R. Muthukrishnan v. The Registrar General of the High Court of Judicature at MadrasAIR 2019 SC 849

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Judges/Coram: Arun Mishra and Vineet Saran, JJ.
Arun Mishra, J.:

The Petitioner, who is an Advocate, has filed the petition Under Article 32 of the Constitution of
India, questioning the vires of amended Rules 14-A, 14-B, 14-C and 14-D of the Rules of High
Court of Madras, 1970 made by the High Court of Madras Under Section 34(1) of the Advocates’
Act, 1961 (hereinafter referred to as, ‘the Advocates’ Act’).
The High Court has inserted Rule 14A in the Rules of High Court of Madras, 1970 empowering
the High Court to debar an Advocate from practicing. The High Court has been empowered to take
action Under Rule 14B where any misconduct referred to Under Rule 14-A is committed by an
Advocate before the High Court then the High Court can debar him from appearing before the High
Court and all subordinate courts. Under Rule 14-B(v) the Principal District Judge has been
empowered to initiate action against the Advocate concerned and debar him from appearing before
any court within such District. In case misconduct is committed before any subordinate court, the
concerned court shall submit a report to the Principal District Judge and in that case, the Principal
District Judge shall have the power to take appropriate action. The procedure to be followed has
been provided in the newly inserted Rule 14-C and pending inquiry, there is power conferred by
way of Rule 14-D to pass an interim order prohibiting the Advocate concerned from appearing
before the High Court or the subordinate courts. The amended provisions of Rule 14A, 14B, 14C
and 14D are extracted hereunder:
-A: Power to Debar:
(vii) An Advocate who is found to have accepted money in the name of a Judge or on the pretext of
influencing him; or
(viii) An Advocate who is found to have tampered with the Court record or Court order; or
(ix) An Advocate who browbeats and/or abuses a Judge or Judicial Officer; or
(x) An Advocate who is found to have sent or spread unfounded and unsubstantiated
allegations/petitions against a Judicial Officer or a Judge to the Superior Court; or
(xi) An Advocate who actively participates in a procession inside the Court campus and/or involves
in gherao inside the Court Hall or holds placard inside the Court Hall; or
(xii) An Advocate who appears in the Court under the influence of liquor;
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shall be debarred from appearing before the High Court or Subordinate Courts permanently or for
such period as the Court may think fit and the Registrar 28 General shall thereupon report the said
fact to the Bar Council of Tamil Nadu.
-B: Power to take action:
(iv) Where any such misconduct referred to Under Rule 14-A is committed by an Advocate before
the High Court, the High Court shall have the power to initiate action against the Advocate
concerned and debar him from appearing before the High Court and all Subordinate Courts.
(v) Where any such misconduct referred to Under Rule 14-A is committed by an Advocate before
the Court of Principal District Judge, the Principal District Judge shall have the power to initiate
action against the Advocate concerned and debar him from appearing before any Court within such
District.
(vi) Where any such misconduct referred to Under Rule 14-A is committed by an Advocate before
any subordinate court, the Court concerned shall submit a report to the Principal District Court
within whose jurisdiction it is situate and on receipt of such report, the Principal District Judge shall
have the power to initiate action against the Advocate concerned and debar him from appearing
before any Court within such District.
-C: Procedure to be followed:
The High Court or the Court of Principal District Judge, as the case may be, shall, before making an
order Under Rule 14-A, issue to such Advocate a summon returnable before it, requiring the
Advocate to appear and show cause against the matters alleged in the summons and the summons
shall if practicable, be served personally upon him.
-D: Power to pass Interim Order:
The High Court or the Court of Principal District Judge may, before making the Final Order Under
Rule 14-C, pass an interim order prohibiting the Advocate concerned from appearing before the
High Court or Subordinate Courts, as the case may be, in appropriate cases, as it may deem fit,
pending inquiry.
Rule 14-A provides that an Advocate who is found to have accepted money in the name of a
Judge or on the pretext of influencing him; or who has tampered with the court record or court
order; or browbeats and/or abuses a Judge or judicial officer; or is responsible for sending or
spreading unfounded and unsubstantiated allegations/petitions against a judicial officer or a Judge
to the superior court; or actively participates in a procession inside the court campus and/or involves
in gherao inside the court hall, or holds placard inside the court hall or appears in the court under
the influence of liquor, the courts have been empowered to pass an interim order of suspension
pending enquiry, and ultimately to debar him from appearing in the High Court and all other
subordinate courts, as the case may be.
The aforesaid amended Rule 14-A to 14-D came into force with effect from the date of its
publication in the Gazette on 25.5.2016. Petitioner has questioned the vires of amended Rules 14A
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to D on the ground of being violative of Articles 14 and 19(1)(g) of the Constitution of India, as
also Sections 30, 34(1), 35 and 49(1)(c) of the Advocates’ Act, as the power to debar for such
misconduct has been conferred upon the Bar Council of Tamil Nadu and Puducherry and the High
Court could not have framed such Rules within ken of Section 34(1) of the Advocates Act. The
High Court could have framed Rules as to the ‘conditions subject to which an advocate shall be
permitted to practice in the High Court and the courts subordinate thereto’. Debarment by way of
disciplinary measure is outside the purview of Section 34(1) of the Act. The Bar Council enrolls
Advocates and the power to debar for misconduct lies with the Bar Council. The effort is to confer
the unbridled power of control over the Advocates which is against the Rule of law. Misconduct has
been defined Under Section 35 of the Advocates Act. Reliance has been placed on a Constitution
Bench decision of this Court in Supreme Court Bar Association v. Union of India and Anr.
MANU/SC/0291/1998 : (1998) 4 SCC 409.
The High Court of Judicature at Madras in its counter affidavit has pointed out that the Rules are
kept in abeyance for the time being and the Review Committee is yet to take a decision in the
matter of reviewing the rules. In the reply filed the High Court has justified the amendment made to
the Rules on the ground that they have been framed in compliance with the directions issued by this
Court in R.K. Anand v. Registrar, Delhi High Court MANU/SC/1310/2009 : (2009) 8 SCC 106 in
which this Court has directed the High Courts to frame Rules Under Section 34 of the Advocates
Act and to frame the Rules for having Advocates-on-Record based on the pattern of this Court. It
has been further pointed out that the conduct and appearance of an advocate inside the court
premises are within the jurisdiction of a court to regulate. The High Court has relied upon the
decision in Pravin C. Shah v. K.A. Mohd. Ali MANU/SC/0622/2001 : (2001) 8 SCC 650 in which
vires of similar Rule was upheld as such the Rules framed debarring the advocates for misconduct
in court are thus permissible.
The High Court has also relied upon the decision in Ex-Capt. Harish Uppal v. Union of India
MANU/SC/1141/2002 : (2003) 2 SCC 45 to contend that court has the power to debar advocates on
being found guilty of contempt and/or unprofessional or unbecoming conduct, from appearing
before the courts. The High Court has referred to the decision in Bar Council of India v. High Court
of Kerala MANU/SC/0421/2004 : (2004) 6 SCC 311.
The High Court has contended that the Rules have been framed within the framework of the
directions issued by this Court and in exercise of the power conferred Under Section 34(1) of the
Advocates Act. Pursuant to the directions issued in R.K. Anand’s case (supra), the matter was
placed before the High Court’s Rule Committee on 17.3.2010. The Committee consisting of Judges,
Members of the Bar Council and members of the Bar was formed, and the minutes were approved
by the Full Court on 23.9.2010. Thereafter the Chief Justice of the High Court of Madras on
2.9.2014 constituted a Committee consisting of two Judges, the Chairman of Bar Council of Tamil
Nadu & Puducherry, Advocate General of the High Court, President, Madras Bar Association,
President, Madras High Court Advocates’ Association, and the President of Women Lawyers’
Association to finalise the Rules.
The High Court has further contended in the reply that the Director, Government of India,
Ministry of Home Affairs vide communication dated 31.5.2007 enclosed a copy of the ‘Guidelines’
and informed the Chief Secretaries of the State Governments to review and strengthen the security
arrangements for the High Courts and District/subordinate courts in the country to avoid any
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untoward incident. The High Court has further contended that there have been numerous instances
of abject misbehaviour by the advocates within the premises of the High Court of Madras in the
year 2015. The advocates have rendered the functioning of the court utterly impossible by resorting
to activities like holding protests and waving placards inside the court halls, raising slogans and
marching down the corridors of the court. Some advocates had resorted to using hand-held
microphones to disrupt the proceedings of the Madurai Bench and even invaded the chambers of the
Judges. There were two incidents when there were bomb hoaxes where clock-like devices were
smuggled into the court premises and placed in certain areas. The Judges of the High Court were
feeling totally insecure. Even CISF had to be employed. Thus, there was an urgent need to maintain
the safety and majesty of the court and Rule of law. After various meetings, the Rules were framed
and notified. Order 4 Rule 10 of the Supreme Court Rules, 2013 is similar to Rules which have been
framed. In Mohit Chaudhary, Advocate, In re, MANU/SC/1009/2017 : (2017) 16 SCC 78, this
Court had suspended the contemnor from practicing as an Advocate on Record for a period of one
month.
