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K.T. THOMAS, J. – We thought that the question involved in this appeal would generate much
interest to the legal profession and hence we issued notices to the Bar Council of India as well as
the State Bar Council concerned. But the Bar Council of India did not respond to the notice. We
therefore requested Mr Dushyant A. Dave, Senior Advocate, to help us as amicus curiae. The
learned Senior Counsel did a commendable job to help us by projecting a wide screen focussing on
the full profiles of the subject with his usual felicity. We are beholden to him.
- When an advocate was punished for contempt of court can he appear thereafter as a counsel
in the courts, unless he purges himself of such contempt? If he cannot, then what is the way he can
purge himself of such contempt? That question has now come to be determined by the Supreme
Court. - This matter concerns an advocate practising mostly in the courts situated within Ernakulam
District of Kerala State. He was hauled up for contempt of court on two successive occasions. We
wish to skip the facts in both the said cases which resulted in his being hauled up for such contempt
as those facts have no direct bearing on the question sought to be decided now. [The detailed facts
leading to the said proceedings have been narrated in the two decisions of the High Court of Kerala
reported in C.N. Presannan v. K.A. Mohammed Ali, 1991 Cri LJ 2194 (Ker) & 1991 Cri LJ 2205
(Ker)]. Nonetheless, it is necessary to state that the High Court of Kerala found the respondent
Advocate guilty of criminal contempt in both cases and convicted him under Section 12 of the
Contempt of Courts Act, 1971, and sentenced him in one case to a fine of Rs 10,000 (to be credited,
if realised, to the funds of Kerala Legal Aid Board). In the second case he was sentenced to pay a
fine of Rs 2000. Though he challenged the conviction and sentence imposed on him by the High
Court, he did not succeed in the Supreme Court except getting the fine of Rs 2000 in one case
deleted. The apology tendered by him in this Court was not accepted, for which a two-Judge Bench
made the following observation:
“We regretfully will not be able to accept his apology at this belated juncture, but
would rather admonish the appellant for his conduct under our plenary powers under the
Constitution, which we do hereby.” - The above conviction and sentence and refusal to accept the apology tendered on his behalf
did not create any ripple in him, so far as his resolve to continue to appear and conduct cases in the
courts was concerned. The present appellant (who represents an association “Lalan Road Residents’
Association, Cochin”) brought to the notice of the Bar Council of Kerala that the delinquent
Advocate continued to conduct cases before the courts in Ernakulam District in spite of the
conviction and sentence. - The Bar Council of Kerala thereupon initiated disciplinary proceedings against the
respondent Advocate and finally imposed a punishment on him debarring him from “acting or
pleading in any court till he gets himself purged of the contempt of court by an order of the
appropriate court”. The respondent Advocate challenged the order of the State Bar Council in an
appeal filed before the Bar Council of India. By the impugned order the Bar Council of India set
aside the interdict imposed on him. - This appeal, in challenge of the aforesaid order of the Bar Council of India, is preferred by
the same person at whose instance the State Bar Council initiated action against the respondent
Advocate.
200 - The above Rule shows that it was not necessary for the Disciplinary Committee of the Bar
Council to impose the said interdict as a punishment for misconduct. Even if the Bar Council had
not passed proceedings (which the Disciplinary Committee of the Bar Council of India has since set
aside as per the impugned order) the delinquent Advocate would have been under the disability
contained in Rule 11 quoted above. It is a self-operating rule for which only one stipulation need be
satisfied i.e. the advocate concerned should have been found guilty of contempt of court. The
terminus of the period of operation of the interdict is indicated by the next stipulation i.e. the
contemnor purges himself of the contempt. The inhibition will therefore start operating when the
first stipulation is satisfied, and it would continue to function until the second stipulation is fulfilled.
