1 LL.B.

VI TERM Paper – LB-601 Advocacy,

Professional Ethics and Accountancy for Lawyers Course Materials Prepared by Madhu Bhatti
Ankeeta Gupta Mehpara Haq Faculty of Law University of Delhi Delhi – 110007 2017 For Private
Circulation Only 2 LL.B. VI TERM Paper – LB-601 Advocacy, Professional Ethics and Accountancy for
Lawyers Objectives of the Course: Professional ethics form the foundation in the lives of the lawyers.
Every person has been given the right to engage a lawyer of their choice to represent their case. It
means that lawyers have the constitutional obligation to take up the case of every person who
approaches them for legal representation. Does it mean that the lawyer is obligated to represent a
self-confessed murderer, rapist, and other accused persons who are alleged to have committed very
serious offences against the nation even though his conscience or his personal beliefs do not permit
that? How can the lawyer do that when his inner conscience revolts at the thought of represent a
certain category of persons? All clients approach the lawyer with hope and desire that their lawyers
will zealously represent their case. Does zealous representation mean that the lawyers must get the
relief sought by the clients by all means? Are there any boundaries set by law or professional ethics
that a lawyer must not cross? What is the role of truth and morality in determining the standards of
professional ethics for lawyers? What conduct amounts to professional misconduct? What are the
repercussions if a lawyer does not follows the principles of professional ethics? What are the
mechanisms set by law to deal with complaints of professional misconduct? These and many other
similar other questions trouble the mind of new entrants to law practice. The lawyers have to adopt
ethical practices in all spheres of their profession from meeting clients, giving them legal counseling,
presenting their cases before appropriate bodies, managing client’s accounts, etc. This paper covers
this wide spectrum of lawyers’ conduct and specifically aims to 1. Familiarize the students with the
legal provisions, guidelines, and judicial decisions on the subject of professional conduct for lawyers
2. Acquaint them with the opinions of the Bar Council of India on professional misconduct 3. Train
them in the skills of client interviewing and counseling 4. Teach them the basics of professional
accountancy The course will be conducted through lectures, case method as well as participatory
methods involving students in problem-solving, role plays, and simulation, etc. The full course is
primarily class based but students are encouraged to focus on ethical issues during their internship
in the other CLE course, namely, Moot Court, Mock Trial and Internship and raise those issues in the
classes in this course Learning Outcomes It is expected that at the end of semester, the students will
be able to 1. Identify situations of professional dilemmas 2. Recall and explain the principles of
professional ethics 3.

Take appropriate decisions when faced with any dilemma of professional ethics. 4. Interview and
counsel clients in a professional manner 5. Apply the basic principles of professional accountancy
Evaluation Method and Scheme The students will be evaluated out of 100 marks. Considering that
the course is aimed at providing theoretical knowledge and practical skills, evaluation for this course
has two components: (1) the endsemester written examination for 60 marks, and (2) classroom
evaluation for 40 marks. The end-semester written examination will consist of eight questions.
Students will be required to answer 5 questions of 12 marks each. The question paper may have
parts requiring a certain number of compulsory questions to be answered from each part. The
students are required to self-study the prescribed opinions of the Bar Council of India. There will be
a class test consisting of multiple choice questions based on these opinions of the Bar Council for 20
marks. 3 Students will be evaluated for ten marks on the basis of their performance in client
interviewing and counseling. 10 marks are for 100% attendance and 2 marks up to maximum of 10
marks will be deducted for each block of 5% attendance less than 100% attendance, i.e., 8 marks till
95%, 6 marks till 90%, 4 marks for 85%, 2 marks for 80% and no marks for less than 75%
attendance. Contents Prescribed Legislations: The Advocates Act, 1961 The Contempt of Courts Act,
1971 Prescribed Books: Krishnaswami Iyer’s Professional Conduct and Advocacy (1945), available at
https://archive.org/details/professionalcond029273mbp GCV Subba Rao, Commentary on Contempt
of Courts Act 1971 (2014) Ranadhir Kumar De, Contempt of Court Law & Practice (2012) Wadhwa
Book Company Francis L. Wellman, The Art of Cross Examination, available at
http://www.delhihighcourt.nic.in/library/articles/the%20art%20of%20cross%20examination[1].pdf
Suggested Readings: Justice Mirza Hameedullah Beg, Role of the Bench and the Bar, available at
http://www.allahabadhighcourt.in/event/RoleoftheBenchandtheBarMHBeg.pdf J.W. Smyth Q.C, The
Art of Cross Examination (1961), available at
http://www.allahabadhighcourt.in/event/RoleoftheBenchandtheBarMHBeg.pdf Champ S. Andrews,
The Law A Business or a Profession (1908), available at https://www.jstor.org/stable/pdf/784941.pdf
Ben W. Heineman, Jr., William F. Lee, David B. Wilkins, Lawyers as Professionals and as Citizens: Key
Roles and Responsibilities in the 21st Century (2014) available at
https://clp.law.harvard.edu/assets/Professionalism-Project-Essay_11.20.14.pdf Geoffey C. Hazard
Jr., Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering
Misconceptions Concerning Civil Lawsuits (2006), available at
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2091&context=faculty_scholarship
PART A- ADVOCACY I The Advocates Act, 1961- ( 4-5 Lectures) (a) Introduction : (i)Brief History of
Legal Profession in India (ii) Judge Edward Abbott Parry, The Seven Lamps of Advocacy (1923),
available at https://archive.org/details/sevenlampsofadvo00parr (b) Bar Councils- Section-4 to 7: Bar
Council of India, Bar Council to be body corporate, Functions of State Bar Councils and Functions of
Bar Council of India (c ) Admissions and Enrollment of Advocates – Section- 16 : Senior and other
Advocates, Section17 – State Bar Councils to maintain roll of Advocates, Section -22- Certificate of
Enrollment, Section- 24: Persons who may be admitted as an Advocates on state roll, Section- 24A:
Disqualification for Enrollment, Section 26A: Power to remove names from roll 4 (d) Right to Practise
: Section 29-30,33: Advocates to be only recognized class of persons entitled to practice, Right of
Advocates to Practise (e) Conduct of Advocates and Disciplinary Proceedings : Section 35-36,37-38 :
Punishment of Advocates for misconduct, Disciplinary Powers of Bar Council of India, Appeal to Bar
Council of India, Appeal to the Supreme Court Reading Material: Fifty Selected opinions of the
Disciplinary Committees of Bar Councils [only soft copy will be supplied to students] II Contempt Of
Court - Contempt of Courts Act, 1971 (a) Contempt - Meaning and Purpose section 2(a), Civil
Contempt 2 (b), Criminal Contempt 2 (c), Criminal Contempt - Mens Rea Principle in Contempt Cases
Contempt by State Government (3- 4 Lectures) 1. Maninderjeet Singh Bitta v. UOI, (2011) 11 SCALE
634 2. R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106 3. In Re Arundhati Roy, AIR 2002 SC
1375 4. Mrityunjoy Das v. Sayed Rahaman AIR 2001 SC 1293 (b) Defences – Sections 3 to 8 ( 2-3
Lectures) Innocent Publication, Fair and accurate report of judicial proceedings, Fair Criticism of
Judicial act, Complaint against presiding officers of subordinate courts , Publication of information
relating to proceedings in camera & other defences, Contempt and Freedom of Speech 5. Bhuramal
Swami v. Raghuveer Singh & Ors. (Judgment delivered on 21st Oct 2016) 6. Perspective Publication v.
State of Maharashtra, AIR 1970 SC 221 7. Narmada Bachao Andolan v. UOI, AIR 1999 SC 3345 (c )
Contempt by Judges & Magistrates- Section 16 ( One Lecture) (d) Punishment for Contempt -
Sections 10 to 13 (2-3 Lectures) Power of the High Court to punish contempt of subordinate courts
and try offences committed outside jurisdiction, Punishment for Contempt and Contempt not
punishable in certain cases, Purging of contempt 8. SC Bar Association v. UOI, AIR 1998 SC 1895 9.
Smt Pushpaben & others v. Narandas V Badani, AIR 1979 SC 1536 10. Daroga Singh v. B K Pandey,
(2004) 5 SCC 26 11. Pravin C. Shah v. K.

A. Mohd. Ali, (2001) 8 SCC 650 5 (e) Procedure Section 14- 15, 17-18 (2-3 Lectures) Procedure
where contempt is in the face of the Supreme Court or High Court, Cognizance of Criminal
Contempt, Procedure after Cognizance AND Hearing of Criminal Contempt cases by Benches,
12. R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106 13. In re Vinay Chandra
Mishra, (1995) 2 SCC 584 14. Bal Thackery v. Harish Pimpa and Others (2005) 1 SCC 254E
PART –B: Professional Ethics Rules Governing Advocates: (10-11 lectures) (a) Restrictions on
Senior Advocates (b) Standards of Professional Conduct and Etiquette (i) Duty to the Court
(ii) Duty to the Client (iii) Duty to the opponent (iv) Duty to Colleagues (v) Duty in Imparting
Training (vi) Duty to render Legal Aid (vii) Section on other employements (c) 50 Selected
Opinions of the Disciplinary Committees of the Bar Council of India, available at
http://203.153.33.250:8282/gsdl?e=d-010-00-off-1lawbook--00-1----0--0direct-10----4-------
0-1l--11-en50---20-about---00-3-1-00-00--4--0--0-0-11-10-0utfZz-8-
00&cl=CL1.1&d=HASH01690220b11483f79d156200&hl=0&gc=0>=0 (Self Reading for MCQ
Test during semester for 20 marks) (d) Cases on Professional Misconduct 15. An Advocate v.
Bar Council of India, 1989 Supp (2) SCC 25 16. Salil Dutta v. T.M. and M.C. (P) Ltd. (1993) 2
SCC 185 17. State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 71 18. C.
Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457 19. P.D. Gupta v. Ram
Murti, (1997) 7 SCC 147 20. T.C. Mathai v. District & Sessions Judge,Thiruvananthapuram,
(1999) 3 SCC 614 21. R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264 6 22. D.P.
Chadha v. Triyugi Narain Mishra, (2001) 2 SCC 221 23. Shambhu Ram Yadav v. Hanuman Das
Khatry, (2001) 6 SCC 1 24. Bhupinder Kumar Sharma v. Bar Assn., Pathankot, (2002) 1 SCC
470 25. Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45 (d) Rules relating to
Advocates’ Right to take up Law Teaching 26. Anees Ahmed v. University of Delhi, AIR 2002
Del. 440 PART C- Practical Training in Client Interviewing and Counseling 27. “Interviewing”
in Don Peters, The Joy of Lawyering, pp. 5-20 28. “Tips on Clients Interviewing and
Counselling” by Margaret Barry and Brian Landsberg 29. “Advice” in Conference Skills, Inns
of Court School of Law, pp 131-150 (1999/2000) 30. Kinds of Questions: Advantages and
Disadvantages, Summary prepared by Ved Kumari from Don Peters, The Joy of Lawyering 31.
Self-appraisal Questionnaire for Interviewers PART D- Accountancy for Lawyers (one lecture)
Management of time, human resources, office, etc, Accountancy knowledge for lawyers [like
evidentiary aspects, interpreting financial accounting statements in the process of lawyering,
etc], Nature and functions of accounting, important branches of accounting. Accounting and
Law, Use of knowledge of accountancy in Legal Disputes especially arising out of Law of
Contracts, Tax Law, etc., Accountancy in Lawyers’ office/firm: Basic financial statements, -
Income & Loss account, Balancesheet- Interpretation thereof, -Feature of Balance sheet
Standard Costing. 32. Standards of Professional Conduct and Etiquette: Duties to the Clients
*********************** 7 PART A – ADVOCACY Legal Profession in India The history of
the legal profession in India can be traced back to the establishment of the First British Court
in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the hands
of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s
Courts in 1726 in Madras and Calcutta, there were no legal practitioners. The Mayor’s
Courts, established in the three presidency towns, were Crown Courts with right of appeal
first to the Governor-in-Council and a right of second appeal to the Privy Council. In 1791,
Judges felt the need of experience, and thus the role of an attorney to protect the rights of
his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition
from Council members or the Governor. A second principle was also established during the
period of the Mayor’s Courts. This was the right to dismiss an attorney guilty of misconduct.
The first example of dismissal was recorded by the Mayor’s Court at Madras which dismissed
attorney Jones. The Supreme Court of Judicature was established by a Royal Charter in 1774.
The Supreme Court was established as there was dissatisfaction with the weaknesses of the
Court of the Mayor. Similar Supreme Courts were established in Madras in 1801 and
Bombay in 1823. The first barristers appeared in India after the opening of the Supreme
Court in Calcutta in 1774. As barristers began to come into the Courts on work as advocates,
the attorneys gave up pleading and worked as solicitors. The two grades of legal practice
gradually became distinct and separate as they were in England. Madras gained its first
barrister in 1778 with Mr. Benjamin Sullivan. Thus, the establishment of the Supreme Court
brought recognition, wealth and prestige to the legal profession. The charters of the Court
stipulated that the Chief Justice and three puisne Judges be English barristers of at least 5
years standing. The charters empowered the Court to approve, admit and enrol advocates
and attorneys to plead and act on behalf of suitors. They also gave the Court the authority to
remove lawyers from the roll of the Court on reasonable cause and to prohibit practitioners
not properly admitted and enrolled from practising in the Court. The Court maintained the
right to admit, discipline and dismiss attorneys and barristers. Attorneys were not admitted
without recommendation from a high official in England or a Judge in India. Permission to
practice in Court could be refused even to a barrister. In contrast to the Courts in the
presidency towns, the legal profession in the mofussil towns was established, guided and
controlled by legislation. In the Diwani Courts, legal practice was neither recognized nor
controlled, and practice was carried on by vakils and agents. Vakils had even been appearing
in the Courts of the Nawabs and there were no laws concerning their qualification,
relationship to the Court, mode of procedure of ethics or practice. There were two kinds of
agents – a. untrained relatives or servants of the parties in Court and b. professional
pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of 1793 was
enacted as it was felt that in order to administer justice, Courts, must have pleading of
causes 8 administered by a distinct profession Only men of character and education, well
versed in the Mohamedan or Hindu law and in the Regulations passed by the British
Government, would be admitted to plead in the Courts. They should be subjected to rules
and restrictions in order to discharge their work diligently and faithfully by upholding the
client’s trust. Establishment of the High Courts In 1862, the High Courts started by the Crown
were established at Calcutta, Bombay and Madras. The High Court Bench was designed to
combine Supreme Court and Sudder Court traditions. This was done to unite the legal
learning and judicial experience of the English barristers with the intimate experience of civil
servants in matters of Indian customs, usages and laws possessed by the civil servants. Each
of the High Courts was given the power to make rules for the qualifications of proper
persons, advocates, vakils and attorneys at Bar. The admission of vakils to practice before
the High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts.
It greatly extended the practice and prestige of the Indian laws by giving them opportunities
and privileges equal to those enjoyed for many years by the English lawyers. The learning of
 the best British traditions of Indian vakils began in a guru-shishya tradition: “Men like Sir V.
Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar were quick to
learn and absorb the traditions of the English Bar from their English friends and colleagues in
the Madras Bar and they in turn as the originators of a long line of disciples in the Bar passed
on those traditions to the disciples who continued to do the good work.” Additional High
Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919). There were
six grades of legal practice in India after the founding of the High Courts – a) Advocates, b)
Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents.
The Legal Practitioners Act of 1879 in fact brought all the six grades of the profession into
one system under the jurisdiction of the High Courts. The Legal Practitioners Act and the
Letters Patent of the High Courts formed the chief legislative governance of legal
practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was
enacted. In order to be a vakil, the candidate had to study at a college or university, master
the use of English and pass a vakil’s examination. By 1940, a vakil was required to be a
graduate with an LL.B. from a university in India in addition to three other certified
requirements. The certificate should be proof that a. he had passed in the examination b.
read in the chamber of a qualified lawyer and was of a good character. In fact, Sir Sunder Lal,
Jogendra Nath Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils who were raised
to the rank of an Advocate. Original and appellate jurisdiction of the High Court. The High
Courts of the three presidency towns had an original side. The original side included major
civil and criminal matters which had been earlier heard by predecessor Supreme Courts. On
the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney
and advocate. On the appellate side every lawyer practiced as his own attorney. However, in
Madras the vakils started practice since 1866. In 1874, the barristers cha
B.
C.
D. llenged their right to do original side work. However, in 1916, this right was firmly
established in favour of the vakils. Similarly, vakils in Bombay and Calcutta could be
promoted as advocates and become qualified to work on the original side. By attending the
appellate side and original side 9 Courts each for one year, a vakil of 10 years service in the
Court was permitted to sit for the advocates’ examination. Indian Bar Councils Act, 1926.
The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice
and to provide self-government to the Bars attached to various Courts. The Act required that
each High Court must constitute a Bar Council made up of the Advocate General, four men
nominated by the High Court of whom two should be Judges and ten elected from among
the advocates of the Bar. The duties of the Bar Council were to decide all matters concerning
legal education, qualification for enrolment, discipline and control of the profession. It was
favourable to the advocates as it gave them authority previously held by the judiciary to
regulate the membership and discipline of their profession. The Advocates Act, 1961 was a
step to further this very initiative. As a result of the Advocates Act, admission, practice,
ethics, privileges, regulations, discipline and improvement of the profession as well as law
reform are now significantly in the hands of the profession itself. 10 Excerpts: THE SEVEN
LAMPS OF ADVOCACY By EDWARD ABBOTT PARRY There are seven lamps of advocacy: The
lamp of honesty, the lamp of courage, lamp of industry, the lamp of wit, the lamp of
eloquence, the lamp of judgment, and the lamp of fellowship. I. THE LAMP OF HONESTY The
great advocate is like the great actor : he fills the stage for his span of life, succeeds, gains
our applause, makes his last bow, and the curtain falls. Nothing is so elusive as the art of
acting, unless indeed it be the sister art of advocacy. The young student of acting or
advocacy is eager to believe that there are no methods and no technique to learn, and no
school in which to graduate. Youth is at all times prone to act on the principle that there are
no principles, that there is no one from whom it can learn, and nothing to teach. Any one, it
seems, can don a wig and gown, and thereby become an advocate. Yet there are principles
of advocacy ; and if a few generations were to forget to practise these, it would indeed be a
lost art. The student of advocacy can draw inspiration and hope from the stored-up
experience of his elders. He can trace in the plans and life-charts of the ancients the paths
along which they strode, journeyed. They can be seen pacing the ancient halls with their
clients, proud of the traditions of their great profession — advocates — advocates all.
Without a free and honourable race of advocates the world will hear little of the message of
justice. Advocacy is the outward and visible appeal for the spiritual gift of justice. The
advocate is the priest in the temple of justice, trained in the mysteries of the creed, active in
its exercises. Advocacy connotes justice. Upon the altars of justice the advocate must keep
his seven lamps clean and burning rightly. In the centre of these must ever be the lamp of
honesty. The order of advocates is, in D'Aguesseau's famous phrase, " as noble as virtue."
Far back in the Capitularies of Charlemagne it was ordained of the profession of advocates "
that nobody should be admitted therein but men mild, pacific, fearing God, and loving
justice, upon pain of elimination." So may it continue, world without end. From the earliest,
Englishmen have understood that advocacy is necessary to justice, and honesty is essential
to advocacy. Every pleader who acts in the business of another should have regard to four
things : — First, that he be a person receivable in court, that he be no heretic, nor
excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the
order of sub- deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-
one years of age, nor judge in the same cause, nor open leper, nor man attainted of
falsification against the law of his office. Secondly, that every pleader is bound by oath that
he will not knowingly maintain or defend wrong or falsehood, but will abandon his client
immediately that he perceives his wrong-doing. Thirdly, that he will never have recourse to
false delays or false witnesses, and never allege, 11 proffer, or consent to any corruption,
deceit, lie, or falsified law, but loyally will maintain the right of his client, so that he may not
fail through his folly or negligence, nor by default of him, nor by default of any argument
that he could urge ; and that he will not by blow, contumely, brawl, threat, noise, or villain
conduct disturb any judge, party, serjeant, or other in court, nor impede the hearing or the
course of justice. Fourthly, there is the salary, concerning which four points must be
regarded — the amount of the matter in dispute, the labour of the serjeant, his value as a
pleader in respect of his (learning), eloquence, and repute, and lastly the usage of the
court." Nevertheless, although an advocate is bound by obligations of honour and probity
not to overstate the truth of his client's case, and is forbidden to have recourse to any
artifice or subterfuge which may beguile the judge, he is not the judge of the case, and
within these limits must use all the knowledge and gifts he possesses to advance his client's
claims to justice. Boswell asked Doctor Johnson whether he did not think " that the practice
of the law in some degree hurt the nice feeling of honesty ? " To whom the doctor replied : "
Why no, Sir, if you act properly. You are not to deceive your clients with false
representations of your opinion : you are not to tell lies to a judge." Boswell : " But what do
you think of supporting a cause which you know to be bad ? " Johnson : " Sir, you do not
know it to be good or bad till the judge determines it. I have said that you are to state facts
fairly ; so that your thinking, or what you call knowing, a cause to be bad must be from
reasoning, must be from your supposing your arguments to be weak and inconclusive. Lord
Chief Justice Cockburn, set forth his views of an advocate's duty, concluding with these
memorable words : " The arms which an advocate wields he ought to use as a warrior, not as
an assassin. He ought to uphold the interests of his client per fas, and not per nefas. He
ought to know how to reconcile the interests of his clients with the eternal interests of truth
and justice." If an advocate knows the law to be x, it is not honest to lead the court to
believe that it is y. Whether the advocate does this by directly mis-stating the law, or by
deliberately omitting to state it fully within the means of his knowledge, it is equally without
excuse, and dims the lamp of honesty. For the advocate must remember that he is not only
the servant of the client, but the friend of the court, and honesty is as essential to true
friendship as it is to sound advocacy. II. THE LAMP OF COURAGE Advocacy needs the " king-
becoming graces : devotion, patience, courage, for- titude." Advocacy is a form of combat
where courage in danger is half the battle. Courage is as good a weapon in the forum as in
the camp. The advocate, like Csesar, must stand upon his mound facing the enemy, worthy
to be feared, and fearing no man. Unless a man has the spirit to encounter difficulties with
firmness and pluck, he had best leave advocacy alone. 12 A modern advocate kindly
reproving a junior for his timidity of manner wisely said : " Remember it is better to be
strong and wrong than weak and right." The belief that success in advocacy can be attained
by influence, apart from personal qualifications, is ill-founded. It is very true that learning
begets courage, and wise self-confidence can only be founded on knowledge. The long years
of apprenticeship, the studious attention to "preperatives," are, to the advocate, like the
manly exercises of the young squire that enabled the knight of old to earn his spurs on the
field of battle. In no profession is it more certain that 4 4 knowledge is power," and when
the opportunity arrives, knowledge, and the courage to use it effectively, proclaim the
presence of the advocate. There have been many advocates whose courage was founded on
humor rather than knowledge, and who have successfully asserted their independence in
the face of an impatient or overbearing Bench through the medium of wit, where mere
wisdom might have failed in effect. Independence without moderation becomes
licentiousness, but true independence is an essential attribute of advocacy, and the English
Bar has never wanted men endowed with this form of true courage. The sacrifice of the
highest professional honors to the maintenance of principle has been a commonplace in the
history of English advocates, and the names of the living could be added if need be to those
who have passed away, leaving us this clean heritage as example. The true position of the
independence of the English Bar, the right and the duty of the advocate to appear in every
case, however poor, degraded, or wicked the party may be, is laid down once and for all in a
celebrated speech of Erskine's in his defence of Thomas Paine, who was indicted in 1792 for
publishing the Rights of Man. Great public indignation was expressed against Erskine for
daring to defend Paine. As he said in his speech, " In every place where business or pleasure
collects the public together, day after day, my name and character have been the topics of
injurious reflection. And for what ? Only for not having shrunk from the discharge of a duty
which no personal advantage recommended, and which a thousand difficulties repelled." He
then continued, in words which the learned editor of Howell's State Trials emphasises by
printing in capital letters, to enunciate one of the basic principles of English advocacy : "
Little, indeed, did they know me, who thought that such alumnies would influence my
conduct : I will for ever, at ALL HAZARDS, ASSERT THE DIGNITY, INDEPENDENCE, AND
INTEGRITY OF THE ENGLISH Bar ; without which, impartial justice, the most valuable part of
the English Constitution, can have no existence. From the moment that any advocate can be
permitted to say that he will or will not stand between the Crown and the subject arraigned
in the court where he daily sits to practise — from that moment the liberties of England are
at an end. If the advocate refuses to defend, from what he may think of the charge or of the
defence, he assumes the character of the judge ; nay, he assumes it before the hour of
judgment ; and, in proportion to his rank and reputation, puts the heavy influence of
perhaps a mistaken opinion into the scale against the accused, in whose favour the
benevolent principle of English law makes all presumptions, and which commands the very
judge to be his counsel." 13 William Henry Seward was acting in the defence of the negro
Freeman in 1846,who killed a farmer and several of his family. His advocacy was of no avail
to the negro, but his eloquent speech remains a noble statement of the duty of the
advocate, and a fine example of devotion and courage in the exercise of that duty. The
whole speech is worthy of study, as it contains a glowing and reasoned appeal for the right
of the most degraded human being in a civilised state to a real hearing of his case in a
judicial court, which can only be obtained through honest and competent advocacy. " In due
time, gentlemen of the jury, when I shall have paid the debt of nature, my remains will rest
here in your midst with those of my kindred and neighbours. It is very possible they may be
unhonoured, neglected, spurned ! But perhaps years hence, when the passion and
excitement which now agitate this community shall have passed away, some wandering
stranger, some lone exile, some Indian, some negro, may erect over them an humble stone,
and thereon this epitaph : ‘He was faithful.' " These words, as he desired, are engraved on
the marble over him, and he is remembered at the American Bar as an advocate who upheld
its best traditions, and feared not to hold aloft the Lamp of Courage. III.THE LAMP OF
INDUSTRY The first task of the advocate is to learn to labour and to wait. There never was a
successful advocate who did not owe some of his prowess to industry. From the biographies
of our ancestors we may learn that the eminent successful ones of each generation practised
at least enough industry in their day to preach its virtues to aspiring juniors. Work soon
becomes a habit. It may not be altogether a good habit, but it is better to wear out than to
rust out. Nothing, we are told, is impossible to industry. Certainly without industry the
armoury of the advocate will lack weapons on the day of battle. There must be years of what
Charles Lamb described with graceful alliteration as " the dry drudgery of the desk's dead
wood " before the young advocate can hope to dazzle juries with eloquent perorations,
confound dishonest witnesses by skilful cross-examination, and lead the steps of erring
judges into the paths of precedent. All great advocates tell us that they have had either
steady habits of industry or grand outbursts of work. Charles Russell had a continuous spate
of energy." Do something ! " Abraham Lincoln owed his sound knowledge of law to grim,
zealous industry. In after-life to every student who came near him his advice was, " Work !
work !work ! " Advocacy is indeed a life of industry. Each new success brings greater toil.
Campbell, writing home from the Oxford Circuit, describes the weary round of his daily task.
Some advocates suffer thus every day the court sits, whilst others sit round and suffer envy.
" I ought to have got 14 so far to-night on my way to Hereford, but we have a long day's
work before us, and I shall be obliged to travel all to-morrow night. You can hardly form a
notion of the life of labour, anxiety, and privation which I lead upon the circuit. I am up every
morning by six. I never get out of court till seven, eight, or nine in the evening, and, having
swallowed any indifferent fare that my clerk provides for me at my lodgings, I have
consultations and read briefs till I fall asleep. This arises very much from the incompetence
of the judge. It is from the incompetency of judges that the chief annoyances I have in life
arise. I could myself have disposed of the causes here in half the time the judge employed.
He has tried two causes in four days. Poor fellow, he is completely knocked up." An advocate
must study his brief in the same way that an actor studies his part. Success in advocacy is not
arrived at by intuition. You have to work hard and to think hard. I get some good help, as I
tell you. My mode of work is this : One of these young men reads the brief and makes a note
— a full one. I go through the note with him ' (smiling), ' cross-examining him, if you like.
Sometimes, I admit, it may not be necessary for me to read the brief; the note may be so
complete, and the man's knowledge of the case so exact, that I get everything from him. But
it often is — in fact, generally is — necessary to go to the brief. You have seen me reading
briefs here. I admit that I am quick in getting at the kernel of a case, and that saves me some
trouble ; but I must read the brief with my own eyes, or somebody else's.' " I said, ' Sir John
Karslake went blind because he could only read his brief with his own eyes. It is a great point
to be able to read your brief with somebody else's eyes !' " Russell— Well, well, well, that's
so ! but it is not intuition.' " I said, ' It has been said that O'Connell never read his brief when
he appeared for the defendant. He made his case out of the plaintiff's case.' " Russell — ‘I
don't think that is likely ; I think O'Connell knew his case — the vital points in his case —
before he went into court. There is often a great deal in a brief which is not vital, which is
not even pertinent. I can read a brief quickly ; I can take in a page at a glance, if you like ; I
can throw the rubbish over easily, and come right on the marrow of the case. But I can only
do that by reading the brief, or by the help of my friends. I learn a great deal at consultations
; I am not above taking hints from everybody, and I think carefully over everything that is
said to me ' (holding his hand up with open palm) ; ' I shut out no view. If I have a good
point, it is that I can see quickly the hinge on which the whole case turns, and I never lose
sight of it. But that is not intuition, my friend ; it is work.' " Industry in reading and book-
learning may make a man a good jurist, but the advocate must exercise his industry in the
double art of speaking and arranging his thoughts in ordered speech. He must be ready to
leave his books awhile and practise the athletics of eloquence with equal industry. The
silver-tongued Heneage Finch advises students " to study all the morning and talk all the
afternoon." For " bare reading without practice makes a student, but never makes him a
clever lawyer." Our fathers understood this better perhaps than we do, and made provision
of halls and cloisters and gardens, where students could take exercise and discuss the
mysteries of their profession when the hours of reading were over. 15 The days of
wandering in cloisters and gardens, putting cases to one's fellow- students, and listening to
the wisdom of elders by the margin of the fountain are, alas !not for us. But even today a
wise youngster should recognise that sitting in court to listen to the conduct of cases,
attendance at circuit mess and dining in Hall, where the law-talk of seniors may still on
occasion be of value — these things are all forms of industry, for the advocate can only learn
the true creed of his faith from oral tradition. If a man is endowed with health and industry,
the profession of an advocate is not “a rash and hazardous speculation." He may even
without blame give hostages to fortune, remembering that when Erskine made his first
appearance at the Bar his agitation nearly overcame him, and he was just about to sit down
a failure when, he says, “ I thought I felt my little children tugging at my gown, and the idea
roused me to an exertion of which I did not think myself capable." He succeeded, indeed, far
beyond his expectations, and he found, when he had overcome that first modest inertia
which benumbs even the greatest genius, that he was fully equipped to fight the battles of
his clients against all comers. And the reason of it was that he had not failed to read and
learn and digest beneath the Lamp of Industry. IV.THE LAMP OF WIT At the back of this little
word " wit " lies the idea of knowledge, understanding, sense. In its manifestation we look
for a keen perception of some incongruity of the moment. The murky atmosphere of the
court is illuminated by a flash of thought, quick, happy, and even amusing. Wit, wisely used,
bridges over a difficulty, smooths away annoyance, or perhaps turns aside anger, dissolving
embarrassment in a second's laughter." Laughter may be derisive, unkind, even cruel, or it
may be rightly used as a just weapon of ridicule wherewith to smite pretension and humbug.
It may be gracious and full of kindliness, putting a timid man at his ease, or instinct with
good-humour, softening wrath or mitigating tedious irrelevancy. It may be the due
recognition of a witty text preaching a useful truth, that could otherwise be expressed only
in a treatise :" From the earliest times wit has been a light to lighten the darkness of
advocacy. Pedants and bores resent all forms of wit, but a real humorist rejoices in nothing
so much as a good story against himself. Often the wit of an advocate will turn a judge from
an unwise course where argument or rhetoric would certainly fail. Lord Mansfield paid little
attention to religious holidays. He would sit on Ash- Wednesday, to the scandal of some
members of the Bar, whose protests made no impression upon him. At the end of Lent he
suggested that the court might sit on Good Friday. The members of the Bar were horrified.
Serjeant Davy, who was in the case, bowed in acceptance of the proposition." If your
lordship pleases ; but your lordship will be the first judge that has done so since Pontius
Pilate." The court adjourned until Saturday 16 "Wit is often the fittest instrument with which
to destroy the bubble of bombast. “ Wit may fairly be used to strip the cloak of pretension
from the shoulders of impudence. Holker was cross-examining a big vulgar Jew jeweller in a
money- lending case and began by looking him up and down in a sleepy dismal way and
drawled out : " Well, Mr. Moselwein, and what are you ? " " Agenschelman," replied the
jeweller with emphasis. " Just so, just so," ejaculated Holker with a dreary yawn, " but what
were you before you were a gentleman ? " Wit, skilfully used, is the kindliest and most
effective method of exhibiting the futility of judicial interruptions. " Where do you draw the
line, Mr. Bramwell ? " asked a learned judge in the Court of Common Pleas. " I don't know,
and I don't care, my lord. It is enough for me that my client is on the right side of it." Wit and
courtesy need never be divorced. They are, indeed, complementary. Wit, deftly used,
refreshes the spirit of the weary judge. Lord Chief Justice Coleridge, writing from the
Northern Circuit, says : " Gully was excellent. His phrase, when he asked for a stay of
execution ' in order to con- sider more at leisure some of your lordship's observations,'
tickled my fancy very much. Misdirection was never more courteously described." Satire or
irony is often in danger of being misunderstood by the simple- minded jury. Ridicule, to be
effective, must be pointed, even extravagant. In combating the defence of Act of God set up
by an American advocate defending a client on the charge of arson, Governor Wisher, for
the prosecution, disposed of the theory of spontaneous combustion, and succeeded in
satisfying the jury of its absurdity : " It is said, gentlemen, that this was Act cf God. It may be,
gentlemen. I believe in the Almighty's power to do it, but I never knew of His walking twice
round a straw stack to find a dry place to fire it, with double-nailed boots on so exactly fitting
the ones worn by the defendant." Bowen, on the Western Circuit, was less fortunate.
Prosecuting a burglar caught red-handed on the roof of a house, he left the case to the jury
in the following terms : " If you consider, gentlemen, that the accused was on the roof of the
house for the purpose of enjoying the midnight breeze, and, by pure accident, happened to
have about him the necessary tools of a housebreaker, with no dishonest intention of
employing them, you will, of course, acquit him." The simple sons of Wessex nodded
complacently at counsel, and, accepting his invitation, acquitted the prisoner. " brevity is the
soul of wit." Good advocacy displays the highest form of wit in an instinct for brevity. The
healthy appetite of judge and advocate alike is shown in a keenness to " get through the rind
of the orange and reach the pulp as soon as possible." 17 V. THE LAMP OF ELOQUENCE The
eloquence of advocates of the past must largely be taken on trust. There is no evidence of it
that is not hearsay. For, though we have the accounts of earwitnesses of the eloquence of
Erskine, Scarlett, Choate, or Lincoln, and can ourselves read their speeches, the effect of
their eloquence does not remain. We are told about it by those who experienced it, and can
believe or not as we choose. It is the same with actors. It requires genius to describe acting,
so that the reader captures some of the experience of the witness. The most eloquent
advocacy that is reported in print is to be found not in law reports, but in fiction — in the
speeches of Portia and SerjeantBuzfuz, for instance, where for all time the world continues
hanging on the lips of the advocate in excited sympathy with the client. There are some who
think that rhetoric at the Bar has fallen in esteem. The modern world has certainly lost its
taste for sweet and honeyed sentences, and sets a truer value on fine phrases and the
fopperies of the tongue ; but there will always be a high place in the profession for the man
who speaks good English with smooth elocution, and whose speeches fall within Pope's
description : Fit words attended on his weighty sense, And mild persuasion flow'd in
eloquence. The test of eloquence in advocacy is necessarily its effect upon those to whom it
is addressed. The aim of eloquence is persuasion. The one absolute essential is sincerity, or,
perhaps one should say, the appearance of sincerity. It would appear from the history of
advocacy that the flame of the lamp of eloquence may vary from time to time in heat and
colour. One cannot say that the style of one advocate is correct and another incorrect, since
the style is the attribute of the man and the generation he is trying to persuade. Yet,
however different the style may be, the essential power of persuasion must be present. He
must, as Hamlet says, be able to play upon his jury, knowing the stops, and sounding them
from the lowest note to the top of the compass. Brougham's tribute to Erskine's eloquence
is perhaps the best pen-picture of an English advocate we possess, and it is noticeable how
he emphasises this power of persuasion and endeavours to solve the psychology of it. He
places in the foreground the physical appearance of the man, a great factor in each style of
advocacy. " Nor let it be deemed trivial," he says, " or beneath the historian's province, to
mark that noble figure, every look of whose countenance is expressive, every motion of
whose form graceful, an eye that sparkles and pierces, and almost assures victory, while it 6
speaks audience ere the tongue.' Juries have declared that they felt it impossible to remove
their looks from him when he had riveted and, as it were, fascinated them by his first glance;
and it used to be a common remark among men who observed his motions that they
resembled those of a blood-horse, as light, as limber, as much betokening strength and
speed, as free from all gross superfluity or encumbrance. Then hear his voice of surpassing
sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness,
deficient in compass indeed, and much less fitted to express indignation, or even scorn, than
pathos, but wholly free from harshness or monotony. All these, however, and even his
chaste, dignified, and appropriate action, were very small parts of this wonderful advocate's
excellence. He had a thorough knowledge of men, of their passions, and their feelings — he
knew every avenue to the heart, and could at will make all its chords 18 vibrate to his touch.
His fancy, though never playful in public, where he had his whole faculties under the most
severe control, was lively and brilliant ; when he gave it vent and scope it was eminently
sportive, but while representing his client it was wholly subservient to that in which his
whole soul was wrapped up, and to which each faculty of body and of mind was subdued —
the success of the cause." Eloquence of manner is real eloquence, and is a gift not to be
despised. There is a physical as well as a psychological side to advocacy, documentary
evidence of which may be found in the old prints and portraits. Mr. Montagu Williams has
pointed out that the best English eloquence of his time was founded on what he calls a solid
style of advocacy. Nearly every great advocate has found it necessary to make use of the
eloquence of persuasion. Charles Russell is the one exception. He did not seek to persuade,
he directed the court and jury. Whether or not he was, as Lord Coleridge said, "the biggest
advocate of the century," he was undoubtedly a very great advocate. Clearness, force, and
earnestness were the basic qualities of his eloquence. It was said of him that "ordinarily the
judge dominates the jury, the counsel, the public, — he is the central figure of the piece. But
when Russell is there the judge isn't in it. Russell dominates every one.” The moral of the
lives of the advocates seems to be that in the house of eloquence there are many mansions,
and any style natural to the man who uses it is his right style, and may succeed. One
besetting sin of many would-be eloquent speakers is fatal, and that is bombast. And though
eloquence at its highest is a gift, the art of speaking can be learned and personal difficulties
overcome. De- mosthenes, with his pebbles in his mouth or running up a hill spouting an
oration, has been an example to us from the school- room. There is no golden rule of
method, but there is this golden principle to remember that the message of eloquence is
addressed to the heart rather than the brain." Gain the heart, or you gain nothing ; the eyes
and the ears are the only road to the heart. Merit and knowledge will not gain hearts,
though they will secure them when gained. Pray have that truth ever in your mind. Engage
the eyes by your address, air, and motions ; soothe the ears by the elegancy and harmony of
your diction ; the heart will certainly follow ; and the whole man and woman will as certainly
follow the heart." VI.THE LAMP OF JUDGMENT Judgment inspires a man to translate good
sense into right action. I would not quarrel with the philosopher who describes judgment as
an instinct, but I would bid him remember that even an instinct is acquired by " cunning "
rather than luck. Let no one think that he can attain to sound judgment without hard work.
The judgment of the advocate must be based on the maxim, " He that judges without
informing himself to the utmost that he is capable cannot acquit himself of judging amiss."
19 A client is entitled to the independent judgment of the advocate. Whether his judgment
is right or wrong, it is the duty of the advocate to place it at the disposal of his client. In the
business of advocacy judgment is the goods that the advocate is bound to deliver. Yet he is
under constant temptation to please his client by giving him an inferior article. The duty of
the advocate to give only his best. The above question frequently arises, and some counsel
have considered themselves bound to obey the wishes of the solicitor. There is no doubt
that this is the safest course for the advocate, for, if he does otherwise and the result is
adverse, he is likely to be much blamed, and the solicitor also is exposed to disagreeable
comments ; but I hold, and have always acted upon the opinion, that the client retains
counsel's judgment, which he has no right to yield to the wishes or opinions of any one else.
He is bound, if required, to return his brief, but if he acts against his own convictions he
sacrifices, I think, his duty as an advocate." An advocate of judgment has the power of
gathering up the scattered threads of facts and weaving them into a pattern surrounding and
emphasising the central point of the case. In every case there is one commanding theory, to
the proof of which all the facts must be skilfully marshalled. An advocate with one point has
infinitely greater chances than an advocate with twenty points. Rufus Choate was an
advocate of great judgment, and not only was he enthusiastic and diligent in searching for
the central theory, or 44 hub of his case, as he called it, but having made up his mind what it
was, he rightly put it forward without delay, believing that it was the "first strike" that
conquered the jury. Parker, his biographer, tells us that 44 he often said to me that the first
moments were the great moments for the advocate. Then, said he, the attention is all on the
alert, the ears are quicker, the mind receptive. People think they ought to go on gently, till,
somewhere about the middle of their talk, they will put forth all their power. But this is a sad
mistake. At the beginning the jury are all eager to know what you are going to say, what the
strength of your case is. They don't go into details and follow you critically all along : they try
to get hold of your leading notion, and lump it all up. At the outset, then, you want to strike
into their minds what they want — a good, solid, general view of your case ; and let them
think over that for a good while. 4 If,' said he emphatically, 4 you haven't got hold of them,
got their convictions at least open, in your first half-hour or hour, you will never get at them
at all.' " Abraham Lincoln had a genius for seeing the real point of his case and putting it
straight to the Court. A contemporary who was asked in later life what was Lincoln's trick
with the jury replied, " He saw the kernel of every case at the outset, never lost sight of it,
and never let it escape the jury. That was the only trick I ever saw him play.” In nothing does
the advocate more openly exhibit want of judgment than in prolixity. Modern courts of
justice are blamed by the public, not wholly without cause, for the length and consequent
expense of trials. To poor people this may mean a denial of justice. No one desires that the
judge should constantly interfere with counsel in the discharge of their duties, but it 20
seems to be his duty on occasion to blow his whistle and point out to the combatants that
they are offside. If every one connected with the trial of an action were to train and use his
judgment and cooperate with the judgments of his fellow-workers in a policy of anti-waste,
a great reproach would be lifted from our courts of justice. Prolixity is no new disease. " In
his lordship's conduct of trials he was very careful of three matters : 1. To adjust what was
properly the question, and to hold the counsel to that ; for he that has the worst end of the
staff, is very apt to fling off from the point and go out of the right way of the cause. 2. To
keep the counsel in order ; for in trials they have their parts and their times. His lordship
used frequently to inculcate to counsel the decorum of evidencing practice. 3. To keep down
repetition, to which the counsel, one after another, are very propense; The judgment of an
advocate may be called upon at any moment for a sudden decision that may mean the
victory or defeat of his client. For this reason it is necessary that he should be always alert.
The contents of his brief must be already in his mind, and his attention must be fixed on
what is happening in court, which has rarely been foreseen in the best-prepared brief ever
delivered to counsel. "Watch the case!" It is a golden rule. An advocate who is always
fumbling with his brief when he is examining a witness cannot follow the game that is on the
table before him. Sound judgment is essential to the ex- amination of witness. Two golden
rules handed down from the eighteenth century, and maybe from beyond, are still
unlearned lessons to each succeeding generation of advocates: 1. Never ask a question
without having a good reason to assign for asking it. 2. Never hazard a critical question
without having good ground to believe that the answer will be in your favour. Most re-
examination intending to rehabilitate the character of a witness is apt to make matters
worse. These stories of actual happenings, trivial in themselves, teach us the necessity of
judgment in advocacy. And I pray the young advocate not to rejoice too merrily over the
errors of judgment of his seniors or lament too grievously about his own. Bear in mind that
by acknowledged error we may learn wisdom, and that the only illuminant for the lamp of
judgment is the oil of experience. VII. THE LAMP OF FELLOWSHIP An advocate lacking in
fellowship, careless of the sacred traditions of brotherhood which have kept the lamp of
fellowship burning brightly for the English Bar through many centuries, a man who joins the
Bar merely as a trade or business, and does not understand that it is also a professional
community with public ideals, misses the heart of the thing, and he and his clients will suffer
accordingly. 21 Fitzjames Stephen wisely said of the English Bar that it is " exactly like a great
public school, the boys of which have grown older, and have exchanged boyish for manly
objects. There is just the same rough familiarity, the general ardour of character, the same
kind of unwritten code of morals and manners, the same kind of public opinion expressed in
exactly the same blunt, unmistakable manner.” It was for this reason that the judges always
addressed a serjeant as " Brother." It seems a pity that this fraternal greeting, this courteous
link of fellowship between Bench and Bar, necessarily disappeared with the abolition of
Serjeant's Inn. Yet, though the talisman is no longer spoken, the spirit of brotherhood will
always be with us. In the old days education in the law was undertaken very seriously, but in
a fraternal spirit. The reader would propound a case, the utter barristers would declare their
opinion, the reader would confute the objections laid against him, and the students would
eagerly note the learned points of the seniors. These readings took four or five hours daily,
and were held in the halls. The moots and the boltings took place after supper, and at other
times among the students under the leadership of a barrister. But the whole term was not
taken up with the dry study of the law. There were feastings, grand nights. For though some
of this ancientry is better honoured in the breach than the observance, yet even the
buffoonery, as Stephen called it, of Grand Court has its value as a link with the past. It is an
excellent thing for the profession that in the same way as the lessons of advocacy in the past
were learned by the young students from their elders, who sat at meat with them and
shared their lives in intimate and homely fashion, so to-day we enter a common Inn, dine at
a common table, join a common mess upon circuit, all of which is evidence of the
continuance of that right spirit of fellowship which, to my mind, is an essential of advocacy.
The fellowship of the Temple springs from its long traditions of brotherhood among the
Templars. To turn out of the Strand into its quiet courts brings over your brooding spirit
something of that sacred melancholy pleasure which one feels on entering the old school or
dining once again in the college hall. But you are no longer actor, art and part, in the school
and college life. Here in the Temple, though others are judges and benchers and fashionable
leaders, you can still wander in shabby honesty in the gardens, pull down some of the old
volumes in the library, and dine below the salt with your fellow-ancients. The Temple is full
of ghosts — honest ghosts with whom it is a privilege to claim fellowship. There are some
who speak of the Bar sneeringly as a Trade Union — which it certainly is, and to my thinking
one of the oldest and best unions. And if advocacy could be honestly described as a trade,
then the phrase trade union might be accepted without demurrer. For the basic quality of a
trade union, that which has made these institutions thrive against opposition, is the spirit of
fellowship and un- selfishness which is the ideal of its members. 22 We have seen how of old
the senior members of the Bar trained up the juniors in the mystery of their craft, and
throughout the practice of the profession it has always been a point of honour for the elders
to assist the beginners in those difficult days of apprenticeship. What could be more
delightful and encouraging to a youngster than to be received by his genial, handsome
leader in the presence of an admiring attorney. No man ever attains a position at the Bar in
which he can afford to despise the opinion of his fellow-men. The eulogies of public journals,
even the praise and patronage of attorneys, are of no worth compared with the respect of
the Bar. Charles Russell, during the course of a trial, cross-examined a lady with great
severity, and afterwards received an anonymous letter of a very abusive character, in which
he was charged with having been guilty of conduct in his cross-examination "which no
gentleman should pursue towards any woman." He thereupon sat down and wrote a letter
to the counsel on the other side, in which he said, " I should be sorry to think this was true,
but I am not the best judge of my own conduct," Russell's learned friend cleverly evaded
responsibility by telling him that the character of a gentleman was one " we all know you
eminently possess," with which certificate of character the great man was soothed and
satisfied. With the decay of circuits and the passing of old customs and the silence of ancient
convivialities, some of the spirit of fellowship may be lost. But we must remember that even
the good old days were not without evidence of professional malice and uncharitableness.
As far back as the reign of Francois I. it was a rule of the French Bar that " advocates must
not use contentious words or exclamations the one toward the other ; or talk several at the
same time, or interrupt each other." These words might still be engraved in letters of gold on
the walls of our own law-courts, for on occasion the lamp of fellowship burns so low that
such things occur. Still, at the English Bar we may claim that we set a good example to other
bodies of learned men by our real attachment to the precepts and practice of fellowship,
and may, without hypocrisy, commend the rest of mankind to follow in our footsteps, And
do as adversaries do in law, Strive mightily, but eat and drink as friends. 23 Contempt of
Court : Meaning Maninderjit Singh Bitta vs Union Of India & Ors (2011) 11 SCALE 634 Bench:
S.H. Kapadia, K.S. Radhakrishnan, Swatanter Kumar 1. Government of India, on 28th March,
2001, issued a notification under the provisions of Section 41(6) of the Motor Vehicles Act,
1988 (for short, `the Act') read with Rule 50 of the Motor Vehicles Rules, 1989 (for short,
`the Rules') for implementation of the provisions of the Act. This notification sought to
introduce a new scheme regulating issuance and fixation of High Security Number Plates. In
terms of sub-section (3) of Section 109 of the Act, the Central Government issued an order
dated 22nd August, 2001 which dealt with various facets of manufacture, supply and fixation
of new High Security Registration Plates (HSRP). The Central Government also issued a
notification dated 16th October, 2001 for further implementation of the said order and the
HSRP Scheme. Various States had invited tenders in order to implement this Scheme. 2. A
writ petition being Writ Petition (C) No.41 of 2003 was filed in this Court challenging the
Central Government's power to issue such notification as well as the terms and conditions of
the tender process. In addition to the above writ petition before this Court, various other
writ petitions were filed in different High Courts raising the same challenge. These writ
petitions came to be transferred to this Court. All the transferred cases along with Writ
Petition (C) No. 41 of 2003 were referred to a larger Bench of three Judges of this Court by
order of reference dated 26th May, 2005 in the case of Association of Registration Plates v.
Union of India [(2004) 5 SCC 364], as there was a difference of opinion between the learned
Members of the Bench dealing with the case. The three Judge Bench finally disposed of the
writ petitions vide its order dated 30th November, 2004 reported in Association of
Registration Plates v. Union of India Association of Registration Plates v. Union of India
[(2005) 1 SCC 679]. While dismissing the writ petition and the connected matters, the Bench
rejected the challenge made to the provisions of the Rules, statutory order issued by the
Central Government and the tender conditions and also issued certain directions for
appropriate implementation of the Scheme. 8. Now, we would examine certain principles of
law which would normally guide the exercise of judicial discretion in the realm of contempt
jurisdiction. `Contempt' is an extraordinary jurisdiction of the Courts. Normally, the courts
are reluctant to initiate contempt proceedings under the provisions of the 1971 Act. This
jurisdiction, at least suomoto, is invoked by the courts sparingly and in compelling
circumstances, as it is one of the foremost duty of the courts to ensure compliance of its
orders. The law relating to contempt is primarily dissected into two main heads of
jurisdiction under the Indian Law: (a) Criminal Contempt, and (b) Civil Contempt. It is now
well settled and explained principle under the Indian contempt jurisdiction that features,
ingredients, procedure, attendant circumstances of the case and the quantum of
punishment are the relevant and deciphering factors. Section 12 of the 1971 Act deals with
the contempt of court and its punishment while Section 15 deals with cognizance of criminal
contempt. Civil contempt would be wilful breach of an undertaking given to the court or
wilful disobedience of any judgment or order of the court, 24 while criminal contempt would
deal with the cases where by words, spoken or written, signs or any matter or doing of any
act which scandalises, prejudices or interferes, obstructs or even tends to obstruct the due
course of any judicial proceedings, any court and the administration of justice in any other
manner. Under the English Law, the distinction between criminal and civil contempt is stated
to be very little and that too of academic significance. However, under both the English and
Indian Law these are proceedings sui generis. While referring to Justice J.D. Kapoor's Law of
Contempt of Court, Second Edition, 2010 which mentioned the Phillimore Committee Report
- Report of the Committee on Contempt of Court, of which importantly the following
passage can be noticed: "4. In England and Wales most forms of contempt have been
regarded as of criminal character, and as such, are called "criminal contempts". In Scotland
contempt of court is not a crime nor is a distinction between "criminal" and "civil"
contemptsrecognised. Scots law regards contempt of court as a chapter of a law sui generis.
This difference of approach is of little more than academic significance in modern practice,
but the Scottish explain certain peculiar elements in its operation and procedure. What is of
particular importance is that it is branch of the law in which breaches are investigated by a
special and summary procedure and where, once established, they may be severely
punished." 9. Under the Indian Law the conduct of the parties, the act of disobedience and
the attendant circumstances are relevant to consider whether a case would fall under civil
contempt or a criminal contempt. For example, disobedience of an order of a court
simplicitor would be civil contempt but when it is coupled with conduct of the parties which
is contemptuous, prejudicial and is in flagrant violation of the law of the land, it may be
treated as a criminal contempt. Even under the English Law, the courts have the power to
enforce its judgment and orders against the recalcitrant parties. 10. In exercise of its
contempt jurisdiction, the courts are primarily concerned with enquiring whether the
contemnor is guilty of intentional and wilful violation of the orders of the court, even to
constitute a civil contempt. Every party to lis before the court, and even otherwise, is
expected to obey the orders of the court in its true spirit and substance. Every person is
required to respect and obey the orders of the court with due dignity for the institution. The
Government Departments are no exception to it. The departments or instrumentalities of
the State must act expeditiously as per orders of the court and if such orders postulate any
schedule, then it must be adhered to. Whenever there are obstructions or difficulties in
compliance with the orders of the court, least that is expected of the Government
Department or its functionaries is to approach the court for extension of time or
clarifications, if called for. But, where the party neither obeys the orders of the court nor
approaches the court making appropriate prayers for extension of time or variation of order,
the only possible inference in law is that such party disobeys the orders of the court. In other
words, it is intentionally not carrying out the orders of the court. Flagrant violation of the
court's orders would reflect the attitude of the concerned party to undermine the authority
of the courts, its dignity and the administration of justice. In the case of Re: Vinay Chandra
Mishra [(1995) 2 SCC 584], this Court held that `judiciary has a special and additional duty to
perform, viz., to oversee that all individuals and institutions including the executive and the
legislature act within the framework of not only the law but also the fundamental law of the
land. This duty is apart from the function of adjudicating the disputes between the parties
which 25 is essential to peaceful and orderly development of the society. Dignity and
authority of the Courts have to be respected and protected at all costs'. 11. Another very
important aspect even of the Civil Contempt is, `what is the attribution of the contemnor?'
There may be cases of disobedience where the respondent commits acts and deeds leading
to actual disobedience of the orders of the court. Such contemnor may flout the orders of
the court openly, intentionally and with no respect for the rule of law. While in some other
cases of civil contempt, disobedience is the consequence or inference of a dormant or
passive behaviour on the part of the contemnor. Such would be the cases where the
contemnor does not take steps and just remains unmoved by the directions of the court. As
such, even in cases where no positive/active role is directly attributable to a person, still, his
passive and dormant attitude of inaction may result in violation of the orders of the court
and may render him liable for an action of contempt. 12. It is not the offence of contempt
which gets altered by a passive/negative or an active/positive behaviour of a contemnor but
at best, it can be a relevant consideration for imposition of punishment, wherever the
contemnor is found guilty of contempt of court. With reference to Government officers, this
Court in the case of E.T. Sunup v. Canss Employees Assoc.. [(2004) 8 SCC 683] took the view
that it has become a tendency with the Government officers to somehow or the other
circumvent the orders of the Court by taking recourse to one justification or the other even
if ex-facie they are unsustainable. The tendency of undermining the court orders cannot be
countenanced. Deprecating practice of undue delay in compliance with the orders of the
court, this Court again in the case of M.C. Mehta v. Union of India and Ors. [(2001) 5 SCC
309] observed : ".....clear lapse on the part of NCT and Municipal Corporation. Even if there
was not deliberate or wilful disregard for the court orders, there has clearly been a
lackadaisical attitude and approach towards them. Though no further action in this matter
need be taken for now, but such lethargic attitude if continues may soon become
contumacious." 13. It is also of some relevancy to note that disobedience of court orders by
positive or active contribution or non-obedience by a passive and dormant conduct leads to
the same result. Disobedience of orders of the court strikes at the very root of rule of law on
which the judicial system rests. The rule of law is the foundation of a democratic society.
Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and
functions effectively and remain true to the spirit with which they are sacredly entrusted,
the dignity and authority of the courts have to be respected and protected at all costs (refer
T.N. GodavarmanThirumulpad's case [(2006) 5 SCC 1]. The proceedings before the highest
court of the land in a public interest litigation, attain even more significance. These are the
cases which come up for hearing before the court on a grievance raised by the public at
large or public spirited persons. The State itself places matters before the Court for
determination which would fall, statutorily or otherwise, in the domain of the executive
authority. It is where the State and its instrumentalities have failed to discharge its statutory
functions or have acted adversely to the larger public interest that the courts are called upon
to interfere in exercise of their extraordinary jurisdiction, to ensure maintenance of the rule
of law. These are the cases which have impact in rem or on larger section of the society and
not in personamsimplicitor. Courts are called upon to exercise jurisdiction with twin objects
in mind. Firstly, to punish the persons who have disobeyed or not carried out orders of the
court i.e. for their past conduct. Secondly, to pass such orders, including 26 imprisonment
and use the contempt jurisdiction as a tool for compliance of its orders in future. This
principle has been applied in the United States and Australia as well. For execution of the
orders of the court even committal for an indefinite term has been accepted under
Australian law [Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd.
(1986) 161 CLR 98 (Australian High Court)] and American law, though this is no longer
permissible under English Law. While referring to detention of a person for a long period to
ensure execution of the orders in Re Nevitt [117 F. 448, 461 (1902)] Judge Sanborn observed
that the person subjected to such a term `carries the keys of his prison in his own pocket.'
Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any
defence in an action for contempt. Inordinate delay in complying with the orders of the
courts has also received judicial criticism. It is inappropriate for the parties concerned to
keep theexecution of the court's orders in abeyance for an inordinate period. Inaction or
even dormant behaviour by the officers in highest echelons in the hierarchy of the
Government in complying with the directions/orders of this Court certainly amounts to
disobedience. Inordinate delay of years in complying with the orders of the court or in
complying with the directed stipulations within the prescribed time, has been viewed by this
Court seriously and held to be the contempt of court, as it undermines the dignity of the
court. Reference in this regard can be made to ManiyeriMadhavan v. Inspector of Police,
Cannanore [AIR 1993 SC 356] and Anil RatanSarkar and Ors. v. HirakGhosh and Ors. [(2002) 4
SCC 21]. Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not
been held to be a sufficient ground of defence in a contempt proceeding. Obviously, the
purpose is to ensure compliance of the orders of the court at the earliest and within
stipulated period. 14. Reverting back to the facts of the present case, it is undisputed that
for years together the State of Haryana has failed to comply with the directions of this Court
and implement the scheme. It has not only caused prejudice to the public at large but has
even undermined the dignity of this Court. The attitude of the State of Haryana and the
respective officers has been lackadaisical and of willful disregard. Despite repeated orders
they have failed to take effective steps and whatever steps were taken the same are not in
conformity with law. The repeated Orders of this Court have failed to bring any results from
the recalcitrant State. The repeated opportunities and extension of time did not help in
expeditious progress in the matter. On the contrary, there is apparent disobedience of the
Orders of this Court and no compliance with the Orders of this court, by their completely
passive and dormant behaviour. This behaviour, besides causing serious problems in the
effective implementation of statutory scheme, has even undermined the dignity of this
Court and impinged upon the basic rule of law. At the cost of repetition, we may notice that
there is not even a word of explanation as to why no steps were taken by the State of
Haryana for a long period of seven years and why tender has not been awarded till date. The
vague averments made in the affidavit are nothing but a lame excuse to somehow avoid the
present proceedings. The State of Haryana and the concerned officers, namely, the
Secretary, Transport and the Commissioner, State Transport Authority have violated the
Orders of this Court and are liable for the consequences of such disobedience. 15. It was
expected of the officers in-charge and particularly the Secretary, Transport and
Commissioner, State Transport Authority of the State of Haryana to at least carefully read
the orders of this Court and ensure their implementation in their correct perspective. We
would have expected such high officers of the State to act fairly, expeditiously and in
accordance with the orders of this Court. If the concerned State would have taken timely
and appropriate steps in accordance with the law and the orders of this Court, it would have
not only saved the time of the 27 Court, which it had spent on repeated hearings, but would
have also saved the public money that it had spent so far. 16. We have no hesitation in
coming to the conclusion that the Secretary, Transport and the Commissioner, State
Transport Authority of the State of Haryana is guilty of willful disobedience/non-compliance
of the orders of this Court, particularly the orders dated 30th November 2004, 7th April
2011 and 30th August 2011. Having found them guilty under the provisions of the 1971 Act
and under Article 129 of the Constitution of India, we punish the Secretary, Transport and
Commissioner, State Road Transport Authority of the State of Haryana as under : i) They are
punished to pay a fine of Rs.2,000/- each and in default, they shall be liable to undergo
simple imprisonment for a period of fifteen days; ii) We impose exemplary cost of
Rs.50,000/- on the State of Haryana, which amount, at the first instance, shall be paid by the
State but would be recovered from the salaries of the erring officers/officials of the State in
accordance with law and such recovery proceedings be concluded within six months. The
costs would be payable to the Supreme Court Legal Services Committee. iii) In view of the
principle that the courts also invoke contempt jurisdiction as a tool for compliance of its
orders in future, we hereby direct the State Government and the respondent/contemner
herein now to positively comply with the orders and implement the scheme within eight
weeks from today. Copy of this order be circulated to the Chief Secretary/Competent
Authority of all the States/U.T.s. It is ordered accordingly. 28 R.K. Anand v. Registrar, Delhi
High Court (2009) 8 SCC 106 AFTAB ALAM, J. 1. The present is a fall out from a criminal trial
arising from a hit and run accident on a cold winter morning in Delhi in which a car travelling
at reckless speed crashed through a police check post and crushed to death six people,
including three policemen. Facing the trial, as the main accused, was a young person called
Sanjeev Nanda coming from a very wealthy business family. According to the prosecution,
the accident was caused by Sanjeev Nanda who, in an inebriated state, was driving a black
BMW car at very high speed. The trial, commonly called as the BMW case, was meandering
endlessly even after eight years of the accident and in the year 2007, it was not proceeding
very satisfactorily at all from the point of view of the prosecution. The status of the main
accused coupled with the flip flop of the prosecution witnesses evoked considerable media
attention and public interest. To the people who watch TV and read newspapers it was yet
another case that was destined to end up in a fiasco. It was in this background that a well
known English language news channel called New Delhi Television (NDTV) telecast a
programme on May 30, 2007 in which one Sunil Kulkarni was shown meeting with IU Khan,
the Special Public Prosecutor and RK Anand, the Senior Defence Counsel (and two others)
and negotiating for his sell out in favour of the defence for a very high price. Kulkarni was at
one time considered the most valuable witness for the prosecution but afterwards, at an
early stage in the trial, he was dropped by the prosecution as one of its witnesses. Nearly
eight years later, the trial court had summoned him to appear and give his testimony as a
court witness. The telecast came a few weeks after the court order and even as his evidence
in the trial was going on. According to NDTV, the programme was based on a clandestine
operation carried out by means of a concealed camera with Kulkarni acting as the mole.