In Mahipal Singh Rana v. State of U.P. MANU/SC/0730/2016 : (2016) 8 SCC 335, the court has
observed that the Bar Council of India might require restructuring on the lines of other regulatory
professional bodies, and had requested the Law Commission to prepare a report. An Advisory
Committee was constituted by the Bar Council of India. A Sub-Committee on ‘Strikes, Boycotts &
Abstaining from Court Works’ was also constituted. Law Commission had finalized and published
Report No. 266 dated 23.3.2017 and has taken note of the Rules framed by the Madras High Court.
Court has a right to regulate the conduct of the advocates and the appearance inside the court. As
such it is not a fit case to exercise extraordinary jurisdiction and a prayer has been made to dismiss
the writ petition.
The Petitioner in person has urged that Rules are ultra vires and impermissible to be framed
within scope of Section 34(1) of the Advocates Act. They take away the independence of the Bar
and run contrary to the Constitution Bench decision of this Court in Supreme Court Bar Association
v. Union of India (supra).
Shri Mohan Parasaran, learned senior Counsel appearing on behalf of the High Court, has
contended that the Rules have been framed within the ambit of Section 34(1) and in tune with the
directions issued by this Court in R.K. Anand v. Registrar, Delhi High Court (supra). He has also
referred to various other decisions. It was submitted that Under Section 34 of the Advocates Act,
the High Court is empowered to frame Rules to debar the advocate in case of unprofessional and/or
unbecoming conduct of an advocate. Advocates have no right to go on strike or give a call of
boycott, not even on a token strike, as has been observed in Ex.-Capt. Harish Uppal (supra). It was
also observed that the court may now have to frame specific Rules debarring advocates, guilty of
contempt and/or unprofessional or unbecoming conduct, from appearing before the courts.
Advocates appear in court subject to such conditions as are laid down by the court, and practice
outside court shall be subject to the conditions laid down by the Bar Council of India. He has also
relied upon Bar Council of India v. High Court of Kerala MANU/SC/0421/2004 : (2004) 6 SCC
311 in which the validity of Rule 11 of the Rules framed by the High Court of Kerala came up for
consideration. Learned senior Counsel has also referred to the provisions contained in Order IV
Rule 10 of the Supreme Court Rules, 2013 framed by this Court with respect to debarring an
Advocate on Record who is guilty of misconduct or of conduct unbecoming of an Advocate-onRecord, an order may be passed to remove his name from the register of Advocates on Record
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either permanently or for such period as the court may think fit. This Court has punished an
advocate on record and has debarred him for a period of one month in the case of Mohit Chaudhary,
Advocate (supra). The High Court has framed the Rules to preserve the dignity of the court and
protect Rule of law. Considering the prevailing situation, it was necessary to bring order in the
premises of the High Court. Thus framing of Rules became necessary. The Bar Council of India and
the State Bar Council have failed to fulfil the duties enjoined upon them. Therefore, it became
incumbent upon the High Court to act as observed in Mahipal Singh Rana (supra) by this Court.
This Court has issued a notice on the petition on 9.10.2017 and on 4.9.2018. The Court
observed that prima facie the Rules framed by the High Court appear to be encroaching on the
disciplinary power of the Bar Council. As the time was prayed by the High Court to submit the
report of the Review Committee, time was granted. In spite of the same, the Review Committee has
not considered the matter, considering the importance of the matter and the stand taken justifying
the rules. We have heard the same on merits and have also taken into consideration the detailed
written submissions filed on behalf of the High Court.
The Advocates Act has been enacted pursuant to the recommendations of the All India Bar
Committee made in 1953 after taking into account the recommendations of the Law Commission on
the subject of the reforms of judicial administration. The main features of the Bill for the enactment
of the Act include the creation of autonomous Bar Council, one for the whole of India and one for
each State. The Act has been enacted to amend and consolidate the law relating to the legal
practitioners and to provide for the constitution of the Bar Council and an All India Bar.
The legal profession cannot be equated with any other traditional professions. It is not
commercial in nature and is a noble one considering the nature of duties to be performed and its
impact on the society. The independence of the Bar and autonomy of the Bar Council has been
ensured statutorily in order to preserve the very democracy itself and to ensure that judiciary
remains strong. Where Bar has not performed the duty independently and has become a sycophant
that ultimately results in the denigrating of the judicial system and judiciary itself. There cannot be
existence of a strong judicial system without an independent Bar.
It cannot be gainsaid that lawyers have contributed in the struggle for independence of the
nation. They have helped in the framing of the Constitution of India and have helped the Courts in
evolving jurisprudence by doing hard labor and research work. The nobility of the legal system is to
be ensured at all costs so that the Constitution remains vibrant and to expand its interpretation so as
to meet new challenges.
It is basically the lawyers who bring the cause to the Court are supposed to protect the rights of
individuals of equality and freedom as constitutionally envisaged and to ensure the country is
governed by the Rule of law. Considering the significance of the Bar in maintaining the Rule of
law, right to be treated equally and enforcement of various other fundamental rights, and to ensure
that various institutions work within their parameters, its independence becomes imperative and
cannot be compromised. The lawyers are supposed to be fearless and independent in the protection
of rights of litigants. What lawyers are supposed to protect, is the legal system and procedure of law
of deciding the cases.
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Role of Bar in the legal system is significant. The bar is supposed to be the spokesperson for the
judiciary as Judges do not speak. People listen to the great lawyers and people are inspired by their
thoughts. They are remembered and quoted with reverence. It is the duty of the Bar to protect
honest judges and not to ruin their reputation and at the same time to ensure that corrupt judges are
not spared. However, lawyers cannot go to the streets or go on strike except when democracy itself
is in danger and the entire judicial system is at stake. In order to improve the system, they have to
take recourse to the legally available methods by lodging complaint against corrupt judges to the
appropriate administrative authorities and not to level such allegation in the public. The corruption
is intolerable in the judiciary.
The Bar is an integral part of the judicial administration. In order to ensure that judiciary
remains an effective tool, it is absolutely necessary that Bar and Bench maintain dignity and
decorum of each other. The mutual reverence is absolutely necessary. The Judges are to be
respected by the Bar, they have in-turn equally to respect the Bar, observance of mutual dignity,
decorum of both is necessary and above all they have to maintain self-respect too.
It is the joint responsibility of the Bar and the Bench to ensure that equal justice is imparted to
all and that nobody is deprived of justice due to economic reasons or social backwardness. The
judgment rendered by a Judge is based upon the dint of hard work and quality of the arguments that
are advanced before him by the lawyers. There is no room for arrogance either for a lawyer or for a
Judge.
There is a fine balance between the Bar and the Bench that has to be maintained as the
independence of the Judges and judiciary is supreme. The independence of the Bar is on equal
footing, it cannot be ignored and compromised and if lawyers have the fear of the judiciary or from
elsewhere, that is not conducive to the effectiveness of judiciary itself, that would be selfdestructive.
Independent Bar and independent Bench form the backbone of the democracy. In order to
preserve the very independence, the observance of constitutional values, mutual reverence and selfrespect are absolutely necessary. Bar and Bench are complementary to each other. Without active
cooperation of the Bar and the Bench, it is not possible to preserve the Rule of law and its dignity.
Equal and even-handed justice is the hallmark of the judicial system. The protection of the basic
structure of the Constitution and of rights is possible by the firmness of Bar and Bench and by
proper discharge of their duties and responsibilities. We cannot live in a jungle raj.
Bar is the mother of judiciary and consists of great jurists. The Bar has produced great Judges,
they have adorned the judiciary and rendered the real justice, which is essential for the society.
The role of Lawyer is indispensable in the system of delivery of justice. He is bound by the
professional ethics and to maintain the high standard. His duty is to the court to his own client, to
the opposite side, and to maintain the respect of opposite party counsel also. What may be proper to
others in the society, may be improper for him to do as he belongs to a respected intellectual class
of the society and a member of the noble profession, the expectation from him is higher. Advocates
are treated with respect in society. People repose immense faith in the judiciary and judicial system
and the first person who deals with them is a lawyer. Litigants repose faith in a lawyer and share
with them privileged information. They put their signatures wherever asked by a Lawyer. An
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advocate is supposed to protect their rights and to ensure that untainted justice delivered to his
cause.
