observed :
“36. …………. An advocate has no wider protection
than a layman when he commits an act which
amounts to contempt of court. It is most unbefitting for
an advocate to make imputations against the Judge
only because he does not get the expected result,
which according to him is the fair and reasonable
result available to him. Judges cannot be intimidated
to seek favorable orders. Only because a lawyer
appears as a party in person, he does not get a license
thereby to commit contempt of the Court by
intimidating the Judges or scandalising the courts. He
cannot use language, either in the pleadings or during
arguments, which is either intemperate or
unparliamentary. These safeguards are not for the
protection of any Judge individually but are essential
for maintaining the dignity and decorum of the Courts
and for upholding the majesty of law. Judges and
courts are not unduly sensitive or touchy to fair and
reasonable criticism of their judgments. Fair comments,
even if, out-spoken, but made without any malice or
attempting to impair the administration of justice and
made in good faith in proper language do not attract
any punishment for contempt of court. However, when
from the criticism a deliberate, motivated and
calculated attempt is discernible to bring down the
image of judiciary in the estimation of the public or to
impair the administration of justice or tend to bring the
administration of justice into disrepute the courts must
bistre themselves to uphold their dignity and the
majesty of law. The appellant, has, undoubtedly
committed contempt of the Court by the use of the
objectionable and intemperate language. No system of
justice can tolerate such unbridled licence on the part
of a person, be he a lawyer, to permit himself the
liberty of scandalising a Court by casting unwarranted,
uncalled for and unjustified aspersions on the integrity,
ability, impartiality or fairness of a Judge in the
discharge of his judicial functions as it amounts to an
interference with the dues course of administration of
justice.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 63 OF 2006
Mahipal Singh Rana, Advocate Vs State of Uttar Pradesh
Dated:July 05, 2016.
Citation:2016 CRLJ 3734
1. The present appeal is preferred under Section 19 of the
Contempt of Courts Act, 1971 (hereinafter referred to as
“the Act”) against the judgment and order dated 02.12.2005
delivered by the High Court of Judicature at Allahabad in
Criminal Contempt Petition No. 16 of 2004, whereby the
High Court found the appellant guilty of Criminal Contempt
for intimidating and threatening a Civil Judge (Senior
Division), Etah in his Court on 16.4.2003 and 13.5.2003
and sentenced him to simple imprisonment of two monthsPage 2
2
with a fine of Rs. 2,000/- and in default of payment of the
fine, the appellant to undergo further imprisonment of 2
weeks. The High Court further directed the Bar Council of
Uttar Pradesh to consider the facts contained in the
complaint of the Civil Judge (Senior Division) Etah, and
earlier contempt referred to in the judgement and to initiate
appropriate proceedings against the appellant for
professional misconduct.
Reference to larger Bench and the Issue
2. On 27th January, 2006, this appeal was admitted by
this Court and that part of the impugned judgment, which
imposed the sentence, was stayed and the appellant was
directed not to enter the Court premises at Etah (U.P.).
Keeping in view the importance of the question involved
while admitting the appeal on 27th January, 2006, notice
was directed to be issued to the Supreme Court Bar
Association as well as to the Bar Council of India. The
matter was referred to the larger Bench. Learned Solicitor
General of India was requested to assist the Court in the
matter.
3. On 6th March, 2013 restriction on entry of the
appellant into the court premises as per order dated 27th
January, 2006 was withdrawn. Thereby, the appellant was
permitted to enter the court premises. The said restriction
was, however, restored later. On 20th August, 2015, notice
was issued to the Attorney General on the larger question
whether on conviction under the Contempt of Courts Act or
any other offence involving moral turpitude an advocate
could be permitted to practise.
4. Thus following questions arise for consideration:
(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.2,000/- and further imprisonment for two
weeks in default and debarring him from
appearing in courts in judgeship at Etah; and
(ii) Whether on conviction for criminal contempt, the
appellant can be allowed to practise.
The facts and the finding of the High Court
5. The facts of the present appeal discloses that the Civil
Judge (Senior Division), Etah made a reference under
Section 15 (2) of the Act to the High Court through the
learned District Judge, Etah (U.P.) on 7.6.2003 recording
two separate incidents dated 16.4.2003 and 13.5.2003,
which had taken place in his Court in which the appellant
had appeared before him and conducted himself in a
manner which constituted “Criminal Contempt” under
Section 2 (c) of the Act.
6. The said letter was received by the High Court along
with a forwarding letter of the District Judge dated 7.6.2003
and the letters were placed before the Administrative Judge
on 7.7.2003, who forwarded the matter to the Registrar
General vide order dated 18.6.2004 for placing the same
before the Hon’ble Chief Justice of the High Court and on
11.7.2004, the Hon’ble Chief Justice of the High Court
referred the matter to the Court concerned dealing with
contempt cases and notice was also issued to the appellant.
7. Facts denoting behaviour of the appellant, as recorded
by the Civil Judge (Senior Division), Etah, can be seen from
the contents of his letter addressed to the learned District
Judge, Etah. The letter reads as under:-Page 5
5
“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: “Thatcase
will be heard first which I desire to be heard first.
Nothing is done as per your desire. Even an advocate
does not dare create a hindrance in my case. I shall get
the case decided which I want and that case will never
be decided, which I do not want. You cannot decide any
case against my wishes”. Meanwhile when the counsel
for Smt. Suman in O.S. No. 298/2001 titled as “Jag
Mohan vs. Smt. Suman” handed some papers over to
Shri Mahipal Singh Rana, Advocate for receiving the
same, he threw those papers away and misbehaved
with the counsel for Smt. Suman. Due to this act of Shri
Mahipal Singh Rana, the judicial work was hindered
and his act falls within the ambit of committing the
contempt of Court.
Your good self is therefore requested that in order to
initiate proceedings relating to committing the contempt
of Court against Shri Mahipal Singh Rana, Advocate,
my report may kindly be sent to the Hon’ble High Court
by way of REFERENCE”.
With regards,”
8. On the same day, the learned Civil Judge (Senior
Division) also wrote another letter to the Registrar-General
of the High Court, giving some more facts regarding
contemptuous behaviour of the appellant with a request to
place the facts before the Hon’ble Chief Justice of the High
Court so that appropriate action under the Act may be
taken against the appellant. As the aforestated letters refer
to the facts regarding behaviour of the appellant, we do not
think it necessary to reiterate the same here.
9. Ultimately, in pursuance of the information given to
the High Court, proceedings under the Act had been
initiated against the appellant.