The latter condition would remain eluded until the delinquent Advocate himself initiates steps
towards that end. - Regarding the first condition there is no difficulty whatsoever in the present case because it is
an admitted fact that the respondent Advocate has been found guilty of contempt of court by the
High Court of Kerala in two cases successively. For the operation of the interdict contained in Rule
11 it is not even necessary that the Advocate should have been sentenced to any punishment after
finding him guilty. The difficulty arises in respect of the second condition mentioned above. - The Disciplinary Committee of the Bar Council of India seems to have approached the
question from a wrong angle by posing the following question:
“The fundamental question arising for consideration in this appeal is whether Rule 11
of the Rules framed by the Hon’ble High Court of Kerala under Section 34(1) of the
Advocates Act, 1961, is binding on the Disciplinary Committee of the State Bar Council
and if not, whether the Disciplinary Committee was justified in ordering that on account of
the disqualification under Rule 11 the appellant could not be allowed to appear, act or plead
till he gets himself purged of the contempt by an order of the appropriate court.” - There is no question of Rule 11 being binding on the Disciplinary Committee or any other
organ of the Bar Council. There is nothing in the said Rule which would involve the Bar Council in
any manner. But there is nothing wrong in the Bar Council informing a delinquent advocate of the
existence of a bar contained in Rule 11 and remind him of his liability to abide by it. Hence the
question formulated by the Disciplinary Committee of the Bar Council of India, as aforequoted, was
unnecessary and fallacious. - In the impugned order the Disciplinary Committee rightly stated that “the exercise of the
disciplinary powers over the advocates is exclusively vested with the Bar Council and this power
cannot be taken away by the High Court either by a judicial order or by making a rule”. This is
precisely the legal position adumbrated by the Constitution Bench of this Court in Supreme Court
Bar Assn. v. Union of India [(1998) 4 SCC 409]. In fact the relevant portions of the said decision
have been quoted in the impugned order in extenso. But having informed themselves of the correct
legal position regarding the powers of the Bar Council the members of the Disciplinary Committee
of the Bar Council of India embarked on a very erroneous concept when it observed the following:
“But to say that an advocate who had been found guilty of contempt of court shall not be
permitted to appear, act or plead in a court unless he has purged himself of the contempt
would amount to usurpation of powers of Bar Council.” - After examining Rule 11 of the Rules the Disciplinary Committee of the Bar Council of
India held that
201
“there cannot be an automatic deprivation of the right of an advocate to appear, act or plead
in a court, since such a course would be unfair and even violative of the fundamental rights
guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution of India”.
In the end the Disciplinary Committee of the Bar Council of India made an unwarranted proposition
on a misplaced apprehension as follows:
“The independence and autonomy of the Bar Council cannot be surrendered to the
provisions contained in Rule 11 of the Rules made by the High Court of Kerala under
Section 34(1) of the Advocates Act.” - By giving expression to such a proposition the Bar Council of India has obviously
overlooked the legal position laid down by the Constitution Bench in Supreme Court Bar Assn. v.
Union of India. In para 57 of the decision the Bench said thus:
“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.” - Thereafter in para 80, the Constitution Bench said the following:
“80. In a given case it may be possible, for this Court or the High Court, to prevent the
contemnor 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 practise 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 practise as an advocate in other courts or tribunals.” - 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. - 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
202
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. - We have already pointed out that Rule 11 of the Rules is a self-operating provision. When
the first postulate of it is completed (that the advocate has been found guilty of contempt of court)
his authority to act or plead in any court stands snapped, though perhaps for the time being. If he
does such things without the express permission of the court he would again be guilty of contempt
of court besides such act being a misconduct falling within the purview of Section 34 of the
Advocates Act. The interdict as against him from appearing in court as a counsel would continue
until such time as he purges himself of the contempt. - Now we have to consider the crucial question – how can a contemnor purge himself of the
contempt? According to the Disciplinary Committee of the Bar Council of India, purging oneself of
contempt can be done by apologising to the court. The said opinion of the Bar Council of India can
be seen from the following portion of the impugned order:
“Purging oneself of contempt can be only by regretting or apologising in the case of a
completed action of criminal contempt. If it is a case of civil contempt, by subsequent
compliance with the orders or directions the contempt can be purged of. There is no
procedural provision in law to get purged of contempt by an order of an appropriate court.” - 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. In Black’s Law
Dictionarythe 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. - We are told that a learned Single Judge of the Allahabad High Court has expressed a view
that purging process would be completed when the contemnor undergoes the penalty [vide Madan
Gopal Gupta (Dr) v. Agra University, AIR 1974 All 39]. This is what the learned Single Judge said
about it:
“In my opinion a party in contempt purged its contempt by obeying the orders of the
court or by undergoing the penalty imposed by the court.”
203 - Obeying the orders of the court would be a mode by which one can make the purging
process in a substantial manner when it is a civil contempt. Even for such a civil contempt the
purging process would not be treated as completed merely by the contemnor undergoing the penalty
imposed on him unless he has obeyed the order of the court or he has undone the wrong. If that is
the position in regard to civil contempt the position regarding criminal contempt must be stronger.