The high values of the noble profession have to be protected by all concerned at all costs and in
all the circumstances cannot be forgotten even by the youngsters in the fight of survival in
formative years. The nobility of legal profession requires an Advocate to remember that he is not
over attached to any case as Advocate does not win or lose a case, real recipient of justice is behind
the curtain, who is at the receiving end. As a matter of fact, we do not give to a litigant anything
except recognizing his rights. A litigant has a right to be impartially advised by a lawyer. Advocates
are not supposed to be money guzzlers or ambulance chasers. A Lawyer should not expect any
favour from the Judge and should not involve by any means in influencing the fair decision-making
process. It is his duty to master the facts and the law and submit the same precisely in the Court, his
duty is not to waste the Courts’ time.
. . .
. . .
There is no room for taking out the procession in the Court premises, slogan raising in the
Courts, use of loudspeakers, use of intemperate language with the Judges or to create any kind of
disturbance in the peaceful, respectful and dignified functioning of the Court. Its sanctity is not less
than that of a holy place reserved for noble souls. We are shocked to note that the instances of
abject misbehavior of the advocates in the premises of the High Court of Madras resulting into
requisitioning of CISF to maintain safety and majesty of the Court and Rule of law. It has been
observed by this Court in Mahipal Singh Rana (supra) that Bar Council has failed to discharge its
duties on the disciplinary side. In our opinion, in case such state of affairs continues and Bar
Council fail to discharge duties the Court shall have to supervise its functioning and to pass
appropriate permissible orders. Independence of Bar and Bench both are supreme, there has to be
balance inter se.
We now advert to main question whether disciplinary power vested in the Bar Council can be
taken away by the Court and the international scenario in this regard.
The legislature has reposed faith in the autonomy of the Bar while enacting Advocates Act and
it provides for autonomous Bar Councils at the State and Central level. The ethical standard of the
legal profession and legal education has been assigned to the Bar Council. It has to maintain the
dignity of the legal profession and independence of Bar. The disciplinary control has been assigned
to the Disciplinary Committees of the Bar Councils of various States and Bar Council of India and
an appeal lies to this Court Under Section 38 of the Act.
The bar association must be self-governing is globally recognised. Same is a resolution of the
United Nations also. Even Special Rapporteur on the independence of Judges and lawyers finds that
bar associations play a vital role in safeguarding the independence and integrity of the legal
profession and its members. The UN’s basic principles on the role of lawyers published in 1990
noted that such institutions must possess independence and its self-governing nature. The bar
association has a crucial role to play in a democratic society to ensure the protection of human
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rights in particular due process and fair-trial guarantees. Following is the extract of the report of the
United Nations:
Mandate
In the report, Special Rapporteur Diego Garcia-Sayan finds that associations should be independent
and self-governing because they hold a general mandate to protect the independence of the legal
profession and the interests of its members.
They should also be recognized under the law, the UN says. “Bar associations have a crucial role to
play in a democratic society to enable the free and independent exercise of the legal profession, and
to ensure access to justice and the protection of human rights, in particular, due process and fair trial
guarantees,” UN Secretary-General Antonio Guterres says.
Self-governing
The UN’s Basic Principles on the Role of Lawyers (published in 1990) recognize that lawyers, like
other citizens, have the right to freedom of association and assembly, which includes the right to
form and join self-governing professional associations to represent their interests. Since its
publication, this universal document has been referenced in wrangles between lawyers and
governments.
Requirements
Existing legal standards do not provide a definition of what constitutes a professional association of
lawyers. They simply focus on the necessary requirements that such institutions must possess, such
as independence and a self-governing nature.
The report recommends that: “In order to ensure the integrity of the entire profession and the quality
of legal services, it is preferable to establish a single professional association regulating the legal
profession.
Elected by peers
Another principle of the UN report is that: “In order to guarantee the independence of the legal
profession, the majority of members of the executive body of the bar association should be lawyers
elected by their peers.”
It says that state control of bar associations or governing bodies is “incompatible with the principle
of the independence of the legal profession”.
(Emphasis supplied)
. . .
. . .
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Before dilating further on the issue, we take note of the provisions contained in the Advocates
Act.
. . .
. . .
It is apparent from the aforesaid provisions and scheme of the Act that Advocates Act has never
intended to confer the disciplinary powers upon the High Court or upon this Court except to the
extent dealing with an appeal Under Section 38.
By amending the High Court Rules in 1970, the High Court of Madras has inserted impugned
Rules 14(A) to 14(D). The Rules have been framed in exercise of the power conferred Under
Section 34 of the Advocates Act. Section 34 of the Act does not confer such a power to frame Rules
to debar lawyer for professional misconduct. The amendment made by providing Rule 14(A)(vii) to
(xii) is not authorized under the Advocate Act. The High Court has no power to exercise the
disciplinary control. It would amount to usurpation of the power of Bar Council conferred under
Advocates Act. However, the High Court may punish advocate for contempt and then debar him
from practicing for such specified period as may be permissible in accordance with law, but without
exercising contempt jurisdiction by way of disciplinary control no punishment can be imposed. As
such impugned Rules could not have been framed within the purview of Section 34. Provisions
clearly impinge upon the independence of the Bar and encroach upon the exclusive power conferred
upon the Bar Council of the State and the Bar Council of India under the Advocates Act. The
amendment made to the Rules 14(A) to 14(D) have to be held to be ultra vires of the power of the
High Court.
We now analyze the proposition laid down by this Court in various decisions relating to the
aforesaid aspect. In reference: Vinay Chandra Mishra, MANU/SC/0471/1995 : (1995) 2 SCC 584,
this Court rejected the argument that the powers of suspending and removing the advocate from
practice is vested exclusively in the disciplinary committee of the State Bar Council and the Bar
Council of India and the Supreme Court is denuded of its power to impose such punishment both
Under Articles 129 and 142. The Court observed that the power of the Supreme Court Under
Article 129 cannot be trammeled in any way by any statutory provision including the provisions of
the Advocates Act or the Contempt of Courts Act. This Court imposed the punishment on the then
Chairman of the Bar Council suspended sentence of imprisonment for a period of six weeks. The
sentence was suspended for four years which may be activated in case the contemnor is convicted
for any other offense of contempt of court within the said period. The contemnor was also
suspended from practicing as an advocate for a period of three years with the consequence that all
elective and nominated offices/posts held by him in his capacity as an advocate, shall stand vacated
by him forthwith.
However, the decision was held not to be laying down a good law in a writ petition filed by the
Supreme Court Bar Association v. Union of India and Anr., (supra). Supreme Court Bar
Association filed a petition Under Article 32 of the Constitution of India aggrieved by the direction
in V.C. Mishra’s case that the contemnor shall stand suspended from practicing as an advocate for a
period of three years issued by this Court while invoking powers Under Articles 129 and 142 of the
Constitution. A prayer was made to hold that the disciplinary committee of the Bar Councils set up
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under the Advocates Act alone have exclusive jurisdiction to inquire into and suspend or debar an
advocate from practicing law for professional or other misconduct.
. . .
[Extracts from Supreme Court Bar Association v. Union of India]
. . .
The Court has observed that in a given case an Advocate found guilty of committing contempt of
court may at the same time be guilty of committing “professional misconduct” but the two
jurisdictions are separate, distinct and exercisable by different forums by following different
procedures. Exclusive power for punishing an Advocate for professional misconduct is with Bar
Councils. Punishment for suspending the license of an Advocate can only be imposed by a
competent statutory body. Relying upon the Seven-Judges Bench decision in Bar Council of
Maharashtra v. M.V. Dabholkar and Ors. (supra) that under Advocates Act the power to grant
licenses is with Bar Council, the jurisdiction to suspend the licence or to debar him vests in the
same body. Though appeal lies to this Court Under Section 38, it cannot convert it to statutory body
exercising “original jurisdiction”. This Court, in the exercise of jurisdiction Under Articles 142 and
129 while punishing in the contempt of court, cannot suspend a licence to practice. The Court
further held that it is possible for this Court or the High Court to prevent contemnor Advocate to
appear before it till he purges himself of contempt but that is different from suspending or revoking
his licence to practice or debarring him from practice for misconduct. This Court also held in case
of Advocate on Record that the Supreme Court possesses jurisdiction under its Rules to withdraw
the privilege to practice as Advocate on record as that privilege is conferred by this Court. The
withdrawal of that privilege does not tantamount to suspending or revoking the licence.
Shri Mohan Parasaran learned senior Counsel has relied on the matter of Pravin C. Shah v. K.A.
Mohd. Ali and Anr. (supra) in which the question was whether an Advocate found guilty of
contempt of court can appear in court until and unless he purges himself of contempt, the court held
that an Advocate found guilty of contempt of court must purge himself before being permitted to
appear. Rule 11 of the Rules framed by the High Court of Kerala Under Section 34 (1) of
Advocates Act reads thus:
No advocate who has been found guilty of contempt of Court shall be permitted to appear, act or
plead in any Court unless he has purged himself of the contempt.