10. Before the High Court, it was contended on behalf of
the appellant that it was not open to the Court to proceed
against the appellant under the provisions of the Act
because if the behaviour of the appellant was not proper or
he had committed any professional misconduct, the proper
course was to take action against the appellant under the
provisions of the Advocates Act, 1961. It was also
contended that summary procedure under the Act could not
have been followed by the Court for the purpose of
punishing the appellant. Moreover, it was also submitted
that the appellant was not at all present before the learned
Civil Judge (Senior Division), Etah on 16.4.2003 and
13.5.2003.
11. Ultimately, after hearing the parties concerned, the
High Court did not accept the defence of the appellant and
after considering the facts of the case, it delivered the
impugned judgment whereby punishment has been imposed
upon the appellant. The High Court observed:
“22. Extraordinary situations demand extraordinary
remedies. The subordinate courts in Uttar Pradesh are
witnessing disturbing period. In most of the
subordinate courts, the Advocates or their groups and
Bar Associations have been virtually taken over the
administration of justice to ransom. These Advocates
even threaten and intimidate the Judges to obtain
favourable orders. The Judicial Officers often belonging
to different districts are not able to resist the pressure
and fall prey to these Advocates. This disturbs the
equilibrium between Bar and the Bench giving undue
advantage and premium to the Bar. In these
extraordinary situations the High Court can not
abdicate its constitutional duties to protect the judicial
officers.
xxxxx
24. ……………The criminal history of the contemnor,
the acceptance of facts in which his actions were found
contumacious and he was discharged on submitting
apologies on two previous occasions, and the
allegations against him in which he was found to
continue with intimidating the judicial officers
compelled us to issue interim orders restraining his
entry of the contemnor in the judgeship at Etah. The
Bar Council of Uttar Pradesh, is fully aware of his
activities but has chosen not to take any action in the
matter. In fact the Bar Council hardly takes cognizance
of such matters at all. The Court did not interfere with
the statutory powers of the Bar Council of Uttar
Pradesh to take appropriate proceedings against the
contemnor with regard to his right of practice, and did
not take away right of practice vested in him by virtue
of his registration with the Bar Council. He was not
debarred from practice but was only restrained to
appear in the judgeship at Etah in the cases he was
engaged as an Advocate. The repeated contumacious
conduct, without any respect to the Court committed by
him repeatedly by intimidating and brow beating the
judicial officers, called for maintaining discipline,
protecting the judicial officers and for maintaining
peace in the premises of judgeship at Etah.
25. Should the High Court allow such advocate to
continue to terrorise, brow beat and bully the judicial
officers? It is submitted that he has a large practice.
We are not concerned here whether the contemnor or
such advocates are acquiring large practice by
intimidating judicial officers. These are questions to be
raised before the Bar Council. We, however, must
perform our constitutional duty to protect our judicial
officers. This is one such case illustrated in para 78, of
the Supreme Court Bar Association's case (supra), in
which the occasion had arisen to prevent the
contemnor to appear before courts at Etah. The
withdrawal of such privilege did not amount to
suspending or revoking his licence to practice as an
advocate in other courts or tribunal, drafting the
petitions and advising his clients. It only prevented him
from intimidating the judicial officers and from vitiating
the atmosphere conducive for administration of justice
in the judgeship at Etah.
31. The Supreme Court held that Section 20 of the
Contempt of Courts Act, has to be construed in a
manner which would avoid anomaly and hardships
both as regards the litigant as also by placing a
pointless fetter on the part of the court to punish for its
contempt. In Pallav Seth the custodian received
information of the appellant having committed
contempt of taking over benami concerns, transferring
funds to these concerns and operating their accounts,
from a letter dated 5.5.1998, received from the Income
Tax Authorities. Soon thereafter on 18.6.1998 a
petition was filed for initiating action in contempt and
notices were issued by the Court on 9.4.1999. The
Supreme Court found that on becoming aware of the
forged applications the contempt proceedings were
filed on 18.6.1998 well within the period of limitation
prescribed by Section 20 of the Act. The action taken
by the special court by its order dated 9.4.1999
directing the applications to be treated as show cause
notice, was thus valid and that the contempt action
was not barred by Section 20 of the Act.
32. In the present case the alleged contempt was
committed in the court of Shri Onkar Singh Yadav, Civil
Judge (Senior Division) Etah on 16.4.2003 and
13.5.2003. The officer initiated the proceedings by
making reference to the High Court through the District
Judge vide his letters dated 7.6.2003, separately in
respect of the incidents. These letters were received by
the Court with the forwarding letter of the District
Judge dated 1.6.2003 and were placed before
Administrative Judge on 7.7.2003, who returned the
matter to the Registrar General with his order dated
18.6.2004 to be placed before Hon'ble the Chief Justice
and that by his order dated 11.7.2004, Hon'ble the
Chief Justice referred the matter to court having
contempt determination. Show cause notices were
issued by the court to the contemnor on 28.10.2004. In
view of the law as explained in Pallav Seth (supra) the
contempt proceedings would be taken to be initiated on
7.6.2003 by the Civil Judge (Senior Division) Etah,
which was well within the period of one year from the
date of the incidents prescribed under Section 20 of the
Act.
xxxxxx
36. We do not find that the contemnor Shri Mahipal
Singh Rana is suffering from any mental imbalance. He
is fully conscious of his actions and take responsibility
of the same. He suffers from an inflated ago, and has a
tremendous superiority complex and claims himself to
be a champion for the cause of justice, and would not
spare any effort, and would go to the extent of
intimidating the judges if he feels the injustice has
been done to his client. We found ourselves unable to
convince him that the law is above every one, and that
even if he is an able lawyer belonging to superior
caste, he could still abide by the dignity of court and
the decency required from an advocate appearing in
any court of law.
37. The due administration of law is of vastly greater
importance than the success or failure of any
individual, and for that reason public policy as well as
good morals require that every Advocate should keep
attention to his conduct. An Advocate is an officer of
the Court apart of machinery employed for
administration of justice, for meeting out to the litigants
the exact measure of their legal rights. He is guilty of a
crime if he knowingly sinks his official duty, in what
may seem to be his own or his clients temporary
advantage.
38. We find that the denial of incidents and allegations
of malafides against Shri Onkar Singh Yadav, the then
Civil Judge (Senior Division) Etah have been made only
to save himself from the contumacious conduct.
39. Shri Mahipal Singh Rana, the contemnor has
refused to tender apologies for his conduct. His
affidavit in support of stay vacation/modification and
supplementary affidavit do not show any remorse. He
has justified himself again and again, in a loud and
thundering voice.