Section 2 of the Contempt of Courts Act categorises contempt of court into two categories. The first
category is “civil contempt” which is the wilful disobedience of the order of the court including
breach of an undertaking given to the court. But “criminal contempt” includes doing any act
whatsoever, which tends to scandalise or lowers the authority of any court, or tends to interfere with
the due course of a judicial proceeding or interferes with, or obstructs the administration of justice
in any other manner. - 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. - 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. - This Court has held in M.Y. Shareef v. Hon’ble Judges of the Nagpur High Court [AIR
1955 SC 19], that
“an apology is not a weapon of defence to purge the guilty of their offence; nor is it
intended to operate as a universal panacea, but it is intended to be evidence of real
contriteness”.
Ahmadi, J. (as the learned Chief Justice then was) in M.B. Sanghi, Advocate v. High Court of
Punjab and Haryana[(1991) 3 SCC 600], while considering an apology tendered by an advocate in
a contempt proceeding has stated thus:
“And here is a member of the profession who has repeated his performance presumably
because he was let off lightly on the first occasion. Soft justice is not the answer – not that
the High Court has been harsh with him – what I mean is he cannot be let off on an apology
which is far from sincere. His apology was hollow, there was no remorse – no regret – it
was only a device to escape the rigour of the law. What he said in his affidavit was that he
had not uttered the words attributed to him by the learned Judge; in other words the learned
Judge was lying – adding insult to injury – and yet if the court finds him guilty (he contested
the matter tooth and nail) his unqualified apology may be accepted. This is no apology, it is
merely a device to escape.”
204 - A four-Judge Bench of this Court in Mulk Raj v. State of Punjab [(1972) 3 SCC 839] made
the following observations which would throw considerable light on the question before us:
“9. Apology is an act of contrition. Unless apology is offered at the earliest opportunity
and in good grace apology is shorn of penitence. If apology is offered at a time when the
contemnor finds that the court is going to impose punishment it ceases to be an apology
and it becomes an act of a cringing coward. The High Court was right in not taking any
notice of the appellant’s expression of apology ‘without any further word’. The High Court
correctly said that acceptance of apology in the case would amount to allow the offender to
go away with impunity after having committed gross contempt.” - Thus a mere statement made by a contemnor before court that he apologises is hardly
enough to amount to purging himself of the contempt. The court must be satisfied of the
genuineness of the apology. If the court is so satisfied and on its basis accepts the apology as
genuine the court has to make an order holding that the contemnor has purged himself of the
contempt. Till such an order is passed by the court the delinquent advocate would continue to be
under the spell of the interdict contained in Rule 11 of the Rules. - Shri SadrulAnam, learned counsel for the respondent Advocate submitted first, that the
respondent has in fact apologised before this Court through the counsel engaged by him, and second
is that when this Court observed that “this course should set everything at rest” it should be treated
as the acknowledgement made by this Court that the contemnor has purged himself of the guilt. - We are unable to accept either of the said contentions. The observation that “this course
should set everything at rest” in the judgment of this Court cannot be treated as anything beyond the
scope of the plea made by the respondent in that case. That apart, this Court was certainly
disinclined to accept the apology so tendered in this Court which is clearly manifested from the
outright repudiation of that apology when this Court said thus:
“We regretfully will not be able to accept his apology at this belated juncture, but
would rather admonish the appellant for his conduct under our plenary powers under the
Constitution, which we do hereby.” - The respondent Advocate continued to appear in all the courts where he was earlier
appearing even after he was convicted by the High Court for criminal contempt without being
objected by any court. This is obviously on account of the fact that presiding officers of the court
were not informed of what happened. We, therefore, direct that in future, whenever an advocate is
convicted by the High Court for contempt of court, the Registrar of that High Court shall intimate
the fact to all the courts within the jurisdiction of that High Court so that presiding officers of all
courts would get the information that the particular advocate is under the spell of the interdict
contained in Rule 11 of the Rules until he purges himself of the contempt. - It is still open to the respondent Advocate to purge himself of the contempt in the manner
indicated above. But until that process is completed the respondent Advocate cannot act or plead in
any court situated within the domain of the Kerala High Court, including the subordinate courts
thereunder. The Registrar of the High Court of Kerala shall intimate all the courts about this
interdict as against the respondent Advocate.