This Court has relied upon in Supreme Court Bar Association v. Union of India (supra) in Pravin C.
Shah v. K.A. Mohd. Ali and Anr. (supra) and observed thus:
. . .
[Extracts from Pravin C. Shah v. K.A. Mohd. Ali and Anr.]
. . .
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The decision in Pravin C. Shah (supra) operates when an Advocate is found guilty of
committing contempt of court and then he can be debarred from appearing in court until he purges
himself of contempt as per guidelines laid down therein, however, the power to suspend enrolment
and debarring from appearance are different from each other. In case of debarment, enrolment
continues but a person cannot appear in court once he is guilty of contempt of court until he purges
himself as provided in the rule. Debarment due to having been found guilty of contempt of court is
not punishment of suspending the license for a specified period or permanently removing him from
the roll of Advocates. While guilty of contempt his name still continuous on the roll of concerned
Bar Council unless removed or suspended by Bar Council by taking appropriate disciplinary
proceedings. The observations made by Lord Denning in Hadkinson v. Hadkindon (supra) was also
a case of disobedience of court order and the Court may refuse to hear him until impediment is
removed or good reason to remove impediment exist.
In Ex-Capt. Harish Uppal v. Union of India and Anr. (supra) while holding that advocates have
no right to go on ‘strike’, the Court observed:
. . .
[Extracts from Ex-Capt. Harish Uppal v. Union of India and Anr.]
. . .
The question involved in the aforesaid case was as to strike and boycott of Courts by Lawyers. In
that context argument was raised that such an act tantamounts to contempt of court and the court
must punish the party coercing others also to desist from appearance. The Court cannot be privy to
boycott or strike. The decision in Supreme Court Bar Association v. Union of India (supra) has been
reiterated. The Court pointed out that let bar take notice of the fact that unless self-restraint is
exercised, the court may have to frame Rules Under Section 34 of the Advocates Act debarring
advocates guilty of contempt of court/unprofessional or unbecoming conduct from appearing in
Courts. The Court observed that in case of Bar Council fail to act, Court may be compelled to frame
appropriate Rules Under Section 34 of the Act. The Court has observed about the Rules that may be
framed but not on the validity of Rules that actually have been framed and takes away disciplinary
control of Bar Council. The power to debar due to contempt of court is a different aspect than
suspension of enrolment or debarment by way of disciplinary measure. This Court did not observe
that decision in Supreme Court Bar Association v. Union of India (supra) is bad in law for any
reason at the same time Court has relied upon the same in Ex-Capt. Harish Uppal (supra), and laid
down that Bar Council can exercise control on right to practice. The Court also observed that power
to control proceedings within the Court cannot be affected by enforcement of Section 30.
In our opinion, the decision in Ex-Capt. Harish Uppal v. Union of India and Anr. (supra) does
not lend support to vires of Rule 14A to 14D as amended by the High Court of Madras. The
decision follows the logic of the Supreme Court Bar Association v. Union of India as contempt of
court may involve professional misconduct if committed inside Court Room and takes it further
with respect to the debarring appearance in Court, which power is distinct from suspending
enrolment that lies with Bar Council as observed in Ex-Capt. Harish Uppal (supra) also in aforesaid
para 34, the decision is of no utility to sustain the vires of impugned rules.
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In Bar Council of India v. High Court of Kerala, (supra) vires of Rule 11 of the Rules framed by
the High Court of Kerala Under Section 34(1) of Advocates Act came to be impinged which
debarred Advocate found guilty of contempt of court from appearing, acting or pleading in court till
he got purged himself of the contempt. The court considered the Contempt of Courts Act,
Advocates Act, Code of Criminal Procedure, and significantly distinction between Contempt of
Court and misconduct by an Advocate and observed:
Punishment for commission of contempt and punishment for misconduct, professional or other
misconduct, stand on different footings. A person does not have a fundamental right to practice in
any court. Such a right is conferred upon him under the provisions of the Advocates Act which
necessarily would mean that the conditions laid down therein would be applicable in relation
thereto. Section 30 of the Act uses the expressions “subject to”, which would include Section 34 of
the Act.
In Ashok Leyland Ltd. v. State of Tamil Nadu and Anr. MANU/SC/0020/2004 : (2004) 3 SCC 1
this Court noticed:
“Subject to” is an expression whereby limitation is expressed. The order is conclusive for all
purposes.
This Court further noticed the dictionary meaning of “subject to” stating (SCC p. 38, paras 92-
93):
Furthermore, the expression ‘subject to’ must be given effect to.
In Black’s Law Dictionary, Fifth Edition at page 1278 the expression “subject to” has been
defined as under:
Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that;
provided, answerable for. (Homan v. Employers Reinsurance Corporation, 345 Mo. 650, 136 SW
2d 289, 302)
Case-law
A Constitution Bench of this Court in Supreme Court Bar Assn., MANU/SC/0291/1998 : (1998)
4 SCC 409 no doubt overruled its earlier decision in Vinay Chandra Mishra, Re
MANU/SC/0471/1995 : (1995) 2 SCC 584 so as to hold that this Court in exercise of its jurisdiction
Under Article 142 of the Constitution of India is only empowered to proceed suomotu against an
advocate for his misconduct and send for the records and pass an appropriate orders against the
advocate concerned.
But it is one thing to say that the court can take suomotu cognizance of professional or other
misconduct and direct the Bar Council of India to proceed against the advocate but it is another
thing to say that it may not allow an advocate to practice in his court unless he purges himself of
contempt.
217
Although in a case of professional misconduct, this Court cannot punish an advocate in exercise
of its jurisdiction Under Article 129 of the Constitution of India which can be imposed on a finding
of professional misconduct recorded in the manner prescribed under the Advocates Act and the
Rules framed thereunder but as has been noticed in the Supreme Court Bar Assn. professional
misconduct of the advocate concerned is not a matter directly in issue in the matter of contempt
case.
(Emphasis supplied)
The Court referred to the observation in Supreme Court Bar Association v. Union of India, Ex-Capt.
Harish Uppal (supra) and held that in a case of professional misconduct Court cannot punish an
advocate Under Article 129 which has to be done under Advocates Act by the Bar Council. In
Contempt of Court Act, misconduct is directly not in issue. After considering principles of natural
justice the court observed that it cannot be stretched too far and Rule 11 cannot be said to be
violative of provisions contained in Article 14 of the Constitution of India.
In R.K. Anand v. Registrar, Delhi High Court (supra) relied on by the Respondents, the
witnesses were tampered with by the Appellant. A sting operation was conducted by the T.V.
Channel in connection with BMW hit and run case. Advocate- R.K. Anand was found to be guilty
of contempt of Court. He was debarred from appearing in Court for a certain period. The Court also
dealt with a motivated application filed for recusal. The Court expressed concern and sharp
deprecation of such tendencies and practices of Members of Bar and held that such prayer for
recusal ordinarily should be viewed as interference in the due course of justice leading to penal
consequences. The submission was raised that professional misconduct is dealt with under
Advocates Act. The Delhi High Court Rules do not provide that Advocate on conviction for
Contempt of Court would be barred from appearing in Court. This Court noted decisions in
Supreme Court Bar Association v. Union of India (supra), upheld the order of the High Court and
directed the High Courts to frame the Rules Under Section 34 without further delay. This Court has
observed:
In both Pravin C. Shah v. K.A. Mohammed Ali, MANU/SC/0622/2001 : (2001) 8 SCC 650 and
Ex. Capt. Harish Uppal v. Union of India, MANU/SC/1141/2002 : (2003) 2 SCC 45, the earlier
Constitution Bench decision in Supreme Court Bar Assn. v. Union of India, MANU/SC/0291/1998 :
(1998) 4 SCC 409 was extensively considered. The decision in Ex. Capt. Harish Uppal was later
followed in a three-judge Bench decision in Bar Council of India v. The High Court of Kerala
MANU/SC/0421/2004 : (2004) 6 SCC 311.
In Supreme Court Bar Assn. the direction prohibiting an advocate from appearing in court for a
specified period was viewed as a total and complete denial of his right to practice law and the bar
was considered as a punishment inflicted on him. In Ex. Capt. Harish Uppal it was seen not as
punishment for professional misconduct but as a measure necessary to regulate the court’s
proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully
add that in a given case a direction disallowing an advocate who is convicted of criminal contempt
from appearing in court may not only be a measure to maintain the dignity and orderly functioning
of the courts but may become necessary for the self-protection of the court and for preservation of
the purity of court proceedings. Let us, for example, take the case where an advocate is shown to
have accepted money in the name of a judge or on the pretext of influencing him; or where an
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advocate is found tampering with the court’s record; or where an advocate is found actively taking
part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an
advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the
reputation to get a case transferred from an “inconvenient” court; or where an advocate is found to
be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial
officers and judges to the superior courts. Unfortunately, these examples are not from imagination.