40. We find that Shri Mahipal Rana the contemnor is
guilty of criminal contempt in intimidation and
threatening Shri Onkar Singh Yadav the then Civil
Judge (Senior Division) Etah in his court on 16.4.2003
and 13.5.2003 and of using loud and indecent
language both in court and in his pleadings in suit No.
515/2002. He was discharged from proceeding of
contempt in Criminal Contempt Petition No. 21/1998
and Criminal Contempt No. 60 of 1998 on his tendering
unconditionally apology on 3.8.1999 and 11.11.2002
respectively. He however did not mend himself and
has rather become more aggressive and disrespectful
to the court. He has virtually become nuisance and
obstruction to the administration of justice at the
Judgeship at Etah. We are satisfied that the repeated
acts of criminal contempt committed by him are of such
nature that these substantially interfere with the due
course of justice. We thus punish him under Section 12
of the Contempt of Courts Act 1971, with two months
imprisonment and also impose fine of Rs. 2000/- on
him. In case non-payment of fine he will undergo
further a period of imprisonment of two weeks.
However, the punishment so imposed shall be kept in
abeyance for a period of sixty days to enable the
contemner Shri Rana to approach the Hon'ble Supreme
Court, if so advised.
41. We also direct the Bar Council of Uttar Pradesh to
take the facts constituted in the complaints of Shri
Onkar Singh Yadav, the then Civil Judge (Senior
Division) Etah, the two earlier contempts referred in
this judgment, and to draw proceedings against him
for professional misconduct.
42. Under the Rules of this Court, the contemnor shall
not be permitted to appear in courts in the Judgeship
at Etah, until he purges the contempt.
43. The Registrar General shall draw the order and
communicate it to the Bar Council of Uttar Pradesh and
Bar Council of India within a week. The contemnor
shall be taken into custody to serve the sentence
immediately of the sixty days if no restrain order is
passed by the appellate court.”
Rival Contentions:
12. The learned counsel appearing for the appellant before
this Court specifically denied the instances dated 16.4.2003
and 13.5.2003 and further submitted that the appellant had
not even gone to the Court of the learned Civil Judge (Senior
Division), Etah on the aforestated two days and therefore,
the entire case made out against the appellant was false and
frivolous. The learned counsel, therefore, submitted that the
High Court had committed an error by not going into the
fact as to whether the appellant had, in fact, attended the
Court of the learned Civil Judge (Senior Division), Etah on
16.4.2003 and 13.5.2003. The learned counsel further
submitted that the High Court ought to have considered the
fact that the appellant had filed several complaints against
the learned Judge who was the complainant and therefore,
with an oblique motive the entire contempt proceedings
were initiated against the appellant. The said complaints
ought to have been considered by the High Court. It was
further submitted that contempt proceedings were barred
by limitation. The incidents in question are dated 16th April,
2003 and 13th May, 2003 while notice was ordered to be
issued on 28th April, 2004.
13. The learned counsel, thus, submitted that the action
initiated against the appellant was not just and proper and
the impugned judgment awarding punishment to the
appellant under the Act is bad in law and therefore,
deserved to be set aside. In the alternative, it is submitted
that the appellant was 84 years of age and keeping that in
mind, the sentence for imprisonment may be set aside and
instead, the fine may be increased.
14. On the other hand, the learned counsel appearing for
the State of Uttar Pradesh submitted that the impugned
judgment was just, legal and proper and the same was
delivered after due deliberation and careful consideration of
the relevant facts. He submitted that looking at the facts of
the case, the High Court rightly came to the conclusion that
the appellant was not only present in the Court on those
two days i.e. on 16.4.2003 and 13.5.2003, but the appellant
had also misbehaved and misconducted in such a manner
that his conduct was contemptuous and therefore, the
proceedings under the Act had to be initiated against him.
The learned counsel also drew attention of the Court to the
nature of the allegations made by the appellant against the
learned Judge and about the contemptuous behaviour of
the appellant. The learned counsel also relied upon the
report submitted to the learned District Judge and
submitted that the impugned judgment is just, legal and
proper. He also submitted that the misbehaviour and
contemptuous act of the appellant was unpardonable and
therefore, the High Court had rightly imposed punishment
upon the appellant.
15. In response to the notice issued by this Court on 20th
August, 2015 in respect of the question framed, the learned
counsel appearing for the Bar Council of India submitted
that Section 24A of the Advocates Act, 1961 provides for a
bar against admission of a person as an advocate if he is
convicted of an offence involving moral turpitude, apart
from other situations in which such bar operates. The
proviso however, provides for the bar being lifted after two
years of release. However, the provision did not expressly
provide for removal of an advocate from the roll of the
advocates if conviction takes place after enrollment of a
person as an advocate. Only other relevant provision under
which action could be taken is Section 35 for proved
misconduct. It is further stated that though the High Court
directed the Bar Council of Uttar Pradesh to initiate
proceedings for professional misconduct on 2.12.2005, the
consequential action taken by the Bar Council of the State
of Uttar Pradesh was not known. It is further stated that
the term moral turpitude has to be understood having
regard to the nature of the noble profession of law which
requires a person to possess higher level of integrity. Even
a minor offence could be termed as an offence involving
moral turpitude in the context of an advocate who is
expected to be aware of the legal position and the conduct
expected from him as a citizen is higher than others. It was
further submitted that only the State Bar Council or Bar
Council of India posses the power to punish an advocate for
“professional misconduct” as per the provisions of Section
35 of the Advocates Act, 1961 and reiterated the law laid
down by this Court in Supreme Court Bar Association
versus Union of India1
. In addition, the counsel submitted
that a general direction to all the Courts be given to
communicate about conviction of an advocate for an offence
involving moral turpitude to the concerned State Bar
Council or the Bar Council of India immediately upon
delivering the judgment of conviction so that proceedings
against such advocates can be initiated under the Advocates
Act, 1961.
16. The Learned Additional Solicitor General of India
appearing on behalf of Union of India, submitted that
1
(1998) 4 SCC 409 Page 18
18
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. Ali2
, Ex-Captain Harish Uppal versus Union of
India3
, Bar Council of India versus High Court of
2
(2001) 8 SCC 650
3
(2003) 2 SCC 45Page 20
20
Kerala4
and R.K. Anand versus Registrar, Delhi High
Court5
. Thus, according to the counsel, apart from the Bar
Council taking appropriate action against the appellant, this
Court could debar him from appearance before any court.
17. Shri Dushyant Dave, learned senior counsel and
President of the Supreme Court Bar Association supported
the interpretation canvassed by the learned Additional
Solicitor General. He submitted that image of the profession
ought to be kept clean by taking strict action against
persons failing to maintain ethical standards.
18. We have heard the learned counsel appearing for the
parties and have perused the judgments cited by them.