What appeared in the telecast was outrageous and tended to confirm the cynical but widely
held belief that in this country the rich and the mighty enjoyed some kind of corrupt and
extra-constitutional immunity that put them beyond the reach of the criminal justice system.
Shocked by the programme the Delhi High Court suo moto initiated a proceeding (Writ
Petition (Criminal) No. 796 of 2007). It called for from the news channel all the materials on
which the telecast was based and after examining those materials issued show cause notices
to RK Anand, IU Khan and Bhagwan Sharma, an associate advocate with RK Anand why they
should not be convicted and punished for committing criminal contempt of court as defined
under Section 2(c) of the Contempt of Courts Act. (In the sting operations there was another
person called Lovely who was apparently sent to meet Kulkarni as an emissary of RK Anand.
But he died in a freak accident even before the stage of issuance of notice in the proceeding
before the High Court). On considering their show cause and after hearing the parties the
High Court expressed its displeasure over the role of Bhagwan Sharma but acquitted him of
the charge of contempt of court. As regards RK Anand and IU Khan, however, the High Court
found and held that their acts squarely fell within the definition of contempt under clauses
(ii) & (iii) of Section 2(c) of the Contempt of Courts Act. It, accordingly, held them guilty of
committing contempt of Court vide judgment and order dated August 21, 2008 and in
exercise of power under Article 215 of the Constitution of India prohibited them, by way of
punishment, from appearing in the Delhi High Court and the courts subordinate to it for a
period of four months from the date of the judgment. It, however, left them free to carry on
their other professional work, e.g., `consultations, advises, conferences, opinion etc'. It also
held that RK Anand and IU Khan had forfeited their right to be 29 designated as Senior
Advocates and recommended to the Full Court to divest them of the honour. In addition to
this the High Court also sentenced them to fine of rupees two thousand each. 2. These two
appeals by RK Anand and IU Khan respectively are filed under Section 19(1) of the Contempt
of Courts Act against the judgment and order passed by the Delhi High Court. THE CONTEXT
3. Before proceeding to examine the different issues arising in the case it is necessary to first
know the context in which the whole sordid episode took place. It will be, therefore, useful
to put together the basic facts and circumstances of the case at one place. The occurance in
which six people lost their lives was reconstructed by the prosecution on the basis of police
investigation as follows: The crime, the Police investigation & proceedings before the Trial
court 4. On January 10, 1999 at about half past four in the morning a speeding vehicle
crashed through a police check-post on one of the Delhi roads and drove away leaving
behind six people dead or dying. As the speeding car hit the group of persons standing on
the road some were thrown away but two or three persons landed on the car's bonnet and
rolled down to the ground under it. The car, however, did not stop. It moved on dragging
along the persons who were caught in its underside. It halted only after the driver lost
control and going down a distance of 200-300 feet hit the road divider. At this point the
occupants came down from the car to inspect the scene. They looked at the front and the
rear of the car and would not have failed to notice the persons caught under the car who
were still crying for help and who perhaps might have been saved if they were taken out
even at that stage. But the anxiety of the car's occupants to leave the accident site without
delay seemed to override all other considerations. They got back into the car, reversed it and
drove on. The car went on dragging the unfortunate victims trapped under it to certain and
ghastly death and left behind at the accident site dismembered limbs and dead bodies of
men. 5. The police investigation brought to light that the accident was caused by a black
BMW car which was being driven by Sanjeev Nanda. He was returning from a late night
party, under the influence of liquor, along with some friend(s). 6. Five days after the
accident, on January 15, 1999 one Sunil Kulkarni contacted the Joint Commissioner of Police,
Delhi, and claimed to be an eye witness to the occurrence. According to his story, at the time
of the accident he was passing through the spot, on foot, on his way to the Nizamuddin
Railway Station for catching a train for Bhopal. He described the accident in considerable
detail and stated that at the sight of so many people being mowed down by the car he got
completely unnerved. He proceeded for the railway station and on reaching there tried to
ring up the police or the emergency number 100 but was unable to get through. He finally
went to Bhopal and on coming back to Delhi, being bitten by conscience, he contacted the
police. What was of significance in Kulkarni's statement is that the accident was caused by a
car and when it stopped after hitting the people a man alighted from the driving seat and
examined the front and rear of the car. Then, another person got down from the passenger
seat called the other, “Sanjeev”, and urged that they should go. On the same day his
statement was recorded by the police under Section 161 of the Code of Criminal Procedure
(CrPC). The following day he was shown Nanda's BMW car at Lodhi Colony Police Station and
he identified it as the one that had caused the accident. On January 21, 1999 Kulkarni's
statement was recorded before a magistrate under Section 164 of CrPC. Before the
magistrate, in regard to the accident, he substantially 30 reiterated the statement made
before the police, lacing it up with details about his stay in Delhi from January 7 and his
movements on the evening before the accident. In the statement before the magistrate the
manner of identification of Sanjeev Nanda was also the same with the addition that after the
accident when the car moved again the person on the driving seat was trying to look for the
way by craning out his head out of the broken glass window and thus he was able to see him
from a distance of no more than three and a half feet when the car passed by his side. The
police wanted to settle the question of the driver's identification by having Kulkarni identify
Sanjeev Nanda in a test identification parade but Sanjeev Nanda refused to take part in any
identification parade. Then, on March 31, 1999 when Sanjeev Nanda was produced in court
Kulkarni also happened to be there. He identified him to the investigating officer as the
driver of the car causing accident. 7. Kulkarni's arrival on the scene as an eye witness of the
tragic accident got wide publicity and he was generally acclaimed as a champion of the
public cause. He must have appeared to the police too as godsend but soon there were
reasons for the police to look at him completely differently. He had given as his address a
place in Mumbai. A summons issued by the trial court on the Mumbai address given by him
returned unserved. The report dated August 30, 1999 on the summons disclosed that he had
given a wrong address and his actual address was not known to anyone. It also stated that
he was a petty fraudster who had defrauded several people in different ways. The report
concluded by saying that he seemed to be a person of shady character. 8. At the same time
Kulkarni also turned around. On August 31, 1999 a Habeas Corpus petition (Writ Petition
(Crl) No. 846/99) was filed in the Delhi High Court making the allegation that he was being
held by the Delhi Police in wrongful confinement. On the following day (September 1, 1999)
when the writ petition was taken up the allegations were denied on behalf of the police.
Moreover, Kulkarni was personally present in Court. The Court, therefore, dismissed the writ
petition without any directions. Next, Kulkarni filed a petition (through a lawyer) before the
trial court on September 13, 1999. In this petition, he stated that on the date of occurrence,
that is, January 10, 1999 itself he had told the police that the accident was caused by a truck.
But the police was adamant not to change the version of the FIR that was already registered
and on the basis of which five persons were arrested. The police forced him to support its
story, and his earlier statements were made under police coercion. 9. On September 23,
1999 a clash took place between some policemen and some members of the bar in the
Patiala House court premises for the `custody' of Kulkarni. A complaint about the alleged
high handed actions of the police was formally lodged before the court and a notice was
issued to the Jt. Commissioner. In response to the notice the Jt. Commissioner submitted a
long and detailed report to the court on September 27, 1999. In the report, apart from
defending the action of the policemen the Jt. Commissioner had a lot of things to say about
Kulkarni’s conduct since he became a witness for the prosecution in the BMW case. He
noted that he would never give his address or any contact number to any police official. His
life style had completely changed. He lived in expensive hotels and moved around in big
cars. The Jt. Commissioner enclosed with his report a copy of the print-out of the cell phone
of Kulkarni (the number of which he had given to one of the police officers) that showed that
as early as on July 17, 1999 he was in touch with the counsel for the defence RK Anand (one
of the appellants) and his junior Mr. Jai Bhagwan, Advocate and even with Suresh Nanda,
father of Sanjeev Nanda. He cited several other instances to show Kulkarni’s duplicity. The
long and short of the report was that Kulkarni was bought off by the defence. He was in
collusion with the defence and was receiving 31 fat sums of money from the family of the
accused. He was trying to play the two ends against the middle and he was completely
unreliable. 10. On September 30, the date fixed for his examination, Kulkarni was duly
present in court. He was, however, represented by his own lawyer and not by the
prosecuting counsel. He was quite eager to depose. But the prosecution no longer wanted to
examine him. IU Khan, the Special Prosecutor filed a petition stating that on the instructions
of the State he gave up Kulkarni as one of the prosecution witness on the ground that he
was won over by the accused. He also submitted before the court the report of the Joint
Commissioner dated September 27. The allegation that he was won over was of course,
denied both by Kulkarni and the accused. The court, however, discharged him leaving the
question open as to what inference would it draw as a result of his non- examination by the
prosecution. 11. Earlier to Kulkarni's exit from the case, the prosecution had lost two other
key witnesses. To begin with there were three crucial witnesses for the prosecution. One
was Hari Shankar Yadav, an attendant on a petrol pump near the site of the tragedy; the
other was one Manoj Malik who was the lone survivor among the victims of the accident
and the third of course was Kulkarni. Hari Shankar Yadav was examined before the court on
August 18, 1999 and he resiled from his earlier statement made before the police. Manoj
Malik was scheduled to be examined on August 30, 1999 but he seemed to have
disappeared and the police was unable to trace him out either in Delhi or at his home
address in Orissa. On the date fixed in the case, however, he appeared in court, not with the
prosecution team but with two other lawyers. He was examined as a witness
notwithstanding the strong protest by the prosecution who asked for an adjournment. Not
surprisingly, he too turned hostile. Lastly, Kulkarni too had to be dropped as one of the
prosecution witness in the circumstances as noted above. 12. The trial proceeded in this
manner and over a period of the next four years the prosecution examined around sixty
witnesses on the forensic and other circumstantial aspects of the case. The prosecution
finally closed its evidence on August 22, 2003. Thereafter, the accused were examined under
Section 313 of CrPC and a list of defence witnesses was furnished on their behalf. While the
case was fixed for defence evidence two applications came to be filed before the trial court,
one was at the instance of the prosecution seeking a direction to the accused Sanjeev Nanda
to give his blood sample for analysis and comparison with the blood stains found in the car
and on his clothes, and the other by the defence under Section 311 of CrPC for recalling nine
prosecution witnesses for their further cross-examination. By order dated March 19, 2007
the trial court rejected both the applications. It severely criticised the police for trying to
seek its direction for something for which the law gave it ample power and authority. It also
rejected the petition by the defence for recall of witnesses observing that the power under
Section 311 of CrPC was available to the court and not to the accused. At the end of the
order the court observed that the only witness in the case whose statement was recorded
under Section 164 of CrPC was Kulkarni and even though he was given up by the
prosecution, the court felt his examination essential for the case. It, accordingly, summoned
Kulkarni to appear before the court on May 14, 2007. Kulkarni thus bounced back on the
stage with greater vigour than before. MEDIA INTERVENTION 13. In the trial court the matter
was in this state when another chapter was opened up by a TV channel with which we are
primarily concerned in this case. On April 19, 2007 one Vikas Arora, Advocate, an assistant of
IU Khan sent a complaint in writing to the Chief Editor, NDTV with copies to the
Commissioner of Police and some other authorities. In the complaint it was alleged 32 that
one Ms Poonam Agarwal, a reporter of the TV Channel was demanding copies of statements
of witnesses and the Police Case-diary of the BMW case and was also seeking an interview
with IU Khan or the complainant, his junior. On their refusal to meet the demands she had
threatened to expose them through some unknown person and to let the people know that
the police and the public prosecutor had been influenced and bribed by the accused party.
He requested the authorities to take appropriate action against Poonam Agarwal. 14. On
April 20, 2007 NDTV telecast a half hour special programme on how the BMW case was
floundering endlessly even after more than seven years of the occurrence. Apparently, the
telecast on April 20, 2007 brought Poonam Agarwal and Kulkarni together. According to
Poonam Agarwal, on April 22, 2007 she received a phone call from Kulkarni who said that he
was deeply impressed by the programme telecast by her channel and requested for a
meeting with her. (The version of Kulkarni is of course quite different). She met him on April
22 and 23. He told her that in the BMW case the prosecution was hand in glove with the
defence; he wanted to expose the nexus between the prosecution and the defence and
needed her help in that regard. Poonam Agarwal obtained the approval of her superiors and
the idea to carry out the sting operation using Kulkarni as the decoy was thus conceived. 15.
Even while the planning for the sting operation was going on, NDTV on April 26 gave reply to
the notice by Vikas Arora. In their reply it was admitted that Poonam Agarwal had sought an
interview with Arora's senior which was denied for reasons best known to him. All other
allegations in Arora's notice were totally denied and it was loftily added that the people at
NDTV were conscious of their responsibilities and obligations and would make continuous
efforts to unravel the truth as a responsible news channel. 16. On April 28, 2007 Kulkarni
along with one Deepak Verma of NDTV went to meet IU Khan in the Patiala House court
premises. For the mission Poonam Agarwal `wired' Kulkarni, that is to say, she equipped him
with a concealed camera and a small electronic device that comprised of a tiny black button-
shaped lens attached to his shirt front connected through a wire to a small recorder with a
microchip hidden at his backside. Before sending off Kulkarni she switched on the camera
and waited outside the court premises in a vehicle. Deepak Verma from the TV channel was
sent along to ensure that everything went according to plan. He was carrying another
concealed camera and the recording device in his handbag. Kulkarni and Deepak Verma
were able to meet IU Khan while he was sitting in the chamber of another lawyer. Kulkarni
entered into a conversation with IU Khan inside the crowded chamber (the details of the
conversation we will examine later on at its proper place in the judgment). The conversation
between the two that took place inside the chamber was recorded on the microchips of
both the devices, one worn by Kulkarni and the other carried by Deepak Verma in his bag.
After a while, on Kulkarni's request, both IU Khan and Kulkarni came out of the chamber and
some conversation between the two took place outside the chamber. The recording on the
microchip of Kulkarni's camera was copied onto magnetic tapes and from there to compact
discs (CDs). The microchip in Kulkarni's camera used on April 28, 2007 was later reformatted
for other uses. Thus, admittedly that part of the conversation between Kulkarni and IU Khan
that took place on April 28, 2007 outside the chamber is available only on CD and the
microchip on which the original recording was made is no longer available. The second
operation was carried out on May 6, 2007 when Kulkarni met RK Anand in the VIP lounge at
the domestic terminal of IGI Airport. The recording of the meeting was made on the
microchip of the concealed camera carried by Kulkarni. 33 17. On May 8, 2007 the third sting
operation was carried out when Kulkarni got into the back seat of RK Anand's car that was
standing outside the Delhi High Court premises. RK Anand was sitting on the back seat of the
car from before. The recording shows Kulkarni and RK Anand in conversation as they
travelled together in the car from Delhi High Court to South Extension. 18. In the evening of
the same day the fourth and final sting operation was carried out in South Extension Part II
market where Kulkarni met one Bhagwan Sharma, Advocate and another person called
Lovely. Bhagwan Sharma is one of the juniors working with RK Anand and Lovely appears to
be his handyman who was sent to negotiate with Kulkarni on behalf of RK Anand. 19.
According to Poonam Agarwal, in all these operation she was only at a little distance from
the scene and was keeping Kulkarni, as far as possible, within her sight. 20. According to
NDTV, in all these operations a total of five microchips were used. Four out of those five
chips are available with them in completely untouched and unaltered condition. One
microchip that was used in the camera of Kulkarni on April 28, 2007, as noted above, was
reformatted after its contents were transferred onto a CD. 21. On May 13, 2007 NDTV
recorded an interview by Kulkarni in its studio in which Kulkarni is shown saying that after
watching the NDTV programme (on the BMW case) he got in touch with the people from the
channel and told them that the prosecution and the defence in the case were in league and
he knew how witnesses in the case were bought over by the accused and their lawyers. He
also told NDTV that he could expose them through a sting operation. He further said that he
carried out the sting operation with the help of NDTV. He first met IU Khan who referred him
to RK Anand. He then met some people sent by RK Anand, including someone whose name
was `Lovely or something like that'. As to his objective he said quite righteously that he did
the sting operation `in the interest of the judiciary'. In answer to one of the questions by the
interviewer he replied rather grandly that he would ask the court to provide him security by
the NSG and he would try to go and depose as soon as security was provided to him. In the
second part of the interview the interviewer asked him about the accident and in that regard
he said briefly and in substance what he had earlier stated before the police and the
magistrate. Back to the Court 22. It is noted above that by order dated March 19, 2007 the
trial court had summoned Kulkarni to appear before it as a court witness on May 14, 2007.
The defence took the matter to the Delhi High Court (in Crl. M.C. No. 1035/2007 with Crl. M.
3562/2007) assailing the trial court order rejecting their prayer to recall some prosecution
witnesses for further crossexamination and suo moto summoning Kulkarni under Section
311 of CrPC, to be examined as a court witness. The matter was heard in the High Court on
several dates. In the meanwhile Kulkarni was to appear before the trial court on May 14,
2007. Hence, the High Court gave interim directions allowing Kulkarni to be examined by the
court but not to put him to any crossexaminations till the disposal of the petition being
argued before it. The petition was finally disposed of by a detailed order dated May 29,
2007. The High Court set aside the trial court order rejecting the defence petition for recall
of certain prosecution witnesses and asked the trial court to reconsider the matter. It also
held that the trial court's criticism of the police was unwarranted and accordingly, expunged
those passages from its order. However, insofar as summoning of Kulkarni was concerned
the High Court held that there was no infirmity in the trial court order and left it
undisturbed. 34 23. On May 14, 2007 Kulkarni appeared before the trial court but on that
date, despite much persuasion, the court was not able to get any statement from him. From
the beginning he asked for an adjournment on the plea that he was not well. In the end the
court adjourned the proceedings to May 17 with the direction to provide him police
protection. On May 17, the examination of Kulkarni commenced and he described the
accident more or less in the same way as in his statements before the police and the
magistrate. He said that the accident was caused by a black car (and not by a truck) but
added that the car was coming from his front and its light was so strong that he could not
see much. He said about his identification of the car at the Lodhi Colony police station. But
on the question of identification of the driver there was a significant shift from his earlier
statements. He told the court that what he had heard was one of the occupants urging the
other to go calling him "Sanch or Sanz". He had also heard another name `Sidh' being
mentioned among the car's occupants. In reply to the court's question he said that in his
statement before the magistrate under Section 164 of CrPC he had stated the name
`Sanjeev', and not the nick names that he actually heard, under pressure from some police
officials. He said that he was also put under pressure not to take the name of Sidharth Gupta
and some police official told him that he was not in the car at the time of the accident. He
said that apart from the name that he heard being uttered by the occupant(s) of the car and
the number of persons he saw getting down from the car the rest of his statement under
Section 164 was correct. He said that actually three, and not two, persons had got down
from the car. The court then asked him to identify the persons who came out of the
offending car. Kulkarni identified Sanjeev Nanda who was present in court. He further said
that the third occupant of the car was a hefty boy whom he did not see in the court. At this
point IU Khan explained that he might be referring to Sidharth Gupta who was discharged by
the order of the High Court. Kulkarni added that he was unable to identify the second
occupant of the car and went on to declare, even without being asked, he could not say who
came out of the driver's side. He was shown Manik Kapoor, another accused in the case, as
one the occupants of the car but he said that after lapse of nine years he was not in a
position to identify him. 24. On May 29 Kulkarni was cross examined on behalf of the
Prosecution by IU Khan. The prosecutor confronted him with his earlier statements recorded
under Sections 161 and 164 of CrPC and he took it as opportunity to move more and more
away from the prosecution case. He admitted that Sanjeev Nanda was one of the occupants
of the car but positively denied that he came out from the driving seat of the offending car.
He elaborated that the one to come out from the driving seat of the car was a fat, hefty boy
who was not present on that date. (It does not take much imagination to see that he was
trying to put Sidharth Gupta on the driving seat of the car who had been discharged from
the case by the order of the Delhi High Court and was thus in no imminent danger from his
deposition!). He denied that he disowned or changed some portions from his earlier
statements under the influence of the accused persons. On May 29 Kulkarni's cross-
examination by IU Khan was incomplete and it was deferred to May 31. But before that
NDTV telecast the sting programme that badly jolted not only everyone connected with the
BMW trial but the judicial system as well. THE TELECAST 25. Based on the sting operations
NDTV telecast a programme called India 60 Minutes (BMW Special) on May 30, 2007 at 8.00
p.m. It was followed at 9.00 pm, normally reserved for news, as `BMW Special'. From a
purely journalistic point of view it was a brilliant programme designed to have the greatest
impact on the viewers. The programmes commenced with the anchors (Ms. Sonia Singh in
the first and Ms. Barkha Dutt in the second telecast) making some 35 crisp and hard hitting
introductory remarks on the way the BMW case was proceeding which, according to the two
anchors, was typical of the country's legal system. The introductory remarks were followed
by some clips from the sting recordings and comments by the anchors, interspersed with
comments on what was shown in the programme by a host of well known legal experts. 26.
It is highly significant for our purpose that both the telecasts also showed live interviews
with RK Anand. According to the channel's reporter, who was posted at RK Anand's
residence with a mobile unit, he initially declined to come on the camera or to make any
comments on the programme saying that he would speak only the following day in the court
at the hearing of the case. According to the reporter, in course of the telecast Sanjeev Nanda
also arrived at the residence of RK Anand and joined him in his office. He too refused to
make any comments on the on-going telecast. But later on RK Anand came twice on the TV
and spoke with the two anchors giving his comments on what was being shown in the
telecasts. We shall presently examine whether the programmes aired to the viewers were
truly and faithfully based on the sting operations or whether in the process of editing for
preparing the programmes any slant was given, prejudicial to the two appellants. This is of
course subject to the premise that the Court has no reason to suspect the original materials
on which the programme was based and it is fully satisfied in regard to the integrity and
authenticity of the recordings made in the sting operations. That is to say, the recordings of
the sting operations were true and pure and those were not fake, fabricated, doctored or
morphed. 27. In regard to the telecast it needs to be noted that though the sting operations
were complete on May 8, 2007 and all the materials on which the telecast would be based
were available with the TV channel, the programme came on air much later on May 30. The
reason for withholding the telecast was touched upon by the anchors who said in their
introductory remarks that after the sting operations were complete and just before his
testimony began in court Kulkarni withdrew his consent for telecasting the programmes.
Nevertheless, after taking legal opinion on the matter NDTV was going ahead with the airing
of programme in larger public interest. Towards the end of the nine o'clock programme the
anchor had a live discussion with Poonam Agarwal in which she elaborated upon the reason
for withholding the telecast for about three weeks. Concerning Kulkarni, Poonam Agarwal
said that he was the main person behind the stings and the sting operation was planned at
his initiative. He had approached her and said to her that he wished to bring out into the
open the nexus between the prosecution and the defence in the BMW case. He had also said
to her that in connection with the case he was under tremendous pressure from both sides.
But after the stings were complete he changed his stand and would not agree to the telecast
of the programme based on the stings. In the discussion between the anchor and Poonam
Agarwal it also came to light that initially NDTV had seen Kulkarni as one of the victims of the
system but later on he appeared in highly dubious light. The anchor said that they had no
means to know if he had received any money from any side. Poonam Agarwal who had the
occasion to closely see him in course of the sting operations gave instances to say that he
appeared to her duplicitous, shifty and completely unreliable. 28. NDTV took the interview
of RK Anand even as the first telecasts were on and thus what he had to say on what was
being shown on the TV was fully integrated in the eight o'clock and nine o'clock programmes
on May 30. IU Khan was interviewed on the following morning when a reporter from the TV
channel met him at his residence with a mobile transmission unit. The interview was live
telecast from around eight to twenty three past eight on the morning of May 36 31. But that
was the only time his interview was telecast in full. In the programmes telecast later on, one
or two sentences from his interview were used by the anchor to make her comments. 29. In
his interview IU Khan basically maintained that from the clandestine recording of his
conversation with Kulkarni, pieces, were used out of context and selectively for making the
programme and what he spoke to Kulkarni was deliberately misinterpreted to derive
completely wrong inferences. He further maintained that in his meeting with Kulkarni he
had said nothing wrong much less anything to interfere with the court's proceeding in the
pending BMW case. Impact of the telecast: 30. On the same day IU Khan withdrew from the
BMW case as Special Public Prosecutor. Before his withdrawal, however, he produced
before the trial court a letter that finds mention in the trial court order passed on that date,
written in the hand of Kulkarni stating that he collected the summons issued to him by the
court from SHO, Lodhi Colony Police Station on the advice of IU Khan. 31. The trial court
viewed the telecast by NDTV very seriously and issued notice to its Managing Director
directing to produce `the entire unedited original record of the sting operation as well as the
names of the employees/reporters of NDTV who were part of the said sting operation' by
the following day. 32. The further cross-examination of Kulkarni was deferred to another
date on the request of the counsel replacing IU Khan as Special Public Prosecutor. 33. On
June 1, 2007, RK Anand had a legal notice sent to NDTV, its Chairman, Directors and a host of
other staff asking them to stop any further telecasts of their BMW programme and to tender
an unconditional apology to him failing which he would take legal action against them inter
alia for damages amounting to rupees fifty crores. NDTV gave its reply to the legal notice on
July 20, 2007. No further action was taken by RK Anand in pursuance of the notice. HIGH
COURT TAKES NOTICE 34. On the same day (May 31, 2007) a Bench of the Delhi High Court
presided over by the Chief Justice took cognisance of the programme telecast by NDTV the
previous evening and felt compelled to examine all the facts. The Court, accordingly,
directed the Registrar General `to collect all materials that may be available in respect of the
telecast including copies of CDs/Video and transcript and submit the same for consideration
within 10 days'. The court further directed NDTV `to preserve the original material including
the CDs/Video pertaining to the aforesaid sting operation.' 36. On June 2, 2007, Ms. Poonam
Agarwal of NDTV submitted before the High Court six CDs; one of the CDs (marked `1') was
stated to be edited and the remaining five (marked `2'-`6') unedited. In a written statement
given on the same day she declared that NDTV News Channel did not have any other
material in connection with the sting operation. She also stated that in accordance with the
direction of the Court, NDTV was preserving the original CDs/ Videos relating to the sting
operation. On June 6, 2007, Poonam Agarwal submitted true transcripts of the CDs duly
signed by her on each page. She also gave a written statement on that date stating that the
CDs submitted by her earlier were duplicated from a tape-recording prepared from four spy
camera chips which were recorded on different occasions. (As we shall see later on, the total
number of microchips used in all the four stings was actually five and not four). She also gave
the undertaking, on behalf of NDTV that those original chips would be duly preserved. 37 39.
In Poonam Agarwal's affidavit NDTV took the stand that the stings were conceived and
executed by Kulkarni. Its own role was only that of the facilitator. Kulkarni would choose the
date and time and venue of the meetings where he would like to do the sting. He would fix
up the meetings not in consultation with Poonam Agarwal but on his own. He would simply
tell her about the meetings and she would provide him with the wherewithal to do the sting.
She would not ask him when and how and for what purpose the meeting was fixed even
though it may take place at such strange places as the VIP lounge of the airport or a car
travelling from outside the Delhi High Court to South Extension. She would not ask him even
about any future meetings or his further plans. Proceeding resumes: 42. On August 7, 2007,
the Court on a consideration of all the materials coming before it came to the view that
prima facie the actions of RK Anand, IU Khan, Bhagwan Sharma and Lovely (who was dead
by then) were aimed at influencing the testimony of a witness in a manner so as to interfere
with the due legal process. Their actions thus clearly amounted to criminal contempt of
court as defined under Clause (ii) & (iii) of Section 2(c) of the Contempt of Courts Act. The
Court accordingly passed the following order: From your aforesaid acts and conduct as
discerned from the CDs and their transcripts, the affidavit 23rd July, 2007 of Ms. Poonam
Agarwal along with its annexures, we are, prima facie, satisfied that you Mr. R.K. Anand,
Senior Advocate, Mr. I. U. Khan, Senior Advocate, Mr. Sri Bhagwan, Advocate and Mr. Lovely
have wilfully and deliberately tried to interfere with the due course of judicial proceedings
and administration of justice by the courts. Prima facie your acts and conduct as aforesaid
was intended to subvert the administration of justice in the pending trial and in particular
influence the outcome of the pending judicial proceedings. Accordingly, in exercise of the
powers under Article 215 of the Constitution of India, we do hereby direct initiation of
proceedings for contempt and issuance of notice to you, Mr. RK Anand, Senior Advocate,
Mr. IU Khan, Senior Advocate, Mr. Shri Bhagwan, Advocate and Mr. Lovely to show cause as
to why you should not be proceeded and punished for contempt of court as defined under
Section 2(c) of the Contempt of Courts Act and under Article 215 of the Constitution of India.
You are, therefore, required to file your reply showing cause, if any, against the action as
proposed within four weeks. 43. In response to the notice RK Anand, instead of filing a show
cause, first filed a petition (on September 5, 2007) asking one of the judges on the Bench,
namely, Manmohan Sarin J. to recuse himself from the hearing of the matter. The recusal
petition and the review petition arising from it were rejected by the High Court by orders
dated October 4 and November 29, 2007. We will be required to consider the unpleasant
business of the recusal petition in greater detail at its proper place later in the judgment. 46.
On October 1, IU Khan filed his affidavit in reply to the notice issued by the High Court and
RK Anand and Bhagwan Sharma filed their affidavits on October 3, 2007. YET ANOTHER
TELECAST 47. In the evening of December 3, 2007 NDTV telecast yet another programme
from which it appeared that RK Anand and Kulkarni were by no means strangers to each
other and the association between the two went back several years in the past. Kulkarni,
under the assumed name of Nishikant, had stayed in RK Anand's villa in Shimla for some
time. There he also had a brush with the law and was arrested by the police in Una (HP). He
had spent about forty five 38 days in jail. From the HP police record it appeared that after
coming on the scene in the BMW case he spent some time in hotels in Rajasthan and
Gurgaon with the Nanda's paying the bills. 48. This time RK Anand did not give any legal
notice to NDTV seeking apology or claiming damages etc. but on the following day
(December 4) he made a complaint about the telecast before the Court. The Court directed
NDTV to produce all the original materials concerning the telecast and its transcript. The
Court further directed NDTV to file an affidavit giving details in regard to the collection of the
materials and the making of the programme. 49. In response to the High Court's direction
one Deepak Bajpai, Principal Correspondent with NDTV filed an affidavit on its behalf on
December 11, 2007. In the affidavit it was stated that following a reference to HP in the
conversation between RK Anand and Kulkarni in the second sting that took place in the car
he went to Shimla and other places in Himachal Pradesh and made extensive investigations
there. Kulkarni was easily identified by the people there through his photograph. On making
enquiries he came to learn that in the year 2000 Kulkarni lived in RK Anand's villa called
`Schilthorn' in Shimla for about a year under the assumed name of Nishikant. While staying
there he corresponded with an insurance company on behalf of RK Anand, using his letter-
head, in connection with some insurance claim. Interestingly, there he also obtained a
driving licence describing himself as Nishikant Anand son of RK Anand. In Shimla and in other
places in Himachal he also duped a number of traders and businessmen. In Una he was
arrested by Police on suspicion and he had to spend about 45 days in jail. PROCEEDINGS
BEFORE THE HIGH COURT 51. After putting the recusal petition and the review application
out of its way, the Court took up the hearing of the main matter that was held on many
dates spread over a period of four months from December 4, 2007 to May 2, 2008. RK
Anand appeared in person while IU Khan was represented through lawyers. Neither RK
Anand nor IU Khan (nor for that matter Bhagwan Sharma) tendered apology or expressed
regret or contrition for their acts. IU Khan simply denied the charge of trying to interfere
with the due course of judicial proceedings and administration of justice by the Courts. He
took the stand that the expressions and words he is shown to have uttered in his meeting
with Kulkarni were misinterpreted and a completely different meaning was given to them to
suit the story fabricated by the TV channel for its programme. 53. The contemnors then
raised the issues of the nature of contempt jurisdiction and the onus and the standard of
proof in a proceeding for criminal contempt. They further questioned the admissibility of the
sting recordings and contended that those recordings were even otherwise unreliable. In
course of hearing RK Anand tried to assail the integrity of the CDs furnished to him that were
the reproductions from the original of the sting recordings. According to him, there were
several anomalies and discrepancies in those recordings and (on January 29, 2008) he
submitted before the Court that from the CDs furnished to him he had got another CD of
eight minutes duration prepared in order to highlight the tampering in the original
recording. He sought the Court's permission to play his eight minute CD before it. On RK
Anand's request the Court viewed the eight minute CD submitted by him on February 5,
2008. On February 27, 2008 the Court directed NDTV to file an affidavit giving its response to
the CD prepared by RK Anand. As directed, NDTV filed the affidavit, sworn by one Dinesh
Singh, on March 7, 2008. The affidavit explained all the objections raised by RK Anand in his
eight minute CD. RK Anand then filed a petition (Crl. M. 4012/2008) on March 31, 2008 for
sending the original CDs for examination by the Central Forensic Science Laboratory. 39 58.
In the end the Court held that the circumstances and the manner in which the meetings took
place between the proceedees and Kulkarni and the exchanges that took place in those
meetings as evidenced from the sting recordings fully established that both IU Khan and RK
Anand were guilty of the charges framed against them. It accordingly convicted them for
criminal contempt of Court and sentenced them as noticed above. SOME OF THE ISSUES
ARISING IN THE CASE 59. These are broadly all the facts of the case. We have set out the
relevant facts in considerable detail since we do not see this case as simply a matter of
culpability, or otherwise, of two individuals. Inherent in the facts of the case are a number of
issues, some of which go to the very root of the administration of justice in the country and
need to be addressed by this Court. The two appeals give rise to the following questions: 1.
Whether the conviction of the two appellants for committing criminal contempt of court is
justified and sustainable? 2. Whether the procedure adopted by the High Court in the
contempt proceedings was fair and reasonable, causing no prejudice to the two appellants?
3. Whether it was open to the High Court to prohibit the appellants from appearing before
the High Court and the courts sub-ordinate to it for a specified period as one of the
punishments for criminal contempt of court? 4. Whether in the facts and circumstances of
the case the punishments awarded to the appellants can be said to be adequate and
commensurate to their misdeeds? Apart from the above, some other important issues arise
from the facts of the case that need to be addressed by us. These are: 5. The role of NDTV in
carrying out sting operations and telecasting the programme based on the sting materials in
regard to a criminal trial that was going on before the court. 6. The declining professional
standards among lawyers, and 7. The root-cause behind the whole affair; the way the BMW
trial was allowed to go directionless 60. On these issues we were addressed at length by Mr.
Altaf Ahmed, learned Senior Advocate appearing for RK Anand and Mr. P. P. Rao, learned
Senior Advocate appearing on behalf of IU Khan. We also heard Mr. Harish Salve, learned
Senior Advocate representing NDTV, which though not a party in the appeals was,
nevertheless issued notice by us. We also received valuable assistance from Mr. Gopal
Subramanium, Senior Advocate and Mr. Nageshwar Rao, Senior advocate, the amici
appointed by us having regard to the important issues involved in the case. We spent a full
day viewing all the sting recordings, the recording of the programmes telecast by NDTV on
May 30, 2007 and the eight minute CD prepared by RK Anand. Present at the viewing were
all the counsel and one of the appellants, namely RK Anand. RK ANAND'S APPEAL 61. Before
adverting to anything else we must deal with the appeals proper. In order to judge the
charge of criminal contempt against the appellants it needs to be seen what actually
transpired between Kulkarni and the two appellants in the stings to which they were
subjected. And for that we shall have to examine the raw sting recordings. 40 65. Mr. Altaf
Ahmed, learned senior counsel appearing for RK Anand, submitted that the High Court
founded the appellant's conviction under the Contempt of Courts Act on facts that were
electronically recorded, even without having the authenticity of the recording properly
proved. The High Court simply assumed the sting recordings to be correct and proceeded to
pronounce the appellant guilty of criminal contempt on that basis. Hence, the genuineness
and accuracy of what appeared in the sting recordings always remained questionable. Mr.
Ahmed submitted that the judgment and order coming under appeal was quite untenable
for the simple reason that the integrity of its factual foundation was never free from doubt.
Learned Counsel further submitted that the procedure followed by the High Court was not
fair and the appellant was denied a fair trial. He also submitted that the High Court arrived at
its conclusions without taking into consideration the appellant's defence and that was yet
another reason for setting aside the impugned judgment and order. Nature of Contempt
Proceeding: 66. Mr. Ahmed submitted that under the Contempt of Courts Act the High Court
exercised extra-ordinary jurisdiction. A proceeding under the Act was quasi criminal in
nature and it demanded the same standard of proof as required in a criminal trial to hold a
person guilty of criminal contempt. In support of the proposition he cited two decisions of
this Court, one in Mritunjoy Das v. Sayed Hasibur Rahman [2001] 2 SCR 471 and the other in
Chotu Ram v. Urvashi Gulati [2001Cri LJ 4204]. In both the decisions the Court observed that
the common English phrase, “he who asserts must prove” was equally applicable to
contempt proceedings. In both the decisions the Court cited a passage from a decision by
Lord Denning in Re Bramblevale Ltd. [All ER 1063H and 1064B] on the nature and standard
of evidence required in a proceeding of contempt. A contempt of court is an offence of a
criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To
use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved
by showing that, when the man was asked about it, he told lies. There must be some further
evidence to incriminate him. Once some evidence is given, then his lies can be thrown into
the scale against him. But there must be some other evidence. Where there are two equally
consistent possibilities open to the court, it is not right to hold that the offence is proved
beyond reasonable doubt. 67. Seeking to buttress the point learned Counsel also referred to
some more decisions of this Court in: (i) Anil Rattan Sarkar v. Hirak Ghosh [2002 Cri LJ 1814]
(ii) Bijay Kumar Mahanty v. Jadu @ Ram Chandra Sahoo [2003 Cri LJ 841] (iii) J. R. Parashar,
Advocate v. Prashant Bhushan, Advocate [2001 Cri LJ 4207] and (iv) S. Abdul Karim v. NK
Prakash [1976 Cri LJ 641]. 68. There cannot be any disagreement with the proposition
advanced by Mr. Ahmed but as noted above if the sting recordings are true and correct no
more evidence is required to see that RK Anand was trying to suborn a witness, that is, a
particularly vile way of interfering with due course of a judicial proceeding especially if
indulged in by a lawyer of long standing. Admissibility of electronically recorded & stored
materials in evidence: 69. This leads us to consider the main thrust of Mr. Ahmed's
submissions in regard to the integrity, authenticity, and reliability of the electronic materials
on the basis of which the appellants were held guilty of committing contempt of Court.
Learned Counsel submitted that the way the High Court proceeded in the matter it was
impossible to say with any certainty that the microchips that finally came before it for
viewing were the same microchips that were used 41 in the spy cameras for the stings or
those were not in any way manipulated or interfered with before production in court. He
further submitted that the admissibility in evidence of electronic recordings or Electronically
Stored Information (ESI) was subject to stringent conditions but the High Court completely
disregarded those conditions and freely used the sting recordings as the basis for the
appellants' conviction. 70. In support of the submissions Mr. Ahmed submitted a voluminous
compilation of decisions (of this Court and of some foreign courts) and some technical
literature and articles on ESI. We propose to take note of only those decisions/articles that
Mr. Ahmed specifically referred to us and that have some relevance to the case in hand. 71.
Two of the decisions of this Court referred by Mr. Ahmed, one in S A Khan v. Bhajan Lal
[(1993) 3 SCC 151] and the other in Quamarul Islam v. S. K. Kanta [1973 Cri LJ 228] relate to
newspaper reports. In these two decisions it was held that news paper report is hearsay
secondary evidence which cannot be relied on unless proved by evidence aliunde. Even
absence of denial of statement appearing in newspaper by its maker would not absolve the
obligation of the applicant of proving the statement. These two decisions have evidently no
relevance to the case before us. 72. In regard to the admissibility in evidence of tape
recorded statements Mr. Ahmed cited a number of decisions of this Court in (i) N. Shri Rama
Reddy v. V. Giri [1971] 1 SCR 399 (ii) R.M. Malkani v. State of Maharashtra 1973Cri LJ228 (iii)
Mahabir Prasad Verma v. Dr. Surinder Kaur [1982]3 SCR 607 and (iv) Ram Singh v. Col. Ram
Singh AIR 1986 SC 3 . He also referred to two foreign decisions on the point, one in (i) R v.
Stevenson 1971 (1) All ER 678, and the other of the Supreme Court, Appellate Division of the
State of New York in The People of State of New York v. Francis Bell (taken down from the
internet). We need here refer to the last among the decisions of this Court and the English
decisions in R v. Stevenson. In Ram Singh, a case arising from an election trial the Court
examined the question of admissibility of tape recorded conversations under the relevant
provisions of the Indian Evidence Act. The Court lay down that a tape recorded statement
would be admissible in evidence subject to the following conditions. Thus, so far as this
Court is concerned the conditions for admissibility of a taperecorded statement may be
stated as follows: (1) The voice of the speaker must be duly identified by the maker of the
record or by other who recognise his voice. In other words, it manifestly follows as a logical
corollary that in the first condition for the admissibility of such a statement is to identify the
voice of the speaker. Where the voice has been denied by the maker it will require very
strict proof to determine whether or not it was really the voice of the speaker. (2) The
accuracy of the tape-recorded statement has to be proved by the maker of the record by
satisfactory evidence-direct or circumstantial. (3) Every possibility of tampering with or
erasure of a part of a tape-recorded statement must be ruled out otherwise it may render
the said statement out of context and, therefore, inadmissible. (4) The statement must be
relevant according to the rules of Evidence Act. (5) The recorded cassette must be carefully
sealed and kept in a safe or official custody. (6) The voice of the speaker should be clearly
audible and not lost or distorted by other sounds or disturbances. 42 73. In R v. Stevenson
too the Court was dealing with a tape recorded conversation in a criminal case. In regard to
the admissibility of the tape recorded conversation the court observed as follows: Just as in
the case of photographs in a criminal trial the original un-retouched negatives have to be
retained in strict custody so in my views should original tape recordings. However one looks
at it, whether, as counsel for the Crown argues, all the prosecution have to do on this issue is
to establish a prima facie case, or whether, as counsel for the defendant Stevenson in
particular, and counsel for the defendant Hulse joining with him, argues for the defence, the
burden of establishing an original document is a criminal burden of proof beyond reasonable
doubt, in the circumstances of this case it seems to me that the prosecution have failed to
establish this particular type of evidence. Once the original is impugned and sufficient details
as to certain peculiarities in the proffered evidence have been examined in court, and once
the situation is reached that it is likely that the proffered evidence is not the original-is not
the primary and the best evidence -that seems to me to create a situation in which, whether
on reasonable doubt or whether on a prima facie basis, the judge is left with no alternative
but to reject the evidence. In this case on the facts as I have heard them such doubt does
arise. That means that no one can hear this evidence and it is inadmissible. 74. Mr. Ahmed
also referred to another decision by a US Court on the admissibility of video tapes. This is by
the Court of Appeal of the State of North Carolina in State of North Carolina v. Michael Odell
Sibley. In this decision there is a reference to an earlier decision of the same court in State v.
Cannon. [92 N C App. 246] etc. in which the conditions for admissibility of video tape in
evidence were laid down as under: The prerequisite that the offer or lay a proper foundation
for the videotape can be met by: (1) testimony that the motion picture or videotape fairly
and accurately illustrates the events filmed (illustrative purpose); (2) “proper testimony
concerning the checking and operation of the video camera and the chain of evidence
concerning the videotape...”; (3) testimony that “the photographs introduced at trial were
the same as those [ the witness] had inspected immediately after processing,” (substantive
purposes); or (4) "testimony that the videotape had not been edited, and that the picture
fairly and accurately recorded the actual appearance of the area `photographed. 75. On the
different issues germane to the admissibility of ESI Mr. Ahmed also referred to a decision of
the District Court of Maryland, United State in Civil Action No. PWG-06-1893, Jack R.
Lorraine and Beverly Mack v. Markel American Insurance Company. Mr. Ahmed also cited
before us an article captioned `The Sedona Conference. Commentary on ESI Evidence &
Admissibility': A Project of The Sedona Conference Working Group on Electronic Document
Retention & Production (WGI). published in Sedona Conference Journal, Fall 2008. The
article deals extensively with the different questions relating to admissibility in evidence of
ESI and one of its basic premises is that the mere fact that the information was created and
stored within a computer system would not make that information reliable and authentic.
76. He also invited our attention to an article appearing in The Indian Police Journal,
JulySeptember 2004 issue under the caption “Detection Technique of Video Tape Alteration
on the Basis of Sound Track Analysis”. From this article Mr. Ahmed read out the following
passages: 43 The acceptance of recorded evidence in the court of law depends solely on the
establishment of its integrity. In other words, the recorded evidence should be free from
intentional alteration. Generally, examination of recorded evidence for establishing the
integrity/authenticity is performed to find out whether it is a one-time recording or an
edited version or copy of the original. And further: Alteration on an audio recording can be
of Addition, Deletion, Obscuration, Transformation and Synthesis. In video recordings the
alteration may be with the intention to change either on the audio track or on the video
track. In both the ways there is always disturbance on both the track. Alterations in a video
track are usually made by adding or removing some frames, by rearranging few frames, by
distorting certain frames and lastly by introducing artificially generated frames. Alteration on
a video recording 77. In light of the decisions and articles cited above Mr Ahmed contended
that the High Court freely used the copies of the sting recordings and the transcripts of those
recordings made and supplied by NDTV without caring to first establish the authenticity of
the sting recordings. Learned Counsel submitted that the use of the CDs of the sting
recordings and their transcripts by the High Court was in complete violation of the
conditions laid down by this Court in Ram Singh. 78. Learned Counsel pointed out that at the
threshold of the proceeding, started suo moto, the High Court, instead of taking the
microchips used for the sting operations in its custody directed NDTV `to preserve the
original material including the CDs/Video' pertaining to the sting operations and to submit to
the Court copies and transcripts made from those chips. Thus the microchips remained all
along with NDTV, allowing it all the time and opportunity to make any alterations and
changes in the sting recordings (even assuming there were such recording in the first place!)
to suit its purpose. The petition filed by RK Anand for directing NDTV to submit the original
microchips before the Court and to give him copies made in Court directly from those chips
remained lying on the record unattended till it was rejected by the final judgment and order
passed in the case. Another petition requesting to send the microchips for forensic
examination also met with the same fate. 79. Mr. Ahmed further submitted that the
procedure followed by the High Court was so flawed that even the number of chips used for
the different sting operations remained indeterminate. The trial court order dated June 1,
2007 referred to three chips produced on behalf of NDTV. The written statement of Poonam
Agarwal made before the High Court on June 6, 2007 mentioned four chips and finally their
number became five in her affidavit dated October 1, 2007. 80. He further submitted that
the audio and the video recording on the basis of which the NDTV telecast was based and
that was produced before the High Court was done by Kulkarni and it was he who was the
maker of those materials. The Court never got Kulkarni brought before it either for the
formal proof of the electronic materials or for cross-examination by the contemnors. The
finding of the High Court was thus based on materials of which neither the authenticity was
proved nor the veracity of which was tested by cross-examination. He further submitted that
the affidavit of the NDTV reporter (Poonam Agarwal) doesn't cure this basic flaw in the
proceedings. The recordings were not done by the TV channel's reporter: her participation
44 in the process was only to the extent that she `wired' Kulkarni and received from him the
recorded materials. What she received from Kulkarni was also not identified, much less
formally proved before the High Court. According to Mr. Ahmed, therefore, the finding of
the High Court was wholly untenable and fit to be set aside. SUBMISSIONS CONSIDERED 81.
The legal principles advanced by Mr. Ahmed are unexceptionable but the way he tried to
apply those principles to the present case appear to us to be completely misplaced. 82.
Here, we must make it clear that we are dealing with a proceeding under the Contempt of
Courts Act. Now, it is one thing to say that the standard of proof in a contempt proceeding is
no less rigorous than a criminal trial but it is something entirely different to insist that the
manner of proof for the two proceedings must also be the same. It is now well settled and so
also the High Court has held that the proceeding of contempt of court is sui generis. In other
words, it is not strictly controlled by the provisions of the CrPC and the Indian Evidence Act.
What, however, applies to a proceeding of contempt of court are the principles of natural
justice and those principles apply to the contempt proceeding with greater rigour than any
other proceeding. This means that the Court must follow a procedure that is fair and
objective; that should cause no prejudice to the person facing the charge of contempt of
court and that should allow him/her the fullest opportunity to defend himself/herself. [See
In Re Vinay Mishra, 1995 Cri LJ 3994; Daroga Singh v. B.K. Pandey 2004 Cri LJ 2084].
CORRECTNESS OF STING RECORDINGS NEVER DISPUTED OR DOUBTED: 83. Keeping this in
mind when we turn to the facts of this case we find that the correctness of the sting
recordings was never in doubt or dispute. RK Anand never said that on the given dates and
time he never met Kulkarni at the airport lounge or in the car and what was shown in the
sting recordings was fabricated and false. He did not say that though he met Kulkarni on the
two occasions, they were talking about the weather or the stock market or the latest film
hits and the utterances put in their mouth were fabricated and doctored. Where then is the
question of proof of authenticity and integrity of the recordings? It may be recalled that
both in the eight o'clock and nine o'clock programmes, RK Anand was interviewed by the
programme anchors and the live exchange was integrated into the programmes. Let us see
what his first response to the telecast was when the anchor of the eight o'clock programme
brought him on the show. [Following are the extracts from the exchange between the
anchor and RK Anand] 85. We have gone through the transcripts of the exchange between
the two anchors and RK Anand a number of times and we have also viewed the programme
recorded on CDs. To us, RK Anand, in his interactions with the programme anchors,
appeared to be quite stunned at being caught on the camera in the wrong act, rather than
outraged at any false accusations. 90. Further, interestingly, though calling the sting
recordings fabricated, manufactured, and distorted, he also relies on the very same sting
recordings to make out some point or the other in his defence. 93. We also see no substance
in the anomalies and alleged inter correlation in the sting recordings as pointed out on
behalf of RK Anand on the basis of the eight minute CD which he got prepared from the
materials supplied to him by the Court. Along with the other materials we also viewed eight
minute CD produced by RK Anand. In the CD an attempt is made to show that the frames in
the sting recordings some times jumped out of the sequence number and such other 45
technical flaws. The objections raised by RK Anand where fully explained by the affidavit
filed by Dinesh Singh on behalf of NDTV. 95. On a careful consideration of the materials on
record we don't have the slightest doubt that the authenticity and integrity of the sting
recordings was never disputed or doubted by RK Anand. As noted above he kept on
changing his stand in regard to the sting recordings. In the facts and circumstances of the
case, therefore, there was no requirement of any formal proof of the sting recordings.
Further, so far as RK Anand is concerned there was no violation of the principles of natural
justice inasmuch as he was given copies of all the sting recordings along with their
transcripts. He was fully made aware of the charge against him. He was given fullest
opportunity to defend himself and to explain his conduct as appearing from the sting
recordings. The High Court viewed the microchips used in the spy camera and the
programme telecast by TV channel in his presence and gave him further opportunity of
hearing thereafter. The sting recordings were rightly made the basis of conviction and the
irresistible conclusion is that the conviction of RK Anand for contempt of court is proper
legal and valid calling for no interference. IU KHAN’S APPEAL 96. The sting on IU Khan was
done on April 28, 2007 in one of the lawyers' chambers at the Patiala House court premises.
The video CD begins by showing Poonam Agarwal fixing the recording device and the button
camera on Kulkarni's person sitting inside the car. Then Kulkarni and Deepak Verma together
enter the Patiala House. They move around in the court premises for a long time till just
before the lunch recess they are able to find IU Khan sitting in someone else's chamber. The
chamber seems to be quite crowded with people all the time coming and going away. The
first exchange of greetings between IU khan and Kulkarni as he, accompanied with Deepak
Verma, enters into the chamber is not audible. But then IU Khan is heard describing Kulkarni,
in a general sort of introduction to those present there, as `the prime witness in the BMW
case, `’star witness’ `a very public spirited and devoted man' etc. Kulkarni starts chatting
with him about the summons issued to him by the court in the BMW case. In the meanwhile
someone else comes into the chamber. IU Khan greets him loudly and starts talking to him.
After a while, on Kulkarni's request, both IU Khan and Kulkarni come out of the chamber and
some conversation between the two takes place outside the chamber. After the meeting is
over Kulkarni and Deepak Verma together return back. As the recording devices carried by
them are still on the conversation that takes place between the two is naturally recorded.
Kulkarni does not allow Deepak Verma to go directly to the TV Channel's vehicle parked
outside the Court premises where Poonam Agarwal would be waiting for their return, saying
that they are bound to be followed. Instead, they take an auto-rickshaw and go to Pargati
Maidan at a short distance from the court. From there they contact Poonam Agarwal on
mobile phone, who goes there and joins them and de-wires Kulkarni. Only partial transcript
of the sting recording submitted to Court: 100. What follows from the affidavit may be
summarised as follows; (I) the conduct of NDTV before the High Court in a vary serious
proceeding was quite cavalier and causal. (II) At the time the High Court issued show cause
notices to the three proceedees it did not have before it the recording on one of the five
microchips used in the sting operations. (III) The materials given to the proceedees along
with show cause notice were not exactly the same as submitted before the High Court. (IV)
The explanation in the form of Poonam Agarwal's affidavit came on 46 October 1, 2007 on
the same day when IU Khan filed his reply affidavit in response to the show cause notice.
101. In those circumstances it was not wrong for IU Khan to state in paragraphs 14 and 15 of
his memorandum of appeal as under: 14. ...This finding is again against the material on
record as the original chip of the button camera carried by Mr. Kulkarni was formatted by
the NDTV in violation of the direction issued by the Hon'ble Court. This part of the
conversation is not available in the transcript of the bag camera. 15. Because the CD of the
button camera firstly cannot be relied upon as it was filed after the reply was filed by the
appellant on 1.10.2007... Submissions on behalf of IU Khan 114. Mr. P. P. Rao, learned Senior
Advocate appearing for IU Khan mainly submitted that even if the sting recording is accepted
as true, on the basis of the exchange that took place between his client and Kulkarni it
cannot be said that he acted in a way or colluded in any action aimed at interfering or
tending to interfere with the prosecution of the accused in the BMW case or interfering or
tending to interfere with or obstructing or tending to obstruct the administration of justice
in any other manner. He further submitted that the findings of the High Court were based on
assumptions that were not only completely unfounded but in respect of which the appellant
was given no opportunity to defend himself. The High Court held the appellant guilty of
committing criminal contempt of court referring to and relying upon certain alleged facts
and circumstances that did not form part of the notice and in regard to which he was given
no opportunity to defend himself. Mr. Rao submitted that along with the notice issued by
the High Court the appellant was not given all the materials concerning his case and he was
thus handicapped in submitting his show cause. He further submitted that the High Court
erroneously placed the case of his client at par with RK Anand and convicted him because RK
Anand was found guilty even though the two cases were completely different. Mr. Rao was
also highly critical of the TV channel. He questioned the propriety of the sting operation and
the telecast of the sting programme concerning a pending trial and involving a court witness
without any information to, much less permission by the trial court or even the High Court
or its Chief Justice. Mr. Rao submitted that when Kulkarni first approached Poonam Agarwal
she thought it imperative to first obtain the approval of her superiors before embarking
upon the project, but it did not occur to anyone, including her superiors in the TV channel to
obtain the permission or to even inform at least the Chief Justice of the Delhi High Court
before taking up the operation fraught with highly sinister implications. Mr. Rao also assailed
the judgment coming under appeal on a number of other grounds. SUBMISSIONS
CONSIDERED 115. We have carefully gone through all the materials concerning IU Khan. We
have perused the transcript of the exchange between Kulkarni and IU Khan and have also
viewed the full recording of the sting several times since the full transcript of the recording is
not available on the record. IU Khan's conduct quite improper: 116. We have not the
slightest doubt that the exchange between Kulkarni and IU Khan far crosses the limits of
proper professional conduct of a prosecutor (especially engaged to conduct a sensational
trial) and a designated Senior Advocate of long standing. We are not prepared to accept for
a moment that on seeing Kulkarni suddenly after several years in the company of a 47 `burly
stranger' (Deepak Verma) IU Khan became apprehensive about his personal safety since in
the past some violent incidents had taken place in the court premises and some lawyers had
lost their lives and consequently he was simply play-acting and pampering Kulkarni in order
to mollify him. The plea is not borne out from the transcript and much less from the video
recording. In the video recording there is no trace of any fear or apprehension on his face or
in his gestures. He appears perfectly normal and natural sitting among his colleagues (and
may be one or two clients) and at no point the situation appears to be out of his control. As
a matter of fact, we feel constrained to say that the plea is not quite worthy of a lawyer of IU
Khan's standing and we should have much appreciated had he simply taken the plea of an
error of discretion on his part. 117. Coming back to the exchange between IU Khan and
Kulkarni, we accept that the transcript of the exchange does not present the accurate
picture; listening to the live voices of the two (and others present in the chamber) on the CD
gives a more realistic idea of the meeting. We grant everything that can be said in favour of
IU Khan. The meeting took place without any prior appointment from him. Kulkarni was able
to reach him, unlike RK Anand, without his permission or consent. IU Khan did not seem to
be overly enthused at the appearance of Kulkarni. Accosted by Kulkarni, he spoke to him out
of civility and mostly responded only to his questions and comments. There were others
present in the chamber with whom he was equally engaged in conversation. He also greeted
someone else who came into the chamber far more cheerfully than Kulkarni. But the
undeniable fact remains that he was talking to him all the time about the BMW trial and the
related proceedings. Instead of simply telling him to receive the summons and appear
before the court as directed, IU Khan gave reassurances to Kulkarni telling him about the
revision filed in the High Court against the trial court's order. He advised him to relax saying
that since he had dropped him (as a prosecution witness) the court was no one to ask for his
statement. The part of the exchange that took place outside the chamber was worse. Inside
the chamber, at one stage, IU Khan seemed even dismissive of Kulkarni but on coming out
he appeared quite anxious to fix up another meeting with him at his residence giving
promising good Scotch whisky as inducement. IU Khan would be the first person to deny any
friendship or even a long acquaintanceship with Kulkarni. The only common factor between
them was the BMW case in which one was the prosecutor and the other was a prosecution
witness, later dropped from the list of witnesses. A lawyer, howsoever, affable and sociable
by disposition, if he has the slightest respect for professional ethics, would not allow himself
such degree of familiarity with the witness of a criminal trial that he might be prosecuting
and would not indulge with him into the kind of exchange as admittedly took place between
IU Khan and Kulkarni. We are also not prepared to believe that in his conversation with
Kulkarni, IU Khan did not mean what he was saying and he was simply trying to somehow
get rid of Kulkarni. The video of the sting recordings leaves no room for doubt that IU Khan
was freely discussing the proceeding of BMW case with Kulkarni and was not at all averse to
another meeting with him rather he was looking forward to it. We, therefore, fully endorse
the High Court finding that the conduct of IU Khan was inappropriate for a lawyer in general
and a prosecutor in particular. CRIMINAL CONTEMPT ??? 118. But there is a wide gap
between professional misconduct and criminal contempt of court and we now proceed to
examine whether on the basis of materials on record the charge of criminal contempt of
court can be sustained against IU Khan. 48 119. The High Court held that there was an
extraordinary degree of familiarity between IU Khan, Kulkarni and RK Anand and each of
them knew that the other two were equally familiar with each other. So far as BMW trial is
concerned Kulkarni was a link between IU Khan and RK Anand. IU Khan, by reason of his
familiarity both with RK Anand and Kulkarni would also know about the game that was afoot
for the subversion of the trial. He failed to inform the prosecution and the court about it and
his omission to do so was likely to have a very serious impact on the trial. He was, therefore,
guilty of actually interfering with due course of judicial proceeding, in the BMW case. 120. In
the two sting recordings concerning RK Anand there are ample references to IU Khan to
suggest a high degree of familiarity between the three. But in the sting on IU Khan the only
words used by him that might connect him to RK Anand through Kulkarni are `Bade Saheb'. If
`Bade Saheb' referred to RK Anand, the involvement of IU Khan needs no further proof. The
question, however, is whether that finding can be safely arrived at. 121. Now, what are the
materials that might suggest that while asking Kulkarni whether he had met Bade Saheb, IU
Khan meant RK Anand. Apart from the piece of conversation between Deepak Verma and
Kulkarni when they were returning after meeting with IU Khan, relied upon by the High
Court, there is another material, for whatever its worth, that doesn't find any mention in the
High Court judgment. It is Kulkarni's statement in his interview recorded at the NDTV studio.