These things are happening more frequently than we care to acknowledge.
We may also add that these illustrations are not exhaustive but there may be other ways in
which a malefactor’s conduct and actions may pose a real and imminent threat to the purity of court
proceedings, cardinal to any court’s functioning, apart from constituting a substantive offense and
contempt of court and professional misconduct. In such a situation the court does not only have the
right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings
from being polluted in any way and to that end bar the malefactor from appearing before the courts
for an appropriate period of time.
It is already explained in Ex. Captain Harish Uppal that a direction of this kind by the Court
cannot be equated with punishment for professional misconduct. Further, the prohibition against
appearance in courts does not affect the right of the lawyer concerned to carry on his legal practice
in other ways as indicated in the decision. We respectfully submit that the decision in Ex-Capt.
Harish Uppal v. Union of India places the issue in correct perspective and must be followed to
answer the question at issue before us.
Ideally, every High Court should have Rules framed Under Section 34 of the Advocates Act in
order to meet with such eventualities but even in the absence of the rules, the High Court cannot be
held to be helpless against such threats. In a matter as fundamental and grave as preserving the
purity of judicial proceedings, the High Court would be free to exercise the powers vested in it
Under Section 34 of the Advocates Act notwithstanding the fact that Rules prescribing the manner
of exercise of power have not been framed. But in the absence of statutory Rules providing for such
a course an advocate facing the charge of contempt would normally think of only the punishments
specified Under Section 12 of the Contempt of Courts Act. He may not even imagine that at the end
of the proceeding he might end up being debarred from appearing before the court. The Rules of
natural justice, therefore, demand that before passing an order debarring an advocate from
appearing in courts he must be clearly told that his alleged conduct or actions are such that if found
guilty he might be debarred from appearing in courts for a specific period. The warning may be
given in the initial notice of contempt issued Under Section 14 or Section 17 (as the case may be) of
the Contempt of Courts Act. Or such a notice may be given after the proceeded is held guilty of
criminal contempt before dealing with the question of punishment.
In order to avoid any such controversies in future, all the High Courts that have so far not
framed Rules Under Section 34 of the Advocates Act are directed to frame the Rules without any
further delay. It is earnestly hoped that all the High Courts shall frame the Rules within four months
from today. The High Courts may also consider framing Rules for having Advocates on Record on
the pattern of the Supreme Court of India.
(Emphasis supplied)
219
The decision in R.K. Anand (supra) is not a departure from aforesaid other decisions but rather
affirms them. It was a case of debarring advocate for a particular period from the appearance on
being found guilty of contempt of court, not a case of suspension of enrolment by way of
disciplinary proceedings which power lies with the Bar Council.
The provisions contained in Order IV Rule 10 of the Supreme Court Rules have been pressed
into service so as to sustain the amended rules. Rule 10 reads as follows:
When, on the complaint of any person or otherwise, the Court is of the opinion that an advocateon record has been guilty of misconduct or of conduct unbecoming of an advocate-on-record, the
Court may make an order removing his name from the register of Advocates on record either
permanently or for such period as the Court may think fit and the Registrar shall thereupon report
the said fact to the Bar Council of India and to State Bar Council concerned:
Provided that the Court shall, before making such order, issue to such advocate-on-record a
summons returnable before the Court or before a Special Bench to be constituted by the Chief
Justice, requiring the Advocate-on-Record to show cause against the matters alleged in the
summons, and the summons shall, if practicable, be served personally upon him with copies of any
affidavit or statement before the Court at the time of the issue of the summons.
Explanation: – For the purpose of these Rules, misconduct or conduct unbecoming of an Advocate
on Record shall include –
a) Mere name lending by an Advocate-on-Record without any further participation in the
proceedings of the case;
b) Absence of the Advocate-on-Record from the Court without any justifiable cause when the case
is taken up for hearing;
and;
c) Failure to submit appearance slip duly signed by the Advocate-on-Record of actual appearances
in the Court.
The aforesaid Rule has been considered in Supreme Court Bar Association v. Union of India (supra)
and it is observed that as this Court enrolls Advocate on Record it has the power to remove his
name from the register of Advocate on Record either permanently or for a specific period. That
does not tantamount to the suspension of enrolment made by Bar Council under Advocates Act
which can be ordered by Bar Council only.
The decision in Mohit Chowdhary, Advocate, IN RE, (supra) has also been relied upon in which
this Court considered Rule 10 and debarred advocate to practice as Advocate on Record for a period
of one month from the date of order. At the same time, this Court has observed that lawyer is under
obligation to do nothing that shall detract from the dignity of the Court. Contempt jurisdiction is for
the purpose of upholding honor or dignity of the court, to avoid sharp or unfair practices. An
Advocate shall not to be immersed in a blind quest of relief for his client. “Law is not trade, briefs
no merchandise”. His duty is to legitimately present his side of the case to assist in the
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administration of justice. The Judges are selected from Bar and purity of Bench depends on the
purity of the Bar. Degraded Bar result degraded bench. The Court has referred to Articles and
standard of processional conduct and etiquettes thus:
Warvelle’s Legal Ethics, 2nd Edn. at p. 182 sets out the obligation of a lawyer as:
A lawyer is under obligation to do nothing that shall detract from the dignity of the court, of which
he is himself a sworn officer and assistant. He should at all times pay deferential respect to the
Judge, and scrupulously observe the decorum of the courtroom.
The contempt jurisdiction is not only to protect the reputation of the Judge concerned so that he
can administer justice fearlessly and fairly but also to protect “the fair name of the judiciary”. The
protection in a manner of speaking, extends even to the Registry in the performance of its task and
false and unfair allegations which seek to impede the working of the Registry and thus the
administration of justice, made with oblique motives cannot be tolerated. In such a situation in order
to uphold the honor and dignity of the institution, the Court has to perform the painful duties which
we are faced with in the present proceedings. Not to do so in the words of P.B. Sawant, J. in
Ministry of Information & Broadcasting, In re, MANU/SC/0697/1995 : (1995) 3 SCC 619 would:
(SCC p. 635, para 20) –
…. 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.
Now turning to the “Standards of Professional Conduct and Etiquette” of the Bar Council of
India Rules contained in Section I of Chapter II, Part VI, the duties of an advocate towards the
Court have been specified. We extract the 4th duty set out as under:
An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or
unfair practices or from doing anything in relation to the court, opposing counsel or parties which
the advocate himself ought not to do. An advocate shall refuse to represent the client who persists in
such improper conduct. He shall not consider himself a mere mouthpiece of the client, and shall
exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous
attacks in pleadings, and using intemperate language during arguments in court.
In the aforesaid context the aforesaid principle in different words was set out by Crampton, J. in
R. v. O’ Connell, 7 Irish Law Reports 313 as under:
The advocate is a representative but not a delegate. He gives to his client the benefit of his learning,
his talents and his judgment; but all through he never forgets what he owes to himself and to others.
He will not knowingly misstate the law, he will not willfully misstate the facts, though it be to gain
the case for his client. He will ever bear in mind that if he be an advocate of an individual and
retained and remunerated often inadequately, for valuable services, yet he has a prior and perpetual
retainer on behalf of truth and justice and there is no Crown or other licenses which in any case or
for any party or purpose can discharge him from that primary and paramount retainer.
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The fundamentals of the profession thus require an advocate not to be immersed in a blind quest
of relief for his client. The dignity of the institution cannot be violated in this quest as “law is no
trade, briefs no merchandise” as per Krishna Iyer, J in Bar Council of Maharashtra v. M.V.
Dabholkar MANU/SC/0670/1975 : (1976) 2 SCC 291.
It is also pertinent to note at this point, the illuminating words of Vivian Bose, J. in ‘G’ a Senior
Advocate of the Supreme Court, In re MANU/SC/0027/1954 : AIR 1954 SC 557, who elucidated:
…To use the language of the Army, an Advocate of this Court is expected at all times to
comport himself in a manner befitting his status as an “officer and a gentleman.