Consideration of the questions
We may now consider the questions posed for consideration:
Re: (i)
19. Upon going through the impugned judgment, we are of
the view that no error has been committed by the High
4
(2004) 6 SCC 311
5
(2009) 8 SCC 106Page 21
21
Court while coming to the conclusion that the appellant had
committed contempt of Court under the provisions of the
Act.
20. We do not agree with the submissions of the learned
counsel for the appellant that the appellant did not appear
on those two days before the Court. Upon perusal of the
facts found by the High Court and looking at the contents of
the letters written by the concerned judicial officers, we
have no doubt about the fact that the appellant did appear
before the Court and used the language which was
contemptuous in nature.
21. So far as the allegations made by the appellant with
regard to the complaints made by him against the
complainant judge, after having held that the appellant had
appeared before the Court and had made contemptuous
statements, we are of the opinion that those averments
regarding the complaints are irrelevant. The averments
regarding the complaints cannot be a defence for the
appellant. Even if we assume those averments about the
complaints to be correct, then also, the appellant cannotPage 22
22
use such contemptuous language in the Court against the
presiding Judge.
22. There is no merit in the contention of the appellant
that there was delay on the part of the complainant Judge
in sending the reference and he could have tried the
appellant under Section 228 of the Indian Penal Code and
the procedure prescribed under Code of Criminal Procedure.
It is for the learned judge to decide as to whether action
should be taken under the Act or under any other law.
23. The High Court has rightly convicted the appellant
under the Act after having come to a conclusion that denial
of the incidents and allegations of malafides against the
complainant Judge had been made by the appellant to save
himself from the consequences of contempt proceedings.
The appellant had refused to tender apology for his conduct.
His affidavit in support of stay vacation/modification and
supplementary affidavit did not show any remorse and he
had justified himself again and again, which also shows that
he had no regards for the majesty of law. Page 23
23
24. It is a well settled proposition of law that in deciding
whether contempt is serious enough to merit imprisonment,
the Court will take into account the likelihood of
interference with the administration of justice and the
culpability of the offender. The intention with which the act
complained of is done is a material factor in determining
what punishment, in a given case, would be appropriate. In
the case at hand, the High Court has rightly held that the
appellant was guilty of criminal contempt. We are however,
inclined to set aside the sentence for imprisonment in view
of advance age of the appellant and also in the light of our
further direction as a result of findings of question No. (ii)
Re: (ii)
Court’s jurisdiction vis a vis statutory powers of the Bar
Councils
25. This Court, while examining its powers under Article
129 read with Article 142 of the Constitution with regard to
awarding sentence of imprisonment together with
suspension of his practice as an Advocate, in Supreme
Court Bar Association (supra), the Constitution Bench
held that while in exercise of contempt jurisdiction, thisPage 24
24
Court cannot take over jurisdiction of disciplinary
committee of the Bar Council6
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 Act7
. 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
practise8
.
26. Reference may be made to the following observations
in SCBA case (supra):
“79. An advocate who is found guilty of contempt of
court may also, as already noticed, be guilty of
professional misconduct in a given case but it is for
the Bar Council of the State or Bar Council of India to
punish that advocate by either debarring him from
practice or suspending his licence, as may be
warranted, in the facts and circumstances of each
case. The learned Solicitor General informed us that
there have been cases where the Bar Council of India
6
Paras 43, 57, 78
7
Para 79
8
Para 80Page 25
25
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 CouncilPage 26
26
concerned, appropriate action should be initiated by
the Bar Council concerned in accordance with law
with a view to maintain the dignity of the courts and
to uphold the majesty of law and professional
standards and etiquette. Nothing is more destructive
of public confidence in the administration of justice
than incivility, rudeness or disrespectful conduct on
the part of a counsel towards the court or disregard by
the court of the privileges of the Bar. In case the Bar
Council, even after receiving “reference” from the
Court, fails to take action against the advocate
concerned, this Court might consider invoking its
powers under Section 38 of the Act by sending for the
record of the proceedings from the Bar Council and
passing appropriate orders. Of course, the appellate
powers under Section 38 would be available to this
Court only and not to the High Courts. We, however,
hope that such a situation would not arise.
80. In a given case it may be possible, for this Court
or the High Court, to prevent the contemner advocate
to appear before it till he purges himself of the
contempt but that is much different from suspending
or revoking his licence or debarring him to practise as
an advocate. In a case of contemptuous,
contumacious, unbecoming or blameworthy conduct of
an Advocate-on-Record, this Court possesses
jurisdiction, under the Supreme Court Rules itself, to
withdraw his privilege to practice as an
Advocate-on-Record because that privilege is conferred
by this Court and the power to grant the privilege
includes the power to revoke or suspend it. The
withdrawal of that privilege, however, does not
amount to suspending or revoking his licence to
practice as an advocate in other courts or tribunals.
81. We are conscious of the fact that the conduct of
the contemner in V.C. Mishra case [(1995) 2 SCC 584]
was highly contumacious and even atrocious. It was
unpardonable. The contemner therein had abused hisPage 27
27
professional privileges while practising as an
advocate. He was holding a very senior position in the
Bar Council of India and was expected to act in a
more reasonable way. He did not. These factors
appear to have influenced the Bench in that case to
itself punish him by suspending his licence to practice
also while imposing a suspended sentence of
imprisonment for committing contempt of court but
while doing so this Court vested itself with a
jurisdiction where none exists. The position would
have been different had a reference been made to the
Bar Council and the Bar Council did not take any
action against the advocate concerned. In that event,
as already observed, this Court in exercise of its
appellate jurisdiction under Section 38 of the Act read
with Article 142 of the Constitution of India, might
have exercised suo motu powers and sent for the
proceedings from the Bar Council and passed
appropriate orders for punishing the contemner
advocate for professional misconduct after putting him
on notice as required by the proviso to Section 38
which reads thus:
“Provided that no order of the Disciplinary
Committee of the Bar Council of India shall be
varied by the Supreme Court so as to prejudicially
affect the person aggrieved without giving him a
reasonable opportunity of being heard.”
But it could not have done so in the first instance.”
27. In Pravin C. Shah (supra) this Court held that an
advocate found guilty of contempt cannot be allowed to act
or plead in any court till he purges himself of contempt.