He said as follows; He (IU Khan) directed me to Mr RK Anand is in that video you can find
`Bade Saheb'. He meant that Mr. RK Anand. 122. We mention it only because it is one of the
materials lying on the record. Not that we rely on it in the least. Having known the conduct
of Kulkarni throughout this episode as discussed in detail in the earlier part of the judgment
it is impossible to rely on this statement and we don't even fault the High Court for not
taking any note of it. 123. The only other positive material in this regard is the one referred
to by the High Court. The High Court observed that towards the end of the recording by the
button camera, "Mr. Deepak Verma asked Mr. Kulkarni about the identity of Bade Saheb and
Mr. Kulkarni responded by saying that it is Mr. Anand." But the reference by the High Court
to that particular piece of conversation between Deepak Verma and Kulkarni is neither
complete nor accurate. We have noted earlier that the transcript submitted to the High
Court by NDTV was incomplete and it covered only the exchange between Kulkarni and IU
Khan. If the High Court had before it the full transcript of the entire recording it might have
taken a different view. We have viewed the CD labelled as "Button Spy cam Recording done
by Sunil Kulkarni. IU Khan Sting Operation" a number of times and we find that on the way
back after meeting IU Khan, Kulkarni was being quite voluble. He spoke to Deepak Verma
and gave him some instructions. A part of their conversation, relevant for our purpose is as
follows: 126. The High Court rejected IU Khan's explanation that what he meant by `Bade
Saheb' was some senior officer in the police headquarter. 127. Mr. P.P. Rao submitted that
the approach of the High Court was quite unfair. The proceeding before the High Court was
not in the nature of a suit or a criminal trial. In response to the notice issued by the Court
the appellant had made a positive statement in his reply affidavit. The statement was not
formally traversed by anyone. There was, therefore, no reason for the appellant to assume
that he would be required to produce evidence in support of the statement. In 49 case the
High Court felt the need for some evidence in support of the averment it should have at
least made it known to the appellant. But the High Court without giving any inkling to the
appellant rejected the plea in the final judgment. The appellant was thus clearly denied a
proper opportunity to defend himself. We find that the submission is not without substance.
The proceeding before the High Court was under the Contempt of Courts Act and the High
Court was not following any well known and well established format. In that situation it was
only fair to give notice to the proceedees to substantiate the pleas taken in the reply
affidavit by leading proper evidence. It must, therefore be held that the High Court rejected
a material plea raised on behalf of the IU Khan without giving him any opportunity to
substantiate it. 130. Mr. P.P. Rao submitted that the High Court convicted the appellant for
something in regard to which he was never given an opportunity to defend himself. From
the notice issued by the High Court it was impossible to discern that the charge of criminal
contempt would be eventually fastened on him for his failure to inform the court and the
prosecution about the way Kulkarni's was being manipulated by the defence. Mr. Rao
further submitted that the reason assigned by the Court to hold the appellant guilty was
based purely on assumption. The appellant was given no opportunity to show that, as a
matter of fact, after Kulkarni met him at the Patiala House on April 28, 2007 he had informed
the concerned authorities that after being summoned by the court Kulkarni was back to his
old tricks. He further submitted that the appellant, given the opportunity, could also show
that the decision to not examine him as one of the prosecution witnesses was taken by the
concerned authorities in consultation with him. We find substance in Mr. Rao's submission.
131. In our considered view, on the basis of materials on record the charge of criminal
contempt cannot be held to be satisfactorily established against IU Khan. In our opinion he is
entitled to the benefit of doubt. PROCEDURE FOLLOWED BY THE HIGH COURT 132. A lot has
been argued about the procedure followed by the High Court in dealing with the matter. On
behalf of RK Anand it was strongly contended that by only asking for the copies of the
original sting recordings and allowing the original microchips and the magnetic tapes to be
retained in the custody of NDTV the High Court committed a serious and fatal lapse. Mr.
Gopal Subramanium also took the view that though the final judgment passed by the High
Court was faultless, it was nevertheless an error on its part to leave the original sting
recordings in the safe custody of the TV channel. On principle and as a matter of proper
procedure, the Court, at the first instance, ought to have taken in its custody all the original
electronic materials concerning the stings. 133. At first the direction of the High Court
leaving the microchips containing the original sting recordings and the magnetic tapes with
the TV channel indeed appears to be somewhat strange and uncommon but a moment's
thought would show the rationale behind it. If the recordings on the microchips were fake
from the start or if the microchips were morphed before notice was issued to the TV
channel, those would come to the court in that condition and in that case the question
whether the microchips were genuine or fake/morphed would be another issue. But once
the High Court obtained their copies there was no possibility of any tampering with the
microchips from that stage. Moreover, the High Court might have felt that the TV channel
with its well equipped studio/laboratory would be a much better place for the handling and
conservation of such electronic articles than the High Court Registry. On the facts of the
case, therefore, there was no lapse on the part of the High Court in leaving the microchips in
the safe 50 custody of the TV channel and in any event it does not have any bearing on the
final decision of the case. 134. However, what we find completely inexplicable is why, at
least at the beginning of the proceeding, the High Court did not put NDTV, along with the
two appellants, in the array of contemnors. Looking back at the matter (now that we have
on the record before us the appellants' affidavits in reply to the notice issued by the High
Court as well as their first response to the telecast in the form of their live interviews), we
are in the position to say that since the contents of the sting recordings were admitted there
was no need for the proof of integrity and correctness of the electronic materials. But at the
time the High Court issued notices to the two appellants (and two others) the position was
completely different. At that stage the issue of integrity, authenticity and reliability of the
sting recordings was wide open. The appellants might have taken the stand that not only the
sting recordings but their respective responses shown by the TV channel were fake and
doctored. In such an event the TV channel would have been required to be subjected to the
strictest proof of the electronic materials on which its programmes were based and, in case
it failed to establish their genuineness and correctness, it would have been equally guilty, if
not more, of serious contempt of court and other criminal offences. By all reckoning, at the
time of initiation of the proceeding, the place of NDTV was along with the appellants facing
the charge of contempt. Such a course would have put the proceeding on a more even keel
and given it a more balanced appearance. Then perhaps there would have been no scope for
the grievance that the High Court put the TV channel on the complainant's seat. And then
perhaps the TV Channel too would have conducted itself in a more careful manner and the
lapses as indicated above in the case of IU Khan might not have occurred. THE PUNISHMENT:
PROHIBITION AGAINST APPEARING IN COURTS 135. We were also addressed on the validity
of the High Court's direction prohibiting the two appellants from appearing before the High
Court and the courts subordinate to it for a period of four months. Though by the time the
appeals were taken up for hearing the period of four months was over, Mr. Altaf Ahmed
contended that the High Court's direction was beyond its competence and authority. In a
proceeding of contempt punishment could only be awarded as provided under the
Contempt of Courts Act, though in a given case the High Court could debar the contemnor
from appearing in court till he purged himself of the contempt. He further submitted that
professional misconduct is a subject specifically dealt with under the Advocates Act and the
authority to take action against a lawyer for any professional misconduct vests exclusively in
the State Bar Council, where he may be enrolled, and the Bar Council of India. The Counsel
further submitted that a High Court could frame rules under Section 34 of the Advocates Act
laying down the conditions subject to which an advocate would be permitted to practise in
the High Court and the courts subordinate to it and such rules may contain a provision that
an advocate convicted of contempt of court would be barred from appearing before it or
before the subordinate courts for a specified period. But so far the Delhi High Court has not
framed any rules under Section 34 of the Act. According to him, therefore, the punishment
awarded to the appellant by the High Court had no legal sanction. 136. Mr. Nageshwar Rao
learned Senior Advocate assisting the Court as amicus shared the same view. Mr. Rao
submitted that the direction given by the High Court was beyond its jurisdiction. In a
proceeding of contempt the High Court could only impose a punishment as provided under
Section 12 of the Contempt of Courts Act, 1971. The High Court was bound by the provisions
of the Contempt of Courts Act and it was not open to it to innovate any new kind 51 of
punishment in exercise of its powers under Article 215 of the Constitution or its inherent
powers. Mr. Rao submitted that a person who is a law graduate becomes entitled to practise
the profession of law on the basis of his enrolment with any of the State Bar Councils
established under the Advocates Act, 1961. Appearance in Court is the dominant, if not the
sole content of a lawyer's practice. Since, the authority to grant licence to a law graduate to
practise as an advocate vests exclusively in a State Bar Council, the power to revoke the
licence or to suspend it for a specified term also vests in the same body. Further, the
revocation or suspension of licence of an advocate has not only civil but also penal
consequences; hence, the relevant statutory provisions in regard to imposition of
punishment must be strictly followed. Punishment by way of suspension of the licence of an
advocate can only be imposed by the Bar Council, the competent statutory body, after the
charge is established against the advocate concerned in the manner prescribed by the Act
and the Rules framed thereunder. The High Court can, of course, prohibit an advocate
convicted of contempt from appearing before it or any court subordinate to it till the
contemnor purged himself of the contempt. But it cannot assume the authority and the
power statutorily vested in the Bar Council. 137. Mr. Gopal Subramanium the other amicus,
however, approached the issue in a slightly different manner and took the middle ground.
Mr. Subramanium submitted that the power to suspend the licence of a lawyer for a reason
that may constitute contempt of court and at the same time may also amount to
professional misconduct is a power to be exercised by the disciplinary authority i.e. the
Disciplinary Committee of the State Bar Council where the concerned advocate is registered
or the Bar Council of India. The Supreme Court has held that even it, in exercise of its powers
under Article 142, cannot override statutory provisions and, assuming the position of the
Disciplinary Committee, suspend the licence of a lawyer. Such a course cannot be followed
even by taking recourse to the appellate powers of the Supreme Court under Section 38 of
the Advocates Act while dealing with a case of contempt of court (and not an appeal relating
to professional misconduct as such). But approaching the matter from a different angle Mr.
Subramanium submitted, it is, however, open to the High Court to make rules regulating the
appearance of advocates in courts. He further submitted that although the Delhi High Court
has not framed any specific rules regulating the appearance of advocates, it is settled law
that power vested in an authority would not cease to exist merely because rules prescribing
the manner of exercise of power have not been framed. 138. The contention that the
direction debarring a lawyer from appearing before it or in courts subordinate to it is beyond
the jurisdiction of the High Court is based on the premise that the bar is akin to
revocation/suspension of the lawyer's licence which is a punishment for professional
misconduct that can only be inflicted by the Bar Council after following the procedure
prescribed under the Advocates Act. The contention finds support from the Constitution
Bench decision of this Court in Supreme Court Bar Association v. Union of India
MANU/SC/0291/1998 : [1998]2SCR795 . In paragraph 37 of the decision the Court observed
and held as under: 37.The nature and types of punishment which a court of record can
impose in a case of established contempt under the common law have now been specifically
incorporated in the Contempt of Courts Act, 1971 insofar as the High Courts are concerned
and therefore to the extent the Contempt of Courts Act, 1971 identifies the nature or types
of punishments which can be awarded in the case of established contempt, it does not
impinge upon the inherent powers of the High Court under Article 215 either. No new type
of punishment can be created or assumed. 52 In Paragraph 57 it observed: 57. In a given
case, an advocate found guilty of committing contempt of court may also be guilty of
committing “professional misconduct”, depending upon the gravity or nature of his
contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by
different forums by following separate and distinct procedures. The power to punish an
advocate by suspending his licence or by removal of his name from the roll of the State Bar
Council for proven professional misconduct vests exclusively in the statutory authorities
created under the Advocates Act, 1961, while the jurisdiction to punish him for committing
contempt of court vests exclusively in the courts. Again in paragraph 80 it observed: 80. In a
given case it may be possible for this Court or the High Court, to prevent the contemnor
advocate to appear before it till he purges himself of the contempt but that is much different
from suspending or revoking his licence or debarring him to practise as an advocate. In a
case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-
onRecord, 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. 139. The matter,
however, did not stop at Supreme Court Bar Association. In Pravin C Shah v. K.A. Mohd. Ali
[AIR 2001 SC 3041], this Court considered the case of a lawyer who was found guilty of
contempt of court and as a consequence was sought to be debarred from appearing in
courts till he purged himself of contempt. Kerala High Court has framed Rules under Section
34 of the Advocates Act and Rule 11 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. 141. More importantly, another Constitution Bench of this
Court in Ex. Capt. Harish Uppal v. Union of India [(2002) SUPP 5 SCR 186], examined the
question whether lawyers have a right to strike and/or give a call for boycott of Court(s). In
paragraph 34 of the decision the Court made highly illuminating observations in regard to
lawyers' right to appear before the Court and sounded the note of caution for the lawyers.
142. In both Pravin C. Shah and Ex. Capt. Harish Uppal the earlier Constitution Bench
decision 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
[AIR 2004 SC 2227]. 143. In Supreme Court Bar Association, 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 practise law and the bar was considered as a punishment inflicted on
him. 1 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 Though in Paragraph 80 of the
decision, as seen earlier there is an observation 53 that in a given case it might be possible
for this Court or the High Court to prevent the contemnor advocate to appear before it till
he purge himself of the contempt. 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
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 offence 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 concerned lawyer to
carry on his legal practice in other ways as indicated in the decision. 144. 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. 145. Lest we
are misunderstood it needs to be made clear that the occasion to take recourse to the
extreme step of debarring an advocate from appearing in court should arise very rarely and
only as a measure of last resort in cases where the wrong doer advocate does not at all
appear to be genuinely contrite and remorseful for his act/conduct, but on the contrary
shows a tendency to repeat or perpetuate the wrong act(s). 146. 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 Rule 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 54 notice may be given after the proceedee is held guilty of criminal
contempt before dealing with the question of punishment. 147. 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. Suborning a witness in a criminal trial is an act striking at the root of
the judicial proceeding and it surely deserves the treatment meted out to the appellant. But
the appellants were not given any notice by the High Court that if found guilty they might be
prohibited from appearing in the High Court, and the courts subordinate to it, for a certain
period. To that extent the direction given by the High Court was not in conformity with the
principles of natural justice. THE QUESTION OF SENTENCE 148. Having regard to the
misdeeds of which RK Anand has been found guilty, the punishment given to him by the
High Court can only be regarded as nominal. We feel that the leniency shown by the High
Court in meting out the punishment was qute misplaced. And the view is greatly reinforced
if one looks at the contemnor's conduct before the High Court. As we shall see presently,
before the High Court the contemnor took a defiant stand and constantly tried to obstruct
the proceedings. THE DIVERSIONARY & INTIMIDATORY TACTICS IN THE PROCEEDING 149.
Even as contempt notices were issued by the High Court, or even before it, some
diversionary and even intimidatory tactics were employed to stonewall the proceeding
initiated by it. REQUEST FOR RECUSAL 156. Of all the obstructive measures adopted before
the High Court the most unfortunate and undesirable came from RK Anand in the form of a
petition `requesting' Manmohan Sarin J., the presiding judge on the bench dealing with the
matter, to recuse him from the proceeding. This petition, an ill concealed attempt at
intimidation, was, as a matter of fact, RK Anand's first response to the notice issued to him
by the Court. He stated in this petition that he had the feeling that he was not likely to get
justice at the hands of Manmohan Sarin J. He further stated alluding to some past events,
that he had tried his best to forget the past and bury the hatchet but the way and the
manner in which the matter was being dealt with had caused the greatest damage to his
reputation. He made the prayer that the recusal application should be heard in camera and
the main matter be transferred to another bench of which Sarin J. was not a member. Along
with the petition he filed a sealed cover containing a note and the materials giving rise to the
belief that he was not likely to get justice at the hands of Sarin J. 164. Both Mr. Salve and Mr.
Subramanium strongly submitted that the appellant had plainly no respect for the court or
the court proceedings. Mr. Salve submitted that the recusal application was a brazen
attempt to browbeat the High Court and in that attempt the appellant succeeded to a large
extent since the prohibition to appear before the courts for a period of only four months
could only be considered as a token punishment having regard to the gravity of his conduct.
Mr. Subramanium also felt strongly about the recusal application but before taking up the
issue he fairly tried to give another opportunity to the appellant stating that perhaps even
now the appellant might wish to withdraw the grounds in the SLP challenging the order
passed by the 55 High Court on the recusal application. The appellant was given ample time
to consider the suggestion but later on enquiry Mr. Altaf Ahmed stated that he had not
pressed those grounds in course of his submissions exercising his discretion as the Counsel
but he had no instructions to get those grounds deleted from the SLP. 165. The action of the
appellant in trying to suborn the court witness in a criminal trial was reprehensible enough
but his conduct before the High Court aggravates the matter manifold. He does not show
any remorse for his gross misdemeanour and instead tries to take on the High Court by
defying its authority. We are in agreement with Mr. Salve and Mr. Subramanium that
punishment given to him by the High Court was wholly inadequate and incommensurate to
the seriousness of his actions and conduct. We, accordingly, propose to issue a notice to him
for enhancement of punishment. We also hold that by his actions and conduct the appellant
has established himself as a person who needs to be kept away from the portals of the court
for a longer time. The notice would therefore require him to show-cause why the
punishment awarded to him should not be enhanced as provided under Section 12 of the
Contempt of Courts Act. He would additionally show-cause why he should not be debarred
from appearing in courts for a longer period. The second part of the notice would also cure
the defect in the High Court order in debarring the appellant from appearing in courts
without giving any specific notice in that regard as held in the earlier part of the judgment.
166. We have so far been considering the two appeals proper. We now proceed to examine
some other important issues arising from the case. THE ROLE OF NDTV 167. NDTV came
under heavy attack from practically all sides for carrying out the stings and airing the
programme based on it. On behalf of RK Anand the sting programme was called malicious
and motivated, aimed at defaming him personally. Mr. P P Rao appearing for IU Khan
questioned the propriety of the stings and the repeated telecast of the sting programme
concerning a pending trial and involving a court witness. Mr. Rao submitted that before
taking up the sting operations, fraught with highly sinister implications, the TV channel
should have informed the trial court and obtained its permission. If for any reason it was not
possible to inform the trial judge then permission for the stings should have been taken
from the Chief Justice of the Delhi High Court. Also, it was the duty of that TV channel to
place the sting materials before the court before telecasting any programme on that basis.
172. We have already dealt with the allegations made on behalf of RK Anand while
considering his appeal earlier in this judgment and we find no substance in those allegations.
Reporting of pending trial: 173. We are also unable to agree with the submission made by
Mr. P. P. Rao that the TV channel should have carried out the stings only after obtaining the
permission of the trial court or the Chief Justice of the Delhi High Court and should have
submitted the sting materials to the court before its telecast. Such a course would not be an
exercise in journalism but in that case the media would be acting as some sort of special
vigilance agency for the court. On little consideration the idea appears to be quite repugnant
both from the points of view of the court and the media. It would be a sad day for the court
to employ the media for setting its own house in order; and media too would certainly not
relish the role of being the snoopers for the court. Moreover, to insist that a report
concerning a pending trial may be published or a sting operation concerning a trial may be
done only subject to the prior consent and permission of the court would tantamount to
pre- censorship of reporting of court proceedings. And this would be 56 plainly an infraction
of the media's right of freedom of speech and expression guaranteed under Article 19(1) of
the Constitution. This is, however, not to say that media is free to publish any kind of report
concerning a sub-judice matter or to do a sting on some matter concerning a pending trial in
any manner they please. The legal parameter within which a report or comment on a sub-
judice matter can be made is well defined and any action in breach of the legal bounds
would invite consequences. Compared to normal reporting, a sting operation is an
incalculably more risky and dangerous thing to do. A sting is based on deception and,
therefore, it would attract the legal restrictions with far greater stringency and any infraction
would invite more severe punishment. Sting programme whether trial by media?? 174. The
submissions of Mr. N. Rao are based on two premises: one, the sting programme telecast by
NDTV was of the genre, `trial by media' and two, the programme interfered or tended to
interfere with or obstructed or tended to obstruct the proceedings of the BMW trial that
was going on at the time of the telecast. If the two premises are correct then the rest of the
submissions would logically follow. But are the two premises correct? What is trial by
media? The expression `trial by media' is defined to mean: the impact of television and
newspaper coverage on a person's reputation by creating a widespread perception of guilt
regardless of any verdict in a court of law. During high publicity court cases, the media are
often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not
only makes a fair trial nearly impossible but means that, regardless of the result of the trial,
in public perception the accused is already held guilty and would not be able to live the rest
of their life without intense public scrutiny. 175. In light of the above it can hardly be said
that the sting programme telecast by NDTV was a media trial. Leaving aside some stray
remarks or comments by the anchors or the interviewees, the programme showed some
people trying to subvert the BMW trial and the state of the criminal administration of justice
in the country (as perceived by the TV channel and the interviewees). There was nothing in
the programme to suggest that the accused in the BMW case were guilty or innocent. The
programme was not about the accused but it was mainly about two lawyers representing
the two sides and one of the witnesses in the case. It indeed made serious allegations
against the two lawyers. The allegations, insofar as RK Anand is concerned, stand established
after strict scrutiny by the High Court and this Court. Insofar as IU Khan is concerned, though
this Court held that his conduct did not constitute criminal contempt of court, nonetheless
allegations against him too are established to the extent that his conduct has been found to
be inappropriate for a Special Prosecutor. In regard to the witness the comments and
remarks made in the telecast were never subject to a judicial scrutiny but those too are
broadly in conformity with the materials on the court's record. We are thus clearly of the
view that the sting programme telecast by NDTV cannot be described as a piece of trial by
media. Stings & telecast of sting programmes not constituting criminal contempt: 176.
Coming now to Section 3 of the Contempt of Courts Act we are unable to appreciate Mr.
Rao's submission that NDTV did not have the immunity under Sub-section (3) of Section 3 as
the telecast was hit by proviso (ii) Explanation (B) to that sub section. Section 3 of the Act
insofar as relevant is as under: 3. Innocent publication and distribution of matter not
contempt.- (1) A person shall not be guilty of contempt of court on the ground that he has
published (whether by words, spoken or 57 written, or by signs, or by visible
representations, or otherwise) any matter which interferes or tends to interfere with, or
obstructs or tends to obstruct, the course of justice in connection with any civil or criminal
proceeding pending at that time of publication, if at that time he had no reasonable grounds
for believing that the proceeding was pending. (2) x x x (3) A person shall not be guilty of
contempt of court on the ground that he has distributed a publication containing any such
matter as is mentioned in Sub-section (1), if at the time of distribution he had no reasonable
grounds for believing that it contained or was likely to contain any such matter as aforesaid:
Provided that this Sub-section shall not apply in respect of the distribution of- (i) any
publication which is a book or paper printed or published otherwise than in conformity with
the rules contained in Section 3 of the Press and Registration of Books Act, 1867 (25 of
1867); (ii) any publication which is a newspaper published otherwise than in conformity with
the rules contained in Section 5 of the said Act. Explanantion.- For the purposes of this
section, a judicial proceeding- (a) is said to be pending- (A) x x x (B) in the case of a criminal
proceeding under the Code of Criminal Procedure, 1898 ( 5 of 1898), or any other law- (i)
where it relates to the commission of an offence, when the charge-sheet or challan is filed,
or when the court issues summons or warrant, as the case may be, against the accused, and
(ii) in any other case, when the court takes cognizance of the matter to which the
proceeding relates, and xxx (b) x x x 177. Section 5 provides that a fair criticism of a judicial
act concerning any case which has been heard and finally decided would not constitute
contempt. 178. Sub-section (1) of Section 3 provides immunity to a publisher of any matter
which interferes or tends to interfere with, or obstructs or tends to obstruct the course of
justice in any civil or criminal proceeding if he reasonably believed that there was no
proceeding pending. A Sub-section (3) deal with distribution of the publication as mentioned
in Sub-section (1) and provides immunity to the distributor if he reasonably believed that the
publication did not contain any matter which interfered or tended to interfere with, or
obstructed or tended to obstruct the course of justice in any civil or criminal proceeding. The
immunity provided under Sub-section (3) is subject to the exceptions as stated in the proviso
and explanations to the Sub-section. We fail to see any application of Section 3(3) of the
Contempt of Courts Act in the facts of this case. In this case there is no distribution of any
publication made under Sub-section (1). Hence, neither Sub-section (3) nor its proviso or
explanation is attracted. NDTV did the sting, prepared a programme on the basis of the sting
materials and telecast it at a time when it fully knew that the BMW trial was going on.
Hence, if the programme is held to be a matter which interfered or tended to interfere with,
or obstructed or tended to obstruct the due course of the BMW case then the immunity
under Sub-section (1) will not be available to it and the telecast would clearly constitute
criminal contempt within the meaning of Section 2(c)(ii) & (iii) of the Act. But can the 58
programme be accused of interfering or tending to interfere with, or obstructing or tending
to obstruct the due course of the BMW case. Whichever way we look at the programme we
are not able to come to that conclusion. The programme may have any other faults or
weaknesses but it certainly did not interfere with or obstruct the due course of the BMW
trial. The programme telecast by NDTV showed to the people (the courts not excluded) that
a conspiracy was afoot to undermine the BMW trial. What was shown was proved to be
substantially true and accurate. The programme was thus clearly intended to prevent the
attempt to interfere with or obstruct the due course of the BMW trial. STINGS & TELECAST
OF STING PROGRAMMES SERVED IMPORTANT PUBLIC CAUSE 179. Looking at the matter
from a slightly different angle we ask the simple question, what would have been in greater
public interest; to allow the attempt to suborn a witness, with the object to undermine a
criminal trial, lie quietly behind the veil of secrecy or to bring out the mischief in full public
gaze? To our mind the answer is obvious. The sting telecast by NDTV was indeed in larger
public interest and it served an important public cause. 180. We have held that the sting
programme telecast by NDTV in no way interfered with or obstructed the due course of any
judicial proceeding, rather it was intended to prevent the attempt to interfere with or
obstruct the due course of law in the BMW trial. We have also held that the sting
programme telecast by NDTV served an important public cause. In view of the twin findings
we need not go into the larger question canvassed by Mr Salve that even if the programme
marginally tended to influence the proceedings in the BMW trial the larger public interest
served by it was so important that the little risk should not be allowed to stand in its way.
Excesses in the telecast: 181. We have unequivocally upheld the basic legitimacy of the
stings and the sting programmes telecast by NDTV. But at the same time we must also point
out the deficiencies (or rather the excesses) in the telecast. Mr. Subramanium spoke about
the `slant' in the telecast as `regrettable overreach'. But we find many instances in the
programme that cannot be simply described as `slants'. There are a number of statements
and remarks which are actually incorrect and misleading. In the first sting programme
telecast on May 30, 2007 at 8.00 pm the anchor made the opening remarks as under: Good
Evening,....an NDTV expose, on how the legal system may have been subverted in the high
profile BMW case. In 1999 six people were run over allegedly by a BMW driven by Sanjeev
Nanda a young, rich industrialist but 8 years later every witness except one has turned
hostile. Tonight NDTV investigates did the prosecution, the defence and the only witness not
turned hostile Sunil Kulkarni collude... 182. The anchor's remarks were apparently from a
prepared text since the same remarks were repeated word by word by another anchor as
introduction to the second telecast on the same day at 9:00 pm. 183. Further, in the 9
o'clock telecast after some brief introductory remarks, clips from the sting recordings are
shown for several minutes and a commentator from the background 59 (probably Poonam
Agarwal) introduces the main characters in the BMW case. Kulkarni is introduced by the
commentator in the following words: Sunil Kulkarni, a passerby, who allegedly saw the
accident but inexplicably dropped as witness by prosecution. They claim he had been bought
by the Nandas. This despite the fact that he is the only witness who still says the accident
was caused by a `black car' with two men in it one of them called Sanjeev. 184. [This
statement does not find place in the manuscript of the telecast furnished to the court and
can be found only by carefully watching the CD of the telecast submitted before the court.
We are again left with the feeling that NDTV did not submit full and complete materials
before the court and we are surprised that the High Court did not find it amiss] 185. In the
first statement Kulkarni is twice described as the only witness in the BMW case who after
eight years had not turned hostile. The statement is fallacious and misleading. Kulkarni was
not being examined in the court as prosecution witness and, therefore, there was no
question of his being declared `hostile' by the prosecution. He was being examined as a
Court witnesses. Nevertheless, the prosecution was cross-examining him in detail in course
of which he was trying to sabotage the prosecution case. 186. The second statement is
equally, if not more, fallacious. In the second statement it is said that Kulkarni was
`inexplicably' dropped as a prosecution witness. We have seen earlier that Kulkarni was
dropped as a prosecution witness for good reasons summed up in the Joint Commissioner's
report to the trial court and there was nothing `inexplicable' about it. In the second
statement it is further suggested that the prosecution's claim that Kulkarni was bought over
by the accused was untrue because he was the only witness who still said that the accident
was caused by a black car with two men in it, one of them being called Sanjeev. It is true that
in his deposition before the court Kulkarni said that the accident was caused by a black car
but he resiled from his earlier statements made before the police and the magistrate in a
more subtle and clever way than the other two prosecution witnesses, namely, Hari Shankar
Yadav and Manoj Malik. Departing from his earlier statements he said in the court that he
heard one of the two occupants of the car addressing the other as `Sanch or sanz' (and not
as Sanjeev). Further, though admitting that Sanjeev Nanda was one of the occupants of the
car, he positively denied that he got down from the driving seat of the car and placed
someone else on the driving seat of the car causing the accident. Thus the damage to the
prosecution case that he tried to cause was far more serious than any other prosecution
witness. It is not that NDTV did not know these facts. NDTV was covering the BMW trial very
closely since its beginning and was aware of all the developments taking place in the case.
Then why did it introduce the programme in this way, running down the prosecution and
presenting Kulkarni as the only person standing upright while everyone else had fallen
down? The answer is not far to seek. One can not start a highly sensational programme by
saying that it was prepared with the active help of someone whose own credibility is
extremely suspect. The opening remarks were thus designed to catch the viewer and to hold
his/her attention, but truth, for the moment at least was relegated to the sidelines. It is
indeed true that later on in the programme facts concerning Kulkarni were stated correctly
and he was presented in a more balanced way and Mr. Subramanium wanted to give NDTV
credit points for that. But the impact and value of the opening remarks in a TV programme is
quite different from what comes later on. The later corrections were for the sake of the
record while the introductory remarks had their own value. 60 187. Further, on the basis of
the sting recordings NDTV might have justifiably said that IU Khan, the Special Prosecutor
appeared to be colluding with the defence (though this Court found that there was no
conclusive evidence to come to such a finding). But there was no material before NDTV to
make such allegation against the prosecution as a whole and thus to run down the other
agencies and people connected with the prosecution. There are other instances also of
wrong and inappropriate choice of words and expressions but we need not go any further in
the matter. 188. Another sad feature is its stridency. It is understandable that the
programme should have started on a highly sensational note because what was about to be
shown was really quite shocking. But the programme never regained poise and it became
more and more shrill. All the interviewees, highly eminent people, expressed their shock and
dismay over the state of the legal system in the country and the way the BMW trial was
proceeding. But as the interview progressed, they somewhat tended to lose their self
restraint and did not pause to ponder that they were speaking about a sub-judice matter
and a trial in which the testimony of a court witness was not even over. We are left with the
feeling that some of the speakers allowed their passions, roused by witnessing the shocking
scenes on the TV screen, to get better of their judgment and made certain very general and
broad remarks about the country's legal system that they might not have made if speaking in
a more dispassionate and objective circumstances. Unfortunately, not a single constructive
suggestion came from anyone as to how to revamp the administration of criminal justice.
The programme began on negative note and remained so till the very end. Conduct of NDTV
in proceeding before High Court: 189. In the earlier part of the judgment some of the glaring
lapses committed by NDTV in the proceeding before the High Court are already recounted.
Apart from those one or two other issues need to be mentioned here that failed to catch the
attention of the High Court. It seems that at the time the sting operations were carried out
people were actually apprehensive of something of that kind. Vikas Arora, Advocate had
stated in his complaint (dated April 19, 2007) about receiving such a threat from Poonam
Agarwal. NDTV in its reply dated April 26, 2007 had denied the allegations in the complaint,
at the same time, declaring its resolve to make continuous efforts to unravel the truth. At
the same time Poonam Agarwal was planning the stings in her meetings with Kulkarni. As a
matter of fact, the first sting was carried out on IU Khan just two days after giving reply to
Arora's complaint. Further, from the transcript of the first sting carried out on RK Anand on
May 6, 2007 it appears that he too had expressed some apprehension of this kind to which
Kulkarni responded by saying that he did not have money enough to eat how could he do
any recording of anyone. (It is difficult to miss the irony that the exchange took place while
RK Anand was actually being subjected to the sting). It thus appears that at that time, for
some reason, the smell of sting was in the air. In those circumstances we find it strange that
in the affidavits filed on behalf of NDTV there should be absolutely no reference to Vikas
Arora's complaint. In the earlier part of the judgment we have examined the affidavits filed
by Poonam Agarwal and found that she states about all the aspects of the sting operations in
great detail. But surprisingly those affidavits do not even refer to, much less deal with the
complaint of Vikas Arora despite the striking similarity between the threat that was allegedly
given to him and his senior IU Khan and the way the sting operation was actually carried out
on IU Khan. 190. There is another loose end in the whole matter. Kulkarni's sting meeting
with IU Khan had ended with fixing up another meeting for the following Sunday at the
latter's residence. (It was the setting up of this meeting that is primarily the basis for holding
him guilty of misconduct 61 as the Special Public Prosecutor). One should have thought that
this meeting would surely take place because it provided a far better opportunity for the
sting. With `good Scotch whisky' flowing it was likely that the planners of the stings would
get more substantial evidences of what they suspected. But we are not told anything about
this meeting: whether it took place or not? If it took place what transpired in it and whether
any sting recording was done? If it did not take place what was the reason for not keeping
the appointment and giving up such a good opportunity. Here it may be noted that Kulkarni
also in his affidavit filed before the High Court on August 6, 2007 stated that as arranged
between them he again met IU Khan in the evening but the sting recording of that meeting
was withheld by NDTV because that falsified their story. Kulkarni, as was his wont, might be
telling lies but that was an additional reason for NDTV to clarify the issue regarding the
second meeting between the two. 191. The next meeting between Kulkarni and IU Khan that
was fixed up in the sting meeting on April 28, 2007 might or might not have taken place but
there can be little doubt that they met again between April 28, 2007 and May 31, 2007 (the
day following the first sting telecast) when Kulkarni gave IU Khan the `certificate' that he had
accepted the summons on his advice (which was submitted by IU Khan before the trial court
when he withdrew from the case). 192. The affidavits filed on behalf of NDTV are completely
silent on these aspects. 193. These omissions (and some similar others) on the part of NDTV
leave one with the feeling that it was not sharing all the facts within its knowledge with the
court. The disclosures before the Court do not appear to be completely open, full and frank.
It would tell the court only so much as was necessary to secure the conviction of the
proceedees-wrong doers. There were some things that it would rather hold back from the
court. We would have appreciated the TV channel to make a fuller disclosure before the
High Court of all the facts within its knowledge. 194. Having said all this we would say, in the
end, that for all its faults the stings and the telecast of the sting programme by NDTV
rendered valuable service to the important public cause to protect and salvage the purity of
the course of justice. We appreciate the professional initiative and courage shown by the
young reporter Poonam Agarwal and we are impressed by the painstaking investigation
undertaken by NDTV to uncover the Shimla connection between Kulkarni and RK Anand.
195. We have recounted above the acts of omission and commission by NDTV before the
High Court and in the telecast of the sting programme in the hope that the observations will
help NDTV and other TV channels in their future operations and programmes. We are
conscious that the privately run TV channels in this country are very young, no more than
eighteen or twenty years old. We also find that like almost every other sphere of human
activity in the country the electronic news media has a very broad spectrum ranging from
very good to unspeakably bad. 196. The better news channels in the country (NDTV being
one of them) are second to none in the world in matters of coverage of news, impartiality
and objectivity in reporting, reach to the audience and capacity to influence public opinion
and are actually better than many foreign TV channels. But that is not to say that they are
totally free from biases and prejudices or they do not commit mistakes or gaffes or they
some times do not tend to trivialise highly serious issues or that there is nothing wanting in
their social content and orientation or that they maintain the same standards in all their
programmes. In quest of excellence they have still a long way to go. 197. A private TV
channel which is also a vast business venture has the inherent dilemma to reconcile its
business interests with the higher standards of professionalism/demands of 62 profession.
The two may not always converge and then the TV channel would find its professional
options getting limited as a result of conflict of priorities. The media trips mostly on TRPs
(television rating points), when commercial considerations assume dominance over higher
standards of professionalism. 198. It is not our intent here to lay down any reformist agenda
for the media. Any attempt to control and regulate the media from outside is likely to cause
more harm than good. The norms to regulate the media and to raise its professional
standards must come from inside. ROLE OF THE LAWYER 199. 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 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. We have viewed with disbelief
Senior Advocates freely taking part in TV debates or giving interviews to a TV
reporter/anchor of the show on issues that are directly the subject matter of cases pending
before the court and in which they are appearing for one of the sides or taking up the brief
of one of the sides soon after the TV show. Such conduct reminds us of the fictional barrister
Rumpole, `the Old Hack of Bailey', who self deprecatingly described himself as an `old taxi
plying for hire'. He at least was not bereft of professional values. When a young and
enthusiastic journalist invited him to a drink of Dom Perignon, vastly superior and far more
expensive than his usual `plonk', `Chbteau Fleet Street', he joined him with alacrity but when
in the course of the drink the journalist offered him a large sum of money for giving him a
story on the case; `why he was defending the most hated woman in England', Rumpole
ended the meeting simply saying "In the circumstance I think it is best if I pay for the Dom
Perignon" 200. 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 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 share the aspirations, hopes and the ideals of the people and whose members
are monetarily accessible and affordable to the people. 201. We are glad to note that Mr.
Gopal Subramanium, the amicus fully shared our concern and realised the gravity of the
issue. In course of his submissions he eloquently addressed us on the elevated position
enjoyed by a lawyer in our system of justice and the responsibilities cast upon him in
consequence. His Written Submissions begin with this issue and he quotes extensively form
the address of Shri M C Setalvad at the Diamond Jubilee Celebrations of the Banglore Bar
Association, 1961, and from the decisions of this Court in Pritam Pal v. High court of Madhya
Pradesh MANU/SC/0169/1992 : 1992CriLJ1269 (observations of Ratnavel Pandian J.) and
Sanjeev Datta, In Re, MANU/SC/0697/1995 : 1995CriLJ2910 (observations of Sawant J. at pp
634-635, para 20). 63 202. We respectfully endorse the views and sentiments expressed by
Mr. M.C. Setalvad, Pandian J. and Sawant J. 203. 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. This takes us to the
last leg of this matter. THE LARGER ISSUE : BMW TRIAL GETTING OUT OF HAND 204. Before
laying down the records of the case we must also advert to another issue of great
importance that causes grave concern to this Court. At the root of this odious affair is the
way the BMW trial was allowed to be constantly interfered with till it almost became
directionless. We have noted Kulkarni's conduct in course of investigation and at the
commencement of the trial; the fight that broke out in the court premises between some
policemen and a section of lawyers over his control and custody; the manner in which Hari
Shankar Yadav, a key prosecution witness turned hostile in court; the curious way in which
Manoj Malik, another key witness for the prosecution appeared before the court and
overriding the prosecution's protest, was allowed to depose only to resile from his earlier
statement. All this and several other similar developments calculated to derail the trial
would not have escaped the notice of the Chief Justice or the judges of the Court. But there
is nothing to show that the High Court, as an institution, as a body took any step to thwart
the nefarious activities aimed at undermining the trial and to ensure that it proceeded on
the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any
way they pleased. 205. We must add here that this indifferent and passive attitude is not
confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser
degrees by many other High Courts. From experience in Bihar, the author of these lines can
say that every now and then one would come across reports of investigation deliberately
botched up or of the trial being hijacked by some powerful and influential accused, either by
buying over or intimidating witnesses or by creating insurmountable impediments for the
trial court and not allowing the trial to proceed. But unfortunately the reports would
seldom, if ever, be taken note of by the collective consciousness of the Court. The High Court
would continue to carry on its business as if everything under it was proceeding normally
and smoothly. The trial would fail because it was not protected from external interferences.
Every trial that fails due to external interference is a tragedy for the victim(s) of the crime.
More importantly, every frustrated trial defies and mocks the society based on the rule of
law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make
the system unrecognisable and it then loses the trust and confidence of the people. Every
failed trial is also, in a manner of speaking, a negative comment on the State's High Court
that is entrusted with the responsibility of superintendence, supervision and control of the
lower courts. It is, therefore, high time for the High Courts to assume a more pro-active role
in such matters. A step in time by the High Court can save a criminal case from going 64
astray. An enquiry from the High Court Registry to the concerned quarters would send the
message that the High Court is watching; it means business and it will not tolerate any
nonsense. Even this much would help a great deal in insulating a criminal case from outside
interferences. In very few cases where more positive intervention is called for, if the matter
is at the stage of investigation the High Court may call for status report and progress reports
from police headquarter or the concerned Superintendent of Police. That alone would
provide sufficient stimulation and pressure for a fair investigation of the case. In rare cases if
the High Court is not satisfied by the status/progress reports it may even consider taking up
the matter on the judicial side. Once the case reaches the stage of trial the High Court
obviously has far wider powers. It can assign the trial to some judicial officer who has made
a reputation for independence and integrity. It may fix the venue of the trial at a proper
place where the scope for any external interference may be eliminated or minimized. It can
give effective directions for protection of witnesses and victims and their families. It can
ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a
day-to-day basis. The High Court has got ample powers for all this both on the judicial and
administrative sides. Article 227 of the Constitution of India that gives the High Court the
authority of superintendence over the subordinate courts has great dynamism and now is
the time to add to it another dimension for monitoring and protection of criminal trials.
Similarly Article 235 of the Constitution that vests the High Court with the power of control
over sub-ordinate courts should also include a positive element. It should not be confined
only to posting, transfer and promotion of the officers of the subordinate judiciary. The
power of control should also be exercised to protect them from external interference that
may sometime appear overpowering to them and to support them to discharge their duties
fearlessly. 206. In light of the discussions made above we pass the following orders and
directions. 1. The appeal filed by IU Khan is allowed and his conviction for criminal contempt
is set aside. The period of four month's prohibition from appearing in Delhi High Court and
the courts sub-ordinate to it is already over. The punishment of fine given to him by the High
Court is set aside. The Full Court of the Delhi High Court may still consider whether or not to
continue the honour of Senior Advocate conferred on him in light of the findings recorded in
this judgment. 2. The appeal of RK Anand is dismissed subject to the notice of enhancement
of punishment issued to him as indicated in paragraph 165 of the judgment. He is allowed
eight weeks time from the date of service of notice for filing his show-cause. 3. Those of the
High Courts which have so far not framed any rules under Section 34 of the Advocates Act,
shall frame appropriate rules without any further delay as directed in paragraph 147 of the
judgment. 4. Put up the appeal of RK Anand after the show-cause is filed. * * * * * 65 In Re:
Arundhati Roy vs Unknown, AIR 2002 SC 1375 Bench: G Pattanaik, R Sethi JUDGMENT Sethi,
J. 5. The facts of the case, which are not seriously disputed, are that an organisation, namely,
Narmada Bachao Andolan filed a petition under Article 32 of the Constitution of India being
Writ Petition No. 319 of 1994 in this Court. The petitioner was a movement or andolan,
whose leaders and members were concerned about the alleged adverse environmental
impact of the construction of the sardar Sarovar Reservoir Dam in Gujarat and the far-
reaching and tragic consequences of the displacement of hundreds of thousands of people
from their ancestral homes that would result from the submerging of vast extents of land, to
make up the reservoir. During the pendency of the writ petition this Court passed various
order. By one of the order, the Court permitted to increase the height of the dam to RL 85
meters which was resented to and protested by the writ petitioners and others including the
respondent herein. The respondent Arundhati Roy, who is not a party to the writ
proceedings, published an article entitled "The Greater Common Good" which was published
in Outlook Magazine and in some portion of a book written by her. Two judges of this Court,
forming the three-judge Bench felt that the comments made by her were, prima facie, a
misrepresentation of the proceedings of the court. It was observed that judicial process and
institution cannot be permitted to be scandalised or subjected to contumacious violation in
such a blatant manner, it had been done by her. The action of the respondent had caused
the court much anguish and when the court expressed its displeasure on the action of the
respondent in making distorted writing or manner in which leaders of the petitioner Ms.
Medha Patkar and one Dharmadikhari despite giving assurance to the court acted in breach
of the injunction, the Court observed: "We are unhappy at the way the leaders of NBA and
Ms. Arundhati Roy have attempted to undermine the dignity of the Court. We expected
better behavior from them." 6. Showing its magnanimity, the Court declared: "After giving
this matter our thoughtful consideration and keeping in view the importance of the issue of
resettlement and rehabilitation of the PAFs, which we have been monitoring for the last five
years, we are not inclined to initiate proceedings against the petitioner, its leaders or Ms.
Arundhati Roy. We are of the opinion, in the largest interest of the issues pending before us,
that we need not pursue the matter any further. We, however, hope that what we have said
above would serve the purpose and the petitioner and its leaders would hereafter desist
from acting in a manner which has the tendency to interfere with the due administration of
justice or which violates the injunctions issued by this Court from time to time." 66 7. The
third learned Judge also recorded his disapproval of the statement made by the respondent
herein and others and felt that as the court's shoulders are broad enough to shrug off their
comments and because the focus should not shift from the resettlement and rehabilitation
of the oustees, no action in contempt be taken against them. 8. However, after the
judgment was pronounced in IA No. 14 of 1999 on 15th October, 1999 , an incident is stated
to have taken place on 30th December, 2000 regarding which Contempt Petition No. 2 of
2001 was filed by J.R. Parashar, Advocate and others. According to the appellations made in
that petition, the respondents named therein, led a huge crowd and held a Dharna in front
of this Court and shouted abusive slogans against the court including slogans ascribing lack
of integrity and dishonesty to his institution. All the three respondents therein admitted that
there was a Dharna outside the gates of this Court on 30th December, 2000 which was
organised by Narmada Bachao Andolan and the gathered crowd were persons who lived in
the Narmada Valley and were aggrieved by the majority judgment of this Court relating to
the building of the dam on the Narmada River. 9. The assertions in the aforesaid contempt
petition attributed that the contemnors shouted abusive slogans against the court including
slogans ascribing lack of integrity and dishonesty to the institution undoubtedly made the
action of the contemnor gross contemptuous and as such the court had initiated the
contempt proceedings by issuing notice. But in view of the denial of the alleged contemnors
to the effect that they had never shouted such slogans and used such abusive words as
stated in the contempt petition, instead of holding an inquiry and permitting the parties to
lead evidence in respect of here respective stand, to find out which version is correct, the
court though it fit not to adopt that course and decided to drop the proceedings. But in the
very show cause that had been filed by the respondent No. 3, Smt. Arundhati Roy, apart
from denying that she had not used any such words as ascribed to her. However, the Court
felt that respondent No. 3 therein (Arundhati Roy) was found to have, prima facie,
committed contempt as she had imputed motives to specific courts for entertaining
litigation and passing orders against her. She had accused courts of harassing her as if the
judiciary were carrying out a personal vendetta against her. She had brought in matters
which were not only not pertinent to the issues to be decided but has drawn uninformed
comparisons to make statements about this Court which do not appear to be protected by
law relating to fair criticism. It was stated by her in the court that she stood by the
comments made by her even if the same are contumacious. For the reason recorded
therein, the Court issued notice int he prescribed form to the respondent herein asking her
to show cause as to why she should not be proceeded against for contempt for the
statements in the offending three paragraphs of her affidavit, reproduced hereinearlier. 10.
In her reply affidavit, the respondent has again reiterated what she had stated in her earlier
affidavit. It is contended that as a consequence of the Supreme Court judgment the people
in the 67 Narmada Valley are likely to lose their homes, their livelihood and their histories
and when they came calling on the Supreme Court, they were accused of lowering the
dignity of the court which, according to her is a suggestion that the dignity of the court and
the dignity of the Indian citizens are incompatible, oppositional, adversarial things. She
stated: "I believe that the people of the Narmada valley have the constitutional right to
peacefully against what they consider an unjust and unfair judgment. As for myself, I have
every right to participate in any peaceful protest meeting that I choose to. Even outside the
gates of the Supreme Court. As a writer I am fully entitled to put forward my views, my
reasons and arguments for why I believe that the judgment in the Sardar Sarovar case is
flawed and unjust and violates the human rights of Indian citizens. I have the right to use all
my skills and abilities such as they are, and all the facts and figures at my disposal, to
persuade people to my point of view." 11. She also stated that she has written and published
several essays and articles on Narmada issue and the Supreme Court judgment. None of
them was intended to show contempt to the court. She justified her right to disagree with
the court's view on the subject and to express her disagreement in any publication or forum.
In her belief the big dams are economically unviable, ecologically destructive and deeply
undemocratic. In her affidavit she has further stated: "But whoever they are, and whatever
their motives, for the petitioners to attempt to misuse the Contempt of Court Act and the
good offices of the Supreme Court to stifle criticism and stamp out dissent, strikes at the
very roots of the notion of democracy.In recent months this Court has issued judgments on
several major public issues. For instance, the closure of polluting industries in Delhi, the
conversion of public transport buses from diesel to CNG, and the judgment permitting the
construction of the Sardar Sarovar Dam to proceed. Ali of these have had far-reaching and
often unanticipated impacts. They have materially affected, for better or for worse, the lives
and livelihoods of millions of Indian citizens. Whatever the justice or injustice of these
judgments whatever their finer legal points, for the court to become intolerant of criticism
or expressions of dissent would mark the beginning of the end of democracy. In conclusion, I
wish to reaffirm that as a writer I have right to state my opinions and beliefs. As a free citizen
of India I have the right to be part of any peaceful dharna, demonstration or protest march. I
have the right to criticize any judgment of any court that I believe to be unjust. I have the
right to make common cause with those I agree with. I hope that each time I exercise these
rights I will not dragged to court on false charges and forced to explain my actions." 17. The
High Court in its judgment had concluded that the allegations made against the judicial
officers come within the category of contempt which is committed by "scandalizing the
court". The learned judges observed on the authority of the pronouncement of Lord Russel
in Reg. v. Gray [(1900) 2 G.B. 36] that this class of contempt is subject to one important
qualification. 68 inthe opinion of the judges of the High Court, the complaint lodged by the
contemners exceeded the bounds of fair and legitimate criticism. This Court referred to
various judgments of English Courts and concluded: "The position therefore is that a
defamatory attack on a judge may be a libel so far as the judge is concerned and it would be
open to him to proceed against the libeler in a proper action if he so chooses. If, however,
the publication of the disparaging statement is calculated to interfere with the due course of
justice or proper administration of law by such court, it can be punished summarily as
contempt. One is a wrong done to the judge personally while the other is a wrong done to
the public. It will be injury to the public if it tends to create an apprehension in the minds of
the people regarding the integrity, ability or fairness of the judge or to deter actual and
prospective litigants from placing complete reliance upon the court's administration of
justice, or if it is likely to cause embarrassment in the mind of the judge himself in the
discharge of his judicial duties. It is well established that it is not necessary to prove
affirmatively that there has been an actual interference with the administration of justice by
reason of such defamatory statement; it is enough if it is likely, or tends in any way, to
interfere with the proper administration of law." 19. Similarly reliance of Shri Shanti
Bhushan, Senior Advocate on Shri Baradakanta Mishra v. The Registrar of Orissa High Court
and Anr. [1974 (1) 374] is of no great help to his client. After referring to the definition of
criminal contempt in Section 2(c) of the Act, the court found that the terminology used in
the definition is borrowed from the English Law of contempt and embodies certain concepts
which are familiar to that law which, by and large, was applied in India. The expressions
"scandalized", "lowering the authority of the court," "interference", "obstruction" and
"administration of justice" have all gone into the legal currency of our sub-continent and
have to be understood in the sense in which they have been so far understood by our courts
with the aid of English Law, where necessary . Sub-clause (i) of the definition was held to
embody the concept of canalization, as discussed by Halsbury's Laws of England, 3rd Edition
in Volume 8, page 7 at para 9. Action of scandalizing the authority of the court has been
regarded as an "obstruction" of public justice whereby the authority of the court is
undermined. All the three clauses of the definition were held to justify the contempt in
terms of obstruction of or interference with the administration of justice. It was declared
that the Act accepts what was laid down by the Privy Council and other English authorities
that proceedings in contempt are always with reference to the administration of justice. The
canalization within the meaning of Subsection (i) must be in respect of the court or the judge
with reference to administration of justice. This Court concluded that the courts of justice
are, by their constitution, entrusted with functions directly connected with the
administration of justice, and it is the expectation and confidence of all those who have or
likely to have business therein that the court perform all their functions on a high level of
rectitude without fear or favour, affection or ill-will. It is this traditional confidence in courts
of justice that the justice will be administered to the people which is sought to be protected
by proceedings in contempt. The object obviously is not to vindicate the judge 69 personally
but to protect the public against any undermining of their accustomed confidence in the
institution of the judiciary. canalization of the court was held to be a species of contempt
which may take several forms. Krishna Iyer, J. while concurring with the main judgment
authored by Palekar, J. observed that the dilemma of the law of contempt arises because of
the constitutional need to balance two great but occasionally conflicting principles - freedom
of expression and fair and fearless justice. After referring to the judgments of English,
American and Canadian Courts, he observed: "Before stating the principles of law bearing on
the facts of contempt of court raised in this case we would like to underscore the need to
draw the lines clear enough to create confidence in the people that this ancient and
inherent power, intended to preserve the faith of the public in public justice, will not be so
used as to provoke public hostility as overtook the Star Chamber. A vague and wandering
jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the
prosecutor, a law which makes it a crime to public regardless of truth and public good and
permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and
so the special jurisdiction and jurisprudence bearing on contempt power must be delineated
with deliberation and operated with serious circumspection by the higher judicial echelons.
So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must
vigilantly protect free speech even against judicial umbrage - a delicate but sacred duty
whose discharge demands tolerance and detachment of a high order." 20. According to him
the considerations, as noticed in the judgment, led to the enactment of the Contempt of
Courts Act, 1971 which makes some restrictive departures from the traditional law and
implies some wholesome principles which serve as unspoken guidelines in this branch of
law.Section 2(c) emphasizes to the interference with the courts of justice or obstruction of
the administration of justice or scandalizing or lowering the authority of the court - not the
judge. According to him, "The unique power to punish for contempt of itself inheres in a
court qua court, in its essential role of dispenser of public justice. After referring to host of
judicial pronouncements, Krishna Iyer, J., concluded: "We may now sum up. Judges and
Courts have diverse duties. But functionally, historically and jurisprudentially, the value
which is dear to the community and the function which deserves to be cordoned off from
public molestation, is judicial. Vicious criticism of personal and administrative act of Judges
may indirectly mar their image and weaken the confidence of the public in the judiciary but
the countervailing good, not merely of free speech but also of greater faith generated by
exposure to the actinic light of bona fide, even if marginally over-zealous, criticism cannot be
overlooked. Justices is so cloistered virtue." 22. In In Re: S. Mulgaokar Beg, CJ observed that
the judiciary is not immune from criticism but when that criticism is based on obvious
distortion or gross mis-statement and made in a manner which is designed to lower the
respect of the judiciary and destroy public confidence in it, it cannot be ignored. He further
declared" 70 Krishna Iyer, J. while concurring observed: "The contempt power, though
jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of
contempt need not erupt in indignant committal or demand punishment, because Judges
are judicious, their valour non-violent and their wisdom goes into action when played upon
by a volley of values, the least of which is personal protection - for a wide discretion, range
of circumspection and rainbow of public considerations benignantly guide that power.
Justice if not hubris; power is not petulance and prudence is not pusillanimity, especially
when Judges are themselves prospectors and mercy is a mark of strength, not whimper of
weakness. Christ and Gandhi shall not be lost on the Judges at a critical time when courts are
on trial and the people ("We, the People of India") pronounce the final verdict on all national
institutions. Such was the sublime perspective, not plural little factors, that prompted me to
nip in the bud the proceeding started for serving a larger cause of public justice than
punitive action against a publisher, even assuming )without admitting) he was guilty. The
preliminary proceeding has been buried publicly; let it lie in peace. Many values like free
press, fair trial, judicial fearlessness and community confidence must generously enter the
verdict, the benefit of doubt, without absolutist insistence, being extended to the
defendants. Such are the dynamics of power in this special jurisdiction. These diverse
indicators, carefully considered, have persuaded me to go no further, by a unilateral decision
of the Bench. This closure has two consequences. It puts the lid on the proceedings without
pronouncing on the guilt or otherwise of the opposite parties. In a quasi-criminal action, a
presumption of innocence operates. Secondly, whatever belated reasons we may give for
our action,w e must not proceed to substantiate the accusation, if any. To condemn unheard
is not fair play. Bodyline bowling, perhaps, is not cricket. So may reason do not reflect on the
merits of the charge." 24. He further observed that contempt power is a wise economy to
use by the Court of this branch of its jurisdiction. The court will act with seriousness and
severity where justice is jeopardized by a gross and/or unfounded attack on the Judges,
where the attack is calculated to obstruct or destroy the judicial process. The court should
harmonise the constitutional values of free criticism and the need for a fearless curial
process and its presiding functionary, the Judge. 25. In Dr. D.C. Saxena v. Hon'ble the Chief
Justice of India this Court held that if maintenance of democracy is the foundation of free
speech, society equally is entitled to regulate freedom of speech or expression by
democratic action. Nobody has a right to denigrate others right of person and reputation.
Bonafide criticism of any system or institution including the judiciary cannot be objected to
as healthy and constructive criticism are fools to augment forensic tools for improving its
function. 26. Relying upon some judgments of foreign courts and the cherished wishes
expressed or observations made by the Judges of this country it cannot be held as law that
in view of the constitutional protection of freedom of speech and expression no-one can be
proceeded with for 71 the contempt of court on the allegation of scandalizing or intending
to scandalise the authority of any Court. The Act is for more comprehensive legislation which
lays down the law in respect of several matters which hitherto had been the subject of
judicial exposition. The legislature appears to have kept in mind to bring the law on the
subject into line with modern trends of thinking in other countries without ignoring the
ground realities and prevalent socio-economic system in India, the vast majority of whose
people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledge
have the tremendous faith in the Dispensers of Justice. The Act, which was enacted in the
year 1971, much after the adoption of the Constitution by the People of India, defined
criminal contempt under Section 2(c) to mean: "Criminal contempt" means the publication
(whether by words, spoken or written or by signs, or by visible representation, or otherwise)
of any matter or the doing of any other act whatsoever which i) scandalises or tends to
scandalise, or lowers or tends to lower the authority of, any court, or ii) prejudices, or
interferes or tends to interfere with, the due course of any judicial proceeding; or iii)
interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner." 27. This Court has occasion to deal with the constitutional
validity of the Act and came to the conclusion that the same was intra vires. If the
constitutional validity of criminal contempt withstood the test on the touchstone of
constitutionality in the light of the fundamental rights, it is too late to argue at this stage
that no contempt proceeding can be initiated against a person on the ground of scandalizing
the authority of the court. 28. Dealing with the meaning of the word "scandalizing", this
Court in D.C. Saxena's case (supra) held that it is an expression of scurrilous attack on the
majesty of justice which is calculated to undermine the authority of the courts and public
confidence in the administration of justice. Dealing with Section 2(c) of the Act and defining
the limits of scandalizing the court, it was held: "scandalizing the court, therefore, would
mean hostile criticism of judges as judges or judiciary. Any personal attack upon a judge in
connection with the officer he holds is dealt with under law of libel or slander. Yet
defamatory publication concerning the judge as a judge brings the court or judges into
contempt, a serious impediment to justice and an inroad on the majesty of justice Any
caricature of a judge calculated to lower the dignity of the court would destroy, undermine
72 or tend to undermine public confidence in the administration of justice or the majesty of
justice. It would, therefore, be scandalizing the judge as a judge, in other words, imputing
partiality, corruption, bias improper motives to a judge is canalization of the court and would
be contempt of the court. Even imputation of lack of impartiality or fairness to a judge in the
discharge of his official duties amounts to contempt. The gravamen of the offence is that of
lowering his dignity or authority or an affront to the majesty of justice. When the contemnor
challenges the authority of the court, he interferes with the performance of duties of judge's
office or judicial process or administration of justice or generation or production of tendency
bringing the judge or judiciary into contempt. Section 2(c) of the Act, therefore, defines
criminal contempt in wider articulation that any publication,whether by words, spoken or
written, or by signs, or by visible representations, or otherwise of any matter or the doing of
any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to
lower the authority or any court; or prejudices, or interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of justice in any other manner, is a
criminal contempt. Therefore, a tendency to scandalise the court or tendency to lower the
authority of the court or tendency to interfere with or tendency to obstruct the
administration of justice in any manner or tendency to challenge the authority or majesty of
justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to
or tends to lower the authority of the court is a criminal contempt. Any conduct of the
contemnor which has the tendency or produces a tendency to bring the judge or court into
contempt or tends to lower the authority of the court would also be contempt of the court."