It is as far back as in 1925 that an Article titled ‘The Lawyer as an Officer of the Court’ Virginia
Law Review, Vol. 11, No. 4 (Feb 1925) pp. 26377 published in the Virginia Law Review, lucidly
set down what is expected from the lawyer which is best set out in its own words:
The duties of the lawyer to the Court spring directly from the relation that he sustains to the Court
as an officer in the administration of justice. The law is not a mere private calling but is a profession
which has the distinction of being an integral part of the State’s judicial system. As an officer of the
Court the lawyer is, therefore, bound to uphold the dignity and integrity of the Court; to exercise at
all times respect for the Court in both words and actions; to present all matters relating to his client’s
case openly, being careful to avoid any attempt to exert private influence upon either the judge or
the jury; and to be frank and candid in all dealings with the Court, “using no deceit, imposition or
evasion,” as by misreciting witnesses or misquoting precedents. “It must always be understood,”
says Mr. Christian Doerfler, in an address before the Milwaukee County Bar Association, in
December, 1911, “that the profession of law is instituted among men for the purpose of aiding the
administration of justice. A proper administration of justice does not mean that a lawyer should
succeed in winning a lawsuit. It means that he should properly bring to the attention of the Court
everything by way of fact and law that is available and legitimate for the purpose of properly
presenting his client’s case.
His duty as far as his client is concerned is simply to legitimately present his side of the case. His
duty as far as the public is concerned and as far as he is an officer of the Court is to aid and assist in
the administration of justice.
In this connection, the timely words of Mr. Warvelle may also well be remembered:
But the lawyer is not alone a gentleman; he is a sworn minister of justice. His office imposes high
moral duties and grave responsibilities, and he is held to a strict fulfillment of all that these matters
imply. Interests of vast magnitude are entrusted to him; confidence is imposed in him; life, liberty,
and property are committed to his care. He must be equal to the responsibilities which they create,
and if he betrays his trust, neglects his duties, practices deceit, or panders to vice, then the most
severe penalty should be inflicted and his name stricken from the roll.
That the lawyer owes a high duty to his profession and to his fellow members of the Bar is an
obvious truth. His profession should be his pride, and to preserve its honor pure and unsullied
should be among his chief concerns. “Nothing should be higher in the estimation of the advocate,”
declares Mr. Alexander H. Robbins, “next after those sacred relations of home and country than his
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profession. She should be to him the ‘fairest of ten thousand’ among the institutions of the earth. He
must stand for her in all places and resent any attack on her honor-as he would if the same attack
were to be made against his own fair name and reputation. He should enthrone her in the sacred
places of his heart, and to her, he should offer the incense of constant devotion. For she is a jealous
mistress.
Again, it is to be borne in mind that the judges are selected from the ranks of lawyers. The purity of
the Bench depends upon the purity of the Bar.
The very fact, then, that one of the co-ordinate departments of the Government is administered by
men selected only from one profession gives to that profession a certain pre-eminence which calls
for a high standard of morals as well as intellectual attainments. The integrity of the judiciary is the
safeguard of the nation, but the character of the judges is practically but the character of the
lawyers. Like begets like. A degraded Bar will inevitably produce a degraded Bench, and just as
certainly may we expect to find the highest excellence in a judiciary drawn from the ranks of an
enlightened, learned and moral Bar.
He ends his Article in the following words:
No client, corporate or individual, however powerful, nor any cause civil or political, however
important, is entitled to receive, nor should any lawyer render, any service or advice involving
disloyalty to the law whose ministers we are, or disrespect of the judicial office, which we are
bound to uphold, or corruption of any person or persons exercising a public office or private trust,
or deception or betrayal of the public. When rendering any such improper service or advice, the
lawyer invites and merits stern and just condemnation. Correspondingly, he advances the honor of
his profession and the best interests of his client when he renders service or gives advice tending to
impress upon the client and his undertaking exact compliance with the strictest principles of moral
law. He must also observe and advise his client to observe the statute law, though until a statute
shall have been construed and interpreted by competent adjudication, he is free and is entitled to
advise as to its validity and as to what he conscientiously believes to be its just meaning and extent.
But, above all, a lawyer will find his highest honor in a deserved reputation for fidelity to private
trust and to public duty, as an honest man and as a patriotic and loyal citizen.
On examination of the legal principles, an important issue emerges: what should be the end of
what the contemnor had started but has culminated in an impassioned plea of Mr. K.K. Venugopal,
learned senior advocate supported by the representatives of the Bar present in Court, marking their
appearance for the contemnor. We are inclined to give due consideration to such a plea but are
unable to persuade ourselves to let the contemnor go scot-free, without any consequences. We are
thus not inclined to proceed further in the contempt jurisdiction except to caution the contemnor
that this should be the first and the last time of such a misadventure. But the matter cannot rest only
at that.
We are of the view that the privilege of being an Advocate-on-Record under the Rules has
clearly been abused by the contemnor. The conduct was not becoming of an advocate much less an
Advocate-on-Record in the Supreme Court.
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The aforesaid Rule makes it clear, that whether on the complaint of any person or otherwise, in
case of misconduct or a conduct unbecoming of an Advocate-on-Record, the Court may make an
order removing his name from the register of Advocate-on-Record permanently, or for a specified
period. We are not referring to the right to practice as an advocate, and the name entered on the rolls
of any State Bar Council, which is a necessary requirement before a person takes the examination of
Advocate-on-Record. The present case is clearly one where this Court is of the opinion that the
conduct of the contemnor is unbecoming of an Advocate-on-Record. The pre-requisites of the
proviso are met by the reason of the Bench being constituted itself by the Chief Justice, and the
contemnor being aware of the far more serious consequences, which could have flowed to him. The
learned Senior Counsel representing the Petitioner has thrown him at the mercy of the Court. We
have substantively accepted the request but lesser consequences have been imposed on the
contemnor.
Reliance was placed on the decision Mahipal Singh Rana v. State of Uttar Pradesh, (supra) by
the Respondents. This Court dealt with the question when advocate has been convicted for criminal
contempt as to the sanctions/punishment that may be imposed in addition to punishments that may
be imposed for criminal contempt under the Contempt of Courts Act, 1971. This Court held that
Regulation of right of appearance in courts is within jurisdiction of courts and not Bar Councils,
thus, Court can bar Advocate convicted for contempt from appearing/pleading before any court for
an appropriate period of time, till convicted advocate purges himself of the contempt, even in
absence of suspension or termination of enrolment/right to practice/licence to practice. Secondly,
this Court also held that bar on appearance/pleadings in any court till contempt is purged can be
imposed by the Court in terms of the High Court Rules framed Under Section 34 of the Advocates
Act, if such Rules exist. However, even if there is no such Rule framed under said Section 34,
unless convicted advocate purges himself of contempt or is permitted by Court, Court may debar an
Advocate as conviction results in debarring such advocate from appearing/pleading in court, even in
absence of suspension or termination of enrolment/right to practise/licence to practise. This Court
held thus:
4.1. (i) 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. 2000 and further imprisonment for two weeks in default and debarring
him from appearing in courts in Judgeship at Etah; and
4.2. (ii) Whether on conviction for criminal contempt, the Appellant can be allowed to practice.
In Pravin C. Shah v. K.A. Mohd. Ali, MANU/SC/0622/2001 : (2001) 8 SCC 650, this Court held
that an advocate found guilty of contempt cannot be allowed to act or plead in any court until 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 the
observations in para 80 of the judgment of this Court in Supreme Court Bar Assn. v. Union of India,
MANU/SC/0291/1998 : (1998) 4 SCC 409. It was explained that debarring a person from appearing
in court was within the purview of the jurisdiction of the Court and was different from suspending
or terminating the license which could be done by the Bar Council and on the failure of the Bar
Council, in exercise of appellate jurisdiction of this Court. The observations are: (Pravin C. Shah
case, SCC pp. 658-62, paras 16-18, 24
224
& 27-28)
Rule 11 of the Rules is not a provision intended for the Disciplinary Committee of the Bar
Council of the State or the Bar Council of India. It is a matter entirely concerning the dignity and
the orderly functioning of the courts. The right of the advocate to practice envelops a lot of acts to
be performed by him in the discharge of his professional duties. Apart from appearing in the courts,
he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft
instruments, pleadings, affidavits or any other documents, he can participate in any conference
involving legal discussions, etc. Rule 11 has nothing to do with all the acts done by an advocate
during his practice except his performance inside the court. Conduct in court is a matter concerning
the court and hence the Bar Council cannot claim that what should happen inside the court could
also be regulated by the Bar Council in exercise of its disciplinary powers. The right to practice, no
doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But
the right to appear and conduct cases in the court is a matter on which the court must have the major
supervisory power. Hence the court cannot be divested of the control or supervision of the court
merely because it may involve the right of an advocate.