This direction was issued having regard to Rule 11 of the
Rules framed by the High Court of Kerala under Section 34Page 28
28
(1) of the Advocates Act and also referring to observations in
para 80 of the judgment of this Court in Supreme Court
Bar Association (supra). It was explained that debarring a
person from appearing in Court was within the purview of
the jurisdiction of the Court and was different from
suspending or terminating the licence which could be done
by the Bar Council and on failure of the Bar Council, in
exercise of appellate jurisdiction of this Court. The
observations are:
16. Rule 11 of the Rules is not a provision intended for
the Disciplinary Committee of the Bar Council of the
State or the Bar Council of India. It is a matter entirely
concerning the dignity and the orderly functioning of
the courts. The right of the advocate to practise
envelops a lot of acts to be performed by him in
discharge of his professional duties. Apart from
appearing in the courts he can be consulted by his
clients, he can give his legal opinion whenever sought
for, he can draft instruments, pleadings, affidavits or
any other documents, he can participate in any
conference involving legal discussions etc. Rule 11 has
nothing to do with all the acts done by an advocate
during his practice except his performance inside the
court. Conduct in court is a matter concerning the court
and hence the Bar Council cannot claim that what
should happen inside the court could also be regulated
by the Bar Council in exercise of its disciplinary
powers. The right to practise, no doubt, is the genus of
which the right to appear and conduct cases in the
court may be a specie. But the right to appear and
conduct cases in the court is a matter on which thePage 29
29
court must have the major supervisory power. Hence
the court cannot be divested of the control or
supervision of the court merely because it may involve
the right of an advocate.
17. When the Rules stipulate that a person who
committed contempt of court cannot have the
unreserved right to continue to appear and plead and
conduct cases in the courts without any qualm or
remorse, the Bar Council cannot overrule such a
regulation concerning the orderly conduct of court
proceedings. Courts of law are structured in such a
design as to evoke respect and reverence for the
majesty of law and justice. The machinery for
dispensation of justice according to law is operated by
the court. Proceedings inside the courts are always
expected to be held in a dignified and orderly manner.
The very sight of an advocate, who was found guilty
of contempt of court on the previous hour, standing in
the court and arguing a case or cross-examining a
witness on the same day, unaffected by the
contemptuous behaviour he hurled at the court, would
erode the dignity of the court and even corrode the
majesty of it besides impairing the confidence of the
public in the efficacy of the institution of the courts.
This necessitates vesting of power with the High Court
to formulate rules for regulating the proceedings inside
the court including the conduct of advocates during
such proceedings. That power should not be confused
with the right to practise law. While the Bar Council
can exercise control over the latter, the High Court
should be in control of the former.
18. In the above context it is useful to quote the
following observations made by a Division Bench of
the Allahabad High Court in Prayag Das v. Civil
Judge, Bulandshahr {AIR 1974 All 133] : (AIR p. 136,
para 9)Page 30
30
“The High Court has a power to regulate the
appearance of advocates in courts. The right to
practise and the right to appear in courts are not
synonymous. An advocate may carry on chamber
practice or even practise in courts in various other
ways, e.g., drafting and filing of pleadings and
vakalatnama for performing those acts. For that
purpose his physical appearance in courts may
not at all be necessary. For the purpose of
regulating his appearance in courts the High Court
should be the appropriate authority to make rules
and on a proper construction of Section 34(1) of
the Advocates Act it must be inferred that the High
Court has the power to make rules for regulating
the appearance of advocates and proceedings
inside the courts. Obviously the High Court is the
only appropriate authority to be entrusted with
this responsibility.”
xxxxx
24. Purging is a process by which an undesirable
element is expelled either from one’s own self or from
a society. It is a cleaning process. Purge is a word
which acquired implications first in theological
connotations. In the case of a sin, purging of such sin
is made through the expression of sincere remorse
coupled with doing the penance required. In the case
of a guilt, purging means to get himself cleared of the
guilt. The concept of purgatory was evolved from the
word “purge”, which is a state of suffering after this
life in which those souls, who depart this life with
their deadly sins, are purified and rendered fit to enter
into heaven where nothing defiled enters (vide Words
and Phrases, Permanent Edn., Vol. 35-A, p. 307). In
Black’s Law Dictionary the word “purge” is given the
following meaning: “To cleanse; to clear. To clear or
exonerate from some charge or imputation of guilt, or
from a contempt.” It is preposterous to suggest that if
the convicted person undergoes punishment or if hePage 31
31
tenders the fine amount imposed on him the purge
would be completed.
xxxxx
27. We cannot therefore approve the view that merely
undergoing the penalty imposed on a contemnor is
sufficient to complete the process of purging himself of
the contempt, particularly in a case where the
contemnor is convicted of criminal contempt. The
danger in giving accord to the said view of the learned
Single Judge in the aforecited decision is that if a
contemnor is sentenced to a fine he can immediately
pay it and continue to commit contempt in the same
court, and then again pay the fine and persist with his
contemptuous conduct. There must be something more
to be done to get oneself purged of the contempt when
it is a case of criminal contempt.
28. The Disciplinary Committee of the Bar Council of
India highlighted the absence of any mode of purging
oneself of the guilt in any of the Rules as a reason for
not following the interdict contained in Rule 11. Merely
because the Rules did not prescribe the mode of
purging oneself of the guilt it does not mean that one
cannot purge the guilt at all. The first thing to be done
in that direction when a contemnor is found guilty of a
criminal contempt is to implant or infuse in his own
mind real remorse about his conduct which the court
found to have amounted to contempt of court. Next
step is to seek pardon from the court concerned for
what he did on the ground that he really and
genuinely repented and that he has resolved not to
commit any such act in future. It is not enough that he
tenders an apology. The apology tendered should
impress the court to be genuine and sincere. If the
court, on being impressed of his genuineness, accepts
the apology then it could be said that the contemnor
has purged himself of the guilt.”Page 32
32
28. In Bar Council of India versus High Court of
Kerala9
, 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
9
(2004) 6 SCC 311Page 33
33
proceeding under Section 345 of the Code of Criminal
Procedure. But if a law which is otherwise valid
provides for the consequences of such a finding, the
same by itself would not be violative of Article 14 of
the Constitution of India inasmuch as only because
another opportunity of hearing to a person, where a
penalty is provided for as a logical consequence
thereof, has been provided for. Even under the penal
laws some offences carry minimum sentence. The
gravity of such offences, thus, is recognised by the
legislature. The courts do not have any role to play in
such a matter.”