"The appellant has contended before us that the law of contempt should be so applied that
the freedom of speech and expression are not whittled down. This is true. The spirit
underlying Article 19(1)(a) must have due play but we cannot overlook the provisions of the
second clause of the article. While it is intended that there should be freedom of speech and
expression, it is also intended that in the exercise of the right, contempt of court shall not be
committed. The words of the second clause are: 'Nothing in Sub-clause (a) of Clause (1) shall
affect the operation of any existing law or prevent the State from making any law, in so far
as such law imposes reasonable restriction on the exercise of the right conferred by the sub-
clause... in relation to contempt of court, defamation or incitement to an offence.' These
provisions are to be read with Articles 129 and 215 which specially confer on this Court and
the High Courts the power to punish for contempt of themselves. Article 19(1)(a) guarantees
complete freedom of speech and expression but it also makes an exception in respect of
contempt of court. The guaranteed right on which the functioning of our democracy rests, is
intended to give protection to expression of free opinions to change political and social
conditions and to advance human knowledge. While the right is essential to a free society,
the Constitution has itself imposed restrictions, in relation to contempt of court and it
cannot therefore be said that the right abolishes the law of contempt or that attacks upon
judges and courts will be condoned." 73 30. In Sheela Barse v. Union of India & Ors. the
Court acknowledged that the broader right of a citizen to criticise the systemic inadequacies
in the larger public interest. It is the privileged right of the Indian citizen to believe what he
considers to be true and to speak out his mind, though not, perhaps, always with the best of
tastes; and speak perhaps, with greater courage than care for exactitude. Judiciary is not
exempt from such criticism. Judicial institutions are, and should be made, of stronger stuff
intended to endure the thrive even in such hardy climate. But we find no justification to the
resort to this freedom and privilege to criticise the proceedings during their pendency by
persons who are parties and participants therein. 31. The law of contempt itself envisages
various exceptions as incorporated in Section 3, 4, 5, 6and 7. Besides the aforesaid defences
envisaged under the Act, the court can, in appropriate cases, consider any other defence put
forth by the respondent which is not incompatible with the dignity of the court and the law
of contempt. 36. As already held, fair criticism of the conduct of a judge, the institution of
the judiciary and its functioning may not amount to contempt if it is made in good faith and
in public interest. To ascertain the good faith and the public interest, the courts have to see
all the surrounding circumstances including the person responsible for comments, his
knowledge in the field regarding which the comments are made and the intended purpose
sought to be achieved. All citizens cannot be permitted to comment upon the conduct of the
courts in the name of fair criticism which, if not checked, would destroy the institution itself.
Litigant losing in the Court would be the first to impute motives to the judges and the
institution in the name of fair criticism which cannot be allowed for preserving the public
faith in an important pillar of democratic set up, i.e., judiciary. In Dr. D.C. Saxena's case
(supra) this Court dealt with the case of P. Shiv Shankar by observing: "In P.N. Duda v. P. Shiv
Shankar this Court had held that administration of justice and judges are open to public
criticism and public scrutiny. Judges have their accountability to the society and their
accountability must be judged by the conscience and oath to their office, i.e, to defend and
uphold the Constitution and the laws without fear and favour. Thus the judges must do, in
the light given to them to determine, what is right. Any criticism about the judicial system or
the judges which hampers the administration of justice or which erodes the faith in the
objective approach of the judges and brings administration of justice to ridicule must be
prevented. The contempt of court proceedings arise out of that attempt. Judgments can be
criticised. Motives to the judges need not be attributed. It brings the administration of
justice into disrepute. Faith in the administration of justice is one of the pillars on which
democratic institution functions and sustains. In the free market-place of ideas criticism
about the judicial system or judges should be welcome so long as such criticism does not
impair or hamper the administration of justice. This is how the courts should exercise the
powers vested in them and judges to punish a person for an alleged contempt by taking
notice of the contempt suo motu or at the behest of the litigant or a lawyer. In that case the
speech of the Law Minister in a Seminar organised by the Bar Council 74 and the offending
portion therein were held not contemptuous and punishable under the Act. In a democracy
judges and courts alike are, therefore, subject to criticism and if reasonable argument or
criticism in respectful language and tempered with moderation is offered against any judicial
act as contrary to law or public good, no court would treat criticism as a contempt of court."
38. The Constitution of India has guaranteed freedom of speech and expression to every
citizen as a fundamental right. While guaranteeing such freedom, it has also provided under
Article 129that the Supreme Court shall be a Court of Record and shall have all the powers of
such a Court including the power to punish for contempt of itself. Similar power has been
conferred on the High Courts of the States under Article 215. Under the Constitution, there
is no separate guarantee of the freedom of the press and it is the same freedom of
expression, which is conferred on all citizens under Article 19(1). Any expression of opinion
would, therefore, be not immune from the liability for exceeding the limits, either under the
law of defamation or contempt of Court or the other constitutional limitations under Article
19(2). If a citizen, therefore, in the grab of exercising right of free expression under Article
19(1), tries to scandalise the court or undermines the dignity of the court, then the court
would be entitled to exercise power under Article 129 or Article 215, as the case may be. In
relation to a pending proceeding before the Court, while showing cause to the notice issued,
when it is stated the court displays a disturbing willingness to issue notice on an absurd
despicable, entirely unsubstantiated petition, it amounts to a destructive attack on the
reputation and the credibility of the institution and it undermines the public confidence in
the judiciary as a whole and by no stretch of imagination, can be held to be a fair criticism of
the Court's proceeding. When a scurrilous attack is made in relation to a pending proceeding
and the noticed states that the issuance of notice to show cause was intended to silence
criticism and muzzle dissent, to harass and intimidate those who disagree with it, is a direct
attack on the institution itself, rather than the conduct of an individual Judge. The meaning
of the expressions used cannot come within the extended concept of fair criticism or
expression of opinion particularly to the case of the contemner in the present case, who on
her own right is an acclaimed writer in English. At one point of time, we had seriously
considered the speech of Lord Atkin, where the learned Judge has stated: "The path of
criticism is public way: the wrongheaded are permitted to err therein... Justice is not a
cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though
outspoken, comments of ordinary men." [Andre Paul v. Attorney General (1936), AC 322].
and to find out whether there can be a balancing between the two public interests, the
freedom of expression and the dignity of the court. We also took note of observations of
Bharucha, J. in the earlier contempt case against the present contemner, who after
recording his disapproval of the statement, observed that the Court's shoulders are broad
enough to shrug off the comments. But in view of the utterances made by the contemnor in
her show causes filed and not a word of remorse, till the conclusion of the hearing, it is
difficult for us either to shrug off or to hold the 75 accusations made as comments of
outspoken ordinary man and permit the wrongheaded to err therein, as observed by Lord
Atkin. 40. In the offending portion of her affidavit, the respondent has accused the court of
proceeding with absurd, despicable and entirely unsubstantiated petition which, according
to her, amounted to the court displaying a disturbing willingness to issue notice. She has
further attributed motives to the court of silencing criticism and muzzling dissent by
harassing and intimidating those who disagree with it. Her contempt for the court is evident
from the assertion "by entertaining a petition based on an FIR that even a local police station
does not see fit to act upon, the Supreme Court is doing its own reputation and credibility
consideration harm". In the affidavit filed in these proceedings, the respondent has
reiterated what she has stated in her earlier affidavit and has not shown any repentance.
She wanted to become a champion to the cause of the writers by asserting that persons like
her can allege anything they desire and accuse any person or institution without any
circumspection , limitation or restraint. Such an attitude shows her persistent and consistent
attempt to malign the institution of the judiciary found to be most important pillar in the
Indian democratic set up. This is no defence to say that as no actual damage has been done
to the judiciary, the proceedings be dropped. The well-known proposition of law is that it
punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The
respondent is proved to have shot the arrow, intended to damage the institution of the
judiciary and thereby weaken the faith of the public in general and if such an attempt is not
prevented, disastrous consequences are likely to follow resulting in the destruction of rule of
law, the expected norm of any civilised society. 41. On the basis of the record, the position
of law our findings on various pleas raised and the conduct of the respondent, we have no
doubt in our mind that the respondent has committed the criminal contempt of this Court
by scandalizing its authority with malafide intentions. The respondent is, therefore, held
guilty for the contempt of court punishable under Section 12 of the Contempt of Courts Act.
42. As the respondent has not shown any repentance or regret or remorse, no lenient view
should be taken in the matter. However, showing the magnanimity of law by keeping in
mind that the respondent is a woman, and hoping that better sense and wisdom shall dawn
upon the respondent in the future to serve the cause of art and literature by her creative
skill and imagination, we feel that the ends of justice would be met if she is sentenced to
symbolic imprisonment besides paying a fine of Rs. 2000/-. 43. While convicting the
respondent for the contempt of the Court, we sentence her to simple imprisonment for one
day and to pay a fine of Rs. 2,000/-. In case of default in the payment of fine, the respondent
shall undergo simple imprisonment for three months. 76 Mrityunjoy Das & Anr vs Sayed
Hasibur Rahaman & Ors AIR 2001 SC 1293 Bench: Umesh C. Banerjee, S.N. Phukan
BANERJEE, J. The introduction of the Contempt of Courts Act, 1971 in the statute book has
been for purposes of securing a feeling of confidence of the people in general for due and
proper administration of justice in the country. It is a powerful weapon in the hands of the
law courts by reason wherefor it must thus be exercised with due care and caution and for
larger interest. Incidentally, a special leave petition (1416/1997) was filed before this Court
by PaschimBangaRajyaBhumijibiSangh against the judgment of the Calcutta High Court
pertaining to the question of constitutionality of certain provisions of West Bengal Land
Reforms Amendment Acts 1981 and 1986. The said Sangha filed an Interlocutory Application
being I.A.No.3 OF 1999 for issuance of certain directions which inter alia reads as below: (a)
direct the State of West Bengal and its Revenue Authorities not to initiate any proceedings
for vesting of the land against the members of the Petitioner Sangha and if any vesting
proceeding has been already initiated against the members of the Petitioner Sangha in that
event not to pass any order and maintain status-quo in respect of the land in question in all
respect till the disposal of the Special Leave Petition (Civil) No.1416 of 1997 pending before
this Honble Court or in alternative clarify that the order dated 20.3.1998 as quoted in
paragraph 19-20 will apply only to the parties thereto and not to the members of the
Petitioner No.1 Sangha. The Interlocutory Application was heard on 29th October, 1999 and
this Court was pleased to pass an order therein to the following effect: At the request of
Learned counsel for the Applicants four weeks time is granted to enable him to put on
record appropriate information regarding members of the Sangha for whom the application
is moved and the nature of the stay required. In the meantime Learned Counsel for the
Respondent will also take appropriate instructions in connection with this I.A. Subsequently
on 16th December, 1999, this Court in I.A.No.3 passed an interim order to the effect as
below: Having heard Learned counsel for the parties, by way of an interim order, it is
directed that status-quo regarding possession on spot shall be maintained by both the sides
in connection with the members of the Petitioner-Sangha who were before the High Court in
the Writ Petition out of which the present proceedings arise. (Emphasis supplied) In the
meantime, learned senior counsel for the respondent-State of West Bengal will verify the list
of these members, (Emphasis supplied ) which is furnished to him by Learned Counsel for
the Petitioner and subject to that verification further orders will be passed after three
months. To be placed after three months. 77 In the application (I.A.No.3) a further order was
passed on 17th April, 2000 which reads as below: We have heard learned senior counsel for
the Petitioners, Mr. Shanti Bhushan and Learned Senior Counsel for respondent-State of
West Bengal, Mr. Ray, Learned Senior Counsel for respondent-State of West Bengal is right
when he says that some more time is required as 13,000 persons are listed and they have to
ascertain about their existence on the spot. We grant time up to the end of July, 2000. I.A.
will be placed in the second week of August, 2000. In the meantime, at the request of
Learned Counsel for the Petitioners, Mr. Shanti Bhusan we grant additional interim relief in
continuation of our earlier order dated 16.12.1999 to the effect that if in the meantime, any
vesting orders have been passed in respect of the lands of members of Petitioner Sangha
who were before the High Court in the matter out of which the present proceedings arise,
then those vesting orders shall not be implemented until further orders." It is this order
which is said to have been violated and thus bringing the orders of this Court into ridicule.
The factum of violation is said to have been deliberate since in spite of the order as above
and even after the service of the order dated 17th April, 2000 to the authorities of Land
Reforms Department, Government of West Bengal for its compliance, the Petitioner No.1
being a resident of village Amriti, District, Malda, West Bengal and a life member of the
PaschimBangaRajyaBhumijibiSangha was served with a notice dated 5.4.2000 under Section
57 of the West Bengal Land Reforms Act together with Section 14-T (3) of the said Act read
with Rule 4 of the Rules framed thereunder by the Revenue Officer Cell, Malda asking to
submit details of land held by him and his family members since 7.8.1969 and particulars of
land transferred by him after that date. The records depict that a reply to the said notice was
furnished as early as 30th April, 2000 alongwith the certification of membership of the
Sangha and copy of the order dated 16th December, 1999 passed by this Court. It further
appears that a hearing did take place and the Revenue Officer passed an order of vesting on
17th April, 2000. Subsequently, on the factual matrix, it appears that by the notice dated
26th April, 2000 issued by the Revenue Officer, possession of 37.47½ acres of land was
directed to be made over to the Land Revenue Authority on 27.4.2000. It has been the
definite case of the petitioners that in spite of receipt of both the orders dated 16th
December, 1999 and 17th April, 2000, the Block Land & Land Reforms Officer, English Bazar,
Malda came on the site and took possession of the said land. Similar is the situation as
regards the land belonging to petitioner No.2 and possession 20.76 acres of land was also
obtained by the Block Land & Land Reforms Officer, English Bazar, Malda. This act of
obtaining possession from the applicants herein is stated to be a deliberate violation of this
Courts order and thus cannot but be ascribed to be contemptuous in nature. The purpose of
contempt jurisdiction is to uphold the majesty and dignity of the Courts of law since the
image of such a majesty in the minds of the people cannot be led to be distorted. The
respect and authority commanded by Courts of Law are the greatest guarantee to an
ordinary citizen and the entire democratic fabric of the society will crumble down if the
respect for the judiciary is undermined. It is true that the judiciary will be judged by the
people for what the judiciary does, but in the event of any indulgence which even can
remotely be termed to affect the majesty of law, the society is bound to lose confidence and
faith in the judiciary and the law courts thus, would forfeit the trust and confidence of the
people in general. 78 The other aspect of the matter ought also to be noticed at this juncture
viz., the burden and standard of proof. The common English phrase he who asserts must
prove has its due application in the matter of proof of the allegations said to be constituting
the act of contempt. As regards the standard of proof, be it noted that a proceeding under
the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of
Court Act is quasi criminal, and as such, the standard of proof required is that of a criminal
proceeding and the breach shall have to be established beyond reasonable doubt. The
observations of Lord Denning in Re Bramblevale (1969 3 All ER 1062) lend support to the
aforesaid. Lord Denning in Re Bramblevale stated: A contempt of court is an offence of a
criminal character. A man may be sent to prison for it,. It must be satisfactorily proved. To
use the time- honoured phrase, it must be proved beyond all reasonable doubt. It is not
proved by showing that, when the man was asked about it, he told lies. There must be some
further evidence to incriminate him. Once some evidence is given, then his lies can be
thrown into the scale against him. But there must be some other evidence. Where there are
two equally consistent possibilities open to the Court, it is not right to hold that the offence
is proved beyond reasonable doubt. In this context, the observations of the Calcutta High
Court in ArchanaGuha v. RanjitGuhaNeogi (1989 (II) CHN252) in which one of us was a party
(Banerjee, J.) seem to be rather apposite and we do lend credence to the same and thus
record our concurrence therewith. In The Aligarh Municipal Board and Others v. Ekka Tonga
Mazdoor Union and Others (1970 (III) SCC 98), this Court in no uncertain term stated that in
order to bring home a charge of contempt of court for disobeying orders of Courts, those
who assert that the alleged contemners had knowledge of the order must prove this fact
beyond reasonable doubt. This Court went on to observe that in case of doubt, the benefit
ought to go to the person charged. In a similar vein in V.G. Nigam and others v. KedarNath
Gupta and another (1992 (4) SCC 697), this Court stated that it would be rather hazardous to
impose sentence for contempt on the authorities in exercise of contempt jurisdiction on
mere probabilities. Having discussed the law on the subject, let us thus at this juncture
analyse as to whether in fact, the contempt alleged to have been committed by the alleged
cotemners, can said to have been established firmly without there being any element of
doubt involved in the matter and that the Court would not be acting on mere probabilities
having however, due regard to the nature of jurisdiction being quasi criminal conferred on to
the law courts. Admittedly, this Court directed maintenance of status quo with the following
words the members of the petitioner Sangha who were before the High Court in the writ
petition out of which the present proceedings arise. And it is on this score the applicant
contended categorically that the intent of the Court to include all the members presenting
the Petition before this Court whereas for the Respondent Mr. Ray contended that the same
is restricted to the members who filed the writ petition before the High Court which
culminated in the initiation of proceeding before this Court. The Counter affidavit filed by
the Respondents also record the same. The issue thus arises as to whether the order stands
categorical to lend credence to the answers of the respondent or the same supports the
contention as raised by the applicants herein Incidentally, since the appeal is pending in this
Court for adjudication, and since the matter under consideration have no bearing on such 79
adjudication so far as the merits of the dispute are concerned, we are not expressing any
opinion in the matter neither we are required to express opinion thereon, excepting
however, recording that probabilities of the situation may also warrant a finding, in favour of
the interpretation of the applicant. The doubt persists and as such in any event the
respondents being the alleged contemners are entitled to have the benefit or advantage of
such a doubt having regard to the nature of the proceeding as noticed herein before more
fully. In view of the observations as above, we are not also inclined to go into the question of
apology. On the wake of the aforesaid, this Contempt Petition fails and is dismissed without
however, any order as to costs. 80 DEFENCES CRIMINAL APPEAL No. 463 of 2006 HET RAM
BENIWAL & ORS.V. RAGHUVEER SINGH & ORS. & CRIMINAL APPEAL No. 464 of 2006
BHURAMAL SWAMI v. RAGHUVEER SINGH & ORS. Delivered on 21st October 2016 L.
NAGESWARA RAO, J. 1. The Appellants were found guilty of committing contempt by the
High Court of Judicature for Rajasthan at Jodhpur. Simple imprisonment of two months and
fine of Rs. 2,000/- each was imposed. Aggrieved by the said judgment, the Appellants have
filed these Criminal Appeals. 2. The Appellants along with Sheopat Singh belong to the
Marxist Communist Party. Sheopat Singh died during the pendency of these proceedings. It
is relevant to mention that Appellants Nos. 2 and 3 are advocates. A prominent trade union
activist of Sri Ganganagar District Shri Darshan Koda was murdered on 18.12.2000. Some of
the accused were granted anticipatory bail in February, 2001 by the High Court of Rajasthan.
The Appellants addressed a huge gathering of their party workers in front of the Collectorate
at Sri Ganganagar on 23.02.2001. Whileaddressing the gathering, the Appellants made
scandalous statements against the High Court which were published in Lok Sammat
newspaper on 24.02.2001. The offending statements made by the Appellants (from the
translated version) are summarized as under: “Appellant No. 1 - “Ex MLA Het Ram Beniwal
said that, there are two types of justice in the courts. A thief of Rs.100/- cannot get bail, if
the lathi and gandasi is hit then the courts ask for the statements of the witnesses and diary,
but Miglani and Gurdayal Singh committed the murder, even then anticipatory bail had been
taken on the application without diary.” “Appellant No. 2 - “Navrang Chaudhary, Advocate,
District President, CITU said that the general public has lost confidence in the law and
justice.” “Appellant No. 3 - “MCP Leader Bhuramal Swami namingthe judge of the High Court
said in attacking way that all around there is rule of rich people whether it is bureaucracy or
judiciary.” “Appellant No. 4 - “Sarpanch Hardeep Singh told that there was influence of
money behind the anticipatory bail of the accused.” The Advocate General gave his consent
to Respondent No.1 for initiation of contempt proceedings on 16.01.2002. Thereafter,
Respondent No.1 filed a Contempt Petition in the High Court. It was stated by Respondent
No. 1 in the contempt petition that baseless allegations of bias and corruption were made by
the Appellants against the judiciary. He also alleged that the Appellants were guilty of a
systematic campaign to destroy the public confidence in the judiciary. 3. The Appellants filed
a common counter denying the allegations made against them. The appointment of the
Special Public Prosecutor in the case of the murder of Shri Darshan Koda was 81 in dispute
and the Appellants contended that they were agitating for appointment of another
competent lawyer as Special Public Prosecutor. They accused Respondent No.1 of initiating
contempt proceedings only to harass and victimize them as they were agitating for a change
of the Special Public Prosecutor. They denied makingany defamatory statements against the
judiciary. A compact disc (CD) was produced on 15.07.2003 which was a video recording, of
the press conference held on 15.05.2002 at Sri Ganganagar by the third Appellant and
Sheopat Singh. The said press conference was also telecast on ETV (Rajasthan). The High
Court viewed the CD after taking consent from both sides in the presence of the third
Appellant and Sheopat Singh. The High Court directed a transcript of the video to be
prepared and be kept on record. 4. The High Court framed three questions for consideration
which are as follows: Whether statement published in “LokSammat” dtd. 24.2.2001
published from Sri Ganganagar amounts to criminal contempt? Whether editor’s liability for
whatever is published in the newspaper is absolute or he is not liable for faithful
reproduction of the statement made by somebody else in the news reporting? Whether it is
proved beyond reasonable doubt on the basis of material on record that respondents No.2
to 6 did make the statements attributed to them respectively so as to hold them liable for
contempt?” 5. In view of the disparaging remarks made by the Appellants against the judges
of the Rajasthan High Court, the High Court held that the statement published in Lok
Sammat on 24.02.2001 amounts to criminal contempt. The scathing remarks made by the
Appellants have a tendency of creating a doubt in the minds of the public about the
impartiality, integrity and fairness of the High Court in administering justice. According to
the High Court, the scurrilous attack made by the Appellants against the judiciary lowers the
authority of the Court. 6. In view of the unconditional apology tendered at the earliest point
of time by Respondent No. 1, the Editor of Lok Sammat, the High Court discharged the
notices against him in the contempt petition. The High Court answered the third point
against the Appellants and heldthem guilty of contempt as the case was proved against
them beyond reasonable doubt. The entire evidence on record was scrutinized carefully by
the High Court to reach this conclusion. The press conference held by the third Appellant
was highlighted by the High Court to conclude that the highly objectionable statements
were, in fact, made by the Appellants on 23.02.2001. As the Appellants denied having made
any statements against the judiciary in their reply to the contempt petition, the journalists
demanded an explanation. The third Appellant stated that they stood by what was said on
23.02.2001. The High Court held the Appellants guilty of committing criminal contempt and
sentenced them to simple imprisonment of two months and fine of Rs. 2000/- each. 7. We
have heard Mr. Prashant Bhushan, Advocate for the Appellants. As Respondent No. 1 who
was the petitioner in the contempt petition was unrepresented, we requested Ms.
Aishwarya Bhati, Advocate to assist the Court to which she readily agreed. Apart from
making oral submissions Ms. Bhati also gave a written note. Mr. Bhushan submitted that
statements attributed to the Appellants only represent fair criticism which would not
amount to contempt. According to him, the Appellants were in an agitated mood due to the
murder of one of their leaders and the mishandling of the criminal case connected to that
murder. Criticism of class bias and improper 82 administration of justice cannot be
considered to be contempt. He referred to a statement attributed to the fourth Appellant
who alleged influence of money in the grant of anticipatory bail to the accused and
explained that statement as having been made in a different context altogether. He stated
that the influence of money was against the authorities and police force and not attributed
to the judiciary. He also stated that the statement made by the third Appellant who named
the judge who granted anticipatory bail and accused the judiciary of being partial to rich
people does not tantamount to contempt. Strong reliance was placed on Indirect Tax
PractitionersAssociation v. R. K. Jain, reported in (2010) 8 SCC 281 by Mr. Bhushan tocontend
that the Courts should not be sensitive to fair criticism. He also stated that the power of
punishing for contempt has to be exercised sparingly. 8. Ms. Aishwarya Bhati, the learned
Amicus Curiae, submitted that the judgment of the High Court does not warrant any
interference as the entire evidence was dealt with in detail. She submitted that all the
relevant factors were taken into account by the High Court including the statements made
by the Appellants which ex facie demonstrated contempt, the stand of the editor of the
newspaper that they have scrupulously and correctly reported the statements in the
newspaper and non denial of the Appellants addressing the public meeting at the
Collectorate of Sri Ganganagar. She also submitted that the High Court took note of the
press conference of the third Appellant and Sheopat Singh on 15.05.2002 and the affidavits
of 5 journalists and one deed writer who were witness to the meetingon23.02.2001. She
placed reliance on a judgment of this Court reported in Bal Kishan Giri v. State of Uttar
Pradesh, reported in (2014) 7 SCC 280 to contend that vituperative comments undermining
the judiciary would amount to contempt. She also relied upon Vijay Kumar Singh v. Union of
India, reported in (2014) 16 SCC 460to contend that the apology was made only for the
purpose of avoiding punishment and was not bona fide. To avoid prolixity, we are not
referring to other judgments cited by the learned Amicus Curiae. She referred to the
affidavits filed by the Appellants in this Court apologizing for the statements and even they
do not demonstrate any genuine contrition. She submitted that an apology by the
contemnors should be tendered at the earliest opportunity and it should be unconditional.
9. Section 2 (c) of the Contempt of Courts Act, 1971 (hereinafter referred to as ‘the Act’)
defines criminal contempt as follows: “2. Definitions.In this Act, unless the context otherwise
requires, (1) “criminal contempt” means the publication (whether by words, spoken or
written, or by signs, or by visible representation, or otherwise) of any matter or the doing of
any other act whatsoever which – (i) scandalises or tends to scandalise, or lowers or tends to
lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with,
the due course of any judicial proceeding; or (iii)interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of justice in any other manner;” 10.
Section 5 of the Act is as under: “5.Fair criticism of judicial act not contempt. “A person shall
not be guilty of contempt ofcourt for publishing any fair comment on the merits of any case
which has been heard and finally decided.” (1) Section 12 of the Act is as under: 83 “12.
Punishment for contempt of court (1) Save as otherwise expressly provided in this Act or in
any other law, a contempt of court may be punished with simple imprisonment for a term
which may extend to six months, or with fine which may extend to two thousand rupees, or
with both. Provided that the accused may be discharged or the punishment awarded may be
remitted on apology being made to the satisfaction of the court. Explanation.-An apology
shall not be rejected merely on the ground that it is qualified or conditional if the accused
makes it bona fide. (2) Notwithstanding anything contained in any law for the time being in
force, no court shall impose a sentence in excess of that specified in sub-section (1) for any
contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding
anything contained in this section, where a person is found guilty of a civil contempt, the
court, if it considers that a fine will not meet the ends of justice and that a sentence of
imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct
that he be detained in a civil prison for such period not exceeding six months as it may think
fit. (4) Where the person found guilty of contempt of court in respect of any undertaking
given to a court is a company, every person who, at the time the contempt was committed,
was in charge of, and was responsible to, the company for the conduct of the business of the
company, as well as the company, shall be deemed to be guilty of the contempt and the
punishment may be enforced, with the leave of the court, by the detention in civil prison of
each such person: Provided that nothing contained in this sub-section shall render any such
person liable to such punishment if he proves that the contempt was committed without his
knowledge or that he exercised all due diligence to prevent its commission. 6.
Notwithstanding anything contained in sub-section (4), where the contempt of court
referred to therein has been committed by a company and it is proved that the contempt
has been committed with the consent or Connivance of, or is attributable to any neglect on
the part of, any director, manager, secretary or other officer of the company, such director,
manager, secretary or other officer shall also be deemed to be guilty of the contempt and
the punishment may be enforced with the leave of the court, by the detention in civil prison
of such director, manager, secretary or other officer. Explanation.-For the purpose of sub-
sections (4) and (5),- (a)" company” means anybody corporate and includes a firm or other
association of individuals ; and (b) "director", in relation to a firm, means a partner in the
firm. (2) We are, in the present case, concerned with Section 2(c)(i) of the Act which deals
with 84 scandalizing or lowering the authority of the Court. It has been held by this Court
that judges need not be protected and that they can take care of themselves. It is the right
and interest of the public in the due administration of justice that have to be protected. Se
AsharamM.Jainv.A. T. Gupta, reported in (1983) 4 SCC 125, “Vilification of judgeswould lead
to the destruction of the system of administration of justice. The statements made by the
Appellants are not only derogatory but also have the propensity to lower the authority of
the Court. Accusing judges of corruption results in denigration of the institution which has an
effect of lowering the confidence of the public in the system of administration of justice. A
perusal of the allegations made by the Appellants cannot be termed as fair criticism on the
merits of the case. The Appellants indulged in an assault on the integrity of the judges of the
High Court by making baseless and unsubstantiated allegations. They are not entitled to seek
shelter under Section 5 of the Act. The oft-quoted passage from Ambard v. Attorney-General
for Trinidad and Tobago, [1936] A.C.is that “[j]ustice is not a cloistered virtue: she must
beallowed to suffer the scrutiny and respectful even though outspoken comments of
ordinary men.” The Privy Council “The path ofin the same judgment held as follows: criticism
is a public way: the wrong headed are permitted to err therein: provided that members of
the public abstain from imputing improper motives to those taking part in the administration
of justice, and are genuinely exercising a right of criticism, and not acting in malice or
attempting to impair the administration of justice, they are immune.” [Emphasis ours] In
Indirect Tax Practitioners Association v. R. K. Jain (supra) this Court held in paragraph 23 as
follows: “Ordinarily, the Court would not use the powerto punish for contempt for curbing
the right of freedom of speech and expression, which is guaranteed under Article 19 (1) (a)
of the Constitution. Only when the criticism of judicial institution transgresses all limits of
decency and fairness or there is total lack of objectivity or there is deliberate attempt to
denigrate the institution then the court would use this power.” (3) Every citizen has a
fundamental right to speech, guaranteed under Article 19 of the Constitution of India.
Contempt of Courtis one of the restrictions on such right. We are conscious that the power
under the Act has to be exercised sparingly and not in a routine manner. If there is a
calculated effort to undermine the judiciary, the Courts will exercise their jurisdiction to
punish the offender for committing contempt. We approve the findings recorded by the High
Court that the Appellants have transgressed all decency by making serious allegations of
corruption and bias against the High Court. The caustic comments made by the Appellants
cannot, by any stretch of imagination, be termed as fair criticism. The statements made by
the Appellants, accusing the judiciary of corruption lower the authority of the Court. The
Explanation to sub-Section 12 (1) of the Act provides that an apology should not be rejected
merely on the ground that it is qualified or tendered at a belated stage, if the accused makes
it bona fide. The stand taken by the Appellants in the contempt petition and the affidavit
filed in this Court does not inspire any confidence that the apology is made bona fide. After a
detailed consideration of the submissionsmade by both sides and the evidence on record,
we are in agreement with the judgment of the High Court that the Appellants are guilty of
committing contempt of Court. After considering the peculiar facts and circumstances of the
case including the fact that the contemptuous statements were made in 2001, we modify
the sentence to only payment of fine of Rs. 2,000/- each. 85 (4) The Appeal is dismissed with
the said modification. 15. Criminal Appeal No. 464 of 2006, which concerns the same facts as
reported in another newspaper, stands disposed of in terms of Criminal Appeal No.463 of
2006. 16. We record our appreciation for the assistance rendered by Ms. Aishwarya Bhati,
Advocate as Amicus Curiae. [ANIL R. DAVE] [L. NAGESWARA RAO] 86 Perspective
Publications (P) Ltd vs State Of Maharashtra, 1971 AIR 221, 1969 SCR (2) 779 Bench: Grover,
A.N. JUDGMENT: This is an appeal from the judgment of the Bombay High Court passed in
exercise of ordinary original civil jurisdiction by which the ,appellants were found guilty of
having committed contempt of Mr. Justice Tarkunde in his judicial capacity and of the court.
Appellant No. 2 D.R. Goel, who is the Editor, Printer and Publisher of Perspective
Publications (P) Ltd. --appellant No. 1, was sentenced to simple imprisonment for one month
together with fine amounting to Rs. 1,000/-, in default of payment of fine he was to undergo
further simple imprisonment for the same period. The appellants were also directed to pay
the costs incurred by the State. On behalf of the first appellant it has been stated at the bar
that the appeal is not being pressed. The background in which the impugned article was
published' on April 24, 1965, in a weekly periodical called "Mainstream" which is a
publication brought out by the first appellant may be set out. In the year 1960 a suit was
filed by one Krishnaraj Thackersey against the weekly newspaper "Blitz" and its Editor and
others claiming Rs. 3 lacs as damages for libel. The hearing in that suit commenced on the
original side of the Bombay High Court on June 24, 1964. The delivery of the judgment
commenced on January 19, 1965 and continued till February 12, 1965. After June 24, 1964,
that suit was heard from day to day by Mr. Justice Tarkunde. The suit was decreed in the
sum of Rs. 3 lacs. An appeal is pending before a division bench of the High Court against that
judgment. The impugned article is stated to have been contributed by a person under the
name of "Scribbler" but appellant No. 2 has taken full responsibility for its publication. Its
heading was "STORY OF A LOAN and Blitz Thackersey Libel Case". It is unnecessary to
reproduce the whole article which appears verbatim in the judgment of the High Court. The
article has been ingeniously and cleverly worded. The salient matters mentioned in the
article are these: After paying a tribute to the Indian judiciary the writersays that according
to the report in "Prajatantra" a Gujarati paper architects Khare-Tarkunde Private Limited of
Nagpur, hereinafter called "Khare-Tarkunde" (which is described a Firm in the article) got a
loan facility of Rs. 10 lacs from the Bank of India on December 7, 1964. The partners of
Khare-Tarkunde included the father, two brothers and some other relations of Justice
Tarkunde who awarded a decree for Rs. 3 lacs as damages against Blitz and in favour of
Thackersey. It is pointed out that the date on which Rs. 10 lacs loan facility was granted by
the Bank of India was about five and a half months after the Thackersey-Blitz libel suit had
begun and just over six weeks before Justice Tarkunde began delivering his "marathon
judgment" on January 19, 1965. It is then said that for Rs. 10 lacs loan facility granted to
Khare-Tarkunde, the New India Assurance Co. stood guarantee and that the two Directors of
the Bank of India who voted in favour of the credit of Rs. 10 lacs being granted to Khare-
Tarkunde were Thackersey and Jaisinh Vithaldas (believed to be a relative of Thackersey).
Next it is stated that one of the Directors of the New India Assurance that stood guarantee
for the loan facility was N.K. Petigara, who was also a senior partner of M/s. Mulla & Mulla
Craigie Blunt & Caroe, Solicitors of Thackersey in the Blitz-Thackersey Libel Case before
Justice Tarkunde 4 Sup. CI/69--17 Emphasis is laid on the fact that Khare- 87 Tarktunde had a
capital of Rs. 5 lacs only and the balance sheet of the firm of June 1964 revealed
indebtedness to various financiers to the tune of Rs. 14 lacs. Thus Khare-Tarkunde is stated
to be "lucky to get against all this a handsome loan of Rs. 10 lacs from the Bank of India".
The writer refers to the Code among college teachers and university professors of not
examining papers when their own children and near relatives sit for examination and adds
that Justice Tarkunde himself will recognize the rightness of such a Code. Referring to the
unimpeachable integrity and reputation of judges of the Bombay High Court, the writer
proceeds to say "there must not be allowed to be raised even the faintest whisper of any
misgiving on that score." Paragraph 24 deserves to be reproduced :- "If Sri Krishna
Thackersey did not lay it bare at the time of the suit that he was one of the sponsors of a
contract of which the judge's relations were the beneficiaries, it is up to the Chief Justice of
the Supreme Court and the Bombay High Court including Justice Tarkunde as also the ever
vigilant members of the Bar to consider all the implications of these disclosures which have
distressed a common citizen like me, so that the finest traditions of our judiciary may be
preserved intact." A petition was filed before the Bombay High Court by the State of
Maharashtra pointing out that the aforesaid article contained scandalous allegations and
was calculated to obstruct the administration of justice and constituted gross contempt of
court. The article purported to state certain facts relating to the transaction between Khare-
Tarkunde and the Bank which were false and there were several mis- statements and
suppression of facts some of which were: (a) The article wrongly stated that the father of
Mr. Justice Tarkunde was a partner in Khare Tarkunde; and (b) The article falsely described
the transaction as a 'loan' by the Bank to Khare- Tarkunde. In fact the said transaction was
only a guarantee given by the Bank which undertook to pay to the Govt. any amount not
exceeding Rs. 10 lacs in the event of Khare- Tarkunde being unable to perform its
obligations. The Bank was secured by a further guarantee given by the New India Assurance
Co. Ltd. undertaking to secure the Bank in the event of the Bank having to pay the said
amount or any part thereof. Appellant No. 2 who also happens to be a Director and Principal
Officer of the first appellant, filed a reply raising some objections of a legal and technical
nature ,and took up the position that the impugned article was based on a report published
in "Prajatantra" from which all the facts stated in the article were incorporated. It was
asserted that certain 'major facts' had been verified by the appellant and found to be true. It
was admitted that upon reading the petition for taking contempt proceedings it was found
by appellant No. 2 that there were certain incorrect statements in the article. It was claimed
that the article had been published in a bona fide belief that whatever was stated in the
article in "Prajatantra" was true. The intention was to convey to the public at large that it
was incumbent on the plaintiff Thackersey and Pettigara, one of the partners of Mulla &
Mulla etc., his attorneys to inform Justice Tarkunde that the plaintiff had voted for a
resolution of the Board of Directors of the Bank of India which, without reasonable doubt,
would help Khare-Tarkunde in which Tarkunde happened to be a brother of the Judge. The
High Court analysed the 88 implications of the facts stated in each paragraph of the
impugned article in great detail and observed :-- " ............ reading the article as a whole,
taking care not to read into it anything more than its plain language implies and making
every allowance for literary style and rhetorical flourish expressions which were often used
in the arguments for the. respondents it is impossible to avoid the conclusions that this
article exceeds the bounds of fair and reasonable criticism. In so far as it suggests that there
is some sort of casual connection between the granting of the loan to M/s. Khare-Tarkunde
Pvt. Ltd., and the judgment of Mr. Justice Tarkunde in the Blitz- Thackersey case, it clearly
attempts to lower the learned judge in his judicial capacity not to mention the fact that it
would also tend to shake the confidence of the lay public in the High Court and impair the
due administration of justice in that Court. In so far as there is a suggestion made be it ever
so faint that Mr. Justice Tarkunde knew or must have known of the loan to his brother's firm
before he delivered the judgment in the case, the article is malicious and 'not in good faith."
The High Court also examined the misstatements and inaccuracies in the impugned article
and held that there was no foundation for the suggestion that Khare-Tarkunde was an
impecunious concern and therefore was "lucky" to get the handsome loan nor for the
suggestion that either Thackersey and his co-Directors in the Bank of India or Thackersey's
solicitor and his coDirectors in the New India Assurance Co. went out of their way to grant
accommodation to Khare-Tarkunde. The High Court found no basis for the insinuation that
there was any connection between the loan and the judgment in the Blitz-Thackersey case
or that Justice Tarkunde knew or might have Known about any loan having been granted to
his brother's firm. No attempt was made to justify these suggestions in the return or in the
argument before the High Court and all that was urged was that the words used by
contestable did not give rise to the said imputations or innuendos and that the contemnor
was only trying to communicate to the public at large what has been stated before. It is
needless to refer to the other points raised before and decided by the High Court because
none of them has been argued before us. In this appeal, counsel for appellant no. 2 has
made some attempt to establish that no aspersion was cast on the integrity of Justice
Tarkunde in the article nor was any imputation of dishonesty made. His second contention is
that proceedings for contempt for scandalising a Judge have become obsolete and the
proper remedy in such a situation is for the Judge to institute action for libel. Thirdly, it is
said that there was no evidence before the High Court that Justice Tarkunde did not know
about the transaction or the dealings between the firm in which his brother was a partner
and the bank of which Thackersey was a director. If, it is submitted, the allegations made in
the article were truthful or had been made bona fide in the belief that they were truthful the
High Court ought not to have found appellant no. 2 guilty of contempt. At any rate,
according to counsel, the statements contained in the article only made out a charge of bias
against the Judge and if such a charge is made it cannot be regarded as contempt. On the
first point our attention has been invited to the paragraphs in the article containing
expression of high opinion held by the writer of the judiciary in India. It is suggested that his
attempt was only to make a fair and legitimate criticism of the proceedings in the Thackersey
suit against the "Blitz" weekly. It has been emphasised in the article that the damages which
were awarded to the tune of Rs. 3 lakhs were almost punitive and that it was a rare
phenomenon that the plaintiff (Thackersey) did not 89 step into the witness box and also a
permanent injunction had been granted preventing Blitz from printing anything based on the
subject matter of litigation. The law involving freedom of press fully warranted such criticism
of a judgment or of the proceedings in a suit in a court of law. It is true that the writer of the
article could exercise his right of fair and reasonable criticism and the matters which have
been mentioned in some of the paragraphs may not justify any proceedings being taken for
contempt but the article read as a whole leaves no doubt that the conclusions of the High
Court were unexceptionable. It was a skillful attempt on the part of the writer to impute
dishonesty and lack of integrity to Justice Tarkunde in the matter of ThackerseyBlitz suit, the
imputation being indirect and mostly by innuendo that it was on account of the transaction
and the dealings mentioned in the article that the suit of Thackersey was decreed in the sum
of Rs. 3 lakhs which was the full amount of damages claimed by Thackersey. It may be that
the article also suggests that Thackersey and his ,attorneys were to blame inasmuch as they
did not inform the Judge about the transactions of Khare Tarkunde with the Bank of India
with which Thackersey was associated in his capacity as a director but that cannot detract
from the obvious implications and insinuations made in various paragraphs of the article
which immediately create a strong prejudicial impact on the mind of the reader about the
lack of honesty, integrity and impartiality on the part of Justice Tarkunde in deciding the
ThackerseyBlitz suit. On the second point counsel for appellant no. 2 has relied a great deal
on certain decisions of the Privy Council- and the Australian and American courts. In the
matter of a Special Reference from the Bahama Islands(1) a letter was published in a colonial
newspaper containing sarcastic allusions to a refusal by the Chief Justice to accept 'a gift of
pineapples. No judgment was given by the Privy Council but their lordships made a report to
Her Majesty that the impugned letter though it might have been made subject of
proceedings for libel was not, in the circumstances, calculated to obstruct or interfere with
the course of justice or the due administration of ,law and, therefore, did ,not constitute
contempt of court. In that case there was no question of scandalising the court nor had any
imputation been made against the Chief Justice in respect of any judicial proceedings
pending before him or disposed of in his court. It is the next decision of the Privy Council in
McLeod v. St.Aubyn(2) on which a great deal of argument has been built up before us that
the courts, at least in England, have stopped committing anyone for contempt for
publication of scandalising matter respecting the court after adjudication as well as pending
a case before it. That case came by way of an appeal from an order of the Acting Chief
Justice St. Aubyn of the Supreme Court of St. Vincent committing one McLeod to prison for
14 days for alleged contempt of court. It was said inter alia in the impugned publication that
in Mr. Trifford the public had no confidence and his locus tenons, Mr. St. Aubya was
reducing the judicial character to the level of a clown. There were several other sarcastic and
libelous remarks made about the Acting Chief Justice. While recognizing publication of
scandalous matter of the court itself ,as a head of contempt of court as (1) [1893] A.C. 138.
(2) [1899] A.C. 549. laid down by Lord Hardwicke in Re: Read and Huggonson(1), Lord Morris
proceeded to make the oft-quoted observation "committals for contempt of Court 'by itself
have become obsolete in this country even though in small colonies consisting principally of
coloured population committals might be necessary in proper cases". Only a year later Lord
Russel of Killowen C.J., in The Queen v. Gray(2) reaffirmed that any act done or writing
published calculated to bring a 90 court or a judge of the court in contempt, or to lower his
authority, was a contempt of court. The learned Chief Justice made it clear that judges and
courts were alike open to criticism and if reasonable argument or expostulation was offered
against any judicial act as contrary to law or the public good no court could or would treat
that as contempt of court but it was to be remembered that the liberty of the press was not
greater and no less than the liberty of every subject. In that case it was held that there was
personal scurrilous abuse of a judge and it constituted contempt. All the three cases which
have been discussed 'above were noticed by the Privy Council in Debi Prasad Sharma & Ors.
v. The King Emperor(3) where contempt proceedings had been taken in respect of editorial
comments published in a newspaper based or a news item that the Chief Justice of
Allahabad High Court in his administrative capacity had issued a circular to judicial officers
enjoining on them to raise contributions to the war fund and it was suggested that he had
done a thing which would lower the prestige of the court in the eyes of the public. This is
what was said at page 224 :- "In In re a Special Reference from the Bahama Islands [1893]
A.C. 138, the test applied by the very strong Board which heard the reference was whether
the words complained of were in the circumstances calculated to obstruct or interfere with
the course of justice and the due, administration of the law. In Reg. v. Gray [1900] 2Q.B. 36 it
was shown that the offence of scandalising the court itself was not obsolete in this country.
A very scandalous attack had been made on a judge for his judicial utterances while sitting in
a criminal case on circuit, and it was with the foregoing opinions on record that Lord Russel
of Killowen C.J. adopting the expression of Wilmot C.J. in his opinion in Rex v. Almon (1765)
Wilmot's Notes of Opinions 243, which is the source of much of the present law on the
subject, spoke of the article complained of as calculated to lower the authority of the judge."
It is significant that their lordships made a distinction between a case where there had been
criticism of the administrative act of (1) 2 Ark. 471. (2) [1900] 2 Q.B.D. 36. (3) 70 I.A. 216. a
Chief Justice and an imputation on him for having done or omitted to have done something
in the administration of justice. It is further noteworthy that the law laid down in McLeod v.
St. Aubyn(1) was not followed and it was emphasised that Reg. v. Gray(2) showed that the
offence of scandalising the court itself was not obsolete in England. In Rex v. Editor of the
New Statesman(3) an article had been published in the New Statesman regarding the verdict
by Mr. Justice Savory given in a libel action brought by the Editor of the "Morning Post"
against Dr. Marie Slopes (the well known advocate of birth control) in which it was said, inter
alia, "the serious point in this case, however, is that an individual owning to such views as
those of Dr. Marie Stores cannot 'apparently hope for a fair hearing in a Court presided over
by Mr. Justice Avory--and there are so many Avorys". On behalf of the contemnor McLeod v.
St. A ubyn(1) was sought to be pressed into service. The Lord Chief Justice in delivering the
judgment of the Court said that the principle applicable to such cases was the one stated in
Reg. v. Gray(2) and relied on the observations of Lord Russel at p. 40. It was observed that
the article imputed 91 unfairness and lack of impartiality to a judge in the discharge of his
judicial duties. The gravamen of the offence was that by lowering his authority it interfered
with the performance of his judicial functions. Again in Ambard v. Attorney General for
Trinidad and Tobago(4) the law enunciated in Reg. v. Gray(2) by Lord Russel of Killowen was
applied and it was said at page 335: "But whether the authority and position of an individual
judge, or the due administration of justice, is concerned, no wrong is committed by any
member of the public who exercises the ordinary right of criticising, in good faith, in private
or public, the public act done in the seat of justice. The path of criticism is a public way; the
wrong headed are permitted to err therein; provided that members of the public abstain
from imputing improper motives to those taking part in the administration of justice, and are
genuinely exercising a right of criticism, and not acting in malice, or attempting to impair the
administration of justice, they are immune. Justice is not a cloistered virtue; she must be
allowed to suffer the scrutiny and respectful, even though spoken, comments of ordinary
men." It was, however, held that there was no evidence upon which the court could find
that the alleged contemnor had exceeded fair and temperate criticism and that he had acted
with untruth or malice (1) [1899] A .C. 549. (2) [1900] 2 Q.B.D. 36. (3) [1928] 44 T.L.R. 301.
(4) [1936] A.C. 322. and with the direct object of bringing the administration of justice into
disrepute. Lord Denning M.R. in Reg v. Commissioner of Police of the Metropolis, Ex parte
Blackburn (No..2)(1) made some pertinent observations about the right of every man, in
Parliament or out of it, in the Press or over the broadcast, to make fair and even outspoken
comment on matters of public interest. In the words of the Master of Rolls, "those who
comment can deal faithfully with all that is done in a court of justice. They can say that we
are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we
would ask is that those who criticise us will remember that, from the nature of our office, we
cannot reply to their criticism. We cannot enter into public controversy. Still less into
political controversy. We must rely on our conduct itself to be its own vindication." In that
case Mr. Quintin Hogg had written an article in "Punch" in which he had been critical of the
Court of Appeal and had even made some erroneous statements. But reading of the article
the salient passage of which is set out in the judgment of the Master of the Rolls makes it
quite clear that there was no attempt to scandalise the Court and impute any dishonourable
or dishonest motives or to suggest any lack of integrity in any particular Judge. Oswald in his
book on the Contempt of Court has expressed the view that it would be going a great deal
too far to say that commitments for contempt of court by scandalising the Court itself have
become obsolete, and that there does not seem to be any good reason for ignoring the
principles which govern the numerous early cases on the subject. 92 The American and the
Australian cases viz., John D. Pennekamp and The Miami Herald Publishing Co. v. State of
Florida(2) and Bell v. Stewart(a) to which reference h.as been made on be- half of appellant
No. 2 can hardly be of much assistance because in this country principles have become
crystallized by the decisions of the High Courts and of this Court in which the principles
followed by English Courts have been mostly adopted. We would now advert to the
decisions of this Court. It was held in Bathina Ramakrishna Reddy v. The State of Madras(4)
that the fact that the defamation of a Judge of a subordinate court constitutes an offence
under s. 499 of the Indian Penal Code did not oust the jurisdiction of the High Court to take
cognizance of the act as a contempt of court. In that .case in an article in a Telugu weekly it
was alleged that the Stationary Sub-Magistrate of Kovvur was known to the people of the
locality for harassing (1) [1968].2 W.L.R. 1206. (2) 328 U.S. 331. (3 ) 28 Com. L.R. 419. (4)
[1952] S.C.R. 425. litigants in various ways etc. Mukherjea, J., (as he then was) who delivered
the judgment described the article as a scurrilous attack on the integrity and honesty of a
judicial officer. It was observed that if the allegations were false, they could not undermine
the confidence of the public in the administration of justice and bring the judiciary into
disrepute. The .appellant there had taken the sole responsibility regarding the publication of
the article and was not in a position to substantiate by evidence any of the allegations made
therein. It was held that he could not be said to have acted bona fide, "even if good faith can
be held to be a defence at all in a proceeding for contempt". The decision in Re: The Editor,
Printer and Publisher of "The Times of India" and In re Aswini Kumar Ghose and Anr. v.
Arabinda Bose & Anr.(1) is very apposite and may be.next referred to. In a leading article in
"The Times of India" on the judgment of this Court in Aswini Kumar Ghose v. Arabinda Bose
& Ant.(2) the burden was that if in a singularly oblique and infelicitous manner the Supreme
Court had by a majority decision tolled the knell of the much maligned dual system
prevailing in the Calcutta and Bombay High Courts by holding that the right to practise in any
High Court conferred on advocates of the Supreme Court had made the rules in force in
those High Courts requiring advocates appearing on the original side to be instructed by
attorneys inapplicable to them. This is what was said by Mahajan, J., (as he then was)
speaking for the Court: "No objection could have been taken to the article had it merely
preached to the courts of law the sermon of divine detachment. But when it proceeded to
attribute improper motives to the Judges, it not only transgressed the limits of fair and bona
fide criticism but had a clear tendency 'to affect the dignity and prestige of this Court. The
article in question was thus a gross contempt of court. It is obvious that if an impression is
created in the minds of the public that the judges in the highest Court in the land act on
extraneous considerations in deciding cases, the confidence of the whole community in the
administration of justice is bound to be undermined and no greater mischief than that can
possibly be imagined." 93 The Editor, Printer and Publisher of the newspaper tendered an
apology which was accepted; but this Court concurred in the expression of views in Ambard
v. Attorney General of Trinidad(3), a passage from which has already been extracted. The
guiding principles to be followed by courts in contempt proceedings were enunciated in
Brahma Prakash Sharma & Ors. v. The State of (1) [1953] S.C.R. 215. (2) [1953] S.C.R. 1. (3)
[1936] A.C. 322. Uttar Pradesh(1). The judgment again was delivered by Mukherjea, J., (as he
then was) and the English decisions including those of the Privy Council were discussed. It is
necessary to refer only to the principles laid down for cases of the present kind i.e.
scandalising the court. It has been observed that there are two primary considerations which
should weigh with the court when it is called upon to exercise summary power in cases of
contempt committed by "scandalising" the court itself. In the first place, the reflection on
the conduct or character of a Judge in reference to the discharge of his judicial duties would
not be contempt, if such reflection is made in the exercise of the right of fair and reasonable
criticism which every citizen possesses in respect of public acts done in the seat of justice.
Secondly, when .attacks or comments are made on a Judge or Judges disparaging in
character and derogatory to their dignity, care should be taken to distinguish between what
is a libel on a judge and what really amounts to contempt of court. If, however, the
publication of the disparaging statement is calculated to interfere with the due course of
justice or proper administration of law by such court, it can be punished summarily as
contempt. "it will be 'an injury to the public if it tends to create an apprehension in the
minds of the people regarding the integrity, ability or fairness of the judge or to deter actual
and prospective litigants from placing complete reliance upon the court's administration of
justice, or if it is likely to cause embarrassment in the mind of the judge himself in the
discharge of his judicial duties. It is well established that it is not necessary to prove
affirmatively that there has been an actual interference with the administration of justice by
reason of such defamatory statement; it is enough if it is likely, or tends is ,any way, to
interfere with the proper administration of law." In that case it was held that the contempt
was of a technical nature. This was based apparently on the reason that the Members of the
Bar who had passed a resolution attributing incompetency, lack of courtesy etc. and had
referred to complaints against two officers, one a Judicial Magistrate and the other a
Revenue Officer and had sent those complaints to the District Magistrate, Commissioner and
the Chief Secretary in the State and secondly because very little publicity had been given to
the statement. In Re: Hira Lal Dixit & two Ors.(2) the above principles were ,applied and
reaffirmed. In that case words which had been used in a poster which was published had the
necessary implication that the judges who decided in favour of the Government were
rewarded by the Government with appointments to this Court. Although this case was not
one of scandalizing of the court but the question that was posed was whether the offending
passage was of such character and import or made in such circum- (1) [1953] S.C.R. 1169. (2)
[1955] 1 S.C.R. 677. 94 stances as would tend to hinder or obstruct or interfere with the due
course of administration of justice by this Court and it was answered in the affirmative and
the contemnor was held guilty of Contempt of Court. In State of Madhya Pradesh v.
Revashankar(1) an application was made under s. 528 of the Code of Criminal Procedure in
certain criminal proceedings containing serious aspersions against a Magistrate, Mr. N.K.
Acharya. Reliance was once again placed on Brahm Prakash Sharma's(2) case and the
principles laid therein. It was held that the aspersions which had been made amounted to
something more than a mere intentional personal insult to the Magistrate; they scandalised
the court itself and impaired the administration of justice and that proceedings under the
contempt of court could 'be taken against the contemnor. There can be no manner of doubt
that in this country the principles which should govern cases of the present kind are now
fully settled by the previous decisions of this Court. we may re; state the result of the
discussion of the above cases on this head of contempt which is by no means exhaustive. (1 )
It will not be right to say that committals for contempt for scandalizing the court have
become obsolete. (2) The summary jurisdiction by way of contempt must be exercised with
great care and caution and only when its exercise is necessary for the proper administration
of law and justice. (3) It is open to anyone to express fair, reasonable and legitimate criticism
of any act or conduct of a judge in his judicial capacity or even to make a proper and fair
comment on any decision given by him because "justice is not a cloistered virtue and she
must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of
ordinary men". (4) A distinction must be made between .a mere libel or defamation of a
judge and what amounts to a contempt of the court. The test in each case would be whether
the impugned publication is a mere defamatory attack on the judge or whether it is
calculated to interfere with the due course of justice or the proper administration of law by
his court. It is only in the latter case that it will be punishable as Contempt. (1) [1959] S.C.R.
1367. (2) [1953] S.C.R. 1169. (5 ) Alternatively the test will be whether the wrong is done to
the judge personally or it is done to the public. To borrow from the language of Mukherjea,
J. (as he then was) (Brahma Prakash Sharma's case)(1) the publication of a disparaging
statement will be an injury to the public if it tends to create an apprehension in the minds of
the people regarding the integrity, ability or fairness of the judge or to deter actual and
prospective litigants from placing complete reliance upon the court's administration of
justice or if it is likely to cause embarrassment in the mind of the judge himself in the
discharge of his judicial duties. 95 As regards the third contention no attempt was made
before the High Court to substantiate that the facts stated in the article were true or were
rounded on correct data. It may be that truthfulness or factual correctness is a good defence
in an action for libel, but in the law of contempt there are hardly any English or Indian cases
in which such defence has been recognized. It is true that in the case of Bathina Ramakrishna
Reddy(2) there was some discussion about the bona fides of the person responsible for the
publication but that was apparently done to dispose of the contention which had been
raised on the point. It is quite clear that the submission made was considered on the
assumption that good faith can be held to be a defence in a proceeding for contempt. The
words "even if good faith can be held to be a defence at all in a proceeding for contempt"
show that this Court did not lay down affirmatively that good faith can be set up as a
defence in contempt proceedings. At any rate, this point is merely of academic interest
because no attempt was made before the High Court to establish the truthfulness of the
facts stated in the article. On the other hand, it was established that some of the material
allegations were altogether wrong and incorrect. Lastly the submission that the statements
contained in the article made out only a charge of bias against the judge and this cannot
constitute contempt has to be stated to be rejected. It is a new point and was never raised
before the High Court. Moreover the suggestion that the charge in the article was of legal
bias which meant that Justice Tarkunde had some sort of pecuniary interest in Khare-
Tarkunde which had the transactions with the bank of which Thackersey was a Director is
wholly baseless. Counsel had to agree that Justice Tarkunde was neither a shareholder nor
was there anything to show that he had any other interest m Khare- Tarkunde. The mere
fact that his brother happens (1) [1953] S.C.R. 1169. (2) [1952] S.C.R. 425., to have a holding
in it cannot per se establish that Justice Tarkunde would also have some financial or
pecuniary interest therein. It is not possible to accept nor has such extreme position been
taken by the counsel for appellant no. 2 that there is any bar to a brother or 'a near relation
of a judge from carrying on any business, profession or avocation. The entire argument on
this point is wholly without substance. The appellant No. 2 showed no contrition in the
matter of publication of the impugned article. lie never even tendered an unqualified
apology. The High Court, in these circumstances, was fully justified in punishing him for
contempt of court and in awarding the sentence which was imposed. In the impugned article
there was a clear imputation of impropriety, lack of integrity and oblique motives to Justice
Tarkunde in the matter of deciding the Thackersey-Blitz suit which, on the principles already
stated, undoubtedly constituted contempt of court. The appeal fails and is hereby dismissed.
V.P.S. Appeal dismissed. 96 Narmada Bachao Andolan vs Union Of India And Ors, 1999
Supp(4) SCR 5 Bench: Dr. A.S. Cj, S.P. Bharucha, B.N. Kirpal JUDGMENT: DR. A.S, ANAND, C.J.
This petition has been filed by the State of Gujarat bringing to the notice of the Court how
the petitioner-Narmada Bachao Andolan-had been reacting to the interim order of this Court
permitting the increase of the height of the dam to RL 85 meters and about the threats of
protests, public meetings and of undertaking Satyagrahas etc., on account of that order.