17.When the Rules stipulate that a person who committed contempt of court cannot have the
unreserved right to continue to appear and plead and conduct cases in the courts without any qualm
or remorse, the Bar Council cannot overrule such a Regulation concerning the 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 the 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 practice 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, MANU/UP/0036/1974 :
AIR 1974 All 133 (AIR p. 136, para 9)
The High Court has the power to regulate the appearance of advocates in courts. The right to
practice and the right to appear in courts are not synonymous. An advocate may carry on chamber
practice or even practice in courts in various other ways e.g. drafting and filing of pleadings and
vakalatnama for performing those acts. For that purpose, his physical appearance in courts may not
at all be necessary. For the purpose of regulating his appearance in courts the High Court should be
the appropriate authority to make Rules and on a proper construction of Section 34(1) of the
Advocates Act it must be inferred that the High Court has the power to make Rules for regulating
the appearance of advocates and proceedings inside the courts. Obviously, the High Court is the
only appropriate authority to be entrusted with this responsibility.
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24.Purging is a process by which an undesirable element is expelled either from one’s own self or
from society. It is a cleaning process. Purge is a word which acquired implications first in
theological connotations. In the case of a sin, purging of such sin is made through the expression of
sincere remorse coupled with doing the penance required. In the case of a guilt, purging means to
get himself cleared of the guilt. The concept of purgatory was evolved from the word “purge”,
which is a state of suffering after this life in which those souls, who depart this life with their deadly
sins, are purified and rendered fit to enter into heaven where nothing defiled enters (vide Words and
Phrases, Permanent Edn., Vol. 35-A, p. 307). In Black’s Law Dictionary the word “purge” is given
the following meaning: ‘To cleanse; to clear. To clear or exonerate from some charge or imputation
of guilt, or from a contempt.’ It is preposterous to suggest that if the convicted person undergoes
punishment or if he tenders the fine amount imposed on him the purge would be completed.

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 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, MANU/SC/0421/2004 : (2004) 6 SCC 311,
constitutionality of Rule 11 of the Rules framed by the High Court of Kerala for barring a lawyer
from appearing in any court till he got himself purged of contempt by an appropriate order of the
court, was examined. This Court held that the Rule did not violate Articles 14 and 19(1)(g) of the
Constitution nor amounted to usurpation of power of adjudication and punishment conferred on the
Bar Councils and the result intended by the application of the Rule was automatic. It was further
held that the Rule was not in conflict with the law laid down in Supreme Court Bar Assn. judgment.
Referring to the Constitution Bench judgment in Harish Uppal v. Union of India,
MANU/SC/1141/2002 : (2003) 2 SCC 45, it was held that Regulation of right of appearance in
courts was within the jurisdiction of the courts. It was observed, following Pravin C. Shah, that the
226
court must have major supervisory power on the right to appear and conduct in the court. The
observations are: (Bar Council of India case, SCC p. 323, para 46)
Before a contemnor is punished for contempt, the court is bound to give an opportunity of
hearing to him. Even such an opportunity of hearing is necessary in a proceeding Under Section 345
of the Code of Criminal Procedure. But if a law which is otherwise valid provides for the
consequences of such a finding, the same by itself would not be violative of Article 14 of the
Constitution of India inasmuch as only because another opportunity of hearing to a person, where a
penalty is provided for as a logical consequence thereof, has been provided for. Even under the
penal laws, some offenses carry minimum sentence. The gravity of such offenses, thus, is
recognized by the legislature. The courts do not have any role to play in such a matter.
In R.K. Anand v. Delhi High Court, MANU/SC/1310/2009 : (2009) 8 SCC 106 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. This Court noticed the
observations about the decline of ethical and professional standards of the Bar, and the need to
arrest such trend in the interests of administration of justice. It was observed that in the absence of
unqualified trust and confidence of people in the Bar, the judicial system could not work
satisfactorily. Further observations are that the performance of the Bar Councils in maintaining
professional standards and enforcing discipline did not match its achievements in other areas. This
Court expressed hope and expected that the Bar Council will take appropriate action for the
restoration of high professional standards among the lawyers, working of their position in the
judicial system and the society.
We may also refer to certain articles on the subject. In “Raising the Bar for the Legal
Profession”, published in The Hindu newspaper dated 15-9-2012, 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 percent barely survive
with legal aid cases and cases managed through undesirable and exploitative methods! Given the
poor quality of legal education in the majority of the so-called law colleges (over a thousand of
them working in small towns and panchayats without infrastructure and competent faculty), what
happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom
50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the
middle and the bottom segments got elected to professional bodies which controlled the
management of the entire profession. The so-called leaders of the profession who have abundant
work, unlimited money, respect, and influence did not bother to look into what was happening to
the profession and allowed it to go its way–of inefficiency, strikes, boycotts, and public ridicule.
This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the
forefront of the freedom struggle and maintaining the Rule of law and civil liberties even in difficult
times.
227
Further, in exercise of appellate jurisdiction Under Section 38 of the Advocates Act, we direct
that the license of the Appellant will stand suspended for a further period of five years. He will also
remain debarred from appearing in any court in District Etah even after five years unless he purges
himself of contempt in the manner laid down by this Court in Bar Council of India and R.K. Anand
and as directed by the High Court. Question (ii) stands decided accordingly.
(Emphasis supplied)
In Mahipal Singh Rana (supra) the advocate was found guilty of criminal contempt as such
punishment for debarring from the Court was first passed and reliance has been placed for that
purpose on the decision of Constitution Bench of this Court in Supreme Court Bar Association
(supra). Thus, the decision has no application to sustain vires of Rules 14(A) to 14(D) as amended
by the High Court of Madras.
Shri Mohan Parasaran, learned senior Counsel supported the Rules pointing out that grave
situation has been created in the High Court of Madras as well as at its Madurai Bench, which
compelled the Court to take action on the judicial side to ensure the modicum of security. The High
Court had to order the security of the Court to be undertaken by CISF. In this regard, orders were
passed in Suo Moto Writ Petition No. 29197 of 2015 by the High Court of Madras on 14.9.2015,
12.10.2015 and 30.10.2015. The following incidents were noticed in the judicial orders:
i. Holding protests and waving placards within the Court premises;
ii. Raising slogans and marching down the corridors of the Court.
iii. The use of hand-held microphones to disrupt Court proceedings.
iv. Attempting to and in some cases successfully entering the Chambers of the Puisne Judges of the
Madurai Bench of the High Court.
v. Two instances of hoax bombs in the form of broken mechanical clocks being placed at areas in
the Court to ensure disruptions.
The High Court, in our opinion, could have taken action under Contempt of Courts Act for
aforesaid misconduct.
Rule 14A provides for power to debar an advocate from appearing before the High Court and
the subordinate courts in case an advocate who is found to have accepted money in the name of a
Judge or on the pretext of influencing him; or an advocate who is found to have tampered with the
Court record or Court order; or an advocate who browbeats and/or abuses a Judge or Judicial
Officer; or an advocate who is found to have sent or spread unfounded and unsubstantiated
allegations/petitions against a judicial officer or a Judge to the Superior Court; or an advocate who
actively participates in a procession inside the Court campus and/or involves in gherao inside the
Court Hall or holds placard inside the Court Hall; or an advocate who appears in the Court under
the influence of liquor may be debarred by Court. However, it is not provided that Court would do
so in exercising Contempt Jurisdiction. The debarment is sought to be done by way of disciplinary
control, which is not permissible.
228
Rule 14-B as amended provides for power to take action. Rule 14-B(iv) states that where any
such misconduct referred to Under Rule 14-A is committed by an advocate before the High Court,
the High Court shall have the power to initiate action against the advocate concerned and debar him
from appearing before the High Court and all subordinate courts; or where any such misconduct is
committed before the Court of Principal District Judge, the Principal District Judge shall have the
power to initiate action against the advocate concerned and debar him from appearing before any
Court within such district; or where any such misconduct referred to Under Rule 14-A is committed
before any subordinate court, the Court concerned shall submit a report to the Principal District
Court and the Principal District Judge shall have the power to initiate action against the advocate
concerned and debar him from appearing before any Court within such district. Rule 14-C
prescribes the procedure to be followed and Rule 14-D authorizes the High Court or Principal
District Judge to pass an interim order prohibiting the advocate concerned from appearing before
the High Court or subordinate Courts, as the case may be, pending inquiry.
The High Court is not authorized by the provisions of the Advocates Act to frame such rules.
Section 34 does not confer such power of debarment by way of disciplinary methods or disciplinary
inquiry as against an advocate as that has to be dealt with by the Bar Council as provided in other
Sections in a different chapter of the Act. It is only when the advocate is found guilty of contempt
of court, as provided in Rule 14 as existed in the Madras High Court Rules, 1970 takes care of
situation until and unless an advocate who has committed contempt of court purges himself of
contempt shall not be entitled to appear or act or plead in the Court.
Rule 14 is extracted hereunder:
No advocate who has been found guilty of contempt of Court shall be permitted to appear, Act
or plead in any Court unless he has purged himself of contempt.
