. …. We, however, wish to avail of this opportunity to place on
record our feeling of distress and dismay at the fact that a public servant
who is found guilty of an offence of taking an illegal gratification in the
discharge of his official duties by a competent Court can be enrolled as a
member of the Bar even after a lapse of two years from the date of his
release from imprisonment. It is for the authorities who are concerned with
this question to reflect on the question as to whether such a provision is
in keeping with the high stature which the profession (which we so often
describe as the noble profession) enjoys and from which even the members of
highest judiciary are drawn. It is not a crime of passion committed in a
moment of loss of equilibrium. Corruption is an offence which is committed
after deliberation and it becomes a way of life for him.
3. A corrupt apple cannot become a good apple with passage of time. It is
for the legal profession to consider whether it would like such a provision
to continue to remain on the Statute Book and would like to continue to
adroit persons who have been convicted for offences involving moral
turpitude and persons who have been found guilty of acceptance of illegal
gratification, rape, dacoits, forgery, misappropriation of public funds,
relating to counter felt currency and coins and other offences of like
nature to be enrolled as members merely because two years have elapsed
after the date of their release from imprisonment. Does passage of 2 years
cleanse such a person of the corrupt character trait, purify his mind and
transform him into a person fit for being enrolled as a member of this
noble profession? Enrolled so that widows can go to him, matters pertaining
to properties of minors and matters on behalf of workers pitted against
rich and influential persons can be entrusted to him without qualms. Court
records can be placed at his disposal, his word at the Bar should be
accepted? Should a character certificate in the form of a Black Gown be
given to him so that a promise of probity and trustworthiness is held out
to the unwary litigants seeking justice? A copy of this order may,
therefore, be sent to the appropriate authorities concerned with the
administration of the Bar Council of India and the State Bar Council,
Ministry of Law of the Government of India and Law Commission in order that
the matter maybe examined fully and closely with the end in view to
preserve the image of the profession and protect the seekers for justice
from dangers inherent in admitting such persons on the rolls of the Bar
Council.”
41. Inspite of the above observations no action appears to have been
taken at any level. The result is that a person convicted of even a most
heinous offence is eligible to be enrolled as an advocate after expiry of
two years from expiry of his sentence. This aspect needs urgent attention
of all concerned.
42. Apart from the above, we do not find any reason to hold that the bar
applicable at the entry level is wiped out after the enrollment. Having
regard to the object of the provision, the said bar certainly operates post
enrollment also. However, till a suitable amendment is made, the bar is
operative only for two years in terms of the statutory provision.
43. In these circumstances, Section 24A which debars a convicted person
from being enrolled applies to an advocate on the rolls of the Bar Council
for a period of two years, if convicted for contempt.
44. In addition to the said disqualification, in view judgment of this
Court in R.K. Anand (supra), unless a person purges himself of contempt or
is permitted by the Court, conviction results in debarring an advocate from
appearing in court even in absence of suspension or termination of the
licence to practice. We therefore, uphold the directions of the High Court
in para 42 of the impugned order quoted above to the effect that the
appellant shall not be permitted to appear in courts of District Etah until
he purges himself of contempt.
Inaction of the Bar Councils – Nature of directions required
45. We may now come to the direction to be issued to the Bar Council of
Uttar Pradesh or to the Bar Council of India. In the present case, inspite
of direction of the High Court as long back as more than ten years, no
action is shown to have been taken by the Bar Council. Notice was issued
by this Court to the Bar Council of India on 27th January, 2006 and after
all the facts having been brought to the notice of the Bar Council of
India, the said Bar Council has also failed to take any action. In view of
such failure of the statutory obligation of the Bar Council of the State of
Uttar Pradesh as well as the Bar Council of India, this Court has to
exercise appellate jurisdiction under the Advocates Act in view of proved
misconduct calling for disciplinary action. As already observed, in SCBA
case (supra), this Court observed that where the Bar Council fails to take
action inspite of reference made to it, this Court can exercise suo motu
powers for punishing the contemnor for professional misconduct. The
appellant has already been given sufficient opportunity in this regard.