Reference is made particularly to the interview of Ms. Medha Patkar which appeared in the
Hindustan Times of 27.6.1999 and some other newspaper reports and press releases issued
by the petitioner. Our attention has also been drawn to an article which appeared in the
Weekly News Magazine `Outlook1 and to some portions of a Book titled "The Greater
Common Good" by Ms. Arundhati Roy. On 22nd July, 1999, we made the following order : At
the outset, our attention has been drawn to certain statements, press releases, interviews,
etc., given by the petitioners themselves or by some others under the aegis of the
petitioner-Narmada Bachao Andolan. Copies of some of those statements, etc., have been
filed along with I.A. No. 14 by the State of Gujarat. Our attention has also been drawn to an
article in the weekly news magazine "Outlook" dated May 24, 1999 under the title "The
Greater Common Good" by Ms. Arundhati Roy. A book under the same title, i.e., "The
Greater Common Good" by Arundhati Roy, which appears to have been dedicated to "The
Narmada, and all the life she sustains and Shripad, Nandini, Sylvie, Alok, Medha, Baba Amte
and their colleagues in the NBA", has also been brought to our notice. We have gone
through the statements, the press releases, the article and certain portions of the book
referred to above. Prima facie it appears to us that there is a deliberate attempt to
undermine the dignity of the Court and to influence the course of justice. These writings,
which present a rather one sided and distorted picture have appeared in spite of our earlier
directions restraining the parties from going to the press, etc., during the pendency of the
proceedings in this Court. However, before we decide to proceed any further, we consider it
proper to appoint an amicus to advise the Court about the action, if any, which is required to
be taken in this respect as also in respect of the writ petition itself. We request Mr. K.K.
Venugopal, Senior Advocate, President of the Supreme Court Bar Association, to act as
amicus and advise the court. After hearing learned amicus as well as other learned counsel
appearing in the case, who all rose above the case of their clients to assist the Court, we are
of the opinion that the petitioner-NBA and its leader Ms. Medha Patkar have knowingly
made comments on pending proceedings and 97 have prima facie disobeyed the interim
injunctions issued by this Court on 11.4.1997 and 5.11.1998. Prima facie the threats held out
by the petitioners and its leaders also appear to be an attempt to prejudice or interfere with
the due course of judicial proceedings. Litigants must realise that Courts cannot be forced by
pressure tactics to decide pending cases in the manner in which the concerned party desires.
It will be a negation of the Rule of Law if the Courts were to act under such pressure. Some
of the objectionable passages in the Book, " The Greater Common Good" by Ms. Arundhati
Roy are as follows: I stood on a hill and laughed out loud. I had crossed the Narmada by boat
from Jalsindhi and climbed the headland on the opposite bank from where I could see,
ranged across the crowns of law, bald hills, the tribal hamlets of Sikka, Surung, Neemgavan
and Domkhedi. 1 could see their airy, fragile homes. 1 could see their fields and the forests
behind them. I could see little children with littler goats scuttling across the landscape like
motorised peanuts, I knew I was looking at a civilisation older than Hinduism, slated-
sanctioned (by the highest court in the land) -to be drowned this monsoon when the waters
of the Sardar Sarovar reservoir will rise to submerge it." "Why did I laugh? Because I
suddenly remembered the tender concern with which the Supreme Court Judges in Delhi
(before vacating the legal stay on further construction of the Sardar Sarovar dam) had
enquired whether tribal children in the resettlement colonies would have children's park to
play in. The lawyers representing the Government had hastened to assure them that indeed
they would, and what's more, mat there were seesaws and slides and swings in every park. I
looked up at the endless sky and down at the river rushing past and for a brief, brief
moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect." "Who
owns this land? Who owns its rivers? Its forests?Its fish? These are huge questions. They are
being taken hugely seriously by the State. They are being answered in one voice by every
institution at its command -the army, the police, the bureaucracy, the courts. And not just
answered, but answered unambiguously, in bitter, brutal ways". "According to the Land
Acquisition Act of 1894 (amended in 1984) the Government is not legally bound to provide a
displaced person anything but a cash compensation. Imagine that. A cash compensation, to
be paid by an Indian government official to an illiterate tribal man (the women get nothing)
in a land where even the postman demands a tip for a delivery! Most Tribal people have no
formal title to their land and therefore cannot claim compensation anyway. Most tribal
people-or let's say most small farmers-have as much use for money as a Supreme Court
Judge has for a bag of fertiliser" Ms. Arundhati Roy is not a party to the proceedings pending
in this Court. She has, however, made comments on matters connected with the case being
fully alive to the pendency of the proceedings in this Court. The comments made by her are
prima facie a misrepresentation of the 98 proceedings in this Court. Judicial process and
institution cannot be permitted to be scandalised or subjected to contumacious violation in
such a blatant manner in which it has been done by her. While hypersensitivity and
peevishness have no place in judicial proceedings-vicious stultification and vulgar debunking
cannot be permitted to pollute the stream of justice. Indeed under our Constitution there
are positive values like right to life, freedom of speech and expression, but freedom of
speech and expression does not include freedom to distort orders of the Court and present
incomplete and a one side picture deliberately, which has the tendency to scandalise the
Court. Whatever may be the motive of Ms. Arundhati Roy, it is quite obvious that she
decided to use her literally fame by misinforming the public and projecting in a totally
incorrect manner, how the proceedings relating to Resettlement and Rehabilitation had
shaped in this Court and distorting various directions given by the Court during the last
about 5 years. The writings referred to above have the tendency to create prejudice against
this Court. She seems to be wholly ignorant of the task of the Court. The manner in which
she has given twist to the proceedings and orders of the Court is in bad taste and not
expected from any citizen, to say the least. We wish to emphasise that under the cover of
freedom of speech and expression no party can be given a licence to misrepresent the
proceedings and orders of the Court and deliberately paint an absolutely wrong and
incomplete picture which has the tendency to scandalise the Court and bring it into
disrepute or ridicule. The right of criticising, in good faith in private or public, a judgment of
the Court cannot be exercised, with malice or by attempting to impair the administration of
justice. Indeed, freedom of speech and expression is "life blood of democracy" but his
freedom is subject to certain qualifications. An offence of scandalising the Courtier se is one
such qualification, since that offence exists to protect the administration of justice and is
reasonably justified and necessary in a democratic society. It is not only an offence under the
contempt of Courts act but is sui generis. Courts are not unduly sensitive to fair comment or
even outspoken comments being made regarding their judgments and orders made
objectively, fairly and without any malice, but no one can be permitted to distort orders of
the Court and deliberately give a slant to its proceedings, which have the tendency to
scandalise the Court or bring it to ridicule, in the larger interest of protecting administration
of justice. The action of the petitioner and its leaders Ms. Medha Patkar as well as writings of
Ms. Arundhati Roy have caused us much anguish and when we express our displeasure of
the action of Ms. Arundhati Roy in making distorted writings or the manner in which the
leaders of the petitioner Ms. Medha Patkar and Mr. Dharmadhikari have, after giving
assurances to this Court, acted in breach of the injunctions, we do so out of anguish and not
out of anger. May be the parties were over-zealous in projecting their point of view on a
matter involving a large segment of tribal population, but they should not have given to
themselves the liberty of acting in the objectionable manner as already noticed. We are
unhappy at the way the leaders of NBA and Ms. Arundhati Roy have attempted to
undermine the dignity of the Court. We expected better behaviour from them. After giving
this matter our thoughtful consideration and keeping in view the importance of the issue of
Resettlement and Rehabilitation of the PAFs, which we have been monitoring for the last
five years, we are not inclined to initiate contempt proceedings against the petitioner, its 99
leaders or Ms. Arundhati Roy. We are of the opinion, in the larger interest of the issues
pending before us, that we need not pursue the matter any further. We, however, hope that
what we have said above would serve the purpose, and the petitioner and its leaders would
hereafter desist from acting in a manner which has the tendency to interfere with the due
administration of justice or which violates the injunctions issued by this Court from time to
time. After 22nd of July, 1999 when learned amicus was appointed, nothing has come to our
notice which may show that Ms. Arundhati Roy has continued with her objectionable
writings insofar as the judiciary is concerned. She may have by now realised her mistake.
We, therefore, consider it appropriate to now let the matter rest here and not to pursue it
any further. The application (LA. 14) is accordingly disposed of. Before parting with this order
we wish to place on record our deep appreciation for the assistance rendered to us by the
amicus, Shri K.K. Venugopal, Senior Advocate and all other learned counsel appearing in the
case. Let the main Writ Petition be now placed for directions on 4th Nov. 1999 at 2 P.M.
While I record my disapproval of the statements that are complained of, I am not inclined to
take action in contempt against Medha Patkar, Shripad Dharmadhikari and Arundhati Roy
because the Court's shoulders are broad enough to shrug off their comments and because
the focus should not shift from the resettlement and rehabilitation of the oustees, I
acknowledge with gratitude the assistance rendered to the Court by the learned amicus
curiae and by learned counsel for the parties. The LA. (no. 14) is, accordingly, disposed of.
100 Punishment for Contempt Supreme Court Bar Association vs Union Of India & Anr AIR
1998 SC 1895 J U D G M E N T DR. ANAND. J. In Re: Vinay Chandra Mishra, (1995) 2 SCC 584,
this Court found the Contemner, an advocate, guilty of committing criminal contempt of
Court for having interfered with and "obstructing the course of justice by trying to threaten,
overawe and overbear the court by using insulting, disrespectful and threatening language",
While awarding punishment, keeping in view the gravity of the contumacious conduct of the
contemner, the Court said: " The facts and circumstances of the Present Case justify our
invoking the power underArticle 129 read with Article 142 of the Constitution to award to
the contemner a suspended sentence of imprisonment together with suspension of his
practice as and advocate in the manner directed herein. We accordingly sentence the
contemner for his conviction for the offence of the criminal contempt as under: (a) The
contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for a
period of six weeks. However, in the circumstances of the case, the sentence will remain
suspended for a period of four years and may be activated in case the contemner is
convicted for any other offence of contempt of court within the said period; and (b) The
contemner shall stand suspended from practising as an advocate fro a period of three years
from today with the consequence that all held by him in his capacity as an advocate, shall
stand vacated by him forthwith. Aggrieved by the direction that the "Contemner shall stand
suspended from practising as an Advocate for a period of three years" issued by this Court
by invoking powers under Articles 129 and 142 of the Constitution, the Supreme Court Bar
Association, through its Honorary Secretary, has filed this petition under Article 32 of the
Constitution of India, seeking the following relief: " Issue and appropriate writ, direction, or
declaration, declaring that the disciplinary committees of the Bar Councils set up under the
Advocates Act, 1961, alone have exclusive jurisdiction to inquire into and suspend or debar
an advocate from practising law for professional or other misconduct, arising out of
punishment imposed for contempt of court or otherwise and further declare that the
Supreme Court of India or any High Court in exercise of its inherent jurisdiction has no such
original jurisdiction, power or authority in that regard notwithstanding the contrary view
held by this Hon'ble Court in Contempt Petition (Crl.) No. 3 of 1994 dated 10.3.1995." " The
question which arises is whether the Supreme Court of India can while dealing with
Contempt Proceedings exercise power under Article 129 of the Constitution or under Article
129 read with Article 142 of the Constitution or under Article 142 of the Constitution can
debar a practicing lawyer from carrying on his profession as a lawyer for any period
whatsoever, We direct notice to issue on the Attorney General of India and on the
respondents herein. Notice will 101 also issue on the application for interim stay. Having
regarding to the importance of the aforesaid question we further direct that this petition be
placed before a Constitution Bench of this Court." That is how this Writ petition has been
placed before this Constitution Bench. The only question which we are called upon to decide
in this petition is whether the punishment for established contempt of Court committed by
an Advocate can include punishment to debar the concerned advocate from practice by
suspending his licence (sanad) for a specified period, in exercise of its powers under Article
129 read with Article 142 of the Constitution of India. Dealing with this issue, the three judge
Bench in vinay Chandra Mishra's case (Supra), opined: "The question now is what
punishment should be meted out to the contemner. We have already discussed the
contempt jurisdiction of this Court under Article 129 of the Constitution. That jurisdiction is
independent of the statutory law of contempt enacted by Parliament under Entry 77 of List I
of Seventh Schedule of the Constitution. The jurisdiction of this Court, under Article 129 is
sui generis. The jurisdiction to take cognizance of the contempt as well as to award
punishment for it being constitutional, it cannot be controlled by any statute. Neither,
therefore, theContempt of Courts Act, 1971 nor the Advocates Act, 1981 can be pressed into
service to restrict the said jurisdiction. What is further, the jurisdiction and powers of this
Court under Article 142 which are supplementary in nature and are provided to do complete
justice in any matter, are independent of the jurisdiction and powers of this Court under
Article 129 which cannot be trammeled in any way by any statutory provision including the
provisions of the Advocates Act or the contempt jurisdiction of the court including of this
Court and the contempt of Courts Act, 1971 being a statute cannot denude, restrict or limit
the powers of this Court to take action for contempt under Article 129. Mr. Kapil Sibal,
learned senior counsel appearing for the Supreme Court Bar Association, and Dr. Rajiv
Dhawan, senior advocate appearing for the Bar Council of U.P. and Bar Council of India
assailed the correctness of the above findings and submitted that powers conferred on this
Court by Article 142, though very wide in their aptitude, can be exercised only to "do
complete justice in any case or cause pending before it " and since the issue of 'professional
misconduct' is not the subject matter of "any cause" pending before this court while dealing
with a case of contempt of court, it could not make any order either under Article 142 or 129
to suspend the licence of an advocate contemner, for which punishment, statutory
provisions otherwise exist. According to the learned counsel, a court of record under Article
129 of the Constitution does not have any power to suspend the licence of a lawyer to
practice because that is not a punishment which can be imposed under its jurisdiction to
punish for contempt of Court and that Article 142 of the Constitution cannot also be pressed
into aid to make an order which has the effect of assuming "jurisdiction which expressly
vests in another statutory body constituted under the Advocates Act, 1961. The learned
Solicitor General submitted that under Article 129 read with Article 142 of the Constitution,
this Court can neither create a "jurisdiction" nor created a "punishment" not otherwise
permitted by law and that since the power to punish an advocate (for "professional
misconduct") by suspending his licence vests exclusively in a 102 statutory body constituted
under theAdvocates Act, this Court cannot assume that jurisdiction under Article 142 or 129
or even under Section 38 of the Advocates Act, 1961. To appreciate the submissions raised
at the bar, let us first notice Article 129 of the Constitution, it reads: " 129. Supreme Court to
be a court of record.- The Supreme Court shall be a court of record and shall have all the
power of such a court including the power of punish for contempt of itself". The Article on
its plain language vests this Court with all the powers of a court of record including the
power to punish for contempt of itself. " The contempt jurisdiction of courts of record forms
part of their inherent jurisdiction. The power that courts of record enjoy to punish
contempts is part of their inherent jurisdiction. The juridical basis of the inherent jurisdiction
has been well described by Master Jacob as being: 'the authority of the judiciary to uphold,
to protect and to fulfil the judicial function of administering justice according to law in a
regular, orderly and effective manner.' Such a power is not derived from statute nor truly
from the common law but instead flows from the very concept of a court of law." Article 142
of the Constitution reads:- " 142. Enforcement of decrees and orders of Supreme Court and
orders as to discovery, etc. - (1) The Supreme Court in the exercise of its jurisdiction may
pass such decree or make such order as is necessary for doing complete justice in any cause
or matter pending before, it, and any decree so passed or order so made shall to enforceable
throughout the territory of India in such manner as may be prescribed by or under any law
made by Parliament and, until provision in that behalf is so made, in such manner as the
President may by order prescribe. (2) Subject to the provisions of any law made in this
behalf by Parliament, the Supreme Court Shall, as respects the whole of the territory of
India, have all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents, or the
investigation or punishment of any contempt of itself. It is, thus, seen that the power of this
court in respect of investigation or punishment of any contempt including contempt of itself,
is expressly made 'subject to the provisions of any law made in this behalf by the parliament'
by Article 142(2). However, the power to punish for contempt being inherent in a court of
record, it follows that no act of parliament can take away that inherent jurisdiction of the
Court of Record to punish for contempt and the Parliament's power of legislation on the
subject cannot, therefore, be so exercised as to stultify the status and dignity of the
Supreme Court and/or the High Courts, though such a legislation may serve as a guide for
the determination of the nature of punishment which this court may impose in the case of
established contempt. Parliament has not enacted any law dealing with the powers of the
Supreme Court with regard to investigation and punishment of contempt of itself. (We shall
refer to Section 15 of t he Contempt of Courts Act, 1971, later on) and this Court, therefore
exercises 103 the power to investigate and punish for contempt of itself by virtue of the
powers vested in it under Articles 129 and 142(2) of the Constitution of India. After the
submission of the Sanyal Committee Reports, the contempt of Courts Act, 1952 was
repealed and replaced by the contempt of Courts Act, 1971 which Act was enacted to
"define and limit the powers of certain courts in punishing contempt of courts and to
regulate their procedure in relation thereto". It would be proper to notice some of the
relevant provisions of the 1971 Act at this stage. Section 2 (a), (b) and (c) of the Contempt of
Courts Act, 1971 define contempt of court as follows:- "2. Definitions. - In this Act, unless the
context otherwise requires,- (a) 'contempt of court' means civil contempt or criminal
contempt; (b) 'Civil contempt' means willful disobedience to an judgment, decree, direction,
order, writ or other process of a court or willful breach of an under taking given to a court;
(c) 'criminal contempt' means the publication whether by words, spoken or written, or by
signs, or by visible representations, or otherwise) of any matter or the doing of any other act
whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the
authority of any court, or (ii) prejudices, or interferes or tends to interfere with, the due
course of any judicial proceedings; or (iii) interferes or tends to interfere with or obstructs or
tends to obstruct, the administration of justice in any other manner." Section 10 provides :- "
Sec. 10. Power of High Court to punish contempts of subordinate courts. - Every High Court
shall have and exercise the same jurisdiction, powers ad authority, in accordance
jurisdiction, powers and authority, in accordance with the same procedure and practice, in
respect of contempts of courts subordinate to it as it has and exercises in respect of
contempts of itself: Provided that no High Court shall take cognizance of a contempt alleged
to have been committed in respect of a court subordinate to it where such contempt is an
offence punishable under the Indian Panel Code, 1860 (45 of 1860)." The punishment for
committing contempt of court is provided in Section 12 of the 1971 Act which reads:- "12.
Punishment for contempt of court.-(1) Save as otherwise expressly provided in this Act or in
any other law, a contempt of court may be punished with simple imprisonment for a term
which may extend to six months, or with fine which may extend to two thousand rupees, or
with both: Provided that the accused may be discharged or the punishment awarded my be
remitted on apology being made to the satisfaction of the court. 104 Explanation.- An
apology shall not be rejected merely on the ground that it is qualified or conditional if the
accused makes it bona fide. (2) Notwithstanding any thing contained in any law for the time
being in force, no court shall impose a sentence in excess of that specified in sub-section (1)
for any contempt either in respect of itself or of a court subordinate to it. (3)
Notwithstanding anything contained in this section, where a person is found guilty of a civil
contempt, the court, if it considers that a fine will not meet the ends of justice and that a
sentence of imprisonment is necessary, shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil prison for such period not exceeding six
months as it may think fit. A careful reading of sub-section (2) of Section 12 reveals that the
Act places an embargo on the court not to impose a sentence in excess of the sentence
prescribed under sub- section (1). A close scrutiny of sub-section (3) of Section 12
demonstrates that the legislature intended that in the case of civil contempt a sentence of
fine alone should be imposed except where the court considers that the ends of justice
make it necessary to pass a sentence of imprisonment also. Dealing with imposition of
punishment under Section 12 (3) of the Act, in the case of Smt. Pushpaben and another vs.
Narandas V. Badiani and another. (1979) 2 SCC 394, this Court opined: " A close and careful
interpretation of the extracted section (Section 12(3)) leaves no room for doubt that the
legislature intended that a sentence of fine alone should be imposed in normal
circumstances. The statute, however, confers special power on the Court to pass a sentence
of imprisonment if it thinks that ends of justice so require. Thus before a Court passes the
extreme sentence of imprisonment, it must give special reasons after a proper application of
its mind that a sentence of imprisonment along is called for in a particular situation. Thus,
the sentence of imprisonment is an exception while sentence of fine is the rule." Section 10
of the 1971 Act like Section 2 of the 1926 Act and Section 4 of the 1952 Act recognises the
power which a High Court already possesses as a Court of Record for punishing for contempt
of itself, which jurisdiction has now the sanction of the Constitution also by virtue of
Article215. The Act, however, does not deal with the powers of the Supreme Court to try or
punish a contemner for committing contempt of the Supreme Court or the courts
subordinate to it and the constitutional provision contained in Articles 142(2) and 129 of the
Constitution alone deal with the subject. In S.K. Sarkar, Member, Board of Revenue vs. Vinay
chandra Misra, (1981) 1 SCC 436, this court opined: " Articles 129 and 215 preserve all the
powers of the Supreme Court and the High Court, respectively, as a Court of Record which
include the power to punish the contempt of itself. As pointed out by this Court in Mohd.
Ikram Hussain v. State of U.P. (AIR 1964 SC 1625), there are no curbs on the power of the
High Court to punish for contempt of itself except those contained in the Contempt of courts
Act. Articles 129 and 215 do not define as to what constitutes contempt of court. Parliament
has, by virtue of the aforesaid entries in List I and List III of the Seventh Schedule, Power to
define and limit the powers of the Courts in punishing contempt of 105 court and to regulate
their procedure in relation thereto. Indeed, this is what is stated in the preamble of the Act
of 1971". (Emphasis supplied) In Sukhdev Singh v. Hon'ble C.J.S. Teja Singh & Ors. AIR 1954
SCR 454, while recognising that the power of the High Court to institute proceedings for
contempt and punish the contemner when found necessary is a special jurisdiction which is
inherent in all courts of Record, the Bench opined that "the maximum punishment is now
limited to six month's simple imprisonment or a fine of Rs. 2,000/- or both" because of the
provision of Contempt of Courts Act. The nature and types of punishment which a court of
record can impose, in a case of established contempt, under the common law have now
been specifically incorporated in the contempt of Courts Act, 1971 in so far as the High
Courts are concerned and therefore to the extent the contempt of Courts Act 1971 identifies
the nature of types of punishments which can be awarded in the case of established
contempt, it does not impinge upon the inherent powers of the High Court under Article 215
either. No new type of punishment can be created or assumed. As already noticed, the
parliament by virtue of Entry 77, List I is competent to enact a law relating to the powers of
the Supreme Court with regard to contempt of itself and such a law may prescribe the
nature of punishment which may be imposed on a contemner by virtue of the provisions of
Article 129 read with Article 142(2). Since, no such law has been enacted by the parliament,
the nature of punishment prescribed, under the Contempt of Courts Act, 1971, may act as a
guide for the Supreme Court but the extent of punishment as prescribed under that Act can
apply only to the High Courts, because the 1971 Act ipso facto does not deal with the
contempt jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes
procedural mode for taking cognizance of criminal contempt by the supreme Court also.
Section 15, however, is not a substantive provision conferring contempt jurisdiction. The
judgment in Sukhdev Singh's case (supra) as regards the extent of "maximum punishment"
which can be imposed upon a contemner must, therefore, be construed as dealing with the
powers of the High Courts only and not of this Court in that behalf. We are, therefore,
doubtful of the validity of the argument of the learned solicitor General that the extent of
punishment which the supreme Court can impose in exercise of its inherent powers to
punish for contempt of itself and/or of subordinate courts can also be only to the extent
prescribed under the contempt of Courts Act, 1971. We, however, do not express any final
opinion on that question since that issue strictly speaking, does not arise for our decision in
this case. The question regarding the restriction or limitation on the extent of punishment,
which this Court may award while exercising its contempt jurisdiction may be decided in a
proper case, when so raised. The suspension of an Advocate from practice and his removal
from the State roll of advocates are both punishments specifically provided for under the
Advocates Act, 1961, for proven "professional misconduct' of an advocate. While exercising
its contempt jurisdiction under Article 129, the only cause or matter before this Court is
regarding commission of contempt of court. There is no cause of professional misconduct,
properly so called, pending before the Court. This Court, therefore, in exercise of its
jurisdiction under Article 129 cannot take over the jurisdiction of the disciplinary committee
of the Bar Council of the State or the Bar Council of India to punish an advocate by
suspending his licence, which punishment can only be 106 imposed after a finding of
'professional misconduct' is recorded in the manner prescribed under the Advocates Act and
the Rules framed thereunder. The contempt of court is a special jurisdiction to be exercised
sparingly and with caution, whenever an act adversely effects the administration of justice
or which tends to impede its course or tends to shake public confidence in the judicial
institutions. This jurisdiction may also be exercised when the act complained of adversely
effects the Majesty of Law or dignity of the courts. The purpose of contempt jurisdiction is to
uphold the majesty and dignity of the Courts of law. It is an unusual type of jurisdiction
combining "the jury, the judge and the hangman" and it is so because the court is not
adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to
protect the dignity of an individual judge but to protect the administration of justice from
being maligned. In the general interest of the community it is imperative that the authority
of courts should not be imperiled and there should be no unjustifiable interference in the
administration of justice. It is a matter between the court and the contemner and third
parties cannot intervene. it is exercised in a summary manner in aid of the administration of
justice, the majesty of law and the dignity of the courts. No such act can be permitted which
may have the tendency to shake the public confidence in the fairness and impartiality of the
administration of justice. The power of the Supreme Court to punish for contempt of court,
though quite wide, is yet limited and cannot be expanded to include the power to determine
whether an advocate is also guilty of "Professional misconduct" in a summary manner, giving
a go bye to the procedure prescribed under the Advocates Act. The power to do complete
justice under Article 142 is in a way, corrective power, which gives preference to equity over
law but it cannot be used to deprive a professional lawyer of the due process contained in
the Advocates Act 1961 by suspending his licence to practice in a summary manner, while
dealing with a case of contempt of court. The plenary powers of this court under Article 142
of the Constitution are inherent in the court and are complementary to those powers which
are specifically conferred on the court by various statutes though are not limited by those
statutes. These powers also exist independent of the statutes with a view to do complete
justice between the parties. These powers also exists independent of the statutes with a
view to do complete justice between the parties. These powers are of very wide amplitude
and are in the nature of supplementary powers. This power, exists as a separate and
independent basis of jurisdiction, apart from the statutes. It stands upon the foundation,
and the basis for its exercise may be put on a different and perhaps even wider footing, to
prevent injustice in the process of litigation and to do complete justice between the parties.
This plenary jurisdiction is, thus, the residual source of power which this Court may draw
upon as necessary whenever it is just and equitable to do so and in particular to ensure the
observance of the due process of law, to do complete justice between the parties. This
plenary jurisdiction is, thus, the residual source of power which this court may draw upon as
necessary whenever it is just and equitable to do so and in particular to ensure the
observance of the due process of law, to do complete justice between the parties, while
administering justice according to law. There is no doubt that it is an indispensable adjunct
to all other powers and is free from the restraint of jurisdiction and operates as a valuable
weapon in the hands of the court to prevent "clogging or obstruction of the stream of
justice". It, however, needs to be remembered that the powers conferred on the court by
Article 142 being curative in nature cannot be construed as 107 powers which authorise the
court to ignore the substantive rights of a litigant while dealing with a cause pending before
it. this power cannot be used to "supplant" substantive law applicable to the case or cause
under consideration of the court. Article 142, even with the width of its amplitude, cannot
be used to build a new edifice where none existed earlier, by ignoring express statutory
provisions dealing with a subject and thereby to achieve something indirectly which cannot
be achieved directly. Punishing a contemner advocate, while dealing with a contempt of
court case by suspending his licence to practice, a power otherwise statutorily available only
to the Bar Council of India, on the ground that the contemner is also an advocate, is,
therefore, not permissible in exercise of the jurisdiction under Article 142. The construction
of Article 142 must be functionally informed by the salutary purpose of the Article viz. to do
complete justice between the parties. It cannot be otherwise. As already noticed in a case of
contempt of court, the contemner and the court cannot be said to be litigating parties. 142.
Indeed, these constitutional powers can not, in any way, be controlled by any statutory
provisions but at the same time these powers are not meant to be exercised when their
exercise may come directly in conflict with what has been expressly provided for in statute
dealing expressly with the subject. In Delhi Judicial Service Association Tis Hazari vs. State of
Gujarat & Ors. etc. etc. (1991 (3) SCR 936) the following questions fell for determination. "
(a) whether the Supreme Court has inherent jurisdiction or power to punish for contempt of
subordinate or inferior courts under Article 129 of the Constitution, (b) whether the inherent
jurisdiction and power of the Supreme Court is restricted by theContempt of Courts Act,
1971, (c) whether the incident interfered with the due administration of justice and
constituted contempt of court, and (d) what punishment should be awarded to the
contemners found guilty of contempt." The Court observed: "Article 142(1) of the
constitution provides that Supreme Court in exercise of its jurisdiction may pass such decree
or make such order as is necessary for doing complete justice in any 'cause' or 'matter'
pending before it. The expression 'cause' or 'matter' would include any proceeding pending
in court and it would cover almost every kind of proceeding in court including civil or
criminal . The inherent power of this Court under Article 142 coupled with the plenary and
residuary powers under Articles 32 and 136 embraces power to quash criminal proceedings
pending before any court to do complete justice in the matter before this Court." Mr.
Nariman urged that Article 142(1) does not contemplate any order contrary to statutory
provisions. He placed reliance on the Courts observations in Prem Chand Garg Vs. Excise
Commissioner, U.P. Allahabad 91963 Supp. 1 SCR 885 at 889) and A.R. Anthulay Vs. R.S.
Nayak and Anr. (1988 (2) SCC 602) where the Court observed that though the powers
conferred on this Court under Article 142(1) are very wide, but in exercise of that power the
court cannot make any order plainly inconsistent with the express statutory provisions of
substantive law. It may be noticed that in prem Chand Garg's and Antulay's case (supra)
observations with regard to the extent of this Court's power under Article 142(1) were made
in the context of fundamental rights. Those observations have no bearing on the question in
issue as there is no provision in any substantive 108 law restricting this Court's power to
quash proceedings pending before subordinate court. This Court's power under Article
142(1) to do "complete justice" is entirely of different level and of a different quality. Any
prohibition or restriction contained in ordinary laws cannot act as a limitation on the
constitutional power of this Court. Once this Court has selling of a cause or matter before it,
it has power to issue any order or direction to do "complete justice" in the matter. This
constitutional power of the Apex Court cannot be limited or restricted by provisions
contained in statutory law." The Bench went on to say: "No enactment made by Central or
State Legislature can limit or restrict the power of this Court under Article 142 of the
constitution, the court must take into consideration the statutory provisions regulating the
matter in dispute. What would be the need of "complete justice" in a cause or matter would
depend upon the facts and circumstances of each case and while exercising that power the
court would take into consideration the express provisions of a substantive statute. Once
this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue
direction as may be necessary to do complete justice in the matter. This has been the
consistent view of this Court as would appear from the decisions of this court in State of U.P.
Vs. Poosu & Anr. (1976 (3) SCR 1005; Ganga Bishan & Ors.Vs. Jai Narain (1986 (1) SCC 75;
Navnit R. Kamani & Ors.Vs. Jai Narain (1988 (4) SCC 387); B.N. Nagarajan &Ors.vs. State of
Mysore & Ors. (1986 (3) SCR 682): Special Reference No. 1 of 1964, (supra), and Harbans
Singh vs. State of U.P. Ors. (supra) ." In a given case, an advocate found guilty of committing
contempt of court may also be guilty of committing "professional misconduct" depending
upon the gravity or nature of his contumacious conduct, but the two jurisdictions are
separate and distinct and exercisable by different forums by following separate and distinct
procedures. The power to punish an Advocate, by suspending his licence or by removal of his
name from the roll of the State bar Council, for proven professional misconduct, vests
exclusively in the statutory authorities created under the Advocates Act, 1961, while the
jurisdiction to punish him for committing contempt of court vests exclusively in the courts.
After the coming into force of the Advocates Act, 1961, exclusive power for punishing an
advocate for "professional misconduct " has been conferred on the concerned state Bar
Council and the Bar Council of India. That Act contains a detailed and complete mechanism
for suspending or revoking the licence of an advocate for his "professional
misconduct'.since, the suspension or revocation of licence of an advocate has not only civil
consequence but also penal consequence, the punishment being in the nature of penalty,
the provisions have to be strictly construed. Punishment by way of suspending the licence of
an advocate can only be imposed by the competent statutory body after the charge is
established against the Advocate in a manner prescribed by the Act and the Rules framed
thereunder. Let us now have a quick look at some of the relevant provisions of the
Advocates Act, 1961. The Act, besides laying down the essential functions of the Bar Council
of India provides for the enrollment of advocates and setting up of disciplinary authorities to
chastise and, if necessary, punish members of the profession for professional misconduct.
The punishment may include suspension from practice for a specified period or reprimand or
removal of the name from the roll of the advocates. Various provisions of the Act deal with
functions of the State Bar Councils 109 and the Bar Council of India. We need not, however,
refer to all those provisions in this judgment except to the extent their reference is
necessary. According to Section 30, every advocate whose name is entered in the Stat roll of
advocates shall be entitled, as of right, to practice, throughout the territories to which the
Act extends, in all courts including the Supreme Court of India. Section 33 provides that no
person shall, on or after the appointed day, be entitled to practice in any court or before any
authority or person unless he is enrolled as an advocate under the Act. Chapter V of the Act
deals with the 'conduct of Advocate'. After a complaint is received alleging professional
misconduct by an advocate by the Bar Council, the Bar Council entrusts the inquiry into the
case of misconduct to the Disciplinary Committee constituted under Section 9 of the Act.
Section 35 lays down that if on receipt of a complaint or otherwise, a state Bar Council has
reason to believe that any advocate on its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its disciplinary committee. Section 36,
provides that where on receipt of a complaint or otherwise, the Bar Council of India has
reason to believe that any advocate whose name is entered on any State roll is guilty of
professional or other misconduct, it shall refer the case to the disciplinary Committee.
Section 37 provides for an appeal to the Bar Council of India against an order made by the
disciplinary committee of a state Bar Council. Any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India may prefer an appeal to the Supreme
Court of India under Section 38 of the Act. Section 42(1) of the Act confers on the
Disciplinary Committee of the Bar Council, powers of a civil court under the code of Civil
procedure and section 4292) enacts that its proceedings shall be "deemed" to be judicial
proceeding for the purpose mentioned therein. Section 49 of the Act lays down that the Bar
Council of India may make rules for discharging its functions under the Act and in particular
such Rules may prescribe inter-alia the standards of professional conduct to be observed by
the advocates and the procedure to be followed by the Disciplinary Committees of the Bar
Council while dealing with a case of professional misconduct of an advocate. The Bar Council
of India has framed rules called 'The Bar Council of India Rules' (hereinafter referred to as
the Rules) in exercise of its rule making power under the Advocate Act 1951. Part VII of the
Rules deals with disciplinary proceedings against the advocates. In chapter I of the part VII
provisions have been made to deal with complaints of professional misconduct received
against advocates as well as for the procedure to be followed by the Disciplinary committees
of the State Bar Council and the Bar Council of India to deal with such complaints received
under Sections 35 and 36 of the Act. Rule 1 of Chapter I of part VII of the Rules provides that
a complaint against an advocate shall be in the form of a petition duly signed and verified as
required under the code of Civil procedure, and shall be accompanied by the fees as
prescribed by the Rules. On the complaint being found to be in order the same shall be
registered and place before the Bar Council for such order as it may deem it to pass. Sub-rule
(2) provides that before referring a complaint made under Section 35(1) of the Act, to one of
its disciplinary committees the Bar Council may require the complainant to furnish better
particulars and the Bar Council "may also call for the comments from the advocate
complained against ." 110 Rules 3 and 4 of Chapter I and VII provide for the procedure to be
followed in dealing with such complaints. These rules read: " 3.(1) After a complaint has
been referred to a Disciplinary Committee by the Bar Council, the registrar shall
expeditiously send a notice to the Advocate concerned requiring him to show cause within a
specified date on the complaint made against him and to submit the statement of defence,
documents and affidavits in support of such defence, and further informing him that in case
of his non-appearance on the date of hearing fixed, the matter shall be heard and
determined in his absence. Explanation: Appearance includes, unless otherwise directed,
appearance by an Advocate or through duly authorised representative. (2) If the Disciplinary
Committee requires or termites, a complainant may file a replication within such time as
may be fixed by the committee. (3) The Chairman of the Disciplinary Committee Hall fix the
date, hour and place of the enquiry which shall not ordinarily be later than thirty days from
the receipt of the reference. The Registrar shall give notice of such date, hour and piece to
the complainant or other person aggrieved. The advocate concerned and the Attorney
General or He Additional Solicitor General of India or the Advocate General as the case may
be, and shall also serve on them copies of the complaint and such other documents
mentioned in Rule 24 of this Chapter as the Chairman of the Committee may direct at least
ten days before the date fixed for the enquiry. Rules 5, 6 and 7 deal with the manner of
service of notice, summoning of witnesses and appearance of the parties before the
disciplinary committee. At any stage of the proceedings, the disciplinary committee may
appoint an advocate to appear as amicus curiae and in case either of the parties absent
themselves, the committee may; proceed ex parte against the absenting party and decide
the case. Sub-rule (1) of Rule 8 provides: " This Disciplinary Committee shall hear the
Attorney General or the Additional Solicitor General of India or the Advocate General, as the
Case may be or their Advocate, and parties or their Advocates, if they desire to be heard,
and determine the matter on documents and affidavits unless it is of the opinion that it
should be in the interest of justice to permit cross examination of the deponents or to take
oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be
followed." Rules 9 and 10 deal with the manner of recording evidence during the enquiry
into a complaint of professional misconduct and the maintenance of record by the
committee. Rule 14(1) lays down as follows: "The finding of the majority of the numbers of
the Disciplinary Committee shall be the finding of the Committee. The reason given in
support of the finding may be given in the form of a judgement, and in the case of a
difference of opinion, any member dissinting shall be entitled to record his dissent giving his
own reason. It shall be competent for the Disciplinary Committee to award such costs as it
thinks fit. " 111 Rule 16 provides: " 16(1). The Secretary of a State Bar Council shall send to
the Secretary of the Bar Council India quarterly sentiments complaints received and the
stage of the proceedings before the state Bar Council and Disciplinary Committees in such
manner as may be specified from time to time. (2) The Secretary of the Bar Council of India
may however call for such further statements and particulars as he considers necessary." An
appeal from the final order of the disciplinary committee of the Bar Council of a State is
provided to the Bar Council of India under Section 37 of the Act and the procedure for filing
such an appeal is detailed in Rules 19(2) to 31. The object of referring to the various
provisions of the Advocates Act, 1961 and the Rules framed thereunder is to demonstrate
that an elaborate and detailed procedure, almost akin to that of a regular trial of a case by a
court, has been prescribed to deal with a complaint of professional misconduct against an
advocate before he can be punished by the Bar Council by revoking or suspending his licence
or even for reprimanding him. The Bar Councils therefore entertain cases of misconduct
against advocates. The Bar Councils are to safeguard the rights, privilege and interests of
advocates. The Bar Councils is a body corporate. The disciplinary committees are constituted
by the Bar Council. The Bar Council is not the same body as its disciplinary committee. One
of the principal functions of the Bar Council in regard to standards of professional conduct
and etiquette of advocates is to receive complaints against advocates and if the Bar Council
has reason to believe that any advocate has been guilty of professional or other misconduct
it shall refer the case for disposal to its disciplinary committee.A most significant feature is
that no litigant and no member of the public can straightway commence disciplinary
proceedings against an advocate. It is the Bar Council of a State which initiates the
disciplinary proceedings. Thus, after the coming into force of the Advocates Act, 1961 with
effect from 19th May 1961, matters connected with the enrollment of advocates as also
their punishment for professional misconduct is governed by the provisions of that Act only.
Since, the jurisdiction to grant licence to a law graduate to practice as an advocate vests
exclusively in the Bar Councils of the concerned State, the jurisdiction to suspend his licence
for a specified term or to revoke it also vests in the same body. Keeping in view the
elaborate procedure prescribed under the Advocates Act1961 and the Rules framed
thereunder it follows that a complaint of professional misconduct is required to be tried by
the disciplinary committee of the Bar Council, like the trial of a criminal case by a court of
law and an advocate may be punished on the basis of evidence led before the disciplinary
committee of the Bar Council after being afforded an opportunity of hearing. The delinquent
advocate may be suspended from the rolls of the advocates or imposed any other
punishment as provided under the Act. 112 It is therefore, not permissible for this court to
punish an advocate for "professional misconduct" in exercise of the appellate jurisdiction by
convening itself as the statutory body exercising "original jurisdiction".Indeed, if in a given
case the concerned Bar Council on being apprised of the contumacious and blame worthy
conduct of the advocate by the High Court or this Court does not take any action against the
said advocate, this court may well have the jurisdiction in exercise of its appellate powers
under Section 38 of the Act read with Article 142 of the Constitution to proceed suo moto
and send for the records from the Bar Council and pass appropriate orders against the
concerned advocate. in an appropriate case, this Court may consider the exercise of
appellate jurisdiction even suo moto provided there is some cause pending before the
concerned Bar Council, and the Bar Council does "not act" or fails to act, by sending for the
record of that cause and pass appropriate orders. Thus, to conclude we are of the opinion
that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of
the Constitution, while punishing a contemner for committing contempt of court, also
impose a punishment of suspending his licence to practice, where the contemner happens
to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the
appellate powers under Section 38 of the Act while dealing with a case of contempt of court
(and not an appeal relating to professional misconduct as such). To that extent, the law laid
down in Re: Vinay Chandra Mishra, (1995) 2 S.C.C. 584 is not good law and we overrule it. 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. In V.C.
Mishra's case, the Bench, relied upon its inherent powers under Article 142, to punish him
by suspending his licence, without the Bar Council having been given any opportunity to deal
with his case under the Act. We cannot persuade ourselves to agree with that approach. It
must be remembered that wider the amplitude of its power under Article 142, the greater is
the need of care for this Court to see that the power is used with restraint without pushing
back the limits of the constitution so as to function within the bounds of its own jurisdiction.
To the extent, this Court makes the statutory authorities and other organs of the State
perform their duties in accordance with law, its role is unexceptionable but it is not
permissible or the Court to "take over" the role of the statutory bodies or other organs of
the State and "perform" their functions. Upon the basis of what we have said above, we
answer the question posed in the earlier part of this order, in the negative. The writ petition
succeeds and is ordered accordingly. 113 Pushpaben & Anr vs Narandas V. Badiani & Anr,
1979 AIR 1536 J. Fazalali, Syed Murtaza JUDGMENT: The Judgment of the Court was
delivered by FAZAL ALI, J.-This is an appeal under S. 19 of the Contempt of Courts Act
(hereinafter called the Act) against an order of the High Court of Bombay convicting the
appellants for a Civil Contempt and sentencing them to one month's simple imprisonment.
The facts of the case have been fully detailed by the High Court and it is not necessary for us
to repeat the same all over again. It appears that Respondent No. 1 had given a loan of Rs.
50,000/- to the appellants on certain conditions. Somehow or other, the loan could not be
paid by the appellants as a result of which Respondent No. 1 filed a complaint under S.
420I.P.C. against the appellants. While the complaint was pending before the Court of the
Magistrate, the parties entered into a compromise on 22-7-1971 under which the appellants
undertook to pay the loan of Rs. 50,000/- with simple interest @ 12% per annum on or
before 21-7-1972. An application was filed before the Court for allowing the parties to
compound the case and acquit the accused. The Court after hearing the parties, passed the
following order:- "The accused given an undertaking to the court that he shall repay the sum
of Rs. 50,000/- to the complainant on or before 21-7-1972 with interest as mentioned on the
reverse. In view of the undertaking, I permit the compromise and acquit the accused". It is
obvious, therefore, that the Court permitted the parties to compound the case only because
of the undertaking given by the appellants. Thereafter, it appears, that the undertaking was
violated and the amount of loan was not paid to the Respondent No. 1 at all. The
respondent, therefore, moved the High Court for taking action for contempt of Court against
the appellants as a result of which the present proceedings were taken against them. The
High Court came to the conclusion that the appellants had committed a wilful disobedience
of the undertaking given to the Court and were, therefore, guilty of civil contempt as defined
in S. 2(b) of the Act. Hence, this appeal before us. Mr. V. S. Desai appearing in support of the
appeal has raised two short points before us. He has submitted that there is no doubt that
the appellants had violated the undertaking but in the circumstances it cannot be said that
the appellants had committed a wilful disobedience of the orders of the Court. So far as this
point is concerned, we fully agree with the High Court. In the circumstances, the appellants
undoubtedly committed wilful disobedience of the order of the court by committing a
serious breach of the undertaking given to the Court on the basis of which alone, the
appellants had been acquitted. For these reasons, the first contention put forward by Mr.
Desai, is overruled. 114 It is, then, contended that under S. 12(3), normally the sentence that
should be given to an offender who is found guilty of civil contempt, is fine and not
imprisonment, which should be given only where the Court is satisfied that ends of justice
require the imposition of such a sentence. In our opinion, this contention of learned counsel
for the appellants is well-founded and must prevail. Sub-section 3 of S. 12 reads thus :-
"Notwithstanding anything contained in this section, where a person is found guilty of a civil
contempt, the Court, if it considers that a fine will not meet the ends of justice and that a
sentence of imprisonment is necessary shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil prison for such period not exceeding six
months as it may think fit". A close and careful interpretation of the extracted section leaves
no room for doubt that the Legislature intended that a sentence of fine alone should be
imposed in normal circumstances. The statute, however, confers special power on the Court
to pass a sentence of imprisonment if it think that ends of justice so require. Thus before a
Court passes the extreme sentence of imprisonment, it must give special reasons after a
proper application of its mind that a sentence of imprisonment alone is called for in a
particular situation Thus, the sentence of imprisonment is an exception while sentence of
fine is the rule. Having regard to the peculiar facts and circumstances of this case, we do not
find any special reason why the appellants should be sent to jail by sentencing them to
imprisonment. Furthermore, respondent No. 1 before us despite service, has not appeared
to support the sentence given by the High Court. Having regard to these circumstances,
therefore, we are satisfied that the present case, squarely falls in the first part of S. 12(3)
and a sentence of fine alone should have been given by the High Court. We, therefore, allow
this appeal to this extent that the sentence of imprisonment passed by the High Court is set
aside and instead the appellants are sentenced to pay a fine of Rs. 1000/- each. In case of
default, 15 days simple imprisonment. Four weeks time to pay the fine. P.B.R. Appeal
allowed in part. 115 Daroga Singh & Ors vs B.K. Pandey (2004) 5 SCC 26 Bench: R.C. Lahoti,
Bhan. JUDGMENT: The instant criminal appeals arising from a common judgment relating to
the same incident, depict a rare, unfortunate and condemnable act of the police officials
who contrary to the duty enjoined upon them to protect and maintain law and order,
indulged in the act of attacking in a pre-planned and calculated manner Shri D.N. Barai, Ist
Additional District and Sessions Judge, in his court room and Chambers on 18th November,
1997 at Bhagalpur in the State of Bihar. In Sessions trial No. 592 of 1992, the Investigating
Officer (Jokhu Singh) was examined as a witness on 7th May, 1997 in the Court of Shri D.N.
Barai, Ist Additional District and Sessions Judge, Bhagalpur. As the cross-examination could
not be concluded the case was adjourned to 26th May, 1997. Thereafter the case was
adjourned to several dates but this witness did not appear for the cross-examination. A
show cause notice was issued against Jokhu Singh through Superintendent of Police,
Madhepura, requiring him to appear on 11th June, 1997. In spite of that Jokhu Singh did not
appear. On 14th July, 1997, a wireless message was sent to him through Superintendent of
Police to appear in the court on 5th August, 1997. Once again the witness did not turn up.
The Court, therefore, having no other option issued a notice to Jokhu Singh to show cause
why proceedings under the Contempt of Courts Act (hereinafter referred to as 'the Act') be
not initiated against him. Ultimately, on 27th August, 1997 the case was adjourned to 20th
September, 1997 and to procure his presence, non-bailable warrant was issued. On this date
also the witness did not turn up. He did not file reply to the show cause notice either. On
17th November, 1997, Jokhu Singh appeared in the court in the afternoon. Having regard to
the previous order of non-bailable warrant of arrest, he was remanded to judicial custody. A
petition for bail was filed on his behalf after the court hours. It was directed that the same
be placed for hearing on the next date. Shri K.D. Choudhary, one of the appellants who was
an office bearer of the Policemen's Association at District Level and was posted as SHO of
the Police Station in the evening of the same day went to the Chambers of Shri Barai for
release of Shri Jokhu Singh on execution of a personal bond. Shri Barai did not agree.
Thereafter he approached the District Magistrate and on the basis of his advice he met the
District Judge and renewed his demand for release of Jokhu Singh, which was declined. On
18th November, 1997, when the bail petition of Jokhu Singh was taken up, the learned
counsel appearing on his behalf made a prayer seeking withdrawal of the bail application.
Accordingly, the bail application was dismissed as withdrawn. Soon thereater, a large
number of police officers (without uniform), armed with lathis and other weapons and
shouting slogans against Shri Barai, barged into his court room. The court peon Shri
Bishundeo Sharma who tried to shut the door was brutally assaulted. Shri Barai
apprehending danger to his life, rushed to his 116 Chambers and managed to bolt the door.
Unruly mob forcibly broke open the door, overpowered the bodyguard and assaulted Shri
Barai. They reiterated their demand for unconditional release of Jokhu Singh. Due to the
manhandling Shri Barai felt dizziness and became unconscious. It was due to timely arrival of
a team of doctors that his life was saved. On the next day, on return from Banka, District &
Sessions Judge also enquired into the matter and submitted a detailed report before the
High Court. On 19th November, 1997, on the basis of the report sent by the 5th Additional
District and Sessions Judge, Bhagalpur dated 18th November, 1997, Original Criminal
Miscellaneous Case No. 24 of 1997 was registered and placed before a Bench of the High
Court for admission. After hearing, the Court arrived at the conclusion that a prima facie
case of criminal contempt was made out against the contemners. Accordingly proceedings
under the Contempt of Courts Act were initiated and a direction was issued to the Registry
to issue notices to the above referred persons along with a copy of the report, containing
allegations against the concerned persons, calling upon them to show cause as to why
suitable action be not taken against them for the alleged misconduct. On 25th November,
1997, all the contemners appeared through their respective advocates. Besides the
departmental proceedings, different criminal cases were also lodged against them. On
behalf of some of the contemners a request was made to keep the contempt matter in
abeyance until the conclusion of the proceedings initiated under various provisions of the
Indian Penal Code, the departmental proceedings and the report of the Commission
constituted under the Commission of Inquiry Act. The request was declined by the High
Court. It was held that the pendency of a criminal case or judicial inquiry could not
constitute a bar to the continuation of the contempt proceedings. But before adjourning the
proceedings to the next date and having noticed that all the contemners and their advocates
were present and every body was condemning the occurrence, the Court expressed the
desire that some of the responsible officers like Superintendent of Police, Deputy
Superintendent of Police, Inspector of Police Kotwali Shri K.D. Choudhary and Sub-Inspector
of Police Ms. Shashi Lata Singh and Sergeant Major of Police Line Ranjit Pandey should
disclose details of the occurrence which had taken place in the court premises on 18th
November, 1997 and if possible, identify more names of such persons, who, according to
them, had taken part at the time of occurrence. On 10th December, 1997, all the
contemners appeared and filed additional or supplementary replies to show cause notice.
The Superintendent of Police in his supplementary reply disclosed names of 14 more police
officials and constables, who, as per his inquiry, had also taken part along with the main
persons named earlier. Appellants who were convicted under the Contempt of Courts Act
and visited with the punishment of simple imprisonment have filed five different appeals.
117 Learned counsels appearing for the appellants in different appeals, apart from the
merits in individual appeals, which we shall deal with later, have raised some common
points challenging the correctness of the impugned judgment. The same are: (i) the alleged
contempt is that of a court subordinate to the High Court and the allegations made
constitute an offence under Section 228 IPC, and therefore the jurisdiction of the High Court
to take cognizance of such a case is expressly barred under proviso to Section 10 of the Act;
(ii) that the High Court cannot take suo motu notice of the contempt of a court subordinate
to it. The procedure given in the High Court Rules and Orders for initiation of proceedings for
contempt of subordinate court having not been followed the entire proceedings are vitiated
and liable to be quashed; (iii) the standard of proof required in the criminal contempt is the
same as in a criminal charge and therefore the charge of criminal contempt has to be proved
by holding a trial as in a criminal case. The appellants could not be convicted on the basis of
evidence by way of affidavits only. The witnesses should have been examined in Court and in
any case the appellants should have been given an opportunity to cross- examine the
persons who had deposed against them on affidavits to verify the version of the incident as
according to them there were conflicting versions of the incident; (iv) reasonable and
adequate opportunity was not afforded to the appellants either to defend themselves or put
forward their case; and (v) affidavits of independent witnesses which were on record have
not been dealt with by the High Court. Answer to the first point would depend upon the
interpretation to be put on Section 10 of the Act.Section 10 which deals with the power of
the High Court to punish for the contempt of subordinate courts. According to the learned
counsels appearing for the appellants the proviso to Section 10 means that if the act by
which a party is alleged to have committed contempt of a subordinate court constitutes
offence of any description whatsoever punishable under the Indian Penal Code, the High
Court is precluded from taking cognizance of it. According to them in the present case the
allegations made amounts to an offence under Section 228 of the Indian Penal Code and
consequently the jurisdiction of the High Court is barred. We do not find any force in this
submission. The point raised is concluded against the appellants by a judgment of the
Constitution Bench of this Court in Bathina Ramakrishna Reddy Vs. The State of Madras,
1952 SCR 425 wherein it was held that sub-section (3) excluded the jurisdiction of the High
Court to take cognizance of a contempt alleged to have been committed in respect of a court
subordinate to it only in cases where the acts alleged to constitute contempt are punishable
as contempt under specific provisions of the Indian Penal Code, but not where these 118
acts merely amount to offences of other description for which punishment has been
provided in the Indian Penal Code. On an examination of the decisions of several High Courts
in India it was laid down that the High Court had the right to protect subordinate courts
against contempt but subject to this restriction, that cases of contempt which have already
been provided for in the Indian Penal Code should not be taken cognizance of by the High
Court. This, it was stated, was the principle underlying section 2(3) of the Contempt of
Courts Act, 1926. This Court then observed that it was not necessary to determine
exhaustively what were the cases of contempt which had been already provided for inthe
Indian Penal Code; it was pointed out, however, that some light was thrown on the matter
by the provision of section 480 of the Code of Criminal Procedure which empowers any civil,
criminal or revenue court to punish summarily a person who is found guilty of committing
any offence under sections 175, 178, 179, 180 or section 228 of the Indian Penal Code in the
view or presence of the court. The later decision of Brahma Prakash Sharma ([1953] S.C.R.
1169) explained the true object of contempt proceedings. Mukherjea J. who delivered the
judgment of the Court said (at page 1176) : "It would be only repeating what has been said
so often by various Judges that the object of contempt proceedings is not to afford
protection to Judges personally from imputations to which they may be exposed as
individuals; it is intended to be a protection to the public whose interests would be very
much affected if by the act or conduct of any party, the authority of the court is lowered and
the sense of confidence which people have in the administration of justice by it is
weakened." It was also pointed out that there were innumerable ways by which attempts
could be made to hinder or obstruct the due administration of justice in courts and one type
of such interference was found in cases where there was an act which amounted to
"scandalising the court itself" : this scandalising might manifest itself in various ways but in
substance it was an attack on individual Judges or the court as a whole with or without
reference to particular cases, causing unwarranted and defamatory aspersions upon the
character and ability of the Judges. Such conduct is punished as contempt for the reason
that it tends to create distrust in the popular mind and impair the confidence of the people
in the courts which are of prime importance to the litigants in the protection of their rights
and liberties." These two judgments have been followed recently in Arun Paswan, S.I. vs.
State of Bihar &Others[2003 (10) SCALE 658]. We respectfully agree with the reasoning and
the conclusions arrived at in these cases. "Criminal contempt" is defined in Section 2 (c) of
the Act. Section 228 of the Indian Penal Code provides forIntentional insult or interruption to
public servant sitting in judicial proceeding What is made publishable under Section 228, IPC
is the offence of intentional insult to a Judge or interruption of court proceedings but not as
a contempt of Court. The definition of criminal 119 contempt is wide enough to include any
act by a person which would either scandalize the court or which would tend to interfere
with the administration of justice. It would also include any act which lowers the authority of
the Court or prejudices or interferes with the due course of any judicial proceedings. It is not
limited to the offering of intentional insult to the Judge or interruption of the judicial
proceedings. This Court observed in Delhi Judicial Service Association Vs. State of Gujarat &
Ors. , 1991 (4) SCC 406: "...The public have a vital stake in effective and orderly
administration of justice. The Court has the duty of protecting the interest of the community
in the due administration of justice and, so, it is entrusted with the power to commit for
contempt of court, not to protect the dignity of the Court against insult or injury, but, to
protect and vindicate the right of the public so that the administration of justice is not
perverted, prejudiced, obstructed or interfered with. The power to punish for contempt is
thus for the protection of public justice, whose interest requires that decency and decorum
is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are
protected by the law, and shielded in the discharge of their duties. Any deliberate
interference with the discharge of such duties either in court or outside the court by
attacking the presiding officers of the court, would amount to criminal contempt and the
courts must take serious cognizance of such conduct." In the present case, a judicial officer
of the rank of District Judge was attacked in a pre-planned and calculated manner in his
court room and when he tried to protect himself from physical harm by retiring to his
chambers, by chasing him there and causing injuries to him. The raising of slogans and
demanding unconditional bail for Jokhu Singh further compounded the offence. The Courts
cannot be compelled to give "command orders". The act committed amounts to deliberate
interference with the discharge of duty of a judicial officer by intimidation apart from
scandalizing and lowering the dignity of the Court and interference with the administration
of justice.The effect of such an act is not confined to a particular court or a district, or the
State, it has the tendency to effect the entire judiciary in the country. It is a dangerous trend.
Such a trend has to be curbed. If for passing judicial orders to the annoyance of the police
the presiding officers of the Courts are to be assaulted and humiliated the judicial system in
the country would collapse. The second contention raised on behalf of the appellants is that
the High Court cannot on its own motion take action of a criminal contempt of a subordinate
court. According to the learned counsels the High Court can take cognizance of a criminal
contempt under Section 15 (2) of the Act of a subordinate court only on a reference made to
it by the subordinate court or on a motion made by the Advocate General. Since the
procedure as laid down in the High Court Rules and Orders had not been followed the very
initiation of proceedings for contempt was vitiated and therefore liable to be quashed. We
do not find any force in this submission as well. This point also stands concluded against the
appellants by a decision of this Court in S.K. Sarkar, Member, Board of Revenue, U.P.
Lucknow, Vs. Vinay Chandra Misra, [1981 (1) SCC 436]. In this case an advocate filed a
petition before the High Court under the Contempt of Courts Act alleging that the appellant
therein as a Member of Revenue Board made certain contemptuous remarks, viz., nalayak
gadhe saale ko jail bhijwa dunga; kis idiot ne advocate bana diya hai and acted in a manner
which amounted to criminal contempt of the Court of Revenue Board, in which he (the
advocate) was the counsel for one of the parties. The advocate requested the High Court to
take 120 suo motu action under the Contempt of Court Act against the member of the
Revenue Board or pass such orders as it deemed fit. The question for determination was
whether the High Court was competent to take cognizance of contempt of a subordinate
court when it was moved by a private petitioner and not in accordance with either of the
two motions mentioned in Section 15(2). Analyzing Section 15 (2) of the Act and in reading it
in harmony with Section 10 of the Act it was held: 18. A comparison between the two sub-
sections would show that whereas in sub-section (1) one of the three alternative modes for
taking cognizance, mentioned is "on its own motion", no such mode is expressly provided in
sub-section (2). The only two modes of taking cognizance by the High Court mentioned in
sub-section (2) are : (i) on a reference made to it by a subordinate court; or (ii) on a motion
made by the Advocate General, or in relation to a union territory by the notified Law Officer.
Does the omission in Section 15(2) of the mode of taking suo motu cognizance indicate a
legislative intention to debar the High Court from taking congnizance in that mode of any
criminal contempt of a subordinate court ? If this question is answered in the affirmative,
then, such a construction of sub-section (2) will be inconsistent with Section 10which makes
the powers of the High court to punish for contempt of a subordinate court, coextensive and
congruent with its power to punish for its own contempt not only in regard to quantum or
prerequisites for punishment, but also in the matter of procedure and practice. Such a
construction which will bring Section 15(2) in conflict with Section 10, has to be avoided, and
the other interpretation which will be in harmony with Section 10 is to be accepted.