29. Reference was also made to the following observations
in Harish Uppal (supra):
“34………The right to practise, no doubt, is the genus
of which the right to appear and conduct cases in the
court may be a specie. But the right to appear and
conduct cases in the court is a matter on which the
court must and does have major supervisory and
controlling power. Hence courts cannot be and are not
divested of control or supervision of conduct in court
merely because it may involve the right of an
advocate. A rule can stipulate that a person who has
committed contempt of court or has behaved
unprofessionally and in an unbecoming manner will
not have the right to continue to appear and plead and
conduct cases in courts. The Bar Councils cannot
overrule such a regulation concerning the orderly
conduct of court proceedings. On the contrary, it will
be their duty to see that such a rule is strictly abided
by. Courts of law are structured in such a design as to
evoke respect and reverence to the majesty of law and
justice. The machinery for dispensation of justice
according to law is operated by the court. Proceedings
inside the courts are always expected to be held in a
dignified and orderly manner. The very sight of an
advocate, who is guilty of contempt of court or ofPage 34
34
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.”Page 35
35
30. In R.K. Anand (supra) it was held that even if there
was no rule framed under Section 34 of the Advocates Act
disallowing an advocate who is convicted of criminal
contempt is not only a measure to maintain dignity and
orderly function of courts, it may become necessary for the
protection of the court and for preservation of the purity of
court proceedings. Thus, the court not only has a right but
also an obligation to protect itself and save the purity of its
proceedings from being polluted, by barring the advocate
concerned from appearing before the courts for an
appropriate period of time10. 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
10 Paras 238, 239, 242Page 36
36
areas. This Court expressed hope and expected that the
Bar Council will take appropriate action for the restoration
of high professional standards among the lawyers, working
of their position in the judicial system and the society. It
was further observed:
“331. The other important issue thrown up by this
case and that causes us both grave concern and
dismay is the decline of ethical and professional
standards among lawyers. The conduct of the two
appellants (one convicted of committing criminal
contempt of court and the other found guilty of
misconduct as Special Public Prosecutor), both of them
lawyers of long standing, and designated Senior
Advocates, should not be seen in isolation. The bitter
truth is that the facts of the case are manifestation of
the general erosion of the professional values among
lawyers at all levels. We find today lawyers indulging
in practices that would have appalled their
predecessors in the profession barely two or three
decades ago. Leaving aside the many kinds of
unethical practices indulged in by a section of
lawyers we find that even some highly successful
lawyers seem to live by their own rules of conduct.
xxxxxxxx
333. We express our concern on the falling
professional norms among the lawyers with
considerable pain because we strongly feel that
unless the trend is immediately arrested and
reversed, it will have very deleterious consequences
for the administration of justice in the country. No
judicial system in a democratic society can work
satisfactorily unless it is supported by a Bar that
enjoys the unqualified trust and confidence of the
people, that shares the aspirations, hopes and the
ideals of the people and whose members are
monetarily accessible and affordable to the people.
xxxxxxxx
335. Here we must also observe that the Bar Council
of India and the Bar Councils of the different States
cannot escape their responsibility in this regard.
Indeed the Bar Council(s) have very positively taken
up a number of important issues concerning the
administration of justice in the country. It has
consistently fought to safeguard the interests of
lawyers and it has done a lot of good work for their
welfare. But on the issue of maintaining high
professional standards and enforcing discipline
among lawyers its performance hardly matches its
achievements in other areas. It has not shown much
concern even to see that lawyers should observe the
statutory norms prescribed by the Council itself. We
hope and trust that the Council will at least now sit
up and pay proper attention to the restoration of the
high professional standards among lawyers worthy
of their position in the judicial system and in the
society.”
31. In Re: Sanjiv Dutta & Ors.11
, it was observed that the
members of legal profession are required to maintain
exemplary conduct in and outside of the Court. The respect
for the legal system was due to role played by the stalwarts
of the legal profession and if there was any deviation in the
said role, not only the profession but also the
11 (1995) 3 SCC 619Page 38
38
administration of justice as a whole would suffer. In this
regard, relevant observations are :
“20. The legal profession is a solemn and serious
occupation. It is a noble calling and all those who
belong to it are its honourable members. Although the
entry to the profession can be had by acquiring merely
the qualification of technical competence, the honour as
a professional has to be maintained by the its members
by their exemplary conduct both in and outside the
court. The legal profession is different from other
professions in that what the lawyers do, affects not
only an individual but the administration of justice
which is the foundation of the civilised society. Both as
a leading member of the intelligential of the society and
as a responsible citizen, the lawyer has to conduct
himself as a model for others both in his professional
and in his private and public life. The society has a
right to expect of him such ideal behavior. It must not be
forgotten that the legal profession has always been
held in high esteem and its members have played an
enviable role in public life. The regard for the legal and
judicial systems in this country is in no small measure
due to the tiredness role played by the stalwarts in the
profession to strengthen them. They took their
profession seriously and practised it with dignity,
deference and devotion. If the profession is to survive,
the judicial system has to be vitalised. No service will
be too small in making the system efficient, effective
and credible. The casualness and indifference with
which some members practise the profession are
certainly not calculated to achieve that purpose or to
enhance the prestige either of the profession or of the
institution they are serving. If people lose confidence in
the profession on account of the deviant ways of some
of its members, it is not only the profession which will
suffer but also the administration of justice as a whole.
The present trend unless checked is likely to lead to a
stage when the system will be found wrecked fromPage 39
39
within before it is wrecked from outside. It is for the
members of the profession to introspect and take the
corrective steps in time and also spare the courts the
unpleasant duty. We say no more.”
32. In Bar Council of Maharashtra versus M.V.
Dabholkar12 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
12 (1976) 2 SCC 291Page 40
40
confidence may be kept undiminished at all times in
the belief that we shall always seek truth and justice
in the preservation of the rule of law. It must be a
conscience, not shaped by rigid rules of doubtful
validity, but answerable only to a moral code which
would drive irresponsible judges from the profession.
Without such a conscience, there should be no judge.
and, we may add, no lawyer.
Such is the high standard set for professional conduct
as expounded by courts in this country and
elsewhere.”
33. In Jaswant Singh versus Virender Singh13, it was
observed :
“36. …………. An advocate has no wider protection
than a layman when he commits an act which
amounts to contempt of court. It is most unbefitting for
an advocate to make imputations against the Judge
only because he does not get the expected result,
which according to him is the fair and reasonable
result available to him. Judges cannot be intimidated
to seek favorable orders. Only because a lawyer
appears as a party in person, he does not get a license
thereby to commit contempt of the Court by
intimidating the Judges or scandalising the courts. He
cannot use language, either in the pleadings or during
arguments, which is either intemperate or
unparliamentary. These safeguards are not for the
protection of any Judge individually but are essential
for maintaining the dignity and decorum of the Courts
and for upholding the majesty of law. Judges and
courts are not unduly sensitive or touchy to fair and
reasonable criticism of their judgments. Fair comments,
even if, out-spoken, but made without any malice or
attempting to impair the administration of justice and
made in good faith in proper language do not attract
13 1995 Supp.(1) SCC 384
any punishment for contempt of court. However, when
from the criticism a deliberate, motivated and
calculated attempt is discernible to bring down the
image of judiciary in the estimation of the public or to
impair the administration of justice or tend to bring the
administration of justice into disrepute the courts must
bistre themselves to uphold their dignity and the
majesty of law. The appellant, has, undoubtedly
committed contempt of the Court by the use of the
objectionable and intemperate language. No system of
justice can tolerate such unbridled licence on the part
of a person, be he a lawyer, to permit himself the
liberty of scandalising a Court by casting unwarranted,
uncalled for and unjustified aspersions on the integrity,
ability, impartiality or fairness of a Judge in the
discharge of his judicial functions as it amounts to an
interference with the dues course of administration of
justice.”