46. We may add that what is permissible for this Court by virtue of
statutory appellate power under Section 38 of the Advocates Act is also
permissible to a High Court under Article 226 of the Constitution in
appropriate cases on failure of the Bar Council to take action after its
attention is invited to the misconduct.
47. Thus, apart from upholding the conviction and sentence awarded by the
High Court to the appellant, except for the imprisonment, the appellant
will suffer automatic consequence of his conviction under Section 24A of
the Advocates Act which is applicable at the post enrollment stage also as
already observed.
48. Further, in exercise of appellate jurisdiction under Section 38 of
the Advocates Act, we direct that the licence 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 (supra) and R.K. Anand (supra) and as directed by the High
Court. Question (ii) stands decided accordingly.
49. We thus, conclude:
Conviction of the appellant is justified and is upheld;
Sentence of imprisonment awarded to the appellant is set aside in view of
his advanced age but sentence of fine and default sentence are upheld.
Further direction that the appellant shall not be permitted to appear in
courts in District Etah until he purges himself of contempt is also upheld;
Under Section 24A of the Advocates Act, the enrollment of the appellant
will stand suspended for two years from the date of this order;
As a disciplinary measure for proved misconduct, the licence of the
appellant will remain suspended for further five years.
An Epilogue
50. While this appeal will stand disposed of in the manner indicated
above, we do feel it necessary to say something further in continuation of
repeated observations earlier made by this Court referred to above. Legal
profession being the most important component of justice delivery system,
it must continue to perform its significant role and regulatory mechanism
and should not be seen to be wanting in taking prompt action against any
malpractice. We have noticed the inaction of the Bar Council of Uttar
Pradesh as well as the Bar Council of India inspite of direction in the
impugned order of the High Court and inspite of notice to the Bar Council
of India by this Court. We have also noticed the failure of all concerned
to advert to the observations made by the Gujarat High Court 33 years ago.
Thus there appears to be urgent need to review the provisions of the
Advocates Act dealing with regulatory mechanism for the legal profession
and other incidental issues, in consultation with all concerned.
51. In a recent judgment of this Court in Modern Dental College and
Research Centre versus State of M.P. in Civil Appeal No.4060 of 2009 dated
2nd May, 2016, while directing review of regulatory mechanism for the
medical profession, this court observed that there is need to review of the
regulatory mechanism of the other professions as well. The relevant
observations are:
“There is perhaps urgent need to review the regulatory mechanism for other
service oriented professions also. We do hope this issue will receive
attention of concerned authorities, including the Law Commission, in due
course.”
52. In view of above, we request the Law Commission of India to go into
all relevant aspects relating to regulation of legal profession in
consultation with all concerned at an early date. We hope the Government
of India will consider taking further appropriate steps in the light of
report of the Law Commission within six months thereafter. The Central
Government may file an appropriate affidavit in this regard within one
month after expiry of one year.
53. To consider any further direction in the light of developments that
may take place, put up the matter for further consideration one month after
expiry of the period of one year.
………………………………J.
(ANIL R. DAVE)
………………………………J.
(KURIAN JOSEPH)
………………………………J.
(ADARSH KUMAR GOEL)
New Delhi
July 05, 2016.
-----------------------
[1] (1998) 4 SCC 409
[2] (2001) 8 SCC 650
[3] (2003) 2 SCC 45
[4] (2004) 6 SCC 311
[5] (2009) 8 SCC 106
[6] Paras 43, 57, 78
[7] Para 79
[8] Para 80
[9] (2004) 6 SCC 311
[10] Paras 238, 239, 242
[11] (1995) 3 SCC 619
[12] (1976) 2 SCC 291
[13] 1995 Supp.(1) SCC 384
[14] (2014) 8 SCC 470
[15] (2015) 13 SCC 288
[16] (1985) 3 SCC 398
[17] Para 153
[18] (1995) 2 SCC 513
[19] (2013) 7 SCC 653
[20] Para 28.
[21] (2014) 9 SCC 1
[22] AIR 1953 SC 210
[23] (1982) 2 GLR 706