Harmoniously construed, sub-section (2) of Section 15 does not deprive the High Court of
the power of taking cognizance of criminal contempt of a subordinate court, on its own
motion, also. If the intention of the legislature was to take away the power of the High Court
to take suo motu cognizance of such contempt, there was no difficulty in saying so in
unequivocal language, or by wording the sub-section in a negative form. We have, therefore,
no hesitation in holding in agreement with the High Court, that sub-section (2) of Section 15,
properly construed, does not restrict the power of the High Court to take cognizance of and
punish contempt of a subordinate court, on its own motion."[Emphasis supplied] We
respectfully agree with the view taken in this judgment and hold that the High Court could
initiate proceedings on its own motion under the Contempt of Courts Actagainst the
appellants. The third contention raised by the learned counsel for the appellants is that the
standard of proof required in the criminal contempt is the same as in a criminal charge and
therefore the charge of criminal contempt has to be proved beyond reasonable doubt. That
the appellants could not be convicted on the basis of the affidavits filed. That the witnesses
should have been examined in Court and in any case the appellants should have been given
an opportunity to cross-examine the persons who had deposed against them on affidavits to
verify the version of the incident as according to them there were conflicting versions of the
incident. It was emphasized that justice must not only be done, but must be seen to be done
by all concerned to establish confidence that the contemners will receive a fair, just and
impartial trial. We do not find any substance in this submission as well. High Court in its
order has noted that the learned counsels appearing for both the parties have taken a stand
that all possible fair and proper opportunities were extended to them. In view of the
statements made by the counsels for the parties it will not be open to the counsels for the
parties at this stage to take the stand that in the absence of cross-examination of 121 the
concerned persons, reliance could not be placed on the statements which were made on
oath. Learned counsel who had appeared for the contemners before the High Court did not
claim the right of cross-examination. Only at the stage of arguments a submission was made
that opportunity to cross- examine the concerned persons was not given which vitiated the
trial. High Court rejected this contention by holding that such a stand could not be taken at
that stage of the proceedings. It has been held in Arun Paswan case (supra) that a party
which fails to avail of the opportunity to cross- examine at the appropriate stage is
precluded from taking the plea of nonobservance of principles of natural justice at a later
stage. Such a plea would not be tenable. It has repeatedly been held by this Court (Ref: 1995
(2) SCC 584) that the procedure prescribed either under the Code of Criminal Procedure or
under the Evidence Act is not attracted to the proceedings initiated under Section 15 of the
Contempt of Courts Act. The High Court can deal with such matters summarily and adopt its
own procedure. The only caution that has to be observed by the Court in exercising this
inherent power of summary procedure is that the procedure followed must be fair and the
contemners are made aware of the charges levelled against them and given a fair and
reasonable opportunity. Having regard to the fact that contempt proceedings are to be
decided expeditiously in a summary manner the convictions have been recorded without
extending the opportunity to the contemners to cross examine those who had deposed
against them on affidavits. Though the procedure adopted in this case was summary but
adequate safeguards were taken to protect the contemners' interest. The contemners were
issued notices apprising them of the specific allegations made against them. They were given
an opportunity to counter the allegations by filing their counter affidavits and additional
counter/supplementary affidavits as per their request. They were also given opportunity to
file affidavits of any other persons which they did. They were given opportunities to produce
any other material in their defence which they did not do. Most of the contemners had
taken the plea that at the relevant time they were on duty in their respective Police Stations
though in the same town. They also attached copies of station diaries and duty chart in
support of their alibi. The High Court did not accept the plea of alibi as all these papers had
been prepared by the contemners themselves and none of the superior officer had
supported such a plea. The evidence produced by the respondents was rejected in the face
of the reports made by the Additional District and Sessions Judge, Director General of Police
coupled with affidavits of Mr. Barasi, the Additional District and Sessions Judge, two court's
officials and affidavits of some of the lawyers who had witnessed the occurrence. The
contempt proceedings have to be decided in a summary manner. The Judge has to remain in
full control of the hearing of the case and immediate action is required to be taken to make
it effective and deterrent. Immediate steps are required to be taken to restore order as early
and quickly as possible. Dragging the proceedings unnecessarily would impede the speed
and efficiency with which justice has to be administered. This Court while considering all
these aspects held in In re: Vinay Chandra Mishra (the alleged contemner), 1995 (2) SCC 584,
that the criminal contempt no doubt amounts to an offence but it is an offence sui generis
and hence for such offence, the procedure adopted both under the common law and the
statute law in the country has always been summary. It was observed that the need was for
taking speedy action and to put the Judge in full control of the hearing. It was emphasised
that immediate steps were required to be taken to restore order in the court proceedings as
quickly as possible. To quote from the above-referred to case "However, the fact that the
process is summary does not mean 122 that the procedural requirement, viz., that an
opportunity of meeting the charge, is denied to the contemner. The degree of precision with
which the charge may be stated depends upon the circumstances. So long as the gist of the
specific allegations is made clear or otherwise the contemner is aware of the specific
allegation, it is not always necessary to formulate the charge in a specific allegation. The
consensus of opinion among the judiciary and the jurists alike is that despite the objection
that the Judge deals with the contempt himself and the contemner has little opportunity to
defend himself, there is a residue of cases where not only it is justifiable to punish on the
spot but it is the only realistic way of dealing with certain offenders. This procedure does not
offend against the principle of natural justice, viz., nemo judex in sua causa since the
prosecution is not aimed at protecting the Judge personally but protecting the
administration of justice. The threat of immediate punishment is the most effective
deterrent against misconduct. The Judge has to remain in full control of the hearing of the
case and he must be able to take steps to restore order as early and quickly as possible. The
time factor is crucial. Dragging out the contempt proceedings means a lengthy interruption
to the main proceedings which paralyses the court for a time and indirectly impedes the
speed and efficiency with which justice is administered. Instant justice can never be
completely satisfactory yet it does provide the simplest, most effective and least
unsatisfactory method of dealing with disruptive conduct in court. So long as the
contemner's interests are adequately safeguarded by giving him an opportunity of being
heard in his defence, even summary procedure in the case of contempt in the face of the
court is commended and not faulted." In the present case the High Court had decided to
proceed with the contempt proceedings in a summary manner. Due opportunity was
afforded to all the contemners and after verifying and cross checking the material available
before it, coming from different reliable sources the High Court convicted only nine persons
out of twenty six persons arrayed as contemners before it. The High Court took due care to
ascertain the identity of the contemners by cross-checking with the affidavits filed by the
different persons. It is also based on the independent reports submitted by the Director
General of Police and Superintendent of Police. We do not find any fault in the procedure
adopted by the High Court in conducting the proceedings in the present case. For the
survival of the rule of law the orders of the courts have to be obeyed and continue to be
obeyed unless overturned, modified or stayed by the appellate or revisional courts. The
court does not have any agency of its own to enforce its orders. The executive authority of
the State has to come to the aid of the party seeking implementation of the court orders.
The might of the State must stand behind the Court orders for the survival of the rule of the
court in the country. Incidents which undermine the dignity of the courts should be
condemned and dealt with swiftly. When a judge is attacked and assaulted in his court room
and chambers by persons on whose shoulders lay the obligation of maintaining law and
order and protecting the citizen against any unlawful act needs to be condemned in the
severest of terms. If judiciary has to perform its duties and functions in a fair and free
manner, the dignity and the authority of the courts has to be respected and maintained at
all stages and by all concerned failing which the very constitutional scheme and public faith
in the judiciary runs the risk of being lost. It was urged with some vehemence that principles
of natural justice were not observed in as much as opportunity to cross examine the
witnesses who had deposed on affidavits is concerned it may be stated that no such
opportunity was asked for in the High Court at trial stage. It was for them to ask for such an
opportunity to cross examine the parties who had deposed against them 123 on affidavit.
Since the contemners did not avail of the opportunity at the trial stage the plea of non-
observations of principles of natural justice is not tenable. Appellants were made aware of
the procedure which was adopted by the High Court. They were given full opportunity to put
forth their point of view. Each of them filed detailed affidavits along with evidence in
support thereof. They had attached their duty charts showing that they could not have been
present at the place of occurrence as they were on duty somewhere else. High Court has
considered and discussed the entire evidence present on the record before recording the
conviction. The contention that the affidavits of independent witnesses were not considered
cannot be accepted. Only those were convicted against whom corroboration of the fact of
their presence and participation in the incident was confirmed from more than one source.
Plea that reasonable and adequate opportunity was not afforded to the appellants is equally
untenable. We find from the record that all the material (affidavits, show cause notice etc.)
which were brought on record was properly served on the learned advocates appearing for
the contemners. It is unfortunate that neither the criminal proceedings nor the disciplinary
proceedings or the inquiry under the Commission of Inquiry Act have been concluded. No
doubt the appellants had been suspended initially but in due course they have been
reinstated. Some of them have retired as well. Inaction on the part of the authorities
resulted in emboldening others to commit similar acts. In Arun Paswan (supra), proceedings
for criminal contempt were initiated against the appellant therein pursuant to the complaint
lodged by the District & Sessions Judge, Sasaram addressed to the Registrar General of the
High Court of Patna. What is being emphasised is that had timely action been taken by the
authorities and the criminal proceedings concluded in time, incident, as referred to above,
where slogans were raised "District Judge Murdabad, Bhagalpur Dohrana Hai" could have
been avoided. The incident with which we are dealing with took place on 18th November
1997. The incident which has been dealt with in the case of Arun Paswan, S.I. (supra) is
dated 20th January, 2002. Both the incidents have taken place in the State of Bihar, one in
Bhagalpur and the other in Sasaram. The manner in which the police personnel belonging to
middle level of police administration and entrusted with such responsibilities as require
theirs coming into contact with public day to day persuades us to make observation that
there is something basically wrong with the police in Bihar. Misconduct amounting to gross
violation of discipline committed not by a single individual but by so many collectively and
that too by those who have formed an association consisting of members of a disciplined
force in uniform was not promptly and sternly dealt with by the State or its senior officials so
as to take care to see that such incident, even if happened, remains solitary incident. Faced
with the initiation of contempt proceedings, the persons proceeded against did not have the
courtesy of admitting their guilt and tendering an apology which if done could have been
dealt with mercy. They decided to contest, of course the justice administration system
allows them the liberty of doing so and they had every right of doing so but at the end it has
been found that their pleas were false and their denial of charges was aimed at prolonging
the hearing as much as they could. We are shocked to learn that the criminal courts seized
of trial of the accused persons on substantive charges for offences under the penal law of
the land are awaiting the decision of this appeal? Why for? Neither the High Court nor this
Court has ever directed the proceedings before the criminal Courts to remain 124 stayed.
The criminal Court shall have to decide on the charges framed against the accused persons
on the basis of the evidence adduced in those cases and not on the basis of this judgment.
Though we have found no merit in any of the pleas raised on behalf of the appellants and we
have formed an opinion without hesitation that the appeals are to be dismissed, this is a
case the facts whereof persuade us to place on record certain observations of ours. In the
constitutional scheme the judiciary is entrusted with the task of upholding the Constitution
and the laws. Apart from interpreting the Constitution and the laws, the judiciary discharges
the function of securing maintenance of law and order by deciding the disputes in a manner
acceptable to civilised and peace loving society. In order to maintain the faith of the society
in the rule of law the role of the judiciary cannot be undermined. In a number of cases this
Court has observed that foundation of the judiciary is the trust and confidence of the people
of the nation and when such foundation or trust is rudely shaken by means of any disrespect
by the very persons who are required to enforce the orders of the court and maintain law
and order the people's perception of efficacy of the systems gets eroded. The Judges are as a
jurist calls 'paper tigers'. They do not have any machinery of their own for implementing
their orders. People, while approaching the Court of law which they regard as temple of
justice, feel safe and secure whilst they are in the Court. The police personnel is deployed in
the Court campus for the purpose of maintaining order and to see that not only the Judges
can work fearlessly in a calm, cool and serene atmosphere but also to see that anyone
coming to the Court too feels safe and secure thereat. Every participant in court proceedings
is either a seeker of justice or one who comes to assist in administration of justice. So is the
expectation of the members of the Bar who are treated as officers of the Court. We shudder
to feel what would happen if the police personnel itself, and that too in an organised
manner, is found to be responsible for disturbing the peace and order in the Court campus,
for causing assault on the Judges and thus sullying the temple of justice apart from bringing
a bad name to an indispensable organ of the executive wing of the State. The police force is
considered by the society as an organised force of civil officers under the command of the
State engaged in the preservation of law and order in the society and maintaining peace by
enforcement of laws and prevention and detection of crime. One who is entrusted with the
task of maintaining discipline in the society must first itself be disciplined. Police is an agency
to which social control belongs and therefore the police has to come up to the expectations
of the society. After all, what the learned Addl. Sessions Judge had done Jokhu Singh had
appeared as a witness. His cross-examination was not concluded without which his
testimony was liable to be excluded from being read in evidence. The learned Judge had
exhausted practically all means for securing the presence of the witness. He would neither
attend nor make any communication to the Court. Even the threat of initiation of
proceedings under the Contempt of Courts Act did not deter him from abstaining. To secure
his presence a non-bailable warrant had to be issued. He avoided the service of non-bailable
warrant of arrest and appeared in the Court in the late hours. He was not apologetic and felt
that he was above the process of the Court. It cannot be said that the higher authorities of
police were not aware of the behaviour of Jokhu Singh. Either they 125 knew about it or
they should have known about it. Instead of offering the bail, Jokhu Singh was busy
managing for the Judge being approached or influenced by extra legal methods. Jokhu Singh
and his confederate decided to take the law in their own hands and assault the Judge and
anyone who came in their way. We do not think that any of the appellants deserve any
sympathy or mercy. We trust and hope that this case would set in motion the thinking
process of the persons occupying higher echelons in police administration specially in Bihar
and take care to ensure that such incidents do not recur in future. We direct the disciplinary
authorities before whom the disciplinary proceedings are pending and the criminal Courts
before whom the prosecutions are pending against the appellants to conclude the
proceedings and the trial at the earliest. The Commission holding the enquiry under
theCommissions of Enquiry Act, 1952 would also do well to conclude its proceedings at the
earliest. We request Hon'ble the Chief Justice of the High Court of Patna to watch and if
necessary monitor the proceedings of the Commission of Inquiry and issue directions to the
criminal courts to expeditiously conclude the pending criminal cases. The appeals are
dismissed. The appellants who are on bail shall forthwith surrender to their bail bonds and
taken into custody to serve out the sentences as passed by the High Court of Patna. The
Director General of Police, Bihar is directed to ensure compliance with this order by securing
presence of all the appellants to serve out the sentences passed on them by the High Court.
126 Vinay Chandra Mishra, In re (1995) 2 SCC 584 P.B. SAWANT, J. - On 10-3-1994, Justice
S.K. Keshote of the Allahabad High Court addressed a letter to the Acting Chief Justice of that
Court as follows: “No. SKK/ALL/8/94 10-3-1994 Dear Brother Actg. Chief Justice, Though on
9-3-1994 itself I orally narrated about the misbehaviour of Shri V.C. Mishra with me in the
Court but I thought it advisable to give you the same in writing also. On 9-3-1994 I was
sitting with Justice Anshuman Singh in Court No. 38. In the list of fresh cases of 9-3-1994 at
Sr. No. 5 FAFO Record No. 22793 M/s Bansal Forgings Ltd. v. U.P. Financial Corpn. filed by
Smt S.V. Misra was listed. Shri V.C. Mishra appeared in this case when the case was called.
Brief facts of that case M/s Bansal Forgings Ltd. took loan from U.P. Financial Corporation
and it made default in payment of instalment of the same. The Corporation proceeded
against the Company under Section 29 of the U.P. Financial Corporation Act. The Company
filed a civil suit against the Corporation and it has also filed an application for grant of
temporary injunction. Counsel for the Corporation suo motu put appearance in the matter
before trial court and prayed for time for filing of reply. The learned trial court passed an
order on the said date that the Corporation will not seize the factory of the Company. The
Company shall pay the amount of instalment and it will furnish also security for the disputed
amount. The court directed to furnish security on 31-1-1994 and case was fixed on 15-3-
1994. Against said order of the trial court this appeal has been filed and arguments have
been advanced that that Court has no jurisdiction to pass the order for payment of
instalment of loan and further no security could have been ordered. I put a question to Shri
Mishra under which provision this order has been passed. On putting of question he started
to shout and said that no question could have been put to him. He will get me transferred or
see that impeachment motion is brought against me in Parliament. He further said that he
has turned up many Judges. He created a good scene in the Court. He asked me to follow the
practice of this Court. In sum and substance it is a matter where except to abuse me of
mother and sister he insulted me like anything. What he wanted to convey to me was that
admission is as a course and no arguments are heard, at this stage. It is not the question of
insulting of a Judge of this institution but it is a matter of institution as a whole. In case
dignity of Judiciary is not being maintained then where this 127 institution will stand. In case
a Senior Advocate, President of Bar and Chairman of Bar Council of India behaves in Court in
such manner what will happen to other advocates. Since the day I have come here I am
deciding the cases on merits. In case a case has merits it is admitted but not as a matter of
course. In this Court probably advocates do not like the consideration of cases on their
merits at the stage of admission. In case dignity of Judiciary is not restored then it is very
difficult for the Judges to discharge their judicial function without fear and favour. I am
submitting this matter to you in writing to bring this mishappening in the Court with the
hope that you will do something for restoration of dignity of Judiciary. Thanking you, Yours
sincerely, Sd/- (Jus. S.K. Keshote) ” 2. The Acting Chief Justice, Shri V.K. Khanna forwarded
the said letter to the then Chief Justice of India by his letter of 5-4-1994. The learned Chief
Justice of India constituted this Bench to hear the matter on 15-4-1994. 3. On 15-4-1994, this
Court took the view that there was a prima facie case of criminal contempt of court
committed by Shri Vinay Chandra Mishra (the ‘contemner’) and issued a notice against him
to show cause why contempt proceedings be not initiated against him. By the same order,
Shri D.P. Gupta, the learned Solicitor General of India was requested to assist the Court in
the matter. Pursuant to the notice, the contemner filed his reply by affidavit dated 10-5-
1994 and also an application seeking discharge of show-cause notice, and in the alternative
for an inquiry to be held into the incident referred to by Justice Keshote in his letter which
had given rise to the contempt proceedings. It is necessary at this stage to refer to the
material portions of both the affidavit and the application filed by the contemner. After
referring to his status as a Senior Advocate of the Allahabad High Court and his connections
with the various law organisations in different capacities to impress upon the Court that he
had a deep involvement in the purity, integrity and solemnity of judicial process, he has
submitted in the affidavit that but for his deep commitments to the norms of judicial
processes as evidenced by his said status and connections, he would have adopted the usual
expedient of submitting his unconditional regrets. But the facts and circumstances of this
case were such which induced him to “state the facts and seek the verdict of the Court”
whether he had committed the alleged contempt or whether it could be “a judge
committing contempt of his own court”. He has then stated the facts which according to him
form the ‘genesis’ of the present controversy. They are as follows: “A. A Private Ltd. Co. had
taken an instalment loan from U.P. Financial Corporation, which provides under its
constituent Act (Section 29) for some sort of self-help in case of default of instalments. 128
B. A controversy arose between the said Financial Corporation and the borrower as a result
of which, the borrower had to file a civil suit seeking an injunction against the Corporation
for not opting for the non-judicial sale of their assets. C. The civil court granted the
injunction against putting the assets to sale, but at the same time directed furnishing
security for the amount due. D. Being aggrieved by the condition of furnishing security,
which in law would be tantamount to directing a mortgagor to furnish security for payment
of mortgage loan, even when he satisfies the Court that a stay is called for - the property
mortgaged being a preexisting security for its payment. E. The Company filed an FAFO being
No. 229793 of 1994 against the portion of the order directing furnishing of security. F. The
said FAFO came for preliminary hearing before Hon’ble Justice Anshuman Singh and the
Applicant of this petition on 9-3-1994, in which I argued for the debtor-Company. G. When
the matter was called on Board, the Applicant took charge of the court proceedings and
virtually foreclosed attempts made by the Senior Judge to intervene. The Applicant Judge
inquired from me as to under what law the impugned order was passed to which I replied
that it was under various rules of Order 39 CPC. That Applicant therefore conveyed to me
that he was going to set aside the entire order, against a portion of which I had come in
appeal, because in his view the Lower Court was not competent to pass such an order as
Order 39 did not apply to the facts. H. I politely brought to the notice of the Applicant Judge
that being the appellant I had the dominion over the case and it could not be made worse,
just because I had come to High Court. I. The Applicant Judge apparently lost his temper and
told me in no unconcealed term that he would set aside the order in toto, disregarding what
I had said. J. Being upset over, what I felt was an arbitrary approach to judicial process I got
emotionally perturbed and my professional and institutional sensitivity got deeply wounded
and I told the Applicant Judge that it was not the practice in this Court to dismiss cases
without hearing or to upset judgments or portions of judgments, which have not been
appealed against. Unfortunately the Applicant Judge took it unsportingly and apparently lost
his temper and directed the stenographer to take down the order for setting aside of the
whole order. K. At this juncture, the Hon’ble Senior Judge intervened, whispered something
to the Applicant Judge and directed the case to be listed before some other Bench. It was
duly done and by an order of the other Court dated 18-3-1994 Hon’ble Justices B.M. Lal and
S.K. 129 Verma, the points raised by me before the Applicant Judge were accepted. A copy
of the said order is reproduced as Annexure I to this affidavit. L. I find it necessary to
mention that the exchange that took place between me and the Applicant Judge got a little
heated up. In the moment of heat the Applicant Judge made the following observations: ‘I
am from the Bar and if need be I can take to goondaism.’ Adding in English - ‘I never opted
for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not know why the Chief
Justice of India disregarded my options and transferred me to this place, which I never liked.’
Provoked by this I asked him whether he was creating a scene to create conditions for
getting himself transferred as also talked earlier.” After narrating the above incident, the
contemner has gone on to deny that he had referred to any impeachment, though according
to him he did mention that “a judge got himself transferred earlier on account of his inability
to command the goodwill of the Bar due to lack of mutual reverence”. 4. The contemner has
further denied the allegations made by Justice Keshote that as soon as the case was called
out, he (i.e. Justice Keshote) asked him the provision under which the impugned order was
passed and that he had replied that the Court had no jurisdiction to ask the same and should
admit and grant the stay order. According to him, such a reply could only be attributed to
one who is ‘mad’ and that considering his practice of thirty-five years at the Bar and his
responsible status as a member of the Bar, it is unbelievable that he would reply in such a
“foolish manner”. The contemner has further denied that he had abused the learned Judge
since according to him he had never indulged in abusing anybody. With regard to the said
allegations against him, the contemner has stated that the same are vague and, therefore,
“nothing definite is warranted to reply”. 5. He has further contended in his affidavit that if
the learned Judge was to be believed that he had committed the contempt, the Senior Judge
who was to direct the court proceedings would have initiated proceedings under “Article
129 of the Constitution” for committing contempt in facie curiae. He has also stated that the
learned Judge himself did not direct such proceedings against him which he could have. He
has found fault that instead of doing so, the learned Judge had “deferred the matter for the
next day and adopted a devious way of writing to the Acting Chief Justice for doing
something about it”. He has then expressed his ‘uncomprehension’ with (sic why) the
learned Judge should have come to the Supreme Court when he had ample and sufficient
legal and constitutional powers to arraign him at the Bar for what was attributed to him. 130
6. The contemner has then gone on to complain that the “language used” by the learned
Judge “in the Court extending a threat to resort to goondaism is acting in a way which is
professionally perverse and approximating to creating an unfavourable public opinion about
the awesomeness of judicial process, lowering or tending to lower the authority of any
Court” which amounted to contempt by a Judge punishable under Section 16 of the
Contempt of Courts Act, 1971. He has then gone on to submit “under compulsion of” his
“institutional and professional conscience” and for “upholding professional standards
expected of both the Bench and the Bar of this Court” that this Court may order a thorough
investigation into the incident in question to find out whether a contempt has been
committed by him punishable under “Article 215” of the Constitution or by the Judge under
Section 16 of the Contempt of Courts Act. 7. He has further stated that the entire Bar at
Allahabad knows that he was unjustly ‘roughed’ by the Judge and was being punished for
taking a “fearless and non-servile stand” and that he is being prosecuted for asserting the
right of audience and using “the liberty to express his views” when a Judge takes a course
“which in the opinion of the Bar is irregular”. He has also contended that any punishment
meted out to the “outspoken lawyer” will completely emasculate the freedom of the
profession and make the Bar “a subservient, tail-wagging appendage to the judicial branch,
which is an anathema to a healthy democratic judicial system”. 8. He has made a complaint
that he was feeling handicapped in not being provided with the copy of the letter/report of
the Acting Chief Justice of the Allahabad High Court and he has also been unable to gauge
the “rationale of the applicant in not having initiated proceedings” against him either
immediately or a day following, when he chose to address a letter to the Acting Chief Justice.
He has then contended that he wanted to make it clear that he was seeking a formal inquiry
not for any vindication of any personal hurt but to make things safe for the profession which
in a small way by a quirk of destiny come to his keeping also. He has also stated that he
would be untrue and faithless to his office if he subordinated the larger interests of the
profession and dignity of the judicial process for a small thing of seeking his little safety. The
contemner goes on to state that he did not opt for filing a contempt against the learned
Judge as in normal course of arguments, sometimes altercations take place between a Judge
and the arguing advocate, which may technically be contempt on either side but there being
no intention, provisions of contempt are not attracted. In support of his said case, he has
reproduced an extract from Oswald’s Contempt of Court, 3rd Edn., by Robertson. The said
extract is as follows: “An advocate is at liberty, when addressing the Court in regular course,
to combat and contest strongly any adverse views of the Judge or Judges expressed on the
case during its argument, to object to and protest against any course which the Judge may
take and which the advocate thinks irregular or detrimental to the interests of his client, and
to caution juries against any interference by the Judge with their functions, or with the
advocate when addressing them, or against any strong view adverse to his client expressed
by the presiding Judge upon the facts of a case before the verdict of the jury thereon. An
advocate ought to be allowed freedom and latitude both in speech and in the conduct of his
client’s case. It is said that a Scotch advocate was arguing before a Court in Scotland, when
one of the Judges, not 131 liking his manner, said to him, ‘It seems to me, Mr Blank, that you
are endeavouring in every way to show your contempt for the Court.’ ‘No’, was the quick
rejoinder, ‘I am endeavouring in every way to conceal it’.” 9. In the end, he has stated that
he had utmost respect and regard for the courts and he never intended nor intends not to
pay due respect to the courts which under the law they are entitled to and it is for this
reason that instead of defending himself through an advocate, he had left to the mercy of
this Court to judge and decide the right and wrong. He has also stated that it is for this
reason that he had not relied upon the provisions of the Constitution under Articles 129 and
215 and Section 16 of the Contempt of Courts Act and to save himself on the technicality
and jurisdictional competence. 10. Lastly, he has reiterated that he had always paid due
regard to the courts and he was paying the same and will continue to pay the same and he
“neither intended nor intends to commit contempt of any court”. 11. Along with the
aforesaid affidavit was forwarded by the contemner, a petition stating therein that he had
not gone beyond the legitimate limits of fearless, honest and independent obligations of an
advocate and it was Justice Keshote himself who had lost his temper and extended threats
to him which were such as would be punishable under Section 16 of the Contempt of Courts
Act, 1971 (hereinafter referred to as the ‘Act’). He has prayed that the notice issued to him
be discharged and if in any case, this Court does not feel inclined to discharge the notice, he
“seeks his right to inquiry and production of evidence directly or by affidavits” as this Court
may direct. He has further stated in that petition that he is moving an independent
application for contempt proceedings to be drawn against the learned Judge and it would be
in the interests of justice and fair play if the two are heard together. It has to be noted that
the contemner has throughout this affidavit as well as the petition referred to Justice
Keshote as ‘applicant’, although he knew very well that contempt proceedings had been
initiated suo motu by this Court on the basis of the letter written by Justice Keshote to the
Acting Chief Justice of the High Court. His manner of reference to the learned Judge also
reveals the respect in which he holds the learned Judge. 12. The contemner has also filed
another petition on the same day as stated in the aforesaid petition wherein he has prayed
that on the facts stated in the reply affidavit to the show-cause notice for contempt
proceedings against him, this Court be pleased to draw proceedings under Section 16 of the
Act against the learned Judge for committing contempt of his own court and hold an inquiry.
In this petition, he has stated that in his reply to the contempt notice, he has brought the
whole truth before this Court which according to him was witnessed by the Senior Judge of
the Bench, Justice Anshuman Singh and a large number of advocates. Once again referring to
Justice Keshote as the applicant, he has stated that the learned Judge in open court
conveyed to him (i.e. the contemner) that he can take to goondaism if need arises, that he
also talked disparagingly against the Chief Justice of India for not transferring him to the
place for which he had opted and talked to the contemner scurrilously and in a manner
unworthy of a 132 Judge and also attempted to gag the contemner from discharging his
duties as an advocate. The contemner has further contended that as a common law principle
relating to contempt of courts, a Judge is liable for contempt of his own court as much as
any other person associated with judicial proceedings and outside, and that the aforesaid
principle has been given statutory recognition under Section 16 of the Act. He has further
contended that the behaviour of the learned Judge was so unworthy that the senior
colleague on the Bench apart from “disregarding with the desire of the applicant to dismiss
the entire order” against a part of which an appeal had been filed, released the case from
the board and did not think of taking recourse to the obvious and well-known procedure of
initiating contempt proceedings against him for the alleged contempt committed in the face
of the Court. He has further contended that “the adoption of devious ways of reaching the
Acting Chief Justice by letter and reportedly coming to Delhi for meeting meaningful people”
is “itself seeking (sic) about the infirmity of the case” of the Judge. He has in the end
reiterated his prayer for an inquiry into the behaviour of the learned Judge if the notice of
contempt was not discharged against him in view of the denial by him of the conduct alleged
against him. 14. On 30-6-1994 the contemner filed his supplementary/additional counter-
affidavit. In this affidavit, he raised objections to the maintainability “of initiating contempt
proceedings” against him. His first objection was to the assumption of jurisdiction by this
Court to punish for an act of contempt committed in respect of another court of record
which is invested with identical and independent power for punishing for contempt of itself.
According to him, this Court can take cognizance only of contempt committed in respect of
itself. He has also demanded that in view of the point of law raised by him, the matter be
placed before the Constitution Bench and that notice be issued to the Attorney General of
India and all the Advocates General of the States. He has then gone on to deny the
statements made by the learned Judge in the letter written to the Acting Chief Justice of the
High Court and in view of the said denial by him, he has asked for the presence of the
learned Judge in the Court for being cross-examined by him, i.e., the contemner. He has
further stated that if the contempt proceedings are taken against him, the statement of
Justice Anshuman Singh who was the Senior Judge on the Bench before which the incident
took place, would also be necessary. He has also taken exception to Justice Keshote’s
speaking in the Court except through the Senior Judge on the Bench which, according to him
had been the practice in the Allahabad High Court, and has alleged that the learned Judge
did not follow the said convention. In the end, he has reiterated that he has utmost respect
and regard for the courts and he has never intended nor intends not to pay due regard to
the courts. 15. On 15-7-1994 this Court passed an order wherein it is recorded that on 15-4-
1994 the court had issued a notice to the contemner to show cause as to why criminal
contempt proceedings be not initiated against him and notice was issued on its own motion.
The Court heard the contemner in person as well as his learned counsel. The Court perused
the counteraffidavit and the additional affidavit of the contemner and was of the view that it
was a fit case where criminal contempt proceedings be initiated against the contemner.
Accordingly, the Court directed that the proceedings be initiated against him. The
contemner was given an opportunity 133 to file any material in reply or in defence within
another eight weeks. He was also allowed to file the affidavit of any other person apart from
himself in support of his defence. Shri Gupta, learned Solicitor General was appointed as the
prosecutor to conduct the proceedings. The affidavits filed by the contemner were directed
to be sent to Justice Keshote making it clear that he might offer his comments regarding the
factual averments in the said affidavits. 16. In view of the said order, the Court dismissed the
contemner’s Application No. 2560 of 1994 praying for discharge of the notice. The
contemner thereafter desired to withdraw his Application No. 2561 of 1994 seeking
initiation of proceedings against the learned Judge for contempt of his own court, by stating
that he was doing so “at this stage reserving his right to file a similar application at a later
stage”. The Court without any comment on the statement made by the contemner,
dismissed the said application as withdrawn. 17. Justice Keshote by a letter of 20-8-1994
forwarded his comments on the counter-affidavit and the supplementary/additional
counter-affidavit filed by the contemner. The learned Judge denied that he took charge of
the court proceedings and virtually foreclosed the attempts made by the Senior Judge to
intervene, as was alleged by the contemner. He stated that being a member of the Bench, he
put a question to the contemner as to under which provision, the order under appeal had
been passed by the trial court, and upon that the contemner started shouting and said that
he would get him transferred or see to it that impeachment motion was brought against him
in Parliament. According to the learned Judge, the contemner said many more things as
already mentioned by him in his letter dated 10-3-1994. He further stated that the
contemner created a scene which made it difficult to continue the court proceedings and
ultimately when it became difficult to hear all the slogans, insulting words and threats, he
requested his learned brother on the Bench to list that case before another Bench and to
retire to the chamber. Accordingly, the order was made by the other learned member of the
Bench and both of them retired to their chambers. 18. The learned Judge also stated that
the contemner has made wrong statement when he states “that applicant, therefore,
conveyed to me that he was going to set aside the entire order, against portion of which I
had come in appeal because in his view, the lower court was not competent to pass such
order as Order 39 did not apply to the facts”. The learned Judge stated that he neither made
any such statement nor conveyed to the contemner, as suggested by him. He reiterates that
except one sentence, viz., “that under which provision this order had been made by the trial
court” nothing was said by him. According to the learned Judge, it was a case where the
contemner did not permit the court proceedings to be proceeded and both the Judges
ultimately had to retire to the chambers. The learned Judge alleges that the counter-affidavit
manufactures a defence. He has denied the contents of para 6(H) and (I) of the counter-
affidavit by stating that nothing of the kind as alleged therein had happened. According to
the learned Judge, it was a case where the contemner lost his temper on the question being
put to him by him, i.e., the learned Judge. He has stated that instead of losing his temper
and creating a scene and threatening and terrorising him, the contemner should have
argued the matter and encouraged the new junior Judge. The learned Judge has further
denied the following averment, viz., 134 “unfortunately, the applicant Judge took it
unsportingly and apparently lost his temper and directed the stenographer to take down the
order for setting aside of the whole order” made in para 6(J) of the counter-affidavit, as
wrong. He has pointed out that in the Division Bench, it is the senior member who dictates
order/judgments. He has also denied the statements attributed to him in other paragraphs
of the affidavit and in particular, has stated that he did not make the following observations:
“I am from the Bar and if need be I can take to goondaism” and has alleged that the said
allegations are absolutely wrong. He has also denied that he ever made the statements as
follows: “I never opted for Allahabad. I had opted for Gujarat and Himachal Pradesh. I do not
know why the Chief Justice of India disregarded my options and transferred me to this place
which I never liked.” According to him, the said allegations are manufactured with a view to
create a defence. He has denied the allegations made against him in the
additional/supplementary affidavits as wrong and has stated that what actually happened in
the Court was stated in his letter of 10-3-1994. 19. On 7-10-1994, the contemner filed his
unconditional written apology in the following words: “1. In deep and regretful realization of
the fact that a situation like the one which has given rise to the present proceedings, and
which in an ideal condition should never have arisen, subjects me to deep anguish and
remorse and a feeling of moral guilt. The feeling has been compounded by the fact of my
modest association with the profession as the Senior Advocate for some time and also being
the President of the High Court Bar Association for multiple terms (from which I have
resigned a week or ten days back), and also being the Chairman of the Bar Council of India
for the third five-year term. The latter two being elective posts convey with its holding an
element of trust by my professional fraternity which expectations of setting up an example
of an ideal advocate, which includes generating an intra-professional culture between the
Bar and the Bench, under which the first looks upon the second with respect and
resignation, the second upon the first with courtesy and consideration. It also calls for
cultivation of a professional attitude amongst the lawyers to learn to be good and sporting
losers. 2. Guilty realizing my failure at approximating these standards resulting in the present
proceedings, nolo contendere I submit my humble and unconditional apologies for the
happenings in the Court of Justice S.K. Keshote at Allahabad High Court on 9-3- 1994, and
submit myself at the Hon. Court’s sweet will. 3. I hereby withdraw from record all my
applications, petitions, counter-affidavits, and prayers made to the court earlier to the
presented (sic) of this statement. I, also, withdraw all submissions made at the Bar earlier
and rest my matter with the present statement alone, and any submissions that may be
made in support of or in connection with statement.” 135 20. On that day, the matter was
adjourned to 24-11-1994 to enable the learned counsel for the parties to make further
submissions on the apology and to argue the case on all points, since the Court stated that it
may not be inclined to accept the apology as tendered. The learned counsel for all the
parties including the contemner, Bar Council of India and the State Bar Council of U.P. (who
were allowed to intervene) were heard and the matter was reserved for judgment. 21.
Thereafter, the State Bar Council of U.P. also submitted its written submissions on 26-11-
1994 along with an application for intervention. We have perused the said submissions. 22.
We may first deal with the preliminary objection raised by the contemner and the State Bar
Council, viz., that this Court cannot take cognizance of the contempt of the High Courts. The
contention is based on two grounds. The first is that Article 129 vests this Court with the
power to punish only for the contempt of itself and not of the High Courts. Secondly, the
High Court is also another court of record vested with identical and independent power of
punishing for contempt of itself. 23. The contention ignores that the Supreme Court is not
only the highest court of record, but under various provisions of the Constitution, is also
charged with the duties and responsibilities of correcting the lower courts and tribunals and
of protecting them from those whose misconduct tends to prevent the due performance of
their duties. The latter functions and powers of this Court are independent of Article 129 of
the Constitution. When, therefore, Article 129 vests this Court with the powers of the court
of record including the power to punish for contempt of itself, it vests such powers in this
Court in its capacity as the highest court of record and also as a court charged with the
appellate and superintending powers over the lower courts and tribunals as detailed in the
Constitution. To discharge its obligations as the custodian of the administration of justice in
the country and as the highest court imbued with supervisory and appellate jurisdiction over
all the lower courts and tribunals, it is inherently deemed to have been entrusted with the
power to see that the stream of justice in the country remains pure, that its course is not
hindered or obstructed in any manner, that justice is delivered without fear or favour and
for that purpose all the courts and tribunals are protected while discharging their legitimate
duties. To discharge this obligation, this Court has to take cognizance of the deviation from
the path of justice in the tribunals of the land, and also of attempts to cause such deviations
and obstruct the course of justice. To hold otherwise would mean that although this Court is
charged with the duties and responsibilities enumerated in the Constitution, it is not
equipped with the power to discharge them. 24. This subject has been dealt with elaborately
by this Court in Delhi Judicial Service Assn. v. State of Gujarat [(1991) 4 SCC 406]. We may do
no better than quote from the said decision the relevant extracts: “18. There is therefore no
room for any doubt that this Court has wide power to interfere and correct the judgment
and orders passed by any court or tribunal in the country. In addition to the appellate
power, the Court has special residuary power to entertain appeal against any order of any
court in the country. The plenary jurisdiction of 136 this Court to grant leave and hear
appeals against any order of a court or tribunal, confers power of judicial superintendence
over all the courts and tribunals in the territory of India including subordinate courts of
Magistrate and District Judge. This Court has, therefore, supervisory jurisdiction over all
courts in India. 19. Article 129 provides that the Supreme Court shall be a court of record
and shall have all the powers of such a court including the power to punish for contempt of
itself. Article 215 contains similar provision in respect of High Court. Both the Supreme Court
as well as High Courts are courts of record having powers to punish for contempt including
the power to punish for contempt of itself. The Constitution does not define ‘Court of
Record’. This expression is well recognised in juridical world. In Jowitt’s Dictionary of English
Law, ‘Court of Record’ is defined as: ‘A court whereof the acts and judicial proceedings are
enrolled for a perpetual memorial and testimony, and which has power to fine and imprison
for contempt of its authority.’ In Wharton’s Law Lexicon, Court of Record is defined as:
‘Courts are either of record where their acts and judicial proceedings are enrolled for a
perpetual memorial and testimony and they have power to fine and imprison; or not of
record being courts of inferior dignity, and in a less proper sense the King’s Courts - and
these are not entrusted by law with any power to fine or imprison the subject of the realm,
unless by the express provision of some Act of Parliament. These proceedings are not
enrolled or recorded.’ In Words and Phrases (Permanent Edn., Vol. 10, p. 429) ‘Court of
Record’ is defined as under: ‘Court of Record is a court where acts and judicial proceedings
are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the
‘record’ of the court, and are of such high and supereminent authority that their truth is not
to be questioned.’ Halsbury’s Laws of England, 4th Edn., Vol. 10, para 709, p. 319, states:
‘Another manner of division is into courts of record and courts not of record. Certain courts
are expressly declared by statute to be courts of record. In the case of courts not expressly
declared to be courts of record, the answer to the question whether a court is a court of
record seems to depend in general upon whether it has power to fine or imprison, by statute
or otherwise, for contempt of itself or other substantive offences; if it has such power, it
seems that it is a court of record.... The proceedings of a court of record preserved in its
archives are called records, and are conclusive evidence of that which is recorded therein.’
137 23. The question whether in the absence of any express provision a Court of Record has
inherent power in respect of contempt of subordinate or inferior courts, has been
considered by English and Indian courts. These authorities show that in England the power
of the High Court to deal with the contempt of inferior court was based not so much on its
historical foundation but on the High Court’s inherent jurisdiction being a court of record
having jurisdiction to correct the orders of those courts. 24. In India prior to the enactment
of the Contempt of Courts Act, 1926, High Court’s jurisdiction in respect of contempt of
subordinate and inferior courts was regulated by the principles of Common Law of England.
The High Courts in the absence of statutory provision exercised power of contempt to
protect the subordinate courts on the premise of inherent power of a Court of Record. 26.
The English and the Indian authorities are based on the basic foundation of inherent power
of a Court of Record, having jurisdiction to correct the judicial orders of subordinate courts.
The King’s Bench in England and High Courts in India being superior Courts of Record and
having judicial power to correct orders of subordinate courts enjoyed the inherent power of
contempt to protect the subordinate courts. The Supreme Court being a Court of Record
under Article 129 and having wide power of judicial supervision over all the courts in the
country, must possess and exercise similar jurisdiction and power as the High Courts had
prior to Contempt Legislation in 1926. Inherent powers of a superior Court of Record have
remained unaffected even after codification of Contempt Law. 28. The Parliament’s power
to .The Parliament's power to legislate in relation to law of contempt relating to Supreme
Court is limited, therefore the Act does not impinge upon this Court’s power with regard to
the contempt of subordinate courts under Article 129 of the Constitution. 29. Article 129
declares the Supreme Court a court of record and it further provides that the Supreme Court
shall have all the powers of such a court including the power to punish for contempt of itself.
The expression used in Article 129 is not restrictive instead it is extensive in nature. If the
Framers of the Constitution intended that the Supreme Court shall have power to punish for
contempt of itself only, there was no necessity of inserting the expression ‘including the
power to punish for contempt of itself’. The article confers power on the Supreme Court to
punish for contempt of itself and in addition, it confers some additional power relating to
contempt as would appear from the expression ‘including’. The expression ‘including’ has
been interpreted by courts, to extend and widen the scope of power. The plain language of
Article 129 clearly indicates that this Court as a court of record has power to punish for
contempt of itself and also something else which could fall within the inherent jurisdiction of
a court of record. 138 In interpreting the Constitution, it is not permissible to adopt a
construction which would render any expression superfluous or redundant. The courts ought
not to accept any such construction. While construing Article 129, it is not permissible to
ignore the significance and impact of the inclusive power conferred on the Supreme Court.
Since the Supreme Court is designed by the Constitution as a court of record and as the
Founding Fathers were aware that a superior court of record has inherent power to indict a
person for the contempt of itself as well as of courts inferior to it, the expression ‘including’
was deliberately inserted in the article. Article 129 recognised the existing inherent power of
a court of record in its full plenitude including the power to punish for the contempt of
inferior courts. If Article 129 is susceptible to two interpretations, we would prefer to accept
the interpretation which would preserve the inherent jurisdiction of this Court being the
superior court of record, to safeguard and protect the subordinate judiciary, which forms
the very backbone of administration of justice. The subordinate courts administer justice at
the grassroot level, their protection is necessary to preserve the confidence of people in the
efficacy of courts and to ensure unsullied flow of justice at its base level. 31. We have
already discussed a number of decisions holding that the High Court being a court of record
has inherent power in respect of contempt of itself as well as of its subordinate courts even
in the absence of any express provision in any Act. A fortiori the Supreme Court being the
Apex Court of the country and superior court of record should possess the same inherent
jurisdiction and power for taking action for contempt of itself as well as for the contempt of
subordinate and inferior courts. It was contended that since High Court has power of
superintendence over the subordinate courts under Article 227 of the Constitution,
therefore, High Court has power to punish for the contempt of subordinate courts. Since the
Supreme Court has no supervisory jurisdiction over the High Courts or other subordinate
courts, it does not possess powers which High Courts have under Article 215. This
submission is misconceived. Article 227 confers supervisory jurisdiction on the High Court
and in exercise of that power High Court may correct judicial orders of subordinate courts, in
addition to that, the High Court has administrative control over the subordinate courts.
Supreme Court’s power to correct judicial orders of the subordinate courts under Article 136
is much wider and more effective than that contained under Article 227. Absence of
administrative power of superintendence over the High Courts and subordinate courts does
not affect this Court’s wide power of judicial superintendence of all courts in India. Once
there is power of judicial superintendence, all the courts whose orders are amenable to
correction by this Court would be subordinate courts and therefore this Court also possesses
similar inherent power as the High Court has under Article 215 with regard to the contempt
of subordinate courts. The jurisdiction and power of a superior Court of Record to punish
contempt of subordinate courts was not founded on the Court’s administrative power of 139
superintendence, instead the inherent jurisdiction was conceded to superior Court of Record
on the premise of its judicial power to correct the errors of subordinate courts. 36. Advent of
freedom, and promulgation of Constitution have made drastic changes in the administration
of justice necessitating new judicial approach. The Constitution has assigned a new role to
the Constitutional Courts to ensure rule of law in the country. These changes have brought
new perceptions. In interpreting the Constitution, we must have regard to the social,
economic and political changes, need of the community and the independence of judiciary.
The court cannot be a helpless spectator, bound by precedents of colonial days which have
lost relevance. Time has come to have a fresh look at the old precedents and to lay down
law with the changed perceptions keeping in view the provisions of the Constitution. ‘Law’,
to use the words of Lord Coleridge, ‘grows; and though the principles of law remain
unchanged, yet their application is to be changed with the changing circumstances of the
time’. The considerations which weighed with the Federal Court in rendering its decision in
Gauba [K.L. Gauba v. Hon’ble the Chief Justice and Judges of the High Court of Judicature at
Lahore AIR 1942 FC 1] and Jaitly case [Purshottam Lal Jaitly v. King-Emperor, 1944 FCR 364]
are no more relevant in the context of the constitutional provisions. 37. Since this Court has
power of judicial superintendence and control over all the courts and tribunals functioning in
the entire territory of the country, it has a corresponding duty to protect and safeguard the
interest of inferior courts to ensure the flow of the stream of justice in the courts without
any interference or attack from any quarter. The subordinate and inferior courts do not have
adequate power under the law to protect themselves, therefore, it is necessary that this
Court should protect them. Under the constitutional scheme this Court has a special role, in
the administration of justice and the powers conferred on it under Articles 32, 136, 141 and
142 form part of the basic structure of the Constitution. The amplitude of the power of this
Court under these articles of the Constitution cannot be curtailed by law made by Central or
State legislature. If the contention raised on behalf of the contemners is accepted, the courts
all over India will have no protection from this Court. No doubt High Courts have power to
persist for the contempt of subordinate courts but that does not affect or abridge the
inherent power of this Court under Article 129. The Supreme Court and the High Courts both
exercise concurrent jurisdiction under the constitutional scheme in matters relating to
fundamental rights under Articles 32 and 226 of the Constitution, therefore this Court’s
jurisdiction and power to take action for contempt of subordinate courts would not be
inconsistent to any constitutional scheme. There may be occasions when attack on Judges
and Magistrates of subordinate courts may have wide repercussions throughout the
country, in that situation it may not be possible for a High Court to contain the same, as a
result of which the administration of justice in the country may be paralysed, in that
situation the Apex Court must intervene 140 to ensure smooth functioning of courts. The
Apex Court is duty bound to take effective steps within the constitutional provisions to
ensure a free and fair administration of justice throughout the country, for that purpose it
must wield the requisite power to take action for contempt of subordinate courts.
Ordinarily, the High Court would protect the subordinate court from any onslaught on their
independence, but in exceptional cases, extraordinary situation may prevail affecting the
administration of public justice or where the entire judiciary is affected, this Court may
directly take cognizance of contempt of subordinate courts. We would like to strike a note of
caution that this Court will sparingly exercise its inherent power in taking cognizance of the
contempt of subordinate courts, as ordinarily matters relating to contempt of subordinate
courts must be dealt with by the High Courts. The instant case is of exceptional nature, as
the incident created a situation where functioning of the subordinate courts all over the
country was adversely affected, and the administration of justice was paralysed, therefore,
this Court took cognizance of the matter. 38. It is true that courts .It is true that courts
constituted under a law enacted by Parliament or the State legislature have limited
jurisdiction and they cannot assume jurisdiction in a matter, not expressly assigned to them,
but that is not so in the case of a superior court of record constituted by the Constitution.
Such a court does not have a limited jurisdiction instead it has power to determine its own
jurisdiction. No matter is beyond the jurisdiction of a superior court of record unless it is
expressly shown to be so, under the provisions of the Constitution. In the absence of any
express provision in the Constitution, the Apex Court being a court of record has jurisdiction
in every matter and if there be any doubt, the Court has power to determine its jurisdiction.
If such determination is made by High Court, the same would be subject to appeal to this
Court, but if the jurisdiction is determined by this Court it would be final. We therefore hold
that this Court being the Apex Court and a superior court of record has power to determine
its jurisdiction under Article 129 of the Constitution, and as discussed earlier it has
jurisdiction to initiate or entertain proceedings for contempt of subordinate courts. This
view does not run counter to any provision of the Constitution.” 27. In the present case,
although the contempt is in the face of the court, the procedure adopted is not only
summary but has adequately safeguarded the contemner’s interests. The contemner was
issued a notice intimating him the specific allegations against him. He was given an
opportunity to counter the allegations by filing his counter-affidavit and additional
counter/supplementary affidavit as per his request, and he has filed the same. He was also
given an opportunity to file an affidavit of any other person that he chose or to produce any
other material in his defence, which he has not done. However, in the affidavit which he has
filed, he has requested for an examination of the learned Judge. We have at length dealt
with the nature of in facie curiae contempt and the justification for adopting summary
procedure and punishing the offender on the spot. In such procedure, there is no scope for
examining the Judge or Judges of 141 the court before whom the contempt is committed. To
give such a right to the contemner is to destroy not only the raison d’être for taking action
for contempt committed in the face of the court but also to destroy the very jurisdiction of
the court to adopt proceedings for such conduct. It is for these reasons that neither the
common law nor the statute law countenances the claim of the offender for examination of
the Judge or Judges before whom the contempt is committed. Section 14 of our Act, i.e. the
Contempt of Courts Act, 1971 deals with the procedure when the action is taken for the
contempt in the face of the Supreme Court and the High Court. Subsection (3) of the said
section deals with a situation where in facie curiae contempt is tried by a Judge other than
the Judge or Judges in whose presence or hearing the offence is alleged to have been
committed. The provision in specific terms and for obvious reasons, states that in such cases
it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is
alleged to have been committed, to appear as a witness and the statement placed before
the Chief Justice shall be treated as the evidence in the case. The statement of the learned
Judge has already been furnished to the contemner and he has replied to the same. We
have, therefore, to proceed by treating the statement of the learned Judge and the affidavits
filed by the contemner and the reply given by the learned Judge to the said affidavits, as
evidence in the case. 28. We may now refer to the matters in dispute to examine whether
the contemner is guilty of the contempt of court. Under the common law definition,
“contempt of court” is defined as an act or omission calculated to interfere with the due
administration of justice. This covers criminal contempt (that is, acts which so threaten the
administration of justice that they require punishment) and civil contempt (disobedience of
an order made in a civil cause). Section 2(a), (b) and (c) of the Act defines the contempt of
court as follows: “2. Definitions.- In this Act, unless the context otherwise requires,- (a)
‘contempt of court’ means civil contempt or criminal contempt; (b) ‘civil contempt’ means
wilful disobedience to any judgment, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court; (c) ‘criminal contempt’ means the
publication (whether by words, spoken or written, or by signs, or by visible representations,
or otherwise) of any matter or the doing of any other act whatsoever which - (i) scandalises
or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii)
prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;” 142 29. From the facts which have been
narrated above, it is clear that the allegations against the contemner, if true, would amount
to criminal contempt as defined under Section 2(c) of the Act. It is in the light of this
definition of the “criminal contempt” that we have to examine the facts on record. 30. The
essence of the contents of Justice Keshote’s letter is that when he put a question to the
contemner as to under which provision the order was passed by the lower court, the
contemner “started to shout and said that no question could have been put to him”. The
contemner further said that he would get the learned Judge transferred or see that
impeachment motion was brought against him in Parliament. He also said that he had
“turned up many judges”. He also created a scene in the Court. The learned Judge has
further stated in his letter that in sum and substance it was a matter where “except to abuse
him of mother and sister”, he insulted him “like anything”. The contemner, according to the
learned Judge, wanted to convey to him that admission was a matter of course and no
arguments were to be heard at that stage. The learned Judge has given his reaction to the
entire episode by pointing out that this is not a question of insulting a Judge but the
institution as a whole. In case the dignity of the judiciary was not maintained then he “did
not know where the institution would stand, particularly when contemner who is a Senior
Advocate, President of the Bar and Chairman of the Bar Council of India behaved in the court
in such manner which will have its effect on other advocates as well”. He has further stated
that in case the dignity of the judiciary is not restored, it would be very difficult for the
Judges to discharge the judicial function without fear or favour. At the end of his letter, he
has appealed to the learned Acting Chief Justice for “restoration of dignity of the judiciary”.
31. The contemner, as pointed out above, by filing an affidavit has denied the version of the
episode given by the learned Judge and has stated that when the matter was called on, the
learned Judge (he has referred to him as the ‘applicant’) took charge of the court
proceedings and virtually foreclosed the attempts made by the Senior Judge to intervene.
The learned Judge enquired from the contemner as to under which law the impugned order
was passed to which the latter replied that it was under various rules of Order 39 CPC. The
learned Judge then conveyed to the contemner that he was going to set aside the entire
order although against a portion of it only he had come in appeal. According to the
contemner, he then politely brought to the notice of the learned Judge that being the
appellant, he had the dominion over the case and it could not be made worse just because
he had come to High Court. According to the contemner, the learned Judge then apparently
lost his temper and told him that he would set aside the order in toto disregarding what he
had said. The contemner has then proceeded to state that “being upset over what” he felt
was an arbitrary approach to judicial process he “got emotionally perturbed” and “his
professional and institutional sensitivity got deeply wounded” and he told the
applicantJudge that “it was not the practice” of that Court to dismiss a case without hearing
or to upset judgments or portions of judgments which have not been appealed against.
According to the contemner, “unfortunately the applicant-Judge took it unsportingly and
apparently lost his temper and directed the stenographer to take down the order for setting
aside of the whole 143 order”. The contemner has then stated that he “found it necessary to
mention that the exchange that took place between him and the applicant-Judge got a little
heated up”. In the moment of heat the applicant-Judge made the following observations: “I
am from the Bar and if need be I can take to goondaism. I never opted for Allahabad. I had
opted for Gujarat and Himachal Pradesh. I do not know why the Chief Justice of India
disregarded my options and transferred me to this place, which I never liked.” According to
the contemner, he was “provoked by this” and asked the learned Judge “whether he was
creating a scene to create conditions for getting himself transferred as also talked earlier”.
The contemner has denied that he had referred to any impeachment although according to
him, he did say that “a Judge got himself transferred earlier on account of his inability to
command the goodwill of the Bar due to lack of mutual reverence”. He has also denied that
when the learned Judge asked him as to under which provision the order was passed, he had
replied that the Court had no jurisdiction to ask the same and should admit and grant the
stay order. He has added that such a reply could only be attributed to one who is mad and it
is unbelievable that “he would reply in such a foolish manner”. He has also denied that he
had abused the learned Judge and the allegations made against him in that behalf were
vague. According to the contemner, if he had committed the contempt, the senior member
of the Bench would have initiated proceedings under “Article 129” of the Constitution for
committing contempt in facie curiae. He has also stated that even the learned Judge himself
could have done so but he did not do so and deferred the matter for the next day and
“adopted a devious way of writing to the acting Chief Justice for doing something about it”
which shows that the version of the episode was not correct. The contemner has also then
expressed his “uncomprehension” why the learned Judge should have come to this Court
when he had ample and sufficient legal and constitutional powers to arraign the contemner
at the “Bar for what was attributed” to him. 32. Before we refer to the other contentions
raised by the contemner, the question is which of the two versions has to be accepted as
correct. The contemner has no doubt asked for an inquiry and an opportunity to produce
evidence. For reasons stated earlier, we declined his request for such inquiry, but gave him
ample opportunity to produce whatever material he desired to, including the affidavits of
whomsoever he desired. Our order dated 15-7-1994 is clear on the subject. Pursuant to the
said order, the contemner has not filed his further affidavit or material or the affidavit of any
other person. Instead he tendered a written apology dated 7-10-1994 which will be
considered at the proper place. In his earlier counter and additional counter, he has stated
that it is not he who had committed contempt but it is the learned Judge who had
committed contempt of his own court. According to him, the learned Judge had gagged him
from discharging his duties as an advocate and the statement of senior member of the
Bench concerned was necessary. He has taken exception to the learned Judge speaking in
the Court except through the Senior Judge of the Bench which according to him, had been
the practice in the said High Court and has also alleged that the learned Judge did not follow
the said convention. 144 33. Normally, no Judge takes action for in facie curiae contempt
against the lawyer unless he is impelled to do so. It is not the heat generated in the
arguments but the language used, the tone and the manner in which it is expressed and the
intention behind using it which determine whether it was calculated to insult, show
disrespect, to overbear and overawe the court and to threaten and obstruct the course of
justice. After going through the report of the learned Judge and the affidavits and the
additional affidavits filed by the contemner and after hearing the learned counsel appearing
for the contemner, we have come to the conclusion that there is every reason to believe
that notwithstanding his denials, and disclaimers, the contemner had undoubtedly tried to
browbeat, threaten, insult and show disrespect personally to the learned Judge. This is
evident from the manner in which even in the affidavits filed in this Court, the contemner
has tried to justify his conduct. He has started narration of his version of the incident by
taking exception to the learned Judge’s taking charge of the court proceedings. We are
unable to understand what exactly he means thereby. Every member of the Bench is on a
par with the other member or members of the Bench and has a right to ask whatever
questions he wants to, to appreciate the merits or demerits of the case. It is obvious that the
contemner was incensed by the fact that the learned Judge was asking the questions to him.
This is clear from his contention that the learned Judge being a junior member of the Bench,
was not supposed to ask him any question and if any questions were to be asked, he had to
ask them through the senior member of the Bench because that was the convention of the
Court. We are not aware of any such convention in any court at least in this country.
Assuming that there is such a convention, it is for the learned Judges forming the Bench to
observe it inter se. No lawyer or a third party can have any right or say in the matter and can
make either an issue of it or refuse to answer the questions on that ground. The lawyer or
the litigant concerned has to answer the questions put to him by any member of the Bench.
The contemner has sought to rely on the so-called convention and to spell out his right from
it not to have been questioned by the learned Judge. This contention coupled with his
grievance that the learned Judge had taken charge of the proceedings, shows that the
contemner was in all probability perturbed by the fact that the learned Judge was asking him
questions. The learned Judge’s version, therefore, appears to be correct when he states that
the contemner lost his temper when he started asking him questions. The contemner has
further admitted that he got “emotionally perturbed” and his “professional and institutional
sensitivity got deeply wounded” because the learned Judge, according to him, apparently
lost his temper and told him in no unconcealed terms that he would set aside the order in
toto disregarding what he had said. The learned Judge’s statement that the contemner
threatened him with transfer and impeachment proceedings also gets corroboration from
the contemner’s own statement in the additional affidavit that he did tell the learned Judge
that a Judge got himself transferred earlier on account of his inability to command the
goodwill of the Bar due to lack of mutual reverence. No one expects a lawyer to be
subservient to the Court while presenting his case and not to put forward his arguments
merely because the Court is against him. In fact, that is the moment when he is expected to
put forth his best effort to persuade the Court. However, if, in spite of it, the lawyer finds
that the court is against him, he is not expected to be discourteous to the court or to 145
fling hot words or epithets or use disrespectful, derogatory or threatening language or
exhibit temper which has the effect of overbearing the court. Cases are won and lost in the
court daily. One or the other side is bound to lose. The remedy of the losing lawyer or the
litigant is to prefer an appeal against the decision and not to indulge in a running battle of
words with the court. That is the least that is expected of a lawyer. Silence on some
occasions is also an argument. The lawyer is not entitled to indulge in unbecoming conduct
either by showing his temper or using unbecoming language. 34. The incident had
undoubtedly created a scene in the court since even according to the contemner, the
exchange between the learned Judge and him was “a little heated up” and the contemner
asked the learned Judge “whether he was creating scene to create conditions for getting
himself transferred as also talked earlier”. He had also to remind the learned Judge that “a
Judge got himself transferred earlier on account of his inability to command the goodwill of
the Bar due to lack of mutual reverence”. He has further stated in his affidavit that “the
entire Bar at Allahabad” knew that he was unjustly “roughed” by the Judge and was being
punished for taking “a fearless and non-servile stand” and that he was being prosecuted for
‘asserting’ a right of audience and “using the liberty to express his views when a Judge takes
a course which in the opinion of the Bar is irregular”. He has also stated that any punishment
meted out to the ‘outspoken’ lawyer will completely emasculate the freedom of the
profession and make the Bar a subservient tail-wagging appendage to the judicial branch
which is an anathema to a healthy democratic judicial system. He has further stated in his
petition for taking contempt action against the learned Judge that the incident was
“witnessed by a large number of advocates”. 35. We have reproduced the contents of the
letter written by the learned Judge and his reply to the affidavits filed by the contemner. The
learned Judge’s version is that when he put the question to the contemner as to under
which provision, the lower court had passed the order in question, the contemner started
shouting and said that no question could have been put to him. The contemner also stated
that he would get him transferred or see that impeachment motion was brought against him
in Parliament. He further said that he had “turned up” many judges and created a good
scene in the Court. The contemner further asked him to follow the practice of the Court. The
learned Judge has stated that in sum and substance, it was a matter where except “to abuse
of his mother and sister”, he had insulted him “like anything”. The learned Judge has further
stated that the contemner wanted to convey to him that admission of every matter was as a
matter of course and no arguments were heard at the admission stage. He has reiterated the
said version in his reply to the affidavits and in particular, has denied the allegations made
against him by the contemner. He has defended his asking the question to the contemner
since he was a member of the Bench. The learned Judge has stated that the contemner took
exception to his asking the said question as if he had committed some wrong and started
shouting. He has further stated that he had asked only the question referred to above and
the contemner had created the scene on account of his putting the said question to him, and
made it difficult to continue the court’s proceedings. Ultimately, when it became impossible
to hear all the slogans and insulting words and threats, he requested the senior learned
member of the Bench to list that case before 146 another Bench and to retire to the
chamber. Accordingly, an order was made by the senior member of the Bench and both of
them retired to the chamber. The learned Judge has denied that he had conveyed to the
contemner that he was going to set aside the entire order against a portion of which the
contemner had come in appeal. He has stated that it was a case where the contemner did
not permit the court proceedings to be proceeded with and both the members of the Bench
had ultimately to retire to the chambers. The learned Judge has stated that the defence of
the conduct of the contemner in the counter-affidavit “was a manufactured” one. He has
then dealt with each paragraph of the contemner’s counter-affidavit. He has also stated that
there was no question of his having directed the stenographer to take down the order for
setting aside of the whole order since that function was performed by the senior member of
the Bench. He has also stated that the contemner has made absolutely wrong allegations
when he states that he had made the following remarks: “I am from the Bar and if need be I
can take to goondaism.” He has also denied that he had said: “I never opted for Allahabad. I
had opted for Gujarat and Himachal Pradesh. I do not know why the Chief Justice of India
disregarded my options and transferred me to this place, which I never liked.” He has stated
that the contemner has made false allegations against him. 37. To resent the questions
asked by a Judge, to be disrespectful to him, to question his authority to ask the questions,
to shout at him, to threaten him with transfer and impeachment, to use insulting language
and abuse him, to dictate the order that he should pass, to create scenes in the court, to
address him by losing temper are all acts calculated to interfere with and obstruct the course
of justice. Such acts tend to overawe the court and to prevent it from performing its duty to
administer justice. Such conduct brings the authority of the court and the administration of
justice into disrespect and disrepute and undermines and erodes the very foundation of the
judiciary by shaking the confidence of the people in the ability of the court to deliver free
and fair justice. 38. The stance taken by the contemner is that he was performing his duty as
an outspoken and fearless member of the Bar. He seems to be labouring under a grave
misunderstanding. Brazenness is not outspokenness and arrogance is not fearlessness. Use
of intemperate language is not assertion of right nor is a threat an argument. Humility is not
servility and courtesy and politeness are not lack of dignity. Self-restraint and respectful
attitude towards the court, presentation of correct facts and law with a balanced mind and
without overstatement, suppression, distortion or embellishment are requisites of good
advocacy. A lawyer has to be a gentleman first. His most valuable asset is the respect and
goodwill he enjoys among his colleagues and in the Court. 39. The rule of law is the
foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence
judiciary is not only the third pillar, but the central pillar of the democratic State. In a
democracy like ours, where there is a written Constitution which is above all individuals and
institutions and where the power of judicial review is vested in the superior courts, the
judiciary has a special and additional duty to perform, viz., to oversee that all individuals and
institutions including the executive and the legislature act within the framework 147 of not
only the law but also the fundamental law of the land. This duty is apart from the function of
adjudicating the disputes between the parties which is essential to peaceful and orderly
development of the society. If the judiciary is to perform its duties and functions effectively
and remain true to the spirit with which they are sacredly entrusted to it, the dignity and
authority of the courts have to be respected and protected at all costs. Otherwise, the very
cornerstone of our constitutional scheme will give way and with it will disappear the rule of
law and the civilized life in the society. It is for this purpose that the courts are entrusted
with the extraordinary power of punishing those who indulge in acts whether inside or
outside the courts, which tend to undermine their authority and bring them in disrepute and
disrespect by scandalising them and obstructing them from discharging their duties without
fear or favour. When the court exercises this power, it does not do so to vindicate the
dignity and honour of the individual judge who is personally attacked or scandalised, but to
uphold the majesty of the law and of the administration of justice. The foundation of the
judiciary is the trust and the confidence of the people in its ability to deliver fearless and
impartial justice. When the foundation itself is shaken by acts which tend to create
disaffection and disrespect for the authority of the court by creating distrust in its working,
the edifice of the judicial system gets eroded. 40. It cannot be disputed and was not
disputed before us that the acts indulged into by the contemner in the present case as
stated by the learned Judge per se amount to criminal contempt of court. What was
disputed was their occurrence. We have held above that we are satisfied that the contemner
did indulge in the said acts. 43. The contemner has obviously misunderstood his function
both as a lawyer representing the interests of his client and as an officer of the court.
Indeed, he has not tried to defend the said acts in either of his capacities. On the other hand,
he has tried to deny them. Hence, much need not be said on this subject to remind him of
his duties in both the capacities. It is, however, necessary to observe that by indulging in the
said acts, he has positively abused his position both as a lawyer and as an officer of the
court, and has done distinct disservice to the litigants in general and to the profession of law
and the administration of justice in particular. It pains us to note that the contemner is not
only a senior member of the legal profession, but holds the high offices of the Chairman of
the Bar Council of India, Member of the Bar Council of U.P., Chairman and Member,
Executive Council and Academic Council of the National Law School University of India at
Bangalore and President of the High Court Bar Association, Allahabad. Both as a senior
member of the profession and as holder of the said high offices, special and additional duties
were cast upon him to conduct himself as a model lawyer and officer of the court and to
help strengthen the administration of justice by upholding the dignity and the majesty of the
court. It was in fact expected of him to be zealous in maintaining the rule of law and in
strengthening the people’s confidence in the judicial institutions. To our dismay, we find that
he has acted exactly contrary to his obligations and has in reality set a bad example to others
while at the same time contributing to weakening of the confidence of the people in the
courts. 44. The contemner has no doubt tendered an unconditional apology on 7-10-1994 by
withdrawing from record all his applications, petitions, counter-affidavits, prayers and 148
submissions made at the Bar and to the court earlier. We have reproduced that apology
verbatim earlier. In the apology he has pleaded that he has deeply and regretfully realised
that the situation, meaning thereby the incident, should never have arisen and the fact that
it arose has subjected him to anguish and remorse and a feeling of moral guilt. That feeling
has been compounded with the fact that he was a senior advocate and was holding the
elective posts of the President of the High Court Bar Association and the Chairman of the Bar
Council of India which by their nature show that he was entrusted by his professional
fraternity to set up an example of an ideal advocate. He has guiltily realised his failure to
approximate to this standard resulting in the present proceedings and he was, therefore,
submitting his unconditional apology for the incident in question. We have not accepted this
apology, firstly because we find that the apology is not a free and frank admission of the
misdemeanour he indulged in the incident in question. Nor is there a sincere regret for the
disrespect he showed to the learned Judge and the Court, and for the harm that he has done
to the judiciary. On the other hand, the apology is couched in a sophisticated and garbed
language exhibiting more an attempt to justify his conduct by reference to the circumstances
in which he had indulged in it and to exonerate himself from the offence by pleading that
the condition in which the ‘situation’ had developed was not an ideal one and were it ideal,
the ‘situation’ should not have arisen. It is a clever and disguised attempt to refurbish his
image and get out of a tight situation by not only not exhibiting the least sincere remorse for
his conduct but by trying to blame the so-called circumstances which led to it. At the same
time, he has attempted to varnish and re-establish himself as a valiant defender of his
“alleged duties” as a lawyer. Secondly, from the very inception his attitude has been defiant
and belligerent. In his affidavits and application, not only he has not shown any respect for
the learned Judge, but has made counter-allegations against him and has asked for initiation
of contempt proceedings against him. He has even chosen to insinuate that the learned
Judge, by not taking contempt action on the spot and instead writing the letter to the Acting
Chief Justice of the High Court, had adopted a devious way and that he had also come to
Delhi to meet ‘meaningful’ people. These allegations may themselves amount to contempt
of court. Lastly, to accept any apology for a conduct of this kind and to condone it, would
tantamount to a failure on the part of this Court to uphold the majesty of the law, the
dignity of the court and to maintain the confidence of the people in the judiciary. The Court
will be failing in its duty to protect the administration of justice from attempts to denigrate
and lower the authority of the judicial officers entrusted with the sacred task of delivering
justice. A failure on the part of this Court to punish the offender on an occasion such as this
would thus be a failure to perform one of its essential duties solemnly entrusted to it by the
Constitution and the people. For all these reasons, we unhesitatingly reject the said so-called
apology tendered by the contemner. 45. The question now is what punishment should be
meted out to the contemner. We have already discussed the contempt jurisdiction of this
Court under Article 129 of the Constitution. That jurisdiction is independent of the statutory
law of contempt enacted by Parliament under Entry 77 of List I of Seventh Schedule of the
Constitution. The jurisdiction of this Court under Article 129 is sui generis. The jurisdiction to
take cognizance of the contempt as well as to award 149 punishment for it being
constitutional, it cannot be controlled by any statute. Neither, therefore, the Contempt of
Courts Act, 1971 nor the Advocates Act, 1961 can be pressed into service to restrict the said
jurisdiction. We had, during the course of the proceedings indicated that if we convict the
contemner of the offence, we may also suspend his licence to practise as a lawyer. The
learned counsel for the contemner and the interveners and also the learned Solicitor
General appointed amicus curiae to assist the Court were requested to advance their
arguments also on the said point. Pursuant to it, it was sought to be contended on behalf of
the contemner and the U.P. Bar Association and the U.P. Bar Council that the Court cannot
suspend the licence which is a power entrusted by the Advocates Act, 1961 specially made
for the purpose, to the disciplinary committees of the State Bar Councils and of the Bar
Council of India. The argument was that even the constitutional power under Articles 129
and 142 was circumscribed by the said statutory provisions and hence in the exercise of our
power under the said provisions, the licence of an advocate was not liable either to be
cancelled or suspended. A reference was made in this connection to the provisions of
Sections 35 and 36 of the Advocates Act, which show that the power to punish the advocate
is vested in the disciplinary committees of the State Bar Councils and the Bar Council of
India. Under Section 37 of the Advocates Act, an appeal lies to the Bar Council of India, when
the order is passed by the disciplinary committee of the State Bar Council. Under Section 38,
the appeal lies to this Court when the order is made by the disciplinary committee of the Bar
Council of India, either under Section 36 or in appeal under Section 37. The power to punish
includes the power to suspend the advocate from practice for such period as the disciplinary
committee concerned may deem fit under Section 35(3)(c) and also to remove the name of
the advocate from the State roll of the Advocates under Section 35(3)(d). Relying on these
provisions, it was contended that since the Act has vested the powers of suspending and
removing the advocate from practice exclusively in the disciplinary committees of the State
Bar Councils and the Bar Council of India, as the case may be, the Supreme Court is denuded
of its power to impose such punishment both under Articles 129 and 142 of the Constitution.
In support of this contention, reliance was placed on the observations of the majority of this
Court in Prem Chand Garg v. Excise Commr., U.P. [AIR 1963 SC 996] relating to the powers of
this Court under Article 142 which are as follows: “In this connection, it may be pertinent to
point out that the wide powers which are given to this Court for doing complete justice
between the parties, can be used by this Court for instance, in adding parties to the
proceedings pending before it, or in admitting additional evidence, or in remanding the case,
or in allowing a new point to be taken for the first time. It is plain that in exercising these
and similar other powers, this Court would not be bound by the relevant provisions of
procedure if it is satisfied that a departure from the said procedure is necessary to do
complete justice between the parties. That takes us to the second argument urged by the
Solicitor General that Article 142 and Article 32 should be reconciled by the adoption of the
rule of harmonious construction. In this connection, we ought to bear in mind that though
the powers conferred on this Court by Article 142(1) are very wide, and the same can be
exercised 150 for doing complete justice in any case, as we have already observed, this Court
cannot even under Article 142(1) make an order plainly inconsistent with the express
statutory provisions of substantive law, much less, inconsistent with any constitutional
provisions. There can, therefore, be no conflict between Article 142(1) and Article 32. In the
case of K.M. Nanavati v. State of Bombay [AIR 1961 SC 112], on which the Solicitor General
relies, it was conceded, and rightly, that under Article 142(1) this Court had the power to
grant bail in cases brought before it, and so, there was obviously a conflict between the
power vested in this Court under the said Article and that vested in the Governor of the
State under Article 161. The possibility of a conflict between these powers necessitated the
application of the rule of harmonious construction. The said rule can have no application to
the present case, because on a fair construction of Article 142(1), this Court has no power to
circumscribe the fundamental right guaranteed under Article 32. The existence of the said
power is itself in dispute, and so, the present case is clearly distinguishable from the case of
K.M. Nanavati.” 46. Apart from the fact that these observations are made with reference to
the powers of this Court under Article 142 which are in the nature of supplementary powers
and not with reference to this Court’s power under Article 129, the said observations have
been explained by this Court in its later decisions in Delhi Judicial Service Assn. v. State of
Gujarat and Union Carbide Corpn. v. Union of India. In para 51 of the former decision, it has
been, with respect, rightly pointed out that the said observations were made with regard to
the extent of this Court’s power under Article 142(1) in the context of fundamental rights.
Those observations have no bearing on the present issue. No doubt, it was further observed
there that those observations have no bearing on the question in issue in that case as there
was no provision in any substantive law restricting this Court’s power to quash proceedings
pending before subordinate courts. But it was also added there that this Court’s power
under Article 142(1) to do complete justice was entirely of a different level and of a different
quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation
on the constitutional power of this Court. Once this Court is in seisin of a matter before it, it
has power to issue any order or direction to do complete justice in the matter. A reference
was made in that connection to the concurring opinion of Justice A.N. Sen in Harbans Singh
v. State of U.P., where the learned Judge observed as follows: “Very wide powers have been
conferred on this Court for due and proper administration of justice. Apart from the
jurisdiction and powers conferred on this Court under Articles 32 and 136 of the
Constitution, I am of the opinion that this Court retains and must retain an inherent power
and jurisdiction for dealing with any extraordinary situation in the larger interests of
administration of justice and for preventing manifest injustice being done. This power must
necessarily be sparingly used only in exceptional circumstances for furthering the ends of
justice.” The Court has then gone on to observe there that no enactment made by Central or
State legislature can limit or restrict the power of this Court under Article 142 of the
Constitution, though the Court must take into consideration the statutory provisions
regulating the matter in 151 dispute. What would be the need of complete justice in a cause
or matter, would depend upon the facts and circumstances of each case. 47. In the latter
case, i.e., the Union Carbide case [(1991) 4 SCC 584], the Constitution Bench in para 83
stated as follows: “It is necessary to set at rest certain misconceptions in the arguments
touching the scope of the powers of this Court under Article 142(1) of the Constitution.
These issues are matters of serious public importance. The proposition that a provision in
any ordinary law irrespective of the importance of the public policy on which it is founded,
operates to limit the powers of the Apex Court under Article 142(1) is unsound and
erroneous. In both Garg as well as Antulay cases [A.R. Antulay v. R.S. Nayak (1988) 2 SCC
602] the point was one of violation of constitutional provisions and constitutional rights. The
observations as to the effect of inconsistency with statutory provisions were really
unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of
constitutional rights. We agree with Shri Nariman that the power of the Court under Article
142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section
320 or 321 or 482 CrPC or all of them put together. The power under Article 142 is at an
entirely different level and of a different quality. Prohibitions or limitations or provisions
contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the
constitutional powers under Article 142. Such prohibitions or limitations in the statutes
might embody and reflect the scheme of a particular law, taking into account the nature and
status of the authority or the court on which conferment of powers - limited in some
appropriate way - is contemplated. The limitations may not necessarily reflect or be based
on any fundamental considerations of public policy. Shri Sorabjee, learned Attorney General,
referring to Garg case, said that limitation on the powers under Article 142 arising from
‘inconsistency with express statutory provisions of substantive law’ must really mean and be
understood as some express prohibition contained in any substantive statutory law. He
suggested that if the expression ‘prohibition’ is read in place of ‘provision’ that would
perhaps convey the appropriate idea. But we think that such prohibition should also be
shown to be based on some underlying fundamental and general issues of public policy and
not merely incidental to a particular statutory scheme or pattern. It will again be wholly
incorrect to say that powers under Article 142 are subject to such express statutory
prohibitions. That would convey the idea that statutory provisions override a constitutional
provision. Perhaps, the proper way of expressing the idea is that in exercising powers under
Article 142 and in assessing the needs of ‘complete justice’ of a cause or matter, the Apex
Court will take note of the express prohibitions in any substantive statutory provision based
on some fundamental principles of public policy and regulate the exercise of its power and
discretion accordingly. The proposition does not relate to the powers of the Court under
Article 142, but only to what is or is not ‘complete justice’ of a cause or matter and in the
ultimate analysis of the propriety of the exercise of the power. No question of lack of
jurisdiction or of nullity can arise.” 152 49. The consequence of accepting the said
contention advanced on behalf of the contemner and the other parties will be twofold. This
Court while exercising its power under Article 142(1) would not even be entitled to
reprimand the advocate for his professional misconduct which includes exhibition of
disrespect to the Court as per Rule 2 of Section I of Chapter II of Part VI of the Bar Council of
India Rules made under the Advocates Act, which is also a contempt of court, since the
reprimand of the advocate is a punishment which the disciplinary committees of the State
Bar Councils and of the Bar Council of India are authorised to administer under Section 35 of
the Advocates Act. Secondly, it would also mean that for any act of contempt of court, if it
also happens to be an act of professional misconduct under the Bar Council of India Rules,
the courts including this Court, will have no power to take action since the Advocates Act
confers exclusive power for taking action for such conduct on the disciplinary committees of
the State Bar Councils and the Bar Council of India, as the case may be. Such a proposition of
law on the face of it deserves rejection for the simple reason that the disciplinary jurisdiction
of the State Bar Councils and the Bar Council of India to take action for professional
misconduct is different from the jurisdiction of the courts to take action against the
advocates for the contempt of court. The said jurisdictions coexist independently of each
other. The action taken under one jurisdiction does not bar an action under the other
jurisdiction. 50. The contention is also misplaced for yet another and equally, if not more,
important reason. In the matter of disciplinary jurisdiction under the Advocates Act, this
Court is constituted as the final appellate authority under Section 38 of the Act as pointed
out earlier. In that capacity this Court can impose any of the punishments mentioned in
Section 35(3) of the Act including that of removal of the name of the advocate from the
State roll and of suspending him from practice. If that be so, there is no reason why this
Court while exercising its contempt jurisdiction under Article 129 read with Article 142
cannot impose any of the said punishments. The punishment so imposed will not only be not
against the provisions of any statute, but in conformity with the substantive provisions of
the Advocates Act and for conduct which is both a professional misconduct as well as the
contempt of court. The argument has, therefore, to be rejected. 51. What is further, the
jurisdiction and powers of this Court under Article 142 which are supplementary in nature
and are provided to do complete justice in any matter, are independent of the jurisdiction
and powers of this Court under Article 129 which cannot be trammelled in any way by any
statutory provision including the provisions of the Advocates Act or the Contempt of Courts
Act. As pointed out earlier, the Advocates Act has nothing to do with the contempt
jurisdiction of the court including of this Court and the Contempt of Courts Act, 1971 being a
statute cannot denude, restrict or limit the powers of this Court to take action for contempt
under Article 129. It is not disputed that suspension of the advocate from practice and his
removal from the State roll of advocates are both punishments. There is no restriction or
limitation on the nature of punishment that this Court may award while exercising its
contempt jurisdiction and 153 the said punishments can be the punishments the Court may
impose while exercising the said jurisdiction. 52. Shri P.P. Rao, learned counsel appearing for
the High Court Bar Association of Allahabad contended that Articles 19(1)(a) and 19(2), and
19(1)(g) and 19(6) have to be read together and thus read the power to suspend a member
of the legal profession from practice or to remove him from the roll of the State Bar Council
is not available to this Court under Article 129. We have been unable to appreciate this
contention. Article 19(1)(a) guarantees freedom of speech and expression which is subject to
the provisions of Article 19(2) and, therefore, to the law in relation to the contempt of court
as well. Article 19(1)(g) guarantees the right to practise any profession or to carry on any
occupation, trade or business and is subject to the provisions of Article 19(6) which
empowers the State to make a law imposing reasonable restrictions, in the interests of
general public, on the exercise of the said right and, in particular, is subject to a law
prescribing technical or professional qualifications necessary for practising the profession or
carrying on the occupation, trade or business. On our part we are unable to see how these
provisions of Article 19 can be pressed into service to limit the power of this Court to take
cognizance of and punish for the contempt of court under Article 129. The contention that
the power of this Court under Article 129 is subject to the provisions of Articles 19(1)(a) and
19(1)(g), is unexceptional. However, it is not pointed out to us as to how the action taken
under Article 129 would be violative of the said provisions, since the said provisions are
subject to the law of contempt and the law laying down technical and professional
qualifications necessary for practising any profession, which includes the legal profession.
The freedom of speech and expression cannot be used for committing contempt of court nor
can the legal profession be practised by committing the contempt of court. The right to
continue to practise is subject to the law of contempt. The law does not mean merely the
statute law but also the constitutional provisions. The right, therefore, is subject to the
restrictions placed by the law of contempt as contained in the statute - in the present case,
the Contempt of Courts Act, 1971 as well as to the jurisdiction of this Court and of the High
Court to take action under Articles 129 and 215 of the Constitution respectively. We,
therefore, do not see any conflict between the provisions of Articles 129 and 215, and Article
19(1)(a) and Article 19(1)(g) read with Articles 19(2) and 19(6) respectively. 53. When the
Constitution vests this Court with a special and specific power to take action for contempt
not only of itself but of the lower courts and tribunals, for discharging its constitutional
obligations as the highest custodian of justice in the land, that power is obviously coupled
with a duty to protect all the limbs of the administration of justice from those whose actions
create interference with or obstruction to the course of justice. Failure to exercise the power
on such occasions, when it is invested specifically for the purpose, is a failure to discharge
the duty. In this connection, we may refer to the following extract from the decision of this
Court in Chief Controlling Revenue Authority and Superintendent of Stamps v. Maharashtra
Sugar Mills Ltd. [AIR 1950 SC 218]: 154 “But when a capacity or power is given to a public
authority there may be circumstances which couple with the power a duty to exercise it. To
use the language of Lord Cairns in the case of Julius v. Bishop of Oxford [(1880) 5 AC 214]:
‘There may be something in the nature of the thing empowered to be done, something in
the object for which it is to be done, something in the conditions under which it is to be
done, something in the title of the person or persons for whose benefit the power is to be
exercised, which may couple the power with a duty, and make it the duty of the person in
whom the power is reposed to exercise that power when called upon to do so’.” 54. For the
reasons discussed above, we find the contemner, Shri Vinay Chandra Mishra, guilty of the
offence of the criminal contempt of the Court for having interfered with and obstructed the
course of justice by trying to threaten, overawe and overbear the Court by using insulting,
disrespectful and threatening language, and convict him of the said offence. Since the
contemner is a senior member of the Bar and also adorns the high offices such as those of
the Chairman of the Bar Council of India, the President of the U.P. High Court Bar
Association, Allahabad and others, his conduct is bound to infect the members of the Bar all
over the country. We are, therefore, of the view that an exemplary punishment has to be
meted out to him. 55. The facts and circumstances of the present case justify our invoking
the power under Article 129 read with Article 142 of the Constitution to award to the
contemner a suspended sentence of imprisonment together with suspension of his practice
as an advocate in the manner directed herein. We accordingly sentence the contemner for
his conviction for the offence of criminal contempt as under: (a) The contemner Vinay
Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six
weeks. However, in the circumstances of the case, the sentence will remain suspended for a
period of four years and may be activated in case the contemner is convicted for any other
offence of contempt of court within the said period; and (b) The contemner shall stand
suspended from practising as an advocate for a period of three years from today with the
consequence that all elective and nominated offices/posts at present held by him in his
capacity as an advocate, shall stand vacated by him forthwith. The contempt petition is
disposed of in the above terms. 155 Pravin C. Shah v. K.A. Mohd. Ali (2001) 8 SCC 650 K.T.
THOMAS, J. - We thought that the question involved in this appeal would generate much
interest to the legal profession and hence we issued notices to the Bar Council of India as
well as the State Bar Council concerned. But the Bar Council of India did not respond to the
notice. We therefore requested Mr Dushyant A. Dave, Senior Advocate, to help us as amicus
curiae. The learned Senior Counsel did a commendable job to help us by projecting a wide
screen focussing on the full profiles of the subject with his usual felicity. We are beholden to
him. 2. When an advocate was punished for contempt of court can he appear thereafter as a
counsel in the courts, unless he purges himself of such contempt? If he cannot, then what is
the way he can purge himself of such contempt? That question has now come to be
determined by the Supreme Court. 3. This matter concerns an advocate practising mostly in
the courts situated within Ernakulam District of Kerala State. He was hauled up for contempt
of court on two successive occasions. We wish to skip the facts in both the said cases which
resulted in his being hauled up for such contempt as those facts have no direct bearing on
the question sought to be decided now. [The detailed facts leading to the said proceedings
have been narrated in the two decisions of the High Court of Kerala reported in C.N.
Presannan v. K.A. Mohammed Ali, 1991 Cri LJ 2194 (Ker) & 1991 Cri LJ 2205 (Ker)].
Nonetheless, it is necessary to state that the High Court of Kerala found the respondent
Advocate guilty of criminal contempt in both cases and convicted him under Section 12 of
the Contempt of Courts Act, 1971, and sentenced him in one case to a fine of Rs 10,000 (to
be credited, if realised, to the funds of Kerala Legal Aid Board). In the second case he was
sentenced to pay a fine of Rs 2000. Though he challenged the conviction and sentence
imposed on him by the High Court, he did not succeed in the Supreme Court except getting
the fine of Rs 2000 in one case deleted. The apology tendered by him in this Court was not
accepted, for which a two-Judge Bench made the following observation: “We regretfully will
not be able to accept his apology at this belated juncture, but would rather admonish the
appellant for his conduct under our plenary powers under the Constitution, which we do
hereby.” 4. The above conviction and sentence and refusal to accept the apology tendered
on his behalf did not create any ripple in him, so far as his resolve to continue to appear and
conduct cases in the courts was concerned. The present appellant (who represents an
association “Lalan Road Residents’ Association, Cochin”) brought to the notice of the Bar
Council of Kerala that the delinquent Advocate continued to conduct cases before the courts
in Ernakulam District in spite of the conviction and sentence. 156 5. The Bar Council of Kerala
thereupon initiated disciplinary proceedings against the respondent Advocate and finally
imposed a punishment on him debarring him from “acting or pleading in any court till he
gets himself purged of the contempt of court by an order of the appropriate court”. The
respondent Advocate challenged the order of the State Bar Council in an appeal filed before
the Bar Council of India. By the impugned order the Bar Council of India set aside the
interdict imposed on him. 6. This appeal, in challenge of the aforesaid order of the Bar
Council of India, is preferred by the same person at whose instance the State Bar Council
initiated action against the respondent Advocate. 8. The above Rule shows that it was not
necessary for the Disciplinary Committee of the Bar Council to impose the said interdict as a
punishment for misconduct. Even if the Bar Council had not passed proceedings (which the
Disciplinary Committee of the Bar Council of India has since set aside as per the impugned
order) the delinquent Advocate would have been under the disability contained in Rule 11
quoted above. It is a self-operating rule for which only one stipulation need be satisfied i.e.
the advocate concerned should have been found guilty of contempt of court. The terminus
of the period of operation of the interdict is indicated by the next stipulation i.e. the
contemnor purges himself of the contempt. The inhibition will therefore start operating
when the first stipulation is satisfied, and it would continue to function until the second
stipulation is fulfilled. The latter condition would remain eluded until the delinquent
Advocate himself initiates steps towards that end. 9. Regarding the first condition there is no
difficulty whatsoever in the present case because it is an admitted fact that the respondent
Advocate has been found guilty of contempt of court by the High Court of Kerala in two
cases successively. For the operation of the interdict contained in Rule 11 it is not even
necessary that the Advocate should have been sentenced to any punishment after finding
him guilty. The difficulty arises in respect of the second condition mentioned above. 10. The
Disciplinary Committee of the Bar Council of India seems to have approached the question
from a wrong angle by posing the following question: “The fundamental question arising for
consideration in this appeal is whether Rule 11 of the Rules framed by the Hon’ble High
Court of Kerala under Section 34(1) of the Advocates Act, 1961, is binding on the Disciplinary
Committee of the State Bar Council and if not, whether the Disciplinary Committee was
justified in ordering that on account of the disqualification under Rule 11 the appellant could
not be allowed to appear, act or plead till he gets himself purged of the contempt by an
order of the appropriate court.” 11. There is no question of Rule 11 being binding on the
Disciplinary Committee or any other organ of the Bar Council. There is nothing in the said
Rule which would involve the Bar Council in any manner. But there is nothing wrong in the
Bar Council informing a delinquent advocate of the existence of a bar contained in Rule 11
and remind him of his liability to abide 157 by it. Hence the question formulated by the
Disciplinary Committee of the Bar Council of India, as aforequoted, was unnecessary and
fallacious. 12. In the impugned order the Disciplinary Committee rightly stated that “the
exercise of the disciplinary powers over the advocates is exclusively vested with the Bar
Council and this power cannot be taken away by the High Court either by a judicial order or
by making a rule”. This is precisely the legal position adumbrated by the Constitution Bench
of this Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409]. In fact the
relevant portions of the said decision have been quoted in the impugned order in extenso.
But having informed themselves of the correct legal position regarding the powers of the Bar
Council the members of the Disciplinary Committee of the Bar Council of India embarked on
a very erroneous concept when it observed the following: “But to say that an advocate who
had been found guilty of contempt of court shall not be permitted to appear, act or plead in
a court unless he has purged himself of the contempt would amount to usurpation of
powers of Bar Council.” 13. After examining Rule 11 of the Rules the Disciplinary Committee
of the Bar Council of India held that “there cannot be an automatic deprivation of the right
of an advocate to appear, act or plead in a court, since such a course would be unfair and
even violative of the fundamental rights guaranteed under Articles 14, 19(1)(g) and 21 of the
Constitution of India”. In the end the Disciplinary Committee of the Bar Council of India
made an unwarranted proposition on a misplaced apprehension as follows: “The
independence and autonomy of the Bar Council cannot be surrendered to the provisions
contained in Rule 11 of the Rules made by the High Court of Kerala under Section 34(1) of
the Advocates Act.” 14. By giving expression to such a proposition the Bar Council of India
has obviously overlooked the legal position laid down by the Constitution Bench in Supreme
Court Bar Assn. v. Union of India. In para 57 of the decision the Bench said thus: “57. In a
given case, an advocate found guilty of committing contempt of court may also be guilty of
committing ‘professional misconduct’, depending upon the gravity or nature of his
contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by
different forums by following separate and distinct procedures. The power to punish an
advocate by suspending his licence or by removal of his name from the roll of the State Bar
Council for proven professional misconduct vests exclusively in the statutory authorities
created under the Advocates Act, 1961, while the jurisdiction to punish him for committing
contempt of court vests exclusively in the courts.” 15. Thereafter in para 80, the Constitution
Bench said the following: 158 “80. In a given case it may be possible, for this Court or the
High Court, to prevent the contemnor advocate to appear before it till he purges himself of
the contempt but that is much different from suspending or revoking his licence or debarring
him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or
blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the
Supreme Court Rules itself, to withdraw his privilege to practise as an Advocate-on-Record
because that privilege is conferred by this Court and the power to grant the privilege
includes the power to revoke or suspend it. The withdrawal of that privilege, however, does
not amount to suspending or revoking his licence to practise as an advocate in other courts
or tribunals.” 16. Rule 11 of the Rules is not a provision intended for the Disciplinary
Committee of the Bar Council of the State or the Bar Council of India. It is a matter entirely
concerning the dignity and the orderly functioning of the courts. The right of the advocate to
practise envelops a lot of acts to be performed by him in discharge of his professional duties.
Apart from appearing in the courts he can be consulted by his clients, he can give his legal
opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other
documents, he can participate in any conference involving legal discussions etc. Rule 11 has
nothing to do with all the acts done by an advocate during his practice except his
performance inside the court. Conduct in court is a matter concerning the court and hence
the Bar Council cannot claim that what should happen inside the court could also be
regulated by the Bar Council in exercise of its disciplinary powers. The right to practise, no
doubt, is the genus of which the right to appear and conduct cases in the court may be a
specie. But the right to appear and conduct cases in the court is a matter on which the court
must have the major supervisory power. Hence the court cannot be divested of the control
or supervision of the court merely because it may involve the right of an advocate. 17. When
the Rules stipulate that a person who committed contempt of court cannot have the
unreserved right to continue to appear and plead and conduct cases in the courts without
any qualm or remorse, the Bar Council cannot overrule such a regulation concerning the
orderly conduct of court proceedings. Courts of law are structured in such a design as to
evoke respect and reverence for the majesty of law and justice. The machinery for
dispensation of justice according to law is operated by the court. Proceedings inside the
courts are always expected to be held in a dignified and orderly manner. The very sight of an
advocate, who was found guilty of contempt of court on the previous hour, standing in the
court and arguing a case or crossexamining 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. 159 22. We have already pointed out that Rule 11 of the
Rules is a self-operating provision. When the first postulate of it is completed (that the
advocate has been found guilty of contempt of court) his authority to act or plead in any
court stands snapped, though perhaps for the time being. If he does such things without the
express permission of the court he would again be guilty of contempt of court besides such
act being a misconduct falling within the purview of Section 34 of the Advocates Act. The
interdict as against him from appearing in court as a counsel would continue until such time
as he purges himself of the contempt. 23. Now we have to consider the crucial question -
how can a contemnor purge himself of the contempt? According to the Disciplinary
Committee of the Bar Council of India, purging oneself of contempt can be done by
apologising to the court. The said opinion of the Bar Council of India can be seen from the
following portion of the impugned order: “Purging oneself of contempt can be only by
regretting or apologising in the case of a completed action of criminal contempt. If it is a case
of civil contempt, by subsequent compliance with the orders or directions the contempt can
be purged of. There is no procedural provision in law to get purged of contempt by an order
of an appropriate court.” 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. 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. 25. We are told that a learned Single Judge
of the Allahabad High Court has expressed a view that purging process would be completed
when the contemnor undergoes the penalty [vide Madan Gopal Gupta (Dr) v. Agra
University, AIR 1974 All 39]. This is what the learned Single Judge said about it: “In my
opinion a party in contempt purged its contempt by obeying the orders of the court or by
undergoing the penalty imposed by the court.” 26. Obeying the orders of the court would be
a mode by which one can make the purging process in a substantial manner when it is a civil
contempt. Even for such a civil contempt the purging process would not be treated as
completed merely by the contemnor undergoing the penalty imposed on him unless he has
obeyed the order of the court or he has undone the wrong. If that is the position in regard to
civil contempt the position regarding criminal contempt must be stronger. Section 2 of the
Contempt of Courts Act categorises contempt of court into two 160 categories. The first
category is “civil contempt” which is the wilful disobedience of the order of the court
including breach of an undertaking given to the court. But “criminal contempt” includes
doing any act whatsoever, which tends to scandalise or lowers the authority of any court, or
tends to interfere with the due course of a judicial proceeding or interferes with, or
obstructs the administration of justice in any other manner. 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. 29. This Court has held in M.Y. Shareef v.
Hon’ble Judges of the Nagpur High Court [AIR 1955 SC 19], that “an apology is not a weapon
of defence to purge the guilty of their offence; nor is it intended to operate as a universal
panacea, but it is intended to be evidence of real contriteness”. Ahmadi, J. (as the learned
Chief Justice then was) in M.B. Sanghi, Advocate v. High Court of Punjab and Haryana [(1991)
3 SCC 600], while considering an apology tendered by an advocate in a contempt proceeding
has stated thus: “And here is a member of the profession who has repeated his performance
presumably because he was let off lightly on the first occasion. Soft justice is not the answer
- not that the High Court has been harsh with him - what I mean is he cannot be let off on an
apology which is far from sincere. His apology was hollow, there was no remorse - no regret
- it was only a device to escape the rigour of the law. What he said in his affidavit was that he
had not uttered the words attributed to him by the learned Judge; in other words the
learned Judge was lying - adding insult to injury - and yet if the court 161 finds him guilty (he
contested the matter tooth and nail) his unqualified apology may be accepted. This is no
apology, it is merely a device to escape.” 30. A four-Judge Bench of this Court in Mulk Raj v.
State of Punjab [(1972) 3 SCC 839] made the following observations which would throw
considerable light on the question before us: “9. Apology is an act of contrition. Unless
apology is offered at the earliest opportunity and in good grace apology is shorn of
penitence. If apology is offered at a time when the contemnor finds that the court is going to
impose punishment it ceases to be an apology and it becomes an act of a cringing coward.
The High Court was right in not taking any notice of the appellant’s expression of apology
‘without any further word’. The High Court correctly said that acceptance of apology in the
case would amount to allow the offender to go away with impunity after having committed
gross contempt.” 31. Thus a mere statement made by a contemnor before court that he
apologises is hardly enough to amount to purging himself of the contempt. The court must
be satisfied of the genuineness of the apology. If the court is so satisfied and on its basis
accepts the apology as genuine the court has to make an order holding that the contemnor
has purged himself of the contempt. Till such an order is passed by the court the delinquent
advocate would continue to be under the spell of the interdict contained in Rule 11 of the
Rules. 32. Shri Sadrul Anam, learned counsel for the respondent Advocate submitted first,
that the respondent has in fact apologised before this Court through the counsel engaged by
him, and second is that when this Court observed that “this course should set everything at
rest” it should be treated as the acknowledgement made by this Court that the contemnor
has purged himself of the guilt. 33. We are unable to accept either of the said contentions.
The observation that “this course should set everything at rest” in the judgment of this Court
cannot be treated as anything beyond the scope of the plea made by the respondent in that
case. That apart, this Court was certainly disinclined to accept the apology so tendered in
this Court which is clearly manifested from the outright repudiation of that apology when
this Court said thus: “We regretfully will not be able to accept his apology at this belated
juncture, but would rather admonish the appellant for his conduct under our plenary powers
under the Constitution, which we do hereby.” 34. The respondent Advocate continued to
appear in all the courts where he was earlier appearing even after he was convicted by the
High Court for criminal contempt without being objected by any court. This is obviously on
account of the fact that presiding officers of the court were not informed of what happened.
We, therefore, direct that in future, whenever an advocate is convicted by the High Court for
contempt of court, the Registrar of that High Court shall intimate the fact to all the courts
within the jurisdiction of that High Court so that presiding 162 officers of all courts would get
the information that the particular advocate is under the spell of the interdict contained in
Rule 11 of the Rules until he purges himself of the contempt. 35. It is still open to the
respondent Advocate to purge himself of the contempt in the manner indicated above. But
until that process is completed the respondent Advocate cannot act or plead in any court
situated within the domain of the Kerala High Court, including the subordinate courts
thereunder. The Registrar of the High Court of Kerala shall intimate all the courts about this
interdict as against the respondent Advocate. * * * * * 163 Bal Thackrey vs Harish
Pimpalkhute & Ors (2005) 1 SCC 254E Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun
Chatterjee JUDGMENT: Action for contempt is divisible into two categories, namely, that
initiated suo motu by the Court and that instituted otherwise than on the court's own
motion. The mode of initiation in each case would necessarily be different. While in the case
of suo motu proceedings, it is the Court itself which must initiate by issuing a notice, in the
other cases initiation can only be by a party filing an application. [Pallav Sheth v. Custodian
and Others (2001) 7 SCC 549]. The main issue for determination in these appeals is whether
contempt proceedings were initiated against the appellant suo motu by the court or by
respondents. First we may note the background under which these matters were referred to
a larger Bench. Delhi High Court in the case of Anil Kumar Gupta v. K.Suba Rao & Anr. [ILR
(1974) 1 Del.1] issued following directions : "The office is to take note that in future if any
information is lodged even in the form of a petition inviting this Court to take action under
the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not
one of the persons named in Section 15 of the said Act, it should not be styled as a petition
and should not be placed for admission on the judicial side. Such a petition should be placed
before the Chief Justice for orders in Chambers and the Chief Justice may decide either by
himself or in consultation with the other judges of the Court whether to take any cognizance
of the information." In P.N.Duda v. P.Shiv Shanker & Ors. [(1988) 3 SCC 167] this Court
approving the aforesaid observation of Delhi High Court directed as under: "...the direction
given by the Delhi High Court sets out the proper procedure in such cases and may be
adopted, at least in future, as a practice direction or as a rule, by this Court and other High
Courts." Challenging the conviction of the appellant for offence under Section 15 of the
Contempt of Courts Act, 1971 (for short 'the Act') it was, inter alia, contended that the
directions in P.N.Duda's case (supra) were not followed by the High Court inasmuch as the
informative papers styled as contempt petitions were not placed before the Chief Justice of
the High Court for suo motu action and, therefore, the exercise was uncalled for and beyond
legal sanctity. This aspect assumed significant importance because admittedly the contempt
petitions were filed in the High Court without the consent of the Advocate-General and,
therefore, not competent except when the court finds that the contempt action was taken
by the court on its own motion. The two-judge bench hearing the appeals expressed the
view that the aforesaid directions 164 approved by this Court in P.N.Duda's case are of far-
reaching consequences. The Bench observed that the power under Section 15 of the Act to
punish contemners for contempt rests with the court and in Duda's case, they seem to have
been denuded to rest with the Chief Justice on the administrative side. Expressing doubts
about the correctness of the observations made in Duda's case, and observing that the same
require reconsideration, these appeals were directed to be referred for decision by a larger
Bench. Under this background, these matters have been placed before us. For determination
of the main issue in these appeals including the aforesaid aspect arising out of Duda's case, it
is necessary to briefly note the object of the power of the Court to punish a person for
contempt. Every High Court besides powers under the Act has also the power to punish for
contempt as provided in Article 215 of the Constitution of India. Repealing the Contempt of
Courts Act, 1952, the Act was enacted, inter alia, providing definition of civil and criminal
contempt and also providing for filtering of criminal contempt petitions. The Act laws down
'contempt of court' to mean civil contempt or criminal contempt. We are concerned with
criminal contempt. 'Criminal contempt' is defined in Section 2(c) of the Act. It, inter alia,
means the publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act whatsoever which
scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court.
The procedure for initiating a proceeding of contempt when it is committed in the face of
the Supreme Court or High Court has been prescribed in Section 14 of the Act. In the case of
criminal contempt, other than a contempt referred to in Section 14 the manner of taking
cognizance has been provided for in Section 15 of the Act. This section, inter alia, provides
that action for contempt may be taken on court's own motion or on a motion made by (a)
the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-
General. The contempt jurisdiction enables the Court to ensure proper administration of
justice and maintenance of the rule of law. It is meant to ensure that the courts are able to
discharge their functions properly, unhampered and unsullied by wanton attacks on the
system of administration of justice or on officials who administer it, and to prevent willful
defiance of orders of the court or undertakings given to the court [Commissioner, Agra v.
Rohtas Singh (1998) 1 SCC 349]. In Supreme Court Bar Association v. Union of India & Anr.
[(1998) 4 SCC 409] it was held that "The purpose of contempt jurisdiction is to uphold the
majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining "the
jury, the judge and the hangman" and it is so because the court is not adjudicating upon any
claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an
individual judge but to protect the administration of justice from being maligned. In the
general interest of the community it is imperative that the authority of courts should not be
imperiled and there should be no unjustifiable interference in the administration of justice."
Dealing with the nature and character of the power of the courts to deal with contempt in
the case of Pritam Pal, v. High Court of Madhya Pradesh, Jabalpur Through Registrar, [(1993)
Supp. (1) SCC 529], this Court observed : "15. Prior to the Contempt of Courts Act, 1971, it
was held that the High Court has inherent power to deal with a contempt of itself summarily
and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to
the contemnor to defend himself. But the procedure 165 has now been prescribed by
Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh
Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and
the High Court can be regulated by legislation by appropriate legislature under Entry 77 of
List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971,
the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional
foundation by declaring to be 'Courts of Record' under Articles 129 and 215 of the
Constitution and, therefore, the inherent power of the Supreme Court and the High Court
cannot be taken away by any legislation short of constitutional amendment. In fact, Section
22 of the Act lays down that the provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law relating to contempt of courts. It necessarily
follows that the constitutional jurisdiction of the Supreme Court and the High Court under
Articles 129 and 215 cannot be curtailed by anything in the Act of 1971" The nature and
power of the Court in contempt jurisdiction is a relevant factor for determining the
correctness of observations made in Duda's case (supra). Dealing with the requirement to
follow the procedure prescribed by law while exercising powers under Article 215 of the
Constitution to punish for contempt, it was held by this Court in Dr. L.P. Misra v. State of U.P.
[(1998) 7 SCC 379] that the High Court can invoke powers and jurisdiction vested in it under
Article 215 of the Constitution of India but such a jurisdiction has to be exercised in
accordance with the procedure prescribed by law. The exercise of jurisdiction under Article
215 of the Constitution is also governed by laws and the rules subject to the limitation that if
such laws/rules stultify or abrogate the constitutional power then such laws/rules would not
be valid. In L.P.Misra's case (supra) it was observed that the procedure prescribed by the
Rules has to be followed even in exercise of jurisdiction under Article 215 of the
Constitution. To the same effect are the observations in Pallav Sheth's case (supra). For
determination of the issues involved, it would also be useful to note the observations made
in the case of S.K.Sarkar, Member, Board of Revenue, U.P., Lucknow v. Vinay Chandra Misra,
[(1981) 1 SCC 436] to the following effect: "Section 15 does not specify the basis or the
source of information on which the High Court can act on its own motion. If the High Court
acts on information derived from its own sources, such as from a perusal of the records of a
subordinate court or on reading a report in a newspaper or hearing a public speech, without
there being any reference from the subordinate court or the Advocate General, it can be
said to have taken cognizance on its own motion. But if the High Court is directly moved by a
petition by a private person feeling aggrieved, not being the Advocate General, can the High
Court refuse to entertain the same on the ground that it has been made without the consent
in writing of the Advocate General? It appears to us that the High Court, has, in such a
situation, a discretion to refuse to entertain the petition, or to take cognizance on its own
motion on the basis of the information supplied to it in that petition." In P.N.Duda's case
(supra), it was held that :- "54. A conjoint perusal of the Act and rules makes it clear that, so
far as this Court is concerned, action for contempt may be taken by the court on its own
motion or on the motion of the Attorney General (or Solicitor General) or of any other
person with his consent in writing. There 166 is no difficulty where the Court or the Attorney
General chooses to move in the matter. But when this is not done and a private person
desires that such action should be taken, one of three courses is open to him. He may place
the information in his possession before the court and request the court to take action (vide
C. K. Daphtary v. O. P. Gupta and Sarkar v. Misra); he may place the information before the
Attorney General and request him to take action; or he may place the information before
the Attorney General and request him to permit him to move to the court." The direction
issued and procedure laid down in Duda's case is applicable only to cases that are initiated
suo motu by the Court when some information is placed before it for suo motu action for
contempt of court. A useful reference can also be made to some observations made in
J.R.Parashar, Advocate, and Others v. Prasant Bhushan, Advocate and Others [(2001) 6 SCC
735]. In that case noticing the Rule 3 of the Rules to regulate proceedings for contempt of
the Supreme Court, 1975 which like Section 15 of the Act provides that the Court may take
action in cases of criminal contempt either (a) suo motu; or (b) on a petition made by
Attorney-General or Solicitor-General, or (c) on a petition made by any person and in the
case of a criminal contempt with consent in writing of the Attorney-General or the Solicitor-
General as also Rule 5 which provides that only petitions under Rules 3(b) and (c) shall be
posted before the Court for preliminary hearing and for orders as to issue of notice, it was
observed that the matter could have been listed before the Court by the Registry as a
petition for admission only if the Attorney-General or Solicitor-General had granted the
consent. In that case, it was noticed that the Attorney-General had specifically declined to
deal with the matter and no request had been made to the Solicitor-General to give his
consent. The inference, therefore, is that the Registry should not have posted the said
petition before the Court for preliminary hearing. Dealing with taking of suo motu
cognizance in para 28 it was observed as under:- "Of course, this Court could have taken suo
motu cognizance had the petitioners prayed for it. They had not. Even if they had, it is
doubtful whether the Court would have acted on the statements of the petitioners had the
petitioners been candid enough to have disclosed that the police had refused to take
cognizance of their complaint. In any event the power to act suo motu in matters which
otherwise require the Attorney-General to initiate proceedings or at least give his consent
must be exercised rarely. Courts normally reserve this exercise to cases where it either
derives information from its own sources, such as from a perusal of the records, or on
reading a report in a newspaper or hearing a public speech or a document which would
speak for itself. Otherwise sub-section (1) of Section 15 might be rendered otiose" The
whole object of prescribing procedural mode of taking cognizance in Section 15 is to
safeguard the valuable time of the court from being wasted by frivolous contempt petition.
In J.R. Parashar's case (supra) it was observed that underlying rational of clauses (a), (b) and
(c) of Section 15 appears to be that when the court is not itself directly aware of the
contumacious conduct, and the actions are alleged to have taken place outside its precincts,
it is necessary to have the allegations screened by the prescribed authorities so that Court is
not troubled with the 167 frivolous matters. To the similar effect is the decision in
S.R.Sarkar's case (supra). In the light of the aforesaid, the procedure laid and directions
issued in Duda's case are required to be appreciated also keeping in view the additional
factor of the Chief Justice being the master of the roster. In State of Rajasthan v. Prakash
Chand and Others [ (1998) 1 SCC 1] it was held that it is the prerogative of the Chief Justice
of the High Court to distribute business of the High Court both judicial and administrative.
He alone has the right and power to decide how the Benches of the High Court are to be
constituted; which Judge is to sit alone and which cases he can and is required to hear as
also to which Judges shall constitute a Division Bench and what work those Benches shall do.
The directions in Duda's case when seen and appreciated in the light of what we have
noticed hereinbefore in respect of contempt action and the powers of the Chief Justice, it
would be clear that the same prescribe the procedure to be followed by High Courts to
ensure smooth working and streamlining of such contempt actions which are intended to be
taken up by the court suo motu on its own motion. These directions have no effect of
curtailing or denuding the power of the High Court. It is also to be borne in mind that the
frequent use of suo motu power on the basis of information furnished in a contempt
petition otherwise incompetent under Section 15 of the Act may render the procedural
safeguards of Advocate-General's consent nugatory. We are of the view that the directions
given in Duda's case are legal and valid. Now, the question is whether in these matters the
High Court initiated contempt action on its own motion or on motions made by the
respondents. It is not in dispute that the two contempt petitions (Contempt Petition No.12
and Contempt Petition No.13 of 1996) were filed in the High Court against the appellant
under Section 15 of the Act for having committed contempt of court as postulated under
Section 2(c) of the Act for having made a public speech. According to the petitions, the
appellant scandalised the court or at least the offending speech had the tendency to
scandalise or lower the authority of the Court. The contempt petitions were filed without
obtaining the consent of the Advocate-General. In one of the petitions consent had not even
been sought for and besides the prayer for holding the appellant guilty of contempt, further
prayers were also made for suitable inquiry being made in the allegations made by the
appellant in the speech and for issue of directions to him to appear before Court and reveal
the truth and for prosecuting him. The applicant before the High Court, it seems clear from
the averments made in the contempt petition was in an opposite political camp. The petition
was based on utterances made by appellant in public meetings held on 21st October, 1996.
It is well settled that the requirement of obtaining consent in writing of the Advocate-
General for making motion by any person is mandatory. A motion under Section 15 not in
conformity with the requirements of that Section is not maintainable. [State of Kerala v.
M.S.Mani and Others[(2001) 8 SCC 82]. In Contempt Petition No.12 an application dated
22nd October, 1996 was submitted to the Advocate-General along with proposed contempt
petition stating that the applicant wanted to file petition by 2nd December, 1996 and,
therefore, the permission may be granted before that date and further stating that if no
answer is received from the Advocate-General it would be presumed that permission has
been granted and the applicant will proceed with the intended contempt proceedings. Such
a course is not permissible under Section 15 of the Act. There is no question of any
presumption. In fact, Contempt Petition No.12 was filed on 2nd December, without the
consent of the Advocate-General. It further appears that the application seeking permission
of the Advocate-General was received by him on 26th November, 1996. It also appears that
the 168 Advocate-General appeared before the Court on 3rd February, 1997 and stated that
he can decide the question of consent within a reasonable time. The impugned judgment
holding appellant guilty of contempt and inflicting simple imprisonment for a period of one
week and fine of Rs.2000/- was passed on 7th February, 1997. A perusal of record including
the notices issued to the appellant shows that the Court had not taken suo motu action
against the appellant. In contempt petitions, there was no prayer for taking suo motu action
for contempt against the appellant. The specific objection taken that though suo motu
action could be taken under Section 15 of the Act on any information or newspaper but not
on the basis of those contempt petitions which were filed in regular manner by private
parties, was rejected by the High Court observing that being Court of Record it can evolve its
own procedure, which means that the procedure should provide just and fair opportunity to
the contemner to defend effectively and that the contemner has not expressed any
prejudice or canvassed any grievance that he could not understand the charge involved in
the proceeding which he had been called upon to defend. It is, however, not in dispute that
the charge against the appellant was not framed. In these matters, the question is not about
compliance or non- compliance of the principles of natural justice by granting adequate
opportunity to the appellant but is about compliance of the mandatory requirements of
Section 15 of the Act. As already noticed the procedure of Section 15is required to be
followed even when petition is filed by a party under Article 215 of the Constitution, though
in these matters petitions filed were under Section 15 of the Act. From the material on
record, it is not possible to accept the contention of the respondents that the Court had
taken suo motu action. Of course, the Court had the power and jurisdiction to initiate
contempt proceedings suo motu and for that purpose consent of the Advocate-General was
not necessary. At the same time, it is also to be borne in mind that the Courts normally take
suo motu action in rare cases. In the present case, it is evident that the proceedings before
the High Court were initiated by the respondents by filing contempt petitions under Section
15. The petitions were vigorously pursued and strenuously argued as private petitions. The
same were never treated as suo motu petitions. In absence of compliance of mandatory
requirement of Section 15, the petitions were not maintainable. As a result of aforesaid
view, it is unnecessary to examine in the present case, the effect of non-compliance of the
directions issued in Duda's case by placing the informative papers before the Chief Justice of
the High Court. For the foregoing reasons we set aside the impugned judgment and allow
the appeals. Fine, if deposited by the appellant shall be refunded to him. Before parting, it is
necessary to direct framing of necessary rule or practice direction by the High Courts in
terms of Duda's case. Accordingly, we direct Registrar-General to send a copy of this
judgment to the Registrar-Generals of the High Courts so that wherever rule and/or practice
direction on the line suggested in Duda's case has not been framed, the High Courts may
now frame the same at their earliest convenience. 169 PART B - PROFESSIONAL ETHICS PART
- A : STANDARDS OF ETIQUETTE AND PROFESSIONAL ETHICS An Advocate v. Bar Council of
India 1989 Supp (2) SCC 25 M.P. THAKKAR, J. - A host of questions of seminal significance,
not only for the advocate who has been suspended from practising his profession for 3 years
on the charge of having withdrawn a suit (as settled) without the instructions from his client,
but also for the members of the legal profession in general have arisen in this appeal: (1)
Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed? (2) Whether in the absence of
an allegation or finding of dishonesty or mens rea a finding of guilt and a punishment of this
nature can be inflicted on him? (3) Whether the allegations and the finding of guilt require
to be proved beyond reasonable doubt? (4) Whether the doctrine of benefit of doubt
applies? (5) Whether an advocate acting bona fide and in good faith on the basis of oral
instructions given by someone purporting to act on behalf of his client, would be guilty of
professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or
culpable negligence punishable as professional misconduct? 2. The suit was a suit for
recovery of Rs 30,098 (Suit No. 65 of 1981 on the file of Additional City Civil Judge,
Bangalore). It appears that the complainant had entrusted the brief of the appellant which
he in his turn had entrusted to his junior colleague (Respondent 2 herein) who was attached
to his office and was practising along with him at his office at the material time. At the point
of time when the suit was withdrawn, Respondent 2 was practising on his own having set up
his separate office. On the docket of the brief pertaining to the suit, the appellant made an
endorsement giving instructions to withdraw the suit as settled. A sketch was drawn on the
back of the cover to enable the person carrying the brief to the junior colleague to locate his
office in order to convey the instructions as per the endorsement made by the appellant.
The allegations made by the complainant against the appellant are embodied in paras 1 and
2 of his complaint: (1) The petitioner submits that he entrusted a matter to Respondent 2 to
file a case against Shri A. Anantaraju for recovery of a sum of Rs 30,098 with court costs and
current interest in Case No. OS 1965 of 1981 on the file of the City Civil Judge at Bangalore.
The petitioner submits that the said suit was filed by the first respondent who was then a
junior of Respondent 2. The petitioner submits that the matter in dispute in the suit was not
settled at 170 all and the first respondent without the knowledge and without the
instructions of the petitioner has filed a memo stating that the matter is settled out of court
and got the suit dismissed and he has also received half of the institution court fee within 10
days since the date of the disposal of the suit. The petitioner submits that he has not
received either the suit amount or the refund of court fee and he is not aware of the
dismissal of the suit as settled out of court. (2) The petitioner submits that when the case
was posted for filing of written statement itself the first respondent has filed such a memo
stating that the suit was settled out of court. The petitioner submits that in fact, the
respondents did not even inform the petitioner about the dates of hearing and when the
petitioner asked the dates of hearing the respondents informed the petitioner stating that
his presence is not required in the court since the case was posted for filing of written
statement and therefore, the petitioner did not attend the court on that day. The petitioner
submits that when he enquired about the further date of hearing the respondents did not
give the date and said that they would verify the next date of hearing since they have not
attended the case since the case was posted for filing written statement by the defendant.
The petitioner submits that when he himself went to the court and verified he found to his
great surprise that the suit is dismissed as settled out of court and later learnt that even the
half of the institution court fee is also taken by the first respondent within 10 days. 3. The
version of the appellant may now be unfolded: (1) One Gautam Chand (RW 3) has been a
longstanding client of the appellant. Gautam Chand had business dealings with the plaintiff
Haradara and the defendant Anantaraju. Besides, Anantaraju executed an agreement dated
9-8-1980 to sell his house property to Gautam Chand. He received earnest money in the sum
of Rs 35,000 from Gautam Chand. Anantaraju, however, did not execute the sale deed
within the stipulated period and during the extended period. It was in these circumstances
that Gautam Chand (RW 3) approached the appellant for legal advice. (2) It is the common
case of parties that Gautam Chand introduced the complainant Haradara to the appellant
and his colleague advocate Respondent 2. (3) The appellant caused the issue of notice dated
1-6-1981 (Ex. R/15) on behalf of Gautam Chand addressed to the seller Anantaraju calling
upon him to execute the sale deed. On the same date, a notice was separately issued on
behalf of the complainant Haradara addressed to Anantaraju demanding certain amounts
due on the three ‘self’ bearer cheques aggregating Rs 30,098 issued by Anantaraju in course
of their mutual transactions. This notice was issued by the advocate Respondent 2 acting on
behalf of the complainant Haradara. (4) Gautam Chand (RW 3) and Haradara (PW 1) were
friends. Anantaraju was their common adversary. There was no conflict of interests as
between Gautam Chand and 171 Haradara. Gautam Chand instructed the appellant and his
colleague Respondent 2 Ashok, that he was in possession of the said cheques issued by
Anantaraju and that no amount was actually due from Anantaraju to the complainant
Haradara. Gautam Chand was desirous of steps to induce Anantaraju to execute the sale
deed in his favour. (5) A suit being OS No. 1965 of 1981 was instituted on behalf of the
complainant Haradara claiming an amount of Rs 30,000 and odd, from the defendant
Anantaraju on the basis of the aforesaid cheques. It was instituted on 30-6-1981. An
interlocutory application was moved on behalf of Haradara by Respondent 2 as his advocate
seeking the attachment before judgment of the immovable property belonging to the
defendant Anantaraju. The property was in fact the subject of an agreement to sell between
Anantaraju and Gautam Chand (RW 3). The court initially declined to grant an order of
attachment. In order to persuade the court, certain steps were taken through the said
Gautam Chand. He caused the publication of a notice stating that the property in question
was the subject-matter of an agreement between Anantaraju and himself and it should not
be dealt with by anyone. The publication of this notice was relied upon subsequently on
behalf of the complainant Haradara by his advocate (Respondent 2), Ashok in seeking an
order of attachment. The court accepted his submissions and passed the order of
attachment. (6) Subsequently the defendant Anantaraju executed the sale deed dated 27-
11-1981 in favour of Gautam Chand. The object of the suit was achieved. The sale deed was
in fact executed during the subsistance of the order of attachment concerning the same
property. The plaintiff Haradara has not objected to it at any time. Consistently, the
appellant had reasons to believe the information of settlement of dispute, conveyed by the
three parties together on 9-12-1981. (7) Gautam Chand (RW 3) and the complainant
Haradara acted in mutual interest and secured the attachment of property which was the
subject-matter of an agreement to sell in favour of Gautam Chand. The suit instituted in the
name of the complainant Haradara was only for the benefit of Gautam Chand by reference
to this interest in the property. (8) The appellant conveyed information of the settlement of
dispute by his note made on the docket. He drew a diagram of the location of residence of
the Respondent 2 Ashok advocate (Ex. R-l-A at p. 14 Additional Documents). The papers
were delivered to Respondent 2 Ashok advocate by Gautam Chand (RW 3). (9) After
satisfying himself, Respondent 2 Ashok advocate appeared in court on 10-12- 1981 and filed
a memo prepared in his handwriting recording the fact of settlement of dispute and seeking
withdrawal of the suit. The court passed order dated 10-12-1981 dismissing the suit, OS No.