34. In Subrata Roy Sahara v. Union of India14
, 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
14 (2014) 8 SCC 470Page 42
42
fraternity, as also, from the superior judiciary up to the
highest level. Then and only then, will it be possible to
maintain equilibrium essential to deal with complicated
disputations which arise for determination all the time
irrespective of the level and the stature of the court
concerned. And also, to deal with such litigants.”
35. In Amit Chanchal Jha versus Registar, High Court
of Delhi15 this Court again upheld the order of debarring
the advocate from appearing in court on account of his
conviction for criminal contempt.
36. We may also refer to certain articles on the subject. In
“Raising the Bar for the Legal Profession” published in the
Hindu newspaper dated 15th September, 2012, Dr.
N.R.Madhava Menon wrote:
“……..Being a private monopoly, the profession is
organised like a pyramid in which the top 20 per cent
command 80 per cent of paying work, the middle 30 per
cent managing to survive by catering to the needs of the
middle class and government litigation, while the
bottom 50 per cent barely survive with legal aid cases
and cases managed through undesirable and
exploitative methods! Given the poor quality of legal
education in the majority of the so-called law colleges
(over a thousand of them working in small towns and
panchayats without infrastructure and competent
faculty), what happened with uncontrolled expansion
was the overcrowding of ill-equipped lawyers in the
bottom 50 per cent of the profession fighting for a piece
of the cake. In the process, being too numerous, the
middle and the bottom segments got elected to
15 (2015) 13 SCC 288Page 43
43
professional bodies which controlled the management
of the entire profession. The so-called leaders of the
profession who have abundant work, unlimited money,
respect and influence did not bother to look into what
was happening to the profession and allowed it to go its
way — of inefficiency, strikes, boycotts and public
ridicule. This is the tragedy of the Indian Bar today
which had otherwise a noble tradition of being in the
forefront of the freedom struggle and maintaining the
rule of law and civil liberties even in difficult times.
37. In “Browbeating, prerogative of lawyers”, published in
the Hindu newspaper dated 7th June, 2016, Shri S.
Prabhakaran, Co-Chairman of Bar Council of India and
Senior Advocate, in response to another Article “Do not
browbeat lawyers”, published in the said newspaper on
June 03, 2016, writes :
“……The next argument advanced against the rules is
that the threat of action for browbeating the judges is
intended to silence the lawyers. But the authors have
forgotten very conveniently that (i) when rallies and
processions were taken out inside court halls
obstructing the proceedings, (ii) when courts were
boycotted for all and sundry reasons in violation of the
law laid down by the Supreme Court in Ex-Capt.
Harish Uppal, (iii) when two instances of murder of
very notorious lawyers inside the Egmore court
complex took place on the eve of elections to the Bar
Associations, (iv) when a lady litigant who came to the
Family Court in Chennai was physically assaulted by
a group of lawyers who also coerced the police to
register a complaint against the victim, (v) when a
group of lawyers barged into the chamber of aPage 44
44
magistrate in Puducherry and wrongfully confined him
till he released a lawyer on his own bond in a criminal
complaint of sexual assault filed by a lady, (vi) when a
group of lawyers gheraoed a magistrate for not
granting bail and one of them spat on his face, leading
to strong protests by the Association of Judicial
Officers, and (vii) when very recently, a lady litigant
was physically assaulted by a group of lawyers for
sitting in the chair intended for lawyers inside the
court hall, lawyers such as the authors of the article
under response maintained a stoic silence.
Even lawyers who claim to be human rights activists
choose to be silent when the human rights of millions
of litigants are affected by boycott of courts. It shows
that some lawyers, like the authors of the article under
response, have always maintained silence and do not
mind being silenced by a few unruly members of the
Bar who go on the rampage at times. But they do not
want to be silenced by any rule prescribing a decent
code of conduct in court halls. The raison d'être
appears to be that browbeating is the prerogative of
the lawyers and it shall be allowed with impunity.”
Undesirability of convicted person to perform important
public functions:
38. It may also be appropriate to refer to the legal position
about undesirability of a convicted person being allowed to
perform important public functions. In Union of India
versus Tulsiram Patel16 it was observed that it was not
advisable to retain a person in civil service after
conviction.17. In Rama Narang versus Ramesh Narang18
16 (1985) 3 SCC 398
17 Para 153
18 (1995) 2 SCC 513Page 45
45
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 UOI19, this Court held that an elected
representative could not continue to hold the office after
conviction20. In Manoj Narula versus UOI21 similar
observation was made. In Election Commission versus
Venkata Rao22 the disqualification against eligibility for
contesting election was held to operate for continuing on the
elected post.
Interpretation of Section 24-A: Need to amend the
provision
39. Section 24A of the Advocates Act is as follows:
“24A. Disqualification for enrolment.—
(1) No person shall be admitted as an advocate on a
State roll—
(a) if he is convicted of an offence involving moral
turpitude;
(b) if he is convicted of an offence under the provisions
of the Untouchability (Offences) Act, 1955 (22 of 1955);
2[(c) if he is dismissed or removed from employment or
19 (2013) 7 SCC 653
20 Para 28.
21 (2014) 9 SCC 1
22 AIR 1953 SC 210Page 46
46
office under the State on any charge involving moral
turpitude. Explanation.—In this clause, the expression
“State” shall have the meaning assigned to it under
Article 12 of the Constitution:] Provided that the
disqualification for enrolment as aforesaid shall cease
to have effect after a period of two years has elapsed
since his 3[release or dismissal or, as the case may
be, removal.
(2) Nothing contained in sub-section (1) shall apply to
a person who having been found guilty is dealt with
under the provisions of the Probation of Offenders Act,
1958 (20 of 1958).”
40. Dealing with the above provision, the Division Bench of
the Gujarat High Court in C. versus Bar Council23
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.
23 (1982) 2 GLR 706
3. A corrupt apple cannot become a good apple with
passage of time. It is for the legal profession to
consider whether it would like such a provision to
continue to remain on the Statute Book and would like
to continue to adroit persons who have been convicted
for offences involving moral turpitude and persons who
have been found guilty of acceptance of illegal
gratification, rape, dacoits, forgery, misappropriation of
public funds, relating to counter felt currency and coins
and other offences of like nature to be enrolled as
members merely because two years have elapsed after
the date of their release from imprisonment. Does
passage of 2 years cleanse such a person of the
corrupt character trait, purify his mind and transform
him into a person fit for being enrolled as a member of
this noble profession? Enrolled so that widows can go
to him, matters pertaining to properties of minors and
matters on behalf of workers pitted against rich and
influential persons can be entrusted to him without
qualms. Court records can be placed at his disposal,
his word at the Bar should be accepted? Should a
character certificate in the form of a Black Gown be
given to him so that a promise of probity and
trustworthiness is held out to the unwary litigants
seeking justice? A copy of this order may, therefore, be
sent to the appropriate authorities concerned with the
administration of the Bar Council of India and the State
Bar Council, Ministry of Law of the Government of
India and Law Commission in order that the matter
maybe examined fully and closely with the end in view
to preserve the image of the profession and protect the
seekers for justice from dangers inherent in admitting
such persons on the rolls of the Bar Council.”
41. Inspite of the above observations no action appears to
have been taken at any level. The result is that a person
convicted of even a most heinous offence is eligible to be
enrolled as an advocate after expiry of two years from expiry
of his sentence. This aspect needs urgent attention of all
concerned.
42. Apart from the above, we do not find any reason to
hold that the bar applicable at the entry level is wiped out
after the enrollment. Having regard to the object of the
provision, the said bar certainly operates post enrollment
also. However, till a suitable amendment is made, the bar is
operative only for two years in terms of the statutory
provision.
43. In these circumstances, Section 24A which debars a
convicted person from being enrolled applies to an advocate
on the rolls of the Bar Council for a period of two years, if
convicted for contempt.
44. In addition to the said disqualification, in view
judgment of this Court in R.K. Anand (supra), unless a
person purges himself of contempt or is permitted by the
Court, conviction results in debarring an advocate from
appearing in court even in absence of suspension or
termination of the licence to practice. We therefore, uphold
the directions of the High Court in para 42 of the impugned
order quoted above to the effect that the appellant shall not
be permitted to appear in courts of District Etah until he
purges himself of contempt.
Inaction of the Bar Councils – Nature of directions
required
45. We may now come to the direction to be issued to the
Bar Council of Uttar Pradesh or to the Bar Council of India.
In the present case, inspite of direction of the High Court as
long back as more than ten years, no action is shown to
have been taken by the Bar Council. Notice was issued by
this Court to the Bar Council of India on 27th January, 2006
and after all the facts having been brought to the notice of
the Bar Council of India, the said Bar Council has also
failed to take any action. In view of such failure of the
statutory obligation of the Bar Council of the State of Uttar
Pradesh as well as the Bar Council of India, this Court has
to exercise appellate jurisdiction under the Advocates Act in
view of proved misconduct calling for disciplinary action. As
already observed, in SCBA case (supra), this Court
observed that where the Bar Council fails to take action
inspite of reference made to it, this Court can exercise suo
motu powers for punishing the contemnor for professional
misconduct. The appellant has already been given sufficient
opportunity in this regard.
46. We may add that what is permissible for this Court by
virtue of statutory appellate power under Section 38 of the
Advocates Act is also permissible to a High Court under
Article 226 of the Constitution in appropriate cases on
failure of the Bar Council to take action after its attention is
invited to the misconduct.
47. Thus, apart from upholding the conviction and
sentence awarded by the High Court to the appellant, except
for the imprisonment, the appellant will suffer automatic
consequence of his conviction under Section 24A of the
Advocates Act which is applicable at the post enrollment
stage also as already observed.
48. Further, in exercise of appellate jurisdiction under
Section 38 of the Advocates Act, we direct that the licence of
the appellant will stand suspended for a further period of
five years. He will also remain debarred from appearing inPage 51
51
any court in District Etah even after five years unless he
purges himself of contempt in the manner laid down by this
Court in Bar Council of India (supra) and R.K. Anand
(supra) and as directed by the High Court. Question (ii)
stands decided accordingly.
49. We thus, conclude:
(i) Conviction of the appellant is justified and is
upheld;
(ii) 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;
(iii) Under Section 24A of the Advocates Act, the
enrollment of the appellant will stand suspended
for two years from the date of this order;Page 52
52
(iv) As a disciplinary measure for proved misconduct,
the licence of the appellant will remain
suspended for further five years.
An Epilogue
50. While this appeal will stand disposed of in the manner
indicated above, we do feel it necessary to say something
further in continuation of repeated observations earlier
made by this Court referred to above. Legal profession
being the most important component of justice delivery
system, it must continue to perform its significant role and
regulatory mechanism and should not be seen to be wanting
in taking prompt action against any malpractice. We have
noticed the inaction of the Bar Council of Uttar Pradesh as
well as the Bar Council of India inspite of direction in the
impugned order of the High Court and inspite of notice to
the Bar Council of India by this Court. We have also
noticed the failure of all concerned to advert to the
observations made by the Gujarat High Court 33 years ago.
Thus there appears to be urgent need to review the
provisions of the Advocates Act dealing with regulatory
mechanism for the legal profession and other incidental
issues, in consultation with all concerned.
51. In a recent judgment of this Court in Modern Dental
College and Research Centre versus State of M.P. in
Civil Appeal No.4060 of 2009 dated 2nd May, 2016, while
directing review of regulatory mechanism for the medical
profession, this court observed that there is need to review
of the regulatory mechanism of the other professions as
well. The relevant observations are:
“There is perhaps urgent need to review the regulatory
mechanism for other service oriented professions also.
We do hope this issue will receive attention of
concerned authorities, including the Law Commission,
in due course.”
52. In view of above, we request the Law Commission of
India to go into all relevant aspects relating to regulation of
legal profession in consultation with all concerned at an
early date. We hope the Government of India will consider
taking further appropriate steps in the light of report of the
Law Commission within six months thereafter. The Central
Government may file an appropriate affidavit in this regard
within one month after expiry of one year.
53. To consider any further direction in the light of
developments that may take place, put up the matter for
further consideration one month after expiry of the period of
one year.
………………………………J.
(ANIL R. DAVE)
………………………………J.
(KURIAN JOSEPH)
………………………………J.
(ADARSH KUMAR GOEL)
New Delhi
July 05, 2016.
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