The debarment cannot be ordered by the High Court until and unless advocate is prosecuted
under the Contempt of Courts Act. It cannot be resorted to by undertaking disciplinary proceedings
as contemplated under the Rules 14-A to 14-D as amended in 2016. That is a clear usurpation of the
power of the Bar Council and is wholly impermissible in view of the decision of this Court in
Supreme Court Bar Association v. Union of India (supra) that has been followed in all the
subsequent decisions as already discussed. There is no doubt about it that the incidents pointed out
were grim and stern action was required against the erring advocates as they belied the entire
nobility of the lawyer’s profession.
It is also true that the disciplinary committee of the Bar Councils, as observed by this Court in
Mahipal Singh Rana and Mohit Chowdhary (supra), has failed to deliver the good. It is seen that the
disciplinary control of the Bar Council is not as effective as it should be. The cases are kept pending
for a long time, then after one year they stand transferred to the Bar Council of India, as provided
under the Advocates Act and thereafter again the matters are kept pending for years together. It is
high time that the Bar Council, as well as the various State Bar Councils, should take stock of the
situation and improve the functioning of the disciplinary side. It is absolutely necessary to maintain
the independence of the Bar and if the cleaning process is not done by the Bar itself, its
independence is in danger. The corrupt, unwanted, unethical element has no place in Bar. If nobility
of the profession is destroyed, Bar can never remain independent. Independence is constituted by
229
the observance of certain ideals and if those ideals are lost, the independence would only remain on
paper, not in real sense.
The situation is really frustrating if the repository of the faith in the Bar fails to discharge their
statutory duties effectively, no doubt about it that the same can be and has to be supervised by the
Courts. The obligatory duties of Bar Council have found statutory expression in Advocates Act and
the Rules framed thereunder with respect to disciplinary control and cannot be permitted to become
statutory mockery, such non-performance or delayed performance of such duties is impermissible.
The Bar Council is duty bound to protect Bar itself by taking steps against black sheeps and cannot
belly expectation of Bar in general and spoil its image. The very purpose of disciplinary control by
Bar Council cannot be permitted to be frustrated. In such an exigency, in a case where the Bar
Council is not taking appropriate action against the advocate, it would be open to the High Court to
entertain the writ petition and to issue appropriate directions to the Bar Council to take action in
accordance with the law in the discharge of duties enjoined upon it. But at the same time, the High
Court and even this Court cannot take upon itself the disciplinary control as envisaged under the
Advocates Act. No doubt about it that the Court has the duty to maintain its decorum within the
Court premises, but that can be achieved by taking appropriate steps under Contempt of Courts Act
in accordance with law as permitted under the decisions of this Court and even by Rule making
power Under Section 34 of the Advocates Act. An advocate can be debarred from practicing in the
Court until and unless he purges himself of contempt.
It has been seen from time to time that various attacks have been made on the judicial system. It
has become very common to the members of the Bar to go to the press/media to criticize the judges
in person and to commit sheer contempt by attributing political colours to the judgments. It is
nothing less than an act of contempt of gravest form. Whenever any political matter comes to the
Court and is decided, either way, political insinuations are attributed by unscrupulous
persons/advocates. Such acts are nothing, but an act of denigrating the judiciary itself and destroys
the faith of the common man which he reposes in the judicial system. In case of genuine grievance
against any judge, the appropriate process is to lodge a complaint to the concerned higher
authorities who can take care of the situation and it is impermissible to malign the system itself by
attributing political motives and by making false allegations against the judicial system and its
functionaries. Judges who are attacked are not supposed to go to press or media to ventilate their
point of view.
Contempt of court is a weapon which has to be used sparingly as more is power, same requires
more responsibility but it does not mean that the court has fear of taking action and its
repercussions. The hallmark of the court is to provide equal and even-handed justice and to give an
opportunity to each of the system to ensure that it improves upon. Unfortunately, some advocates
feel that they are above the Bar Council due to its inaction and they are the only champion of the
causes. The hunger for cheap publicity is increasing which is not permitted by the noble ideals
cherished by the great doyens of the bar, they have set by their conduct what should be in fact the
professional etiquettes and ethics which are not capable of being defined in a narrow compass. The
statutory Rules prohibit advocates from advertising and in fact to cater to the press/media, distorted
versions of the court proceedings is sheer misconduct and contempt of court which has become very
common. It is making it more difficult to render justice in a fair, impartial and fearless manner
though the situation is demoralizing that something has to be done by all concerned to revamp the
image of Bar. It is not open to wash dirty linen in public and enter in accusation/debates, which
230
tactics are being adopted by unscrupulous elements to influence the judgments and even to deny
justice with ulterior motives. It is for the Bar Council and the senior members of the Bar who have
never forgotten their responsibility to rise to the occasion to maintain the independence of the Bar
which is so supreme and is absolutely necessary for the welfare of this country and the vibrant
democracy.
The separation of powers made by the forefathers, who framed the Constitution, ensured
independent functioning. It is unfortunate without any rationale basis the independence of the
system is being sought to be protected by those who should keep aloof from it. Independence of
each system is to come from within. If things are permitted to be settled by resorting to the
unscrupulous means and institution is maligned by creating pressure of any kind, the very
independence of the system would be endangered. Cases cannot be decided by media trial. Bar and
Bench in order to protect independence have their own inbuilt machinery for redressal of grievance
if any and they are supposed to settle their grievances in accordance therewith only. No outside
interference is permissible. Considering the nobility, independence, dignity which is enjoined and
the faith which is reposed by the common man of the country in the judiciary, it is absolutely
necessary that there is no maligning of the system. Mutual respect and reverence are the only way
out. A lot of sacrifices are made to serve the judiciary for which one cannot regret as it is with a
purpose and to serve judiciary is not less than call of military service. For the protection of
democratic values and to ensure that the Rule of law prevails in the country, no one can be
permitted to destroy the independence of the system from within or from outside. We have to watch
on Bar independence. Let each of us ensure our own institution is not jeopardized by the blame
game and make an endeavor to improve upon its own functioning and independence and how
individually and collectively we can deliver the good to the citizen of this great country and deal
with every tear in the eye of poor and down-trodden as per constitutional obligation enjoined on us.
Soul searching is absolutely necessary and the blame game and maligning must stop forthwith.
Confidence and reverence and positive thinking is the only way. It is pious hope that the Bar
Council would improve upon the function of its disciplinary committees so as to make the system
more accountable, publish performance audit on the disciplinary side of various bar councils. The
same should be made public. The Bar Council of India under its supervisory control can implement
good ideas as always done by it and would not lag behind in cleaning process so badly required. It
is to make the profession more noble and it is absolutely necessary to remove the black sheeps from
the profession to preserve the rich ideals of Bar and on which it struggled for the values of freedom.
It is basically not for the Court to control the Bar. It is the statutory duty of Bar to make it more
noble and also to protect the Judges and the legal system, not to destroy the Bar itself by inaction
and the system which is important pillar of democracy.
We have no hesitation to hold that the High Court has overstretched and exceeded its power
even in the situation which was so grim which appears to have compelled it to take such a measure.
In fact, its powers are much more in Contempt of Courts Act to deal with such situation court need
not look for Bar Council to act. It can take action, punish for Contempt of Courts Act in case it
involves misconduct done in Court/proceedings. Circumstances may be grim, but the autonomy of
the Bar in the disciplinary matters cannot be taken over by the Courts. It has other more efficient
tools to maintain the decorum of Court. In case power is given to the Court even if complaints
lodged by a lawyer to the higher administrative authorities as to the behaviour of the Judges may be
correct then also he may be punished by initiating disciplinary proceedings as permitted to be done
231
in impugned Rules 14 A to D that would be making the Bar too sycophant and fearful which would
not be conducive for fair administration of justice. Fair criticism of judgment and its analysis is
permissible. Lawyers’ fearlessness in court, independence, uprightness, honesty, equality are the
virtues which cannot be sacrificed. It is duty of the lawyer to lodge appropriate complaint to the
concerned authorities as observed by this Court in Vinay Chandra Mishra (supra), which right
cannot be totally curtailed, however, making such allegation publicly tantamounts to contempt of
court and may also be a professional misconduct that can be taken care of either by the Bar Council
under the Advocates Act and by the Court under the Contempt of Courts Act. The misconduct as
specified in Rule 14-A may also in appropriate cases tantamount to contempt of court and can be
taken care of by the High Court in its contempt jurisdiction.
Resultantly, we have no hesitation to strike down impugned Rules 14-A to 14-D as framed in
May, 2016 by the High Court of Madras as they are ultra vires to Section 34 of the Advocates Act
and are hereby quashed. The writ petition is allowed. No costs.

R. Muthukrishnan v. The Registrar General of the High Court of Judicature at MadrasAIR 2019 SC 849

vikash Kumar

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