1965 of 1981. (10) Even though the plaintiff Haradara gained knowledge of the disposal of
suit, he did not meet the appellant nor did he address him for over 1½ years until May 1983.
He did not 172 also immediately apply for the restoration of suit. An application for
restoration was filed on the last date of limitation on 11-1-1982. The application Misc. 16 of
1982 was later allowed to be dismissed for default on 30-7-1982. It was later sought to be
revived by application Misc. No. 581 of 1982. Necessary orders were obtained on 16-7-1982.
Thus Misc. 16 of 1982 (Application for restoration of suit) is pending in civil court. On a
survey of the legal landscape in the area of disciplinary proceedings this scenario emerges:
(1) In exercise of powers under Section 35 contained in Chapter V entitled “conduct of
advocates”, on receipt of a complaint against an advocate (or suo motu) if the State Bar
Council has ‘reason to believe’ that any advocate on its roll has been guilty of “professional
or other misconduct”, disciplinary proceeding may be initiated against him. (2) Neither
Section 35 nor any other provision of the Act defines the expression ‘legal misconduct’ or
the expression ‘misconduct’. (3) The Disciplinary Committee of the State Bar Council is
authorised to inflict punishment, including removal of his name from the rolls of the Bar
Council and suspending him from practice for a period deemed fit by it, after giving the
advocate concerned and the ‘Advocate General’ of the State an opportunity of hearing. (4)
While under Section 42(1) of the Act the Disciplinary Committee has been conferred powers
vested in a civil court in respect of certain matters including summoning and enforcing
attendance of any person and examining him on oath, the Act which enjoins the Disciplinary
Committee to ‘afford an opportunity of hearing’ (vide Section 35) to the advocate does not
prescribe the procedure to be followed at the hearing. (5) The procedure to be followed in
an enquiry under Section 35 is outlined in Part VII of the Bar Council of India Rules2 made
under the authority of Section 60 of the Act. (6) Rule 8(1) of the said Rules enjoins the
Disciplinary Committee to hear the concerned parties that is to say the complainant and the
concerned advocate as also the Attorney General or the Solicitor General or the Advocate
General. It also enjoins that if it is considered appropriate to take oral evidence the
procedure of the trial of civil suits shall as far as possible be followed. 4. At this juncture it is
appropriate to articulate some basic principles which must inform the disciplinary
proceedings against members of the legal profession in proceedings under Section 35 of the
Advocates Act, read with the relevant Rules: (i) essentially the proceedings are quasi-
criminal in character inasmuch as a member of the profession can be visited with penal
consequences which affect his right to practise the profession as also his honour; under
Section 35(3)(d) of the Act, the name of the advocate found guilty of professional or other
misconduct can be removed from the State Roll of Advocates. This extreme penalty is
equivalent of death penalty which is in vogue 173 in criminal jurisprudence. The advocate on
whom the penalty of his name being removed from the roll of advocates is imposed would
be deprived of practising the profession of his choice, would be robbed of his means of
livelihood, would be stripped of the name and honour earned by him in the past and is liable
to become a social apartheid. A disciplinary proceeding by a statutory body of the members
of the profession which is statutorily empowered to impose a punishment including a
punishment of such immense proportions is quasi-criminal in character; (ii) as a logical
corollary it follows that the Disciplinary Committee empowered to conduct the enquiry and
to inflict the punishment on behalf of the body, in forming an opinion must be guided by the
doctrine of benefit of doubt and is under an obligation to record a finding of guilt only upon
being satisfied beyond reasonable doubt. It would be impermissible to reach a conclusion on
the basis of preponderance of evidence or on the basis of surmise, conjecture or suspicion. It
will also be essential to consider the dimension regarding mens rea. This proposition is
hardly open to doubt or debate particularly having regard to the view taken by this Court in
L.D. Jaisinghani v. Naraindas N. Punjabi [(1976) 1 SCC 354], wherein Ray, C.J., speaking for
the Court has observed: “In any case, we are left in doubt whether the complainant’s
version, with which he had come forward with considerable delay was really truthful. We
think that in a case of this nature, involving possible disbarring of the advocate concerned,
the evidence should be of a character which should leave no reasonable doubt about guilt.
The Disciplinary Committee had not only found the appellant guilty but had disbarred him
permanently.” (emphasis added) (iii) in the event of a charge of negligence being levelled
against an advocate, the question will have to be decided whether negligence simpliciter
would constitute misconduct. It would also have to be considered whether the standard
expected from an advocate would have to answer the test of a reasonably equipped prudent
practitioner carrying reasonable workload. A line will have to be drawn between tolerable
negligence and culpable negligence in the sense of negligence which can be treated as
professional misconduct exposing a member of the profession to punishment in the course
of disciplinary proceedings. In forming the opinion on this question the standards of
professional conduct and etiquette spelt out in Chapter 2 of Part VI of the Rules governing
advocates, framed under Section 60(3) and Section 49(1)(g) of the Act, which form a part of
the Bar Council of India Rules may be consulted. As indicated, in the preamble of the Rules,
an advocate shall, at all times compose himself in a manner befitting his status as an officer
of the court, a privileged member of the community and a gentleman bearing in mind what
may be lawful and moral for one who is not a member of the Bar may still be improper for
an advocate and that his conduct is required to 174 conform to the rules relating to the duty
to the court, the duty to the client, to the opponent, and the duty to the colleagues, not only
in letter but also in spirit. It is in the light of these principles the Disciplinary Committee
would be required to approach the question as regards the guilt or otherwise of an advocate
in the context of professional misconduct levelled against him. In doing so apart from
conforming to such procedure as may have been outlined in the Act or the Rules, the
Disciplinary Authority would be expected to exercise the power with full consciousness and
awareness of the paramount consideration regarding principles of natural justice and fair
play. 5. The State Bar Council, after calling for the comments of the appellant in the context
of the complaint, straightway proceeded to record the evidence of the parties. No charge
was framed specifying the nature and content of the professional misconduct attributed to
the appellant. Nor were any issues framed or points for determination formulated. The
Disciplinary Committee straightway proceeded to record evidence. As the case could not be
concluded within the prescribed time limit the matter came to be transferred to the Bar
Council of India which has heard arguments and rendered the order under appeal. 6. The
questions which have surfaced are: (1) Whether a specific charge should have been framed
apprising the appellant of the true nature and content of the professional misconduct
ascribed to him? (2) Whether the doctrine of benefit of doubt and the need for establishing
the basic allegations were present in the mind of the Disciplinary Authority in recording the
finding of guilt or in determining the nature and extent of the punishment inflicted on him?
(3) Whether in the absence of the charge and finding of dishonesty against him the appellant
could be held guilty of professional misconduct even on the assumption that he had acted
on the instructions of a person not authorised to act on behalf of his client if he was acting in
good faith and in a bona fide manner. Would it amount to lack of prudence or nonculpable
negligence or would it constitute professional misconduct? Now so far as the procedure
followed by the State Bar Council at the enquiry against the appellant, is concerned it
appears that in order to enable the concerned advocate to defend himself properly, an
appropriate specific charge was required to be framed. No doubt the Act does not outline
the procedure and the Rules do not prescribe the framing of a charge. But then even in a
departmental proceeding in an enquiry against an employee, a charge is always framed.
Surely an advocate whose honour and right to earn his livelihood are at stake can expect
from his own professional brethren, what an employee expects from his employer? Even if
the rules are silent, the paramount and overshadowing considerations of fairness would
demand the framing of a charge. In a disciplinary proceeding initiated at the level of this
Court even though the Supreme Court Rules did not so prescribe, in Re Shri ‘M’ an Advocate
of the Supreme Court of India [AIR 1957 SC 149], this Court framed a charge making these
observations: 175 We treated the enquiry in chambers as a preliminary enquiry and heard
arguments on both sides with reference to the matter of that enquiry. We came to the
conclusion that this was not a case for discharge at that stage. We accordingly reframed the
charges framed by our learned brother, Bhagwati, J. and added a fresh charge. No objection
has been taken to this course. But it is as well to mention that, in our opinion, the terms of
Order IV, Rule 30 of the Supreme Court Rules do not preclude us from adopting this course,
including the reframing of, or adding to, the charges specified in the original summons,
where the material at the preliminary enquiry justifies the same. The fresh enquiry before us
in court has proceeded with reference to the following charges as reframed and added to by
us. It would be extremely difficult for an advocate facing a disciplinary proceeding to
effectively defend himself in the absence of a charge framed as a result of application of
mind to the allegations and to the question as regards what particular elements constituted
a specified head of professional misconduct. 7. The point arising in the context of the non-
framing of issues has also significance. As discussed earlier Rule 8(1) enjoins that “the
procedure for the trial of civil suits, shall as far as possible be followed”. Framing of the
issues based on the pleadings as in a civil suit would be of immense utility. The controversial
matters and substantial questions would be identified and the attention focussed on the real
and substantial factual and legal matters in context. The parties would then become aware
of the real nature and content of the matters in issue and would come to know (1) on whom
the burden rests (2) what evidence should be adduced to prove or disprove any matter (3) to
what end cross-examination and evidence in rebuttal should be directed. When such a
procedure is not adopted there exists inherent danger of miscarriage of justice on account of
virtual denial of a fair opportunity to meet the case of the other side. We wish the State Bar
Council had initially framed a charge and later on framed issues arising out of the pleadings
for the sake of fairness and for the sake of bringing into forefront the real controversy. 8. In
the light of the foregoing discussion the questions arising in the present appeal may now be
examined. In substance the charge against the appellant was that he had withdrawn a suit as
settled without the instructions from the complainant. It was not the case of the
complainant that the appellant had any dishonest motive or that he had acted in the matter
by reason of lack of probity or by reason of having been won over by the other side for
monetary considerations or otherwise. The version of the appellant was that the suit which
had been withdrawn had been instituted in a particular set of circumstances and that the
complainant had been introduced to the appellant for purposes of the institution of the suit
by an old client of his viz. RW 3 Gautam Chand. The appellant was already handling a case on
behalf of RW 3 Gautam Chand against RW 4 Anantaraju. The decision to file a suit on behalf
of the complainant against RW 4 Anantaraju was taken in the presence of RW 3 Gautam
Chand. It was at the instance and inspiration of RW 3 Gautam Chand that the suit had been
instituted by the complainant, but really he was the nominee of Gautam Chand and that the
complainant himself had no real claim on his own. It transpires from the records that it was
admitted by the complainant that he was not maintaining 176 any account books in regard
to the business and he was not an income tax assessee. In addition, the complainant (PW 1)
Haradara himself has admitted in his evidence that it was Gautam Chand who had
introduced him to the appellant, and that he was in fact taken to the office of the appellant
for filing the said suit, by Gautam Chand. It was this suit which was withdrawn by the
appellant. Of course it was withdrawn without any written instructions from the
complainant. It was also admitted by the complainant that he knew the defendant against
whom he had filed the suit for recovery of Rs 30,000 and odd through Gautam Chand and
that he did not know the defendant intimately or closely. He also admitted that the cheques
used to be passed in favour of the party and that he was not entitled to the entire amount.
He used to get only commission. 9. Even on the admission of the complainant himself he was
taken to the office of the appellant for instituting the suit, by RW 3 Gautam Chand, an old
client of the appellant whose dispute with the defendant against whom the complainant had
filed the suit existed at the material time and was being handled by the appellant. The
defence of the appellant that he had withdrawn the suit in the circumstances mentioned by
him required to be considered in the light of his admissions. The defence of the appellant
being the suit was withdrawn under the oral instructions of the complainant in the presence
of RW 3 Gautam Chand and RW 4 Anantaraju and inasmuch as RWs 3 and 4 supported the
version of the appellant on oath, the matter was required to be examined in this
background. Assuming that the evidence of the appellant corroborated by RWs 3 and 4 in
regard to the presence of the complainant was not considered acceptable, the question
would yet arise as to whether the withdrawal on the part of the appellant as per the oral
instructions of RW 3 Gautam Chand who had taken the complainant to the appellant for
instituting the suit, would amount to professional misconduct. Whether the appellant had
acted in a bona fide manner under the honest belief that RW 3 Gautam Chand was giving
the instructions on behalf of the complainant requires to be considered. If he had done so in
a bona fide and honest belief would it constitute professional misconduct, particularly
having regard to the fact that no allegation regarding corrupt motive was attributed or
established. Here it has to be mentioned that the appellant had acted in an open manner in
the sense that he had in his own hand-made endorsement for withdrawing the suit as
settled and sent the brief to his junior colleague. If the appellant had any oblique motive or
dishonest intention, he would not have made the endorsement in his own hand. 10. No
doubt Rule 19 contained in Section 2 captioned ‘Duty to the clients’ provides that an
advocate shall not act on the instructions of any person other than his client or his
authorised agent. If, therefore, the appellant had acted under the instructions of RW 3
Gautam Chand bona fide believing that he was the authorised agent to give instructions on
behalf of the client, would it constitute professional misconduct. Even if RW 3 was not in fact
an authorised agent of the complainant, but if the appellant bona fide believed him to be
the authorised agent having regard to the circumstances in which the suit came to be
instituted, would it constitute professional misconduct? Or would it amount to only an
imprudent and unwise act or even a negligent act on the part of the appellant? These were
the questions which directly arose to which the Committee never addressed itself. There is
also nothing to show that the Disciplinary Committee has 177 recorded a finding on the facts
and the conclusion as regards the guilt in full awareness of the doctrine of benefit of doubt
and the need to establish the facts and the guilt beyond reasonable doubt. As has been
mentioned earlier, no charge has been formulated and framed, no issues have been framed.
The attention of the parties was not focussed on what were the real issues. The appellant
was not specifically told as to what constituted professional misconduct and what was the
real content of the charge regarding the professional misconduct against him. 11. In the
order under appeal the Disciplinary Committee has addressed itself to three questions viz.:
(i) Whether the complainant was the person who entrusted the brief to the appellant and
whether the brief was entrusted by the complainant to the appellant? (ii) Whether report of
settlement was made without instruction or knowledge of the complainant? (iii) Who was
responsible for reporting settlement and instructions of the complainant? In taking the view
that the appellant had done so probably with a view to clear the cloud of title of RW 3 as
reflected in para 22 quoted herein, the Disciplinary Committee was not only making
recourse to conjecture, surmise and presumption on the basis of suspicion but also
attributing to the appellant a motive which was not even attributed by the complainant and
of which the appellant was not given any notice to enable him to meet the charge: “It is not
possible to find out as to what made PW 2 to have done like that. As already pointed out the
house property which was under attachment had been purchased by RW 3 during the
subsistence of the attachment. Probably with a view to clear the cloud of title of RW 3, PW 2
might have done it. This is only our suspicion whatever it might be, it is clear that RW 2 had
acted illegally in directing RW 1 to report settlement.” 12. In our opinion the appellant has
not been afforded reasonable and fair opportunity of showing cause inasmuch as the
appellant was not apprised of the exact content of the professional misconduct attributed to
him and was not made aware of the precise charge he was required to rebut. The conclusion
reached by the Disciplinary Committee in the impugned order further shows that in
recording the finding of facts on the three questions, the applicability of the doctrine of
benefit of doubt and need for establishing the facts beyond reasonable doubt were not
realised. Nor did the Disciplinary Committee consider the question as to whether the facts
established that the appellant was acting with bona fides or with mala fides, whether the
appellant was acting with any oblique or dishonest motive, whether there was any mens rea,
whether the facts constituted negligence and if so whether it constituted culpable
negligence. Nor has the Disciplinary Committee considered the question as regards the
quantum of punishment in the light of the aforesaid considerations and the exact nature of
the professional misconduct established against the appellant. The impugned order passed
by the Disciplinary Committee, therefore cannot be sustained. Since we do not consider it
appropriate to examine the matter on 178 merits on our own without the benefit of the
finding recorded by the Disciplinary Committee of the apex judicial body of the legal
profession, we consider it appropriate to remit the matter back to the Disciplinary
Committee. As observed by this Court in O.N. Mohindroo v. District Judge, Delhi [(1971) 2
SCR 11], we have no doubt that the Disciplinary Committee will approach the matter with an
open mind: From this it follows that questions of professional conduct are as open as
charges of cowardice against Generals or reconsideration of the conviction of persons
convicted of crimes. Otherwise how could the Hebron brothers get their conviction set aside
after Charles Peace confessed to the crime for which they were charged and held guilty? We
must explain why we consider it appropriate to remit the matter back to the Bar Council of
India. This matter is one pertaining to the ethics of the profession which the law has
entrusted to the Bar Council of India. It is their opinion of a case which must receive due
weight because in the words of Hidayatullah, C.J., in Mohindroo case: This matter is one of
the ethics of the profession which the law has entrusted to the Bar Council of India. It is their
opinion of a case which must receive due weight. It appears to us that the Bar Council of
India must have an opportunity to examine the very vexed and sensitive question which has
arisen in the present matter with utmost care and consideration, the question being of great
importance for the entire profession. We are not aware of any other matter where the apex
body of the profession was required to consider whether the bona fide act of an advocate
who in good faith acted under the instructions of someone closely connected with his client
and entertained a bona fide belief that the instructions were being given under the authority
of his client, would be guilty of misconduct. It will be for the Bar Council of India to consider
whether it would constitute an imprudent act, an unwise act, a negligent act or whether it
constituted negligence and if so a culpable negligence, or whether it constituted a
professional misconduct deserving severe punishment, even when it was not established or
at least not established beyond reasonable doubt that the concerned advocate was acting
with any oblique or dishonest motive or with mala fides. This question will have to be
determined in the light of the evidence and the surrounding circumstances taking into
account the doctrine of benefit of doubt and the need to record a finding only upon being
satisfied beyond reasonable doubt. In the facts and circumstances of the present case, it will
also be necessary to re-examine the version of the complainant in the light of the foregoing
discussion keeping in mind the admission made by the complainant that he was not
maintaining any books of accounts and he was not an income tax assessee and yet he was
the real plaintiff in the suit for Rs 30,000 and odd instituted by him, and in the light of the
admission that it was RW 3 Gautam Chand who had introduced him to the appellant and
that he was in fact taken to the office of the appellant, for filing the suit, by RW 3 Gautam
Chand. The aforesaid question would arise even if the conclusion was reached that the
complainant himself was not present and had not given instructions and that the appellant
had acted on the instructions of RW 3 Gautam Chand who had brought the complainant to
the appellant’s office for instituting the suit and who was a close 179 associate of the
complainant. Since all these aspects have not been examined at the level of the Bar Council,
and since the matter raises a question of principle of considerable importance relating to the
ethics of the profession which the law has entrusted to the Bar Council of India, it would not
be proper for this Court to render an opinion on this matter without the benefit of the
opinion of the Bar Council of India which will accord close consideration to this matter in the
light of the perspective unfolded in this judgment both on law and on facts. We are
reminded of the high degree of fairness with which the Bar Council of India had acted in
Mohindroo case. The advocate concerned was suspended from practice for four years. The
Bar Council had dismissed the appeal. Supreme Court had dismissed the special leave
petition summarily. And yet the whole matter was reviewed at the instance of the Bar
Council and this Court was persuaded to grant the review. A passage extracted from
Mohindroo case deserves to be quoted in this connection: We find some unusual
circumstances facing us. The entire Bar of India are of the opinion that the case was not as
satisfactorily proved as one should be and we are also of the same opinion. All processes of
the court are intended to secure justice and one such process is the power of review. No
doubt frivolous reviews are to be discouraged and technical rules have been devised to
prevent persons from reopening decided cases. But as the disciplinary committee
themselves observed there should not be too much technicality where professional honour
is involved and if there is a manifest wrong done, it is never too late to undo the wrong. This
Court possesses under the Constitution a special power of review and further may pass any
order to do full and effective justice. This Court is moved to take action and the Bar Council
of India and the Bar Association of the Supreme Court are unanimous that the appellant
deserves to have the order debarring him from practice set aside. 13. We have therefore no
doubt that upon the matter being remitted to the Bar Council of India it will be dealt with
appropriately in the light of the aforesaid perspective. We accordingly allow this appeal, set
aside the order of the Bar Council insofar as the appellant is concerned and remit the matter
to the Bar Council of India. We, however, wish to make it clear that it will not be open to the
complainant to amend the complaint or to add any further allegation. We also clarify that
the evidence already recorded will continue to form part of the record and it will be open to
the Bar Council of India to hear the matter afresh on the same evidence. It is understood
that an application for restoration of the suit which has been dismissed for default in the city
civil court at Bangalore has been made by the complainant and is still pending before the
court. It will be open to the Bar Council of India to consider whether the hearing of the
matter has to be deferred till the application for restoration is disposed of. The Bar Council
of India may give appropriate consideration to all these questions. 14. We further direct that
in case the judgment rendered by this Court or any part thereof is reported in law journals
or published elsewhere, the name of the appellant shall not be mentioned because the
matter is still sub judice and fairness demands that the name should not be specified. The
matter can be referred to as An Advocate v. Bar Council or In re an Advocate without naming
the appellant. The appeal is disposed of accordingly. 180 * * * * * 181 Salil Dutta v. T.M. and
M.C. (P) Ltd. (1993) 2 SCC 185 B.P. JEEVAN REDDY, J. - 2. The appeal is preferred by the
plaintiff against the judgment and order of a Division Bench of the Calcutta High Court
allowing the appeal preferred by the respondent/defendant. The appeal before the High
Court was directed against an order of the city civil court, Calcutta dismissing an application
filed by the defendant to set aside the ex parte decree passed against him, under Order 9
Rule 13 of the Civil Procedure Code. The relevant facts may be noticed briefly. 3. The
plaintiff/appellant filed a suit for ejecting the defendant-tenant on the ground of default in
paying rent and also on the ground that the such premises are required for his own use and
occupation. The suit was posted for final hearing on June 9, 1988 - seven years after its
institution. On an earlier occasion, the defendant had filed two interlocutory applications,
one under Order 14 Rule 5 and the other under Order 6 Rule 16 CPC. On May 19, 1988 the
city civil court had passed an order on the said applications observing that the said
applications shall be considered at the final hearing of the suit. According to the defendant
(as per his statement made in the application filed by him for setting aside the ex parte
decree) his advocate advised him that he need not be present at the hearing of the suit on
June 9, 1988, and thereafter till the applications filed by him under Order 14 Rule 5 and
Order 6 Rule 16 CPC are disposed of. Be that as it may, on June 9, 1988, the advocate for the
defendant prayed for an adjournment till the next day. It was adjourned accordingly. On
June 10, neither the advocate for the defendant nor the defendant appeared, with the result
the defendant was set ex parte. Hearing of the suit was commenced and concluded on June
11, 1988. The suit was posted for delivery of judgment to June 13, 1988. On June 11, 1988,
an application was made on behalf of the defendant stating the circumstances in which his
advocate had to retire from the case. This application, however, contained no prayer
whatsoever. The suit was decreed ex parte on June 13, 1988. Thereafter the defendant filed
the application to set aside the ex parte decree. In this application he referred to the fact of
his filing two interlocutory applications as aforesaid, the order of the court thereon passed
on May 19, 1988 and then stated “due to the advice of the learned advocate-on-record that
your petitioner need not be present at the hearing of the suit on June 9, 1988 and thereafter
till the disposal of the application filed under Order 6 Rule 16 and Order 14 Rule 5 read with
Section 151 of the Code of Civil Procedure in the above suit,” the defendant did not appear
before the Court. It was stated that Mr Ravindran the Principal Officer of the defendant-
company was out of town on that date. It was submitted that because the defendant had
acted on the basis of the advice given by the advocate-on-record of the defendant, there
was sufficient cause to set aside the ex parte decree within the meaning of Order 9 Rule 13
CPC. The trial court dismissed the said application against which an appeal was preferred by
the defendant to the Calcutta High Court. The appeal was heard by a Division Bench and
judgment pronounced in open court on 182 July 8, 1991 dismissing the appeal. However, it
appears, before the judgment was signed by the learned judges constituting the Division
Bench, an application was moved by the defendant for alteration or modification and/or
reconsideration of the said judgment mainly on the ground that the defendants’ counsel
could not bring to the notice of the Division Bench the decision of this Court in Rafiq v.
Munshilal [AIR 1981 SC 1400] and that the said decision clearly supports the defendants’
case. The counsel for the plaintiff opposed the said request. He submitted that once the
judgment was pronounced in open court, it was final and that matter cannot be reopened
just because a relevant decision was not brought to the notice of the Court. After hearing
the counsel for both the parties, the Division Bench reopened the appeal on the ground that
“technicalities should not be allowed to stand in the way of doing justice to the parties”. The
Bench observed that when they disposed of the appeal, their attention was not invited to
the decision of this Court in Rafiq v. Munshilal and that in view of the said judgment they
were inclined to reopen the matter. The Division Bench was of the opinion that “after a
judgment is delivered by the High Court ignoring the decision of the Supreme Court or in
disobedience of a clear judgment of the Supreme Court, it would be treated as non-est and
absolutely without jurisdiction .... when our attention has been drawn that our judgment is
per incuriam, it is our duty to apply this decision and to hold that our judgment was wrong
and liable to be recalled”. (We express no opinion on the correctness of the above premise
since it is not put in issue in this appeal.) Accordingly, the Division Bench heard the counsel
for the parties and by its judgment and order dated March 3, 1992 allowed the appeal
mainly relying upon the decision of this Court in Rafiq. 5. Since the judgment under appeal is
exclusively based upon the decision of this Court in Rafiq it is necessary to ascertain what
precisely does the said decision say. The appellant, Rafiq had preferred a second appeal in
the Allahabad High Court through an advocate. His advocate was not present when the
second appeal was taken up for hearing with the result it was dismissed for default. The
appellant then moved an application to set aside the order of dismissal for default which
was dismissed by the High Court. The correctness of the said order was questioned in this
Court. The matter came up before a Bench comprising D.A. Desai and Baharul Islam, JJ. D.A.
Desai, J. speaking for the Bench observed thus: The disturbing feature of the case is that
under our present adversary legal system where the parties generally appear through their
advocates, the obligation of the parties is to select his advocate, brief him, pay the fees
demanded by him and then trust the learned Advocate to do the rest of the things. The
party may be a villager or may belong to a rural area and may have no knowledge of the
court’s procedure. After engaging a lawyer, the party may remain supremely confident that
the lawyer will look after his interest. At the time of the hearing of the appeal, the personal
appearance of the party is not only not required but hardly useful. Therefore, the party
having done everything in his power to effectively participate in the proceedings can rest
assured that he has neither to go to the High Court to inquire as to what is happening in the
High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the
latter appears in the matter when it is listed. It is no part of his job. 183 6. It was then argued
by the counsel for the respondent in that appeal that a practice has grown up in the High
Court of Allahabad among the lawyers to remain absent when they did not like a particular
Bench and that the absence of the appellant’s advocate in the High Court was in accordance
with the said practice, which should not be encouraged. While expressing no opinion upon
the existence or justification of such practice, the learned Judge observed that if the
dismissal order is not set aside “the only one who would suffer would not be the lawyer who
did not appear but the party whose interest he represented,” and then made the following
further observations: The problem that agitates us is whether it is proper that the party
should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The
answer obviously is in the negative. Maybe that the learned advocate absented himself
deliberately or intentionally. We have no material for ascertaining that aspect of the matter.
We say nothing more on that aspect of the matter. However, we cannot be a party to an
innocent party suffering injustice merely because his chosen advocate defaulted. 7. The
question is whether the principle of the said decision comes to the rescue of the defendant
respondent herein. Firstly, in the case before us it was not an appeal preferred by an
outstation litigant but a suit which was posted for final hearing seven years after the
institution of the suit. The defendant is a private limited company having its registered office
at Calcutta itself. The persons in charge of the defendant-company are not rustic villagers
nor they are innocent illiterates unaware of court procedures. Prior to the suit coming up for
final hearing on June 9, 1988 the defendant had filed two applications whereupon the court
ordered that they will be considered at the time of the final hearing of the suit. The
plaintiff’s case no doubt is that the said applications were part of delaying tactics being
adopted by the defendant-tenants with a view to protract the suit. Be that as it may, the
defendant thereafter refused to appear before the court. According to the defendant, their
advocate advised them that until the interlocutory applications filed by them are disposed
of, the defendant need not appear before the court which means that the defendants need
not appear at the final hearing of the suit. It may be remembered that the court proposed to
consider the said interlocutory applications at the final hearing of the suit. It is difficult to
believe that the defendants implicitly believed their advocate’s advice. Being educated
businessmen they would have known that non-participation at the final hearing of the suit
would necessarily result in an adverse decision. Indeed we are not prepared to believe that
such an advice was in fact tendered by the advocate. No advocate worth his salt would give
such advice to his client. Secondly, the several contradictions in his deposition which are
pointed out by the Division Bench in the impugned order go to show that the whole story is
a later fabrication. The following are the observations made in the judgment of the Division
Bench with respect to the conduct of the said advocate: “We found that the said learned
advocate conducted the proceedings in a most improper manner and that his absence on
June 10, 1988 and on subsequent date was not only discourteous but possibly a dereliction
of duty to his client ... the learned advocate had forgotten his professional duty in not
making inquiry to the court as to what happened on June 10, 11 and 13, 1988 ... the learned
advocate acted in a most perfunctory 184 manner in the matter and the learned advocate
dealt with the matter in a most unusual manner. We have also found that the said learned
advocate had made serious contradiction in the deposition before the court below. The
learned advocate in his deposition stated that he did not file an application for adjournment
on June 9, 1988. But from the record it was evident that it was on the basis of the
application filed on June 9, 1988, the case was adjourned for crossexamination of the
witnesses whose examination was called on the next date.” The above facts stated in the
deposition of the advocate show that he indeed made an application for adjournment on
June 9, 1988 to enable him to cross-examine the witnesses on the next date. Therefore, his
present stand that he advised his client not to participate in the trial from and including June
9, 1988 onwards is evidently untrue. We are, therefore, of the opinion that the story set up
by the defendant in his application under Order 9 Rule 13 is an after-thought and ought not
to have been accepted by the Division Bench in its order dated March 3, 1992 - more
particularly when it had rejected the very case in its earlier judgment dated July 8, 1991. 8.
The advocate is the agent of the party. His acts and statements, made within the limits of
authority given to him, are the acts and statements of the principal i.e. the party who
engaged him. It is true that in certain situations, the court may, in the interest of justice, set
aside a dismissal order or an ex parte decree notwithstanding the negligence and/or
misdemeanour of the advocate where it finds that the client was an innocent litigant but
there is no such absolute rule that a party can disown its advocate at any time and seek
relief. No such absolute immunity can be recognised. Such an absolute rule would make the
working of the system extremely difficult. The observations made in Rafiq must be
understood in the facts and circumstances of that case and cannot be understood as an
absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted
for final hearing after a lapse of seven years of its institution. It was not a second appeal filed
by a villager residing away from the city, where the court is located. The defendant is also
not a rustic ignorant villager but a private limited company with its headoffice at Calcutta
itself and managed by educated businessmen who know where their interest lies. It is
evident that when their applications were not disposed of before taking up the suit for final
hearing they felt piqued and refused to appear before the court. Maybe, it was part of their
delaying tactics as alleged by the plaintiff. May be not. But one thing is clear - they chose to
noncooperate with the court. Having adopted such a stand towards the court, the defendant
has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to
make it out as if they were totally unaware of the nature or significance of the proceedings is
a theory which cannot be accepted and ought not to have been accepted. 9. For the above
reasons, the appeal is allowed. * * * * * 185 State of Maharashtra v. Budhikota Subbarao
(Dr) (1993) 3 SCC 71 R.M. SAHAI, J. - Strictures of ‘sharp practice’, suppression of facts,
obtaining orders by playing fraud upon the court against State by Mr Justice Saldanha of the
Bombay High Court, while deciding criminal miscellaneous petition filed by the opposite
party, accused of leaking official secrets and violating provisions of the Atomic Energy Act,
1962 and awarding Rs 25,000 as compensation, for consultancy loss, suffered by him, due to
ex parte order obtained by the State against order of the trial Judge permitting the opposite
party to go abroad, compelled the State to file this appeal and assail the order not only for
legal infirmities but factual inaccuracies. 2. Reasons to quote the learned Judge which,
‘compelled the conscience of court to pass’ the impugned order were, ‘the unfortunate
proceedings that bristled(s) with mala fides’. Basis for these inferences was, the conclusion
by the learned Judge, that the State, deliberately, procured the interim order by another
learned Judge by filing a separate writ petition, when it knew that the main petition for
quashing of the proceedings was pending before the Division Bench (Puranik and Saldanha,
JJ). The learned Judge felt, strongly, against the public prosecutor as she being aware of the
proceedings before the Division Bench failed in her duty of apprising the learned Judge of
correct facts. 3. Was this so? Did the State procure the order by concealing facts? Was the
public prosecutor guilty of violating professional ethics or her duty as responsible officer of
the court? What led to all this was an application filed by the opposite party, in the writ
petition pending for quashing the charge-sheet framed under [The Indian] Official Secrets
Act, 1923 and the Atomic Energy Act, 1962, for release of his passport on which the Division
Bench of which Mr Justice Saldanha was a member, passed the order on February 13, 1991
that it may be presented before the trial Judge. On the very next day the Additional Sessions
Judge, (‘ASJ’) after hearing the parties, directed that the passport and identity card of the
opposite party be returned. He, further, permitted the opposite party to leave India and
travel abroad as per the itinerary during the period from February 17, 1991 to February 22,
1991 on executing a personal bond of Rs 50,000. The State was, obviously, disturbed by this
order as serious charges had been levelled against the opposite party who had been
arrested, earlier, just when he was about to leave the country and board the plane, for
leakage of official secrets and whose bail had, even, been cancelled by this Court, appeared
to be in danger of leaving the country again. Since the order was passed on February 14,
1991 and the opposite party was to fly on February 17, 1991 and February 16, 1991 was
Saturday, the State challenged the correctness of the order passed by the ASJ by way of a
writ petition under Article 227 of the Constitution read with Section 482 of Criminal
Procedure Code and the learned Judge, who under the rules was entitled to hear such a
petition, passed an ex parte order on February 15, 1991 staying that part of the order which
permitted the opposite party to leave the country and directed the application to be listed
for further orders on February 18, 1991. On coming to know of this order, in the evening, the
opposite party approached the Division Bench where the main petition was pending on
February 16, which after making an 186 observation that the public prosecutor ought to
have brought it to the notice of the learned Single Judge that the main matter was pending
before the Division Bench and the trial Judge had passed the order in pursuance of the
direction issued by the Division Bench, directed that the matter, being urgent, it should be
placed before the same learned Single Judge. Consequently parties appeared before the
learned Judge on February 16, who, after hearing, confirmed the interim order passed, a day
earlier. 4. With confirmation of interim order the proceedings which had commenced on the
application filed by the opposite party to leave the country came to an end. But the writ
petition in which the interim order was passed remained pending. And when the revision
filed by the State, directed against the order acquitting the accused, was taken up for
hearing by Mr Justice Saldanha, and observations were made, during course of judgment
dictated in open court from October 5 to 12, 1991 against the public prosecutor and the
State, the opposite party appears to have made a mention on October 10, that the writ
petition filed by the State against the order of the trial Judge releasing his passport and
permitting him to travel abroad may be summoned and disposed of. The request was
accepted and on direction of the learned Judge the office listed the case before him on
October 11. When the petition was taken up, on October 11, and the public prosecutor was
asked if she had any objection to hearing it was stated by her that it did not survive. But the
learned Judge after completion of judgment in criminal revision on October 12, appears to
have, taken up the writ petition. It was pointed out by the learned senior counsel for the
State that since the criminal revision filed by the State against the order acquitting the
accused had been dismissed, the writ petition had become infructuous and orders may be
passed accordingly. 5. Yet the learned Judge passed the impugned order. What weighed
with the learned Judge to infer mala fides against the State was that the order dated
February 14, 1991 having been passed in open court in presence of the opposite party and
counsel for the State, permitting the opposite party to leave the country on February 17,
1991, the opposite party, genuinely expected and according to the learned Judge, rightly,
that any further application which the State would make could only be addressed to the
Bench, namely, the Bench of Puranik and Saldanha, JJ., before whom the petition was
pending, therefore, the opposite party, justifiably, waited and watched in the Bench, whole
day for moving of any application but the State instead of moving any such application filed
a fresh writ petition and obtained an ex parte order, the information of which was given to
opposite party in the evening. The learned Judge was of opinion that it was deliberate as it
was known to the public prosecutor that the Bench on February 13, 1991 after scrutinising
the papers was of opinion that it was a genuine case in which the passport should be
released and the opposite party should be permitted to travel abroad but due to paucity of
time the Bench instead of passing the order directed the opposite party to approach the trial
Judge. The learned Judge further held that even though the public prosecutor and the
Inspector of Police knew these facts and that the opposite party was to fly on February 17,
1991 yet the notice was obtained from the learned Judge returnable on February 18, 1991
by which time the delegation from Reliance Industries of which the accused was to be a
member was to have left the country. 187 Since the effect of the interim order and the fixing
of the petition on February 18, 1991 nullified the opposite party’s going to United States of
America, the court felt that the order was obtained not only unfairly, but that it constituted
a sharp practice. The motive of the public prosecutor and the State was further attempted to
be shown to be dishonest and motivated as the averments in the petition on which the
interim order was obtained were false to their knowledge. The falsity found was that the
State had deliberately tried to mislead the court by alleging that the trial was fixed for
hearing on February 18, 1991 and the same had been adjourned to February 24, 1991. The
court found that the learned Single Judge was misled in passing the order as was clear from
ground No. 6 which was to the effect that the trial being fixed for February 18, 1991, the trial
Judge was not justified in issuing the orders in favour of opposite party. The learned Judge
also felt aggrieved by the conduct of the public prosecutor in not informing the learned
Single Judge that the main writ petition was already listed for hearing before the Division
Bench and that the direction to the ASJ to consider the application for return of passport had
been issued by the Bench. The learned Single Judge was not satisfied with explanation of the
State that a petition under Article 227 of the Constitution read with Section 482 of Criminal
Procedure Code being maintainable before the learned Single Judge under the High Court
rules it had no option but to proceed in accordance with law. The learned Single Judge
pointed out that if the State would have pointed out to the Registry the correct facts then
the case could not have been listed before the learned Single Judge. 6. That any party
aggrieved by an order passed by a court is entitled to approach the higher court cannot be
disputed nor can it be disputed that a petition under Article 227 of the Constitution read
with Section 482 of the Criminal Procedure Code against the order of trial Judge was
maintainable and under rules of the court it could be listed before the learned Single Judge
only. The State, therefore, in filing the petition against the order of the Sessions Judge did
not commit any illegality or any impropriety. A copy of the writ petition, has been annexed
to this special leave petition which, does not show any disclosure of incorrect facts or any
attempt to mislead the court. Even the learned Single Judge did not find that the trial was
not fixed for February 18, 1991. Disclosing correct facts and then obtaining order in favour is
not same as procuring an order on incorrect facts. Former is legitimate being part of
advocacy, latter is reprehensible and against profession. But if the State persuaded the court
to stay the operation of the order passed by the trial Judge while mentioning the details
about the pendency of the earlier petition before the Division Bench and issuing of
directions to the Sessions Judge to decide the application for release of passport etc. it is
difficult to imagine how any inference of obtaining order on incorrect facts could be drawn.
During arguments the opposite party attempted to highlight averments in paragraph 6 of the
writ petition to the effect that the Division Bench had dismissed the application of the
opposite party when no such order was passed. The sentence, in fact, reads as under: “The
application was dismissed and directed the respondent to move trial court and further
directed the trial court to consider the same in accordance with law.” 188 True, the
application was not dismissed. But the sentence had to be read in its entirety. No court
could be misled from the use of the word dismissed as the directions issued by the court
were mentioned correctly. The inference drawn by court and the finding recorded by it of
obtaining the order by ‘suppression of facts and making positively false statements’ is
factually incorrect and legally unsound. The grief of the opposite party in missing an
opportunity of going to the United States and the grievance against functionaries of the
State, namely, public prosecutor and prosecuting Inspector can be appreciated. We can,
also, visualise the vehemence and eloquence of the opposite party, of which he is capable
of, as appeared from his submission when he appeared in person in this Court, but what has
baffled us that the learned Judge was persuaded to record the finding of suppression of facts
on such weak and insufficient material. 7. Mala fides violating the proceedings may be legal
or factual. Former arises as a matter of law where a public functionary acts deliberately in
defiance of law without any malicious intention or improper motive whereas the latter is
actuated by extraneous considerations. But neither can be assumed or readily inferred. It
requires strong evidence and unimpeachable proof. Neither the order passed by the learned
Single Judge granting ex parte order of stay preventing opposite party from going abroad
was against provisions of law nor was the State guilty of acting mala fides in approaching the
learned Single Judge by way of writ petition. The order of the trial Judge could not be
challenged before the Division Bench. Under the rules of the court, the correctness of, the
order could be assailed only in the manner it was done by the State. Any party aggrieved by
an order is entitled to challenge it in a court of law. Such action is neither express malice nor
malice in law. 8. The opposite party was charged with very serious offence. He was arrested
when he was about to leave the country. The State was possessed of material that he had,
even, applied for matrimonial alliance in response to an advertisement issued from New
York. The order of the trial Judge, therefore, permitting opposite party to leave the country
without trial must have created a flutter in the department. It was by all standards a
sensational and a sensitive case. The public prosecutor and the prosecuting Inspector who
were entrusted with responsibility to prosecute the opposite party must have felt worked up
by the order permitting the opposite party to leave the country. Decision must have been
taken to prevent the opposite party by approaching the High Court by way of a writ petition
instead of approaching the Division Bench. Assuming that the State took recourse to this
method, as it might have been apprehensive that it would not get any order from the
Division Bench, the State could not be accused of mala fides so long it proceeded in
accordance with law. Apart from that once it was brought to the notice of the Division Bench
that the State had procured an ex parte order from the learned Judge who was requested by
the Division Bench to treat the matter urgent and hear parties and the application was heard
on February 16 and the learned Judge refused to vacate the interim order and confirmed it,
the entire basis of mala fide stood demolished. The learned Judge was not justified in
blaming the State for getting the notice returnable on February 18. That was order of the
court. In any case the opposite party having appeared on 16th yet the learned Judge having
refused to modify his order it was too much to hold the State or public prosecutor
responsible for it. 189 9. Sharp practice is not a court language. We are sorry to say so. Facts
did not justify it. Legal propriety does not countenance use of such expressions favourably.
The learned Judge, to our discomfort, used very harsh language without there being any
occasion for it. A State counsel with all the aura of office suffers dual handicap of being
looked upon by the other side as the necessary devil and the courts too at times, find it
easier to frown upon him. The moral responsibility of a State counsel, to place the facts
correctly, honestly and fairly before the court, having access to State records, coupled with
his duty to secure an order in favour of his client requires him to discharge his duty
responsibly and sensibly. Even so if a State lawyer who owes a special duty and is charged
with higher standard of conduct in his zeal or due to pressure, not uncommon in the present
day, adopts a partisan approach that by itself is not sufficient to warrant a finding of
unfairness or resorting to sharp practice. In this case too not more than this appears to have
happened. May be the public prosecutor may have exhibited more zeal. But that could not
be characterised as unfair. Maybe it would have been proper and probably better to inform
the learned Single Judge about the earlier order passed by the Division Bench. But assuming
the public prosecutor did not inform and remained content with its disclosure in the body of
the petition she could not be held to have acted dishonestly. 10. We are constrained to
observe our unhappiness on the manner in which the writ petition was summoned by Mr
Justice Saldanha from the office, heard and decided. As stated earlier the writ petition was
directed by the learned Judge to be listed before him, on a mention made by the opposite
party in course of dictation of judgment in criminal revision wherein he had made
observations against the public prosecutor. A Judge of the High Court may have
unchallenged and unfettered power to direct the office to list a case before him. But that by
itself restricts the exercise of power and calls for strict judicial discipline. We do not intend
to make any comment but we are of opinion that if the learned Judge would have avoided
sending for and deciding the petition, which as pointed out by the learned senior counsel for
the State had become infructuous, it would have been more in keeping with judicial culture.
11. For reasons stated above by us this appeal succeeds and is allowed. The order dated
October 28, 1991 passed in civil miscellaneous writ petition is set aside. It shall stand
dismissed as infructuous. The Intervention Application No. 943 of 1992 of the Public
Prosecutor is allowed. We make it clear that all the observations and remarks made by the
learned Judge against the State and Public Prosecutor shall stand expunged. * * * * * 190
191 C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) 5 SCC 457 K. RAMASWAMY, J. -
The petitioner, a practising advocate, has initiated the public interest litigation under Article
32 of the Constitution seeking to issue an appropriate writ, order or direction restraining
permanently the Bar Council of Maharashtra and Goa (BCMG), Bombay Bar Association
(BBA) and the Advocates’ Association of Western India (AAWI), Respondents 2 to 4
respectively, coercing Justice A.M. Bhattacharjee (the 1st respondent), Chief Justice of
Bombay High Court, to resign from the office as Judge. He also sought an investigation by
the Central Bureau of Investigation etc. (Respondents 8 to 10) into the allegations made
against the 1st respondent and if the same are found true, to direct the 5th respondent,
Speaker, Lok Sabha to initiate action for his removal under Article 124(4) and (5) read with
Article 218 of the Constitution of India and Judges (Inqui3ry) Act, 1968 (for short, ‘the Act’).
This Court on 24-3- 1995 issued notice to Respondents 2 to 4 only and rejected the prayer
for interim direction to the President of India and the Union of India (Respondents 6 and 7
respectively) not to give effect to the resignation by the 1st respondent. We have also issued
notice to the Attorney General for India and the President of the Supreme Court Bar
Association (SCBA). The BBA filed a counteraffidavit through its President, Shri Iqbal
Mahomedali Chagla. Though Respondents 2 and 4 are represented through counsel, they did
not file any counter-affidavit. The SCBA informed the Court that its newly elected office-
bearers required time to take a decision on the stand to be taken and we directed them to
file their written submission. Shri F.S. Nariman, learned Senior Counsel appeared for the BBA
and Shri Harish N. Salve, learned Senior Counsel, appeared for AAWI, the 4th respondent.
The learned Attorney General also assisted the Court. We place on record our deep
appreciation for their valuable assistance. 3. The petitioner in a well-documented petition
stated and argued with commitment that the news published in various national
newspapers does prove that Respondents 2 to 4 had pressurised the 1st respondent to
resign from the office as Judge for his alleged misbehaviour. The Constitution provides for
independence of the Judges of the higher courts, i.e., the Supreme Court and the High
Courts. It also lays down in proviso (a) to clause (2) of Article 124; so too in Article 217(1)
proviso (a) and Article 124(4), procedure for voluntary resignation by a Judge, as well as for
compulsory removal, respectively from office in the manner prescribed therein and in
accordance with the Act and the Rules made thereunder. The acts and actions of
Respondents 2 to 4 are unknown to law, i.e., removal by forced resignation, which is not
only unconstitutional but also deleterious to the independence of the judiciary. The
accusations against the 1st respondent without proper investigation by an independent
agency seriously damage the image of judiciary and efficacy of judicial adjudication and
thereby undermine credibility of the judicial institution itself. Judges are not to be judged by
the Bar. Allowing adoption of such demands by collective pressure rudely shakes the
confidence and competence of judges of integrity, ability, moral vigour and ethical firmness,
which in turn, sadly destroys the very foundation of democratic polity. Therefore, the
pressure tactics by the Bar requires to be nipped in the bud. He, 192 therefore, vehemently
argued and requested the Court to adopt such procedure which would safeguard the
independence of the judiciary and protect the judges from pressure through
unconstitutional methods to demit the office. 4. Shri Chagla in his affidavit and Shri Nariman
appearing for the BBA explained the circumstances that led the BBA to pass the resolution
requesting the 1st respondent to demit his office as a Judge in the interest of the institution.
It is stated in the affidavit that though initially he had in his custody the documents to show
that the 1st respondent had negotiated with Mr S.S. Musafir, Chief Executive of Roebuck
Publishing, London and the acceptance by the 1st respondent for publication and sale
abroad of a book authored by him, viz., Muslim Law and the Constitution for two years at a
royalty of US $ 80,000 (Eighty thousand US Dollars) and an inconclusive negotiation for US $
75,000 (Seventy-five thousand US Dollars) for overseas publishing rights of his book Hindu
Law and the Constitution (2nd Edn.), he did not divulge the information but kept
confidential. From about late 1994, there was considerable agitation amongst the members
of Respondents 3 and 4 that certain persons whose names were known to all and who were
seen in the court and were being openly talked about, were bringing influence over the 1st
respondent and could “influence the course of judgments of the former Chief Justice of
Bombay”. “The names of such persons though known are not being mentioned here since
the former Chief Justice of Bombay has resigned as Chief Justice and Judge of the Bombay
High Court.” It was also rumoured that “the former Chief Justice of Bombay has been paid a
large sum of money in foreign exchange purportedly as royalty for a book written by him,
viz. Muslim Law and the Constitution. The amount of royalty appeared to be totally
disproportionate to what a publisher abroad would be willing to pay for foreign publication
of a book which might be of academic interest within India (since the book was a
dissertation of Muslim Law in relation to the Constitution of India). There was a growing
suspicion at the Bar that the amount might have been paid for reasons “other than the
ostensible reason”. He further stated that the 1st respondent himself had discussed with the
Advocate General on 14-2-1995 impressing upon the latter that the Chief Justice “had
decided to proceed on leave from the end of February and would resign in April 1995”. The
Advocate General had conveyed it to Shri Chagla and other members of the Bar. By then, the
financial dealings referred to above were neither known to the public nor found mention in
the press reports. Suddenly on 19-2-1995 the advocates found to their surprise a press
interview published in The Times of India said to have been given by the 1st respondent
stating that “he had not seriously checked the antecedents of the publishers and it was
possible that he had made a mistake in accepting the offer”. He was not contemplating to
resign from judgeship at that stage and was merely going on medical leave for which he had
already applied for and was granted. The BCMG passed a resolution on 19-2-1995 seeking
“resignation forthwith” of the 1st respondent. On 21-2-1995 the BBA received a requisition
for holding its general body meeting to discuss the financial dealings said to have been had
by the 1st respondent “for a purpose other than the ostensible purpose thereby raising a
serious doubt as to the integrity of the Chief Justice”. The meeting was scheduled to be held
at 2.15 p.m. on 22-2-1995 as per its byelaws. The 1st respondent appears to have rung up
Shri Chagla in the evening on 21-2-1995 but 193 he was not available. Pursuant to a contact
by Shri W.Y. Yande, the President of AAWI, at the desire of Chief Justice to meet him, Shri
Chagla and Shri Yande met the 1st respondent at his residence at 10.00 a.m. in the presence
of two Secretaries of the 1st respondent, who stated thus to Shri Chagla as put in his
affidavit: The Bar Council of Maharashtra and Goa had already shot an arrow and that the
wound was still fresh and requested me to ensure that he would not be hurt any further by a
resolution of the Bombay Bar Association. The 1st respondent informed me that he had
already agreed to resign and in fact called for and showed me a letter dated 17-2-1995
addressed by him to the Honourable the Chief Justice of India in which he proposed to go on
medical leave for a month and that at the end of the leave or even earlier he proposed to
tender his resignation. 5. They had reminded the 1st respondent of the assurance given to
the Advocate General expressing his desire to resign and he conveyed his personal
inconveniences to be encountered etc. The 1st respondent assured them that he would
“resign within a week which resignation would be effective some 10 or 15 days thereafter
and that in the meanwhile he would not do any judicial work including delivery of any
judgment”. Shri Chagla appears to have told the 1st respondent that though he would not
give an assurance, he would request the members of the Association to postpone the
meeting and he had seen that the meeting was adjourned to 5.00 p.m. on 1-3-1995. On
enquiry being made on 1-3-1995 from the Principal Secretary to the 1st respondent whether
the 1st respondent had tendered his resignation, it was replied in the negative which
showed that the 1st respondent had not kept his promise. Consequently, after full
discussion, for and against, an overwhelming majority of 185 out of 207 permanent
members resolved in the meeting held on 1-3-1995 at 5.00 p.m. demanding the resignation
of the 1st respondent. 6. Since the 1st respondent has already resigned, the question is
whether a Bar Council or Bar Association is entitled to pass resolution demanding a Judge to
resign, what is its effect on the independence of the judiciary and whether it is
constitutionally permissible. Shri Nariman contended that the Supreme Court and the High
Court are two independent constitutional institutions. A High Court is not subordinate to the
Supreme Court though constitutionally the Supreme Court has the power to hear appeals
from the decisions or orders or judgments of the High Courts or any Tribunal or quasi-
judicial authority in the country. The Judges and the Chief Justice of a High Court are not
subordinate to the Chief Justice of India. The constitutional process of removal of a Judge as
provided in Article 124(4) of the Constitution is only for proved misbehaviour or incapacity.
The recent impeachment proceedings against Justice V. Ramaswami and its fall out do
indicate that the process of impeachment is cumbersome and the result uncertain. Unless
corrective steps are taken against Judges whose conduct is perceived by the Bar to be
detrimental to the independence of the judiciary, people would lose faith in the efficacy of
judicial process. Bar being a collective voice of the court concerned has responsibility and
owes a duty to maintain the independence of the judiciary. It is its obligation to bring it to
the notice of the Judge concerned the perceived misbehaviour or incapacity and if it is not
194 voluntarily corrected they have to take appropriate measures to have it corrected. Bar is
not aware of any other procedure than the one under Article 124(4) of the Constitution and
the Act. Therefore, the BBA, instead of proceeding to the press, adopted democratic process
to pass the resolution, in accordance with its bye-laws, when all attempts made by it proved
abortive. The conduct of the Judge betrayed their confidence in his voluntary resignation.
Consequently, the BBA was constrained to pass the said resolution. Thereby it had not
transgressed its limits. Its action is in consonance with its bye-laws and in the best tradition
to maintain independence of the judiciary. Shri Nariman also cited the instance of non-
assignment of work to four Judges of the Bombay High Court by its former Chief Justice
when some allegations of misbehaviour were imputed to them by the Bar. He, however,
submitted that in the present case the allegations were against the Chief Justice himself, and
so, he could not have been approached. He urged that if some guidelines could be laid down
by this Court in such cases, the same would be welcomed. 7. The counsel appearing for the
BCMG, who stated that he is its member, submitted that when the Bar believes that the
Chief Justice has committed misconduct, as an elected body it is its duty to pass a resolution
after full discussion demanding the Judge to act in defence of independence of the judiciary
by demitting his office. 9. The learned Attorney General contended that any resolution
passed by any Bar Association tantamounts to scandalising the court entailing contempt of
the court. It cannot coerce the Judge to resign. The pressure brought by the Chief Justice of
India upon the Judge would be constitutional but it should be left to the Chief Justice of India
to impress upon the erring Judge to correct his conduct. This procedure would yield salutary
effect. The Chief Justice of India would adopt such procedure as is appropriate to the
situation. He cited the advice tendered by Lord Chancellor of England to Lord Denning, when
the latter was involved in the controversy over his writing on the jury trial and the
composition of the black members of the jury, to demit the office, which he did in grace.
Rule of Law and Judicial Independence -Why need to be preserved? 10. The diverse
contentions give rise to the question whether any Bar Council or Bar Association has the
right to pass resolution against the conduct of a Judge perceived to have committed
misbehaviour and, if so, what is its effect on independence of the judiciary. With a view to
appreciate the contentions in their proper perspective, it is necessary to have at the back of
our mind the importance of the independence of the judiciary. In a democracy governed by
rule of law under a written constitution, judiciary is sentinel on the qui vive to protect the
fundamental rights and to poise even scales of justice between the citizens and the State or
the States inter se. Rule of law and judicial review are basic features of the Constitution. As
its integral constitutional structure, independence of the judiciary is an essential attribute of
rule of law. In S.P. Gupta v. Union of India [1981 Supp SCC 87], this Court held that if there is
one principle which runs through the entire fabric of the Constitution it is the principle of the
rule of law, and under the Constitution it is the judiciary which is entrusted with the task of
keeping every organ of the State within the limits of the law and thereby making the rule of
law 195 meaningful and effective. Judicial review is one of the most potent weapons in the
armoury of law. The judiciary seeks to protect the citizen against violation of his
constitutional or legal rights or misuse or abuse of power by the State or its officers. The
judiciary stands between the citizen and the State as a bulwark against executive excesses
and misuse or abuse of power by the executive. It is, therefore, absolutely essential that the
judiciary must be free from executive pressure or influence which has been secured by
making elaborate provisions in the Constitution with details. The independence of judiciary
is not limited only to the independence from the executive pressure or influence; it is a
wider concept which takes within its sweep independence from any other pressure and
prejudices. It has many dimensions, viz., fearlessness of other power centres, economic or
political, and freedom from prejudices acquired and nourished by the class to which the
judges belong. Judicial individualism - Whether needs protection? 11. Independent judiciary
is, therefore, most essential when liberty of citizen is in danger. It then becomes the duty of
the judiciary to poise the scales of justice unmoved by the powers (actual or perceived)
undisturbed by the clamour of the multitude. The heart of judicial independence is judicial
individualism. The judiciary is not a disembodied abstraction. It is composed of individual
men and women who work primarily on their own. Judicial individualism, in the language of
Justice Powell of the Supreme Court of United States in his address to the American Bar
Association, Labour Law Section on 11-8-1976, is “perhaps one of the last citadels of
jealously preserved individualism ....” 14. The arch of the Constitution of India pregnant from
its Preamble, Chapter III (Fundamental Rights) and Chapter IV (Directive Principles) is to
establish an egalitarian social order guaranteeing fundamental freedoms and to secure
justice - social, economic and political - to every citizen through rule of law. Existing social
inequalities need to be removed and equality in fact is accorded to all people irrespective of
caste, creed, sex, religion or region subject to protective discrimination only through rule of
law. The Judge cannot retain his earlier passive judicial role when he administers the law
under the Constitution to give effect to the constitutional ideals. The extraordinary
complexity of modern litigation requires him not merely to declare the rights to citizens but
also to mould the relief warranted under given facts and circumstances and often command
the executive and other agencies to enforce and give effect to the order, writ or direction or
prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process,
the role of the Judge is not merely to interpret the law but also to lay new norms of law and
to mould the law to suit the changing social and economic scenario to make the ideals
enshrined in the Constitution meaningful and a reality. Therefore, the Judge is required to
take judicial notice of the social and economic ramification, consistent with the theory of
law. Thereby, the society demands active judicial roles which formerly were considered
exceptional but now a routine. The Judge must act independently, if he is to perform the
functions as expected of him and he must feel secure that such action of his will not lead to
his own downfall. The independence is not assured for the Judge but to the judged.
Independence to the Judge, therefore, would be both essential and proper. Considered
judgment of the court 196 would guarantee the constitutional liberties which would thrive
only in an atmosphere of judicial independence. Every endeavour should be made to
preserve independent judiciary as a citadel of public justice and public security to fulfil the
constitutional role assigned to the Judges. 15. The Founding Fathers of the Constitution
advisedly adopted a cumbersome process of impeachment as a mode to remove a Judge
from office for only proved misbehaviour or incapacity which implies that impeachment
process is not available for minor abrasive behaviour of a Judge. It reinforces that
independence to the Judge is of paramount importance to sustain, strengthen and elongate
rule of law. Parliament sparingly resorts to the mechanism of impeachment designed under
the Constitution by political process as the extreme measure only upon a finding of proved
misbehaviour or incapacity recorded by a committee constituted under Section 3 of the Act
by way of address to the President in the manner laid down in Article 124(4) and (5) of the
Constitution, the Act and the Rules made thereunder. 16. In all common law jurisdictions,
removal by way of impeachment is the accepted norm for serious acts of judicial misconduct
committed by a Judge. Removal of a Judge by impeachment was designed to produce as
little damage as possible to judicial independence, public confidence in the efficacy of
judicial process and to maintain authority of courts for its effective operation. 17. In United
States, the Judges appointed under Article III of the American Constitution could be removed
only by impeachment by the Congress. The Congress enacted the Judicial Councils Reform
and Judicial Conduct and Disability Act of 1980 (the 1980 Act) by which Judicial Council was
explicitly empowered to receive complaints about the judicial conduct “prejudicial to the
effective and expeditious administration of the business of the courts, or alleging that such a
judge or magistrate is unable to discharge all the duties of office by reason of mental or
physical disability”. 18. Jeffrey N. Barr and Thomas E. Willging conducted research on the
administration of the 1980 Act and in their two research volumes, they concluded that
“several Chief Judges view the Act as remedial legislation designed not to punish Judges but
to correct aberrant behaviour and provide opportunity for corrective action as a central
feature of the Act”. From 1980 to 1992, 2388 complaints were filed. 95 per cent thereof
resulted in dismissal. 1.7 per cent of the complaints ended in either dismissal from service or
corrective action of reprimands - two of public reprimands and one of private reprimand.
Two cases were reported to judicial conