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Bench: Anil R. Dave, Kurian Joseph, Adarsh Kumar Goel
ANIL R. DAVE, J.
- 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 - 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. - 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dated 27th January, 2006 was withdrawn.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. - 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 - 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.
301 - 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. - 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
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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,” - 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. - Ultimately, in pursuance of the information given to the High Court, proceedings under the Act
had been initiated against the appellant. - 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. - 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 - ……………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
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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. - 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. - 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. - 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.
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xxxxxx - 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. - 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. - 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. - 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. - 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. - 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. - 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.
305 - 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: - 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. - 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. - 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. - 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
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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. - 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. - 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.
307 - 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) - 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. - 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. - 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. - 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. - 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. - 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
308 - 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]. - 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.
309
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. - 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. - 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 suomotu 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.” - 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: - 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
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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
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. - 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 - 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
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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 - 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.” - In Bar Council of India v. High Court of Kerala, 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.” - Reference was also made to the following observations in Harish Uppal (supra):
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“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.” - 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
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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 - 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 - 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.” - 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
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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.” - 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.” - 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
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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.” - In Subrata Roy Sahara v. Union of India, 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.” - In Amit Chanchal Jha versus Registar, High Court of Delhi this Court again upheld the order of
debarring the advocate from appearing in court on account of his conviction for criminal contempt. - 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
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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. - 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: - 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
TulsiramPatel[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
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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 - Section 24A of the Advocates Act is as follows:
. . .
. . . - 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. - 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.” - 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.
318 - 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. - 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. - 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 - 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 suomotu powers for punishing the contemnor
for professional misconduct. The appellant has already been given sufficient opportunity in this
regard. - 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. - 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. - 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.
319 - 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 - 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. - 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.” - 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. - 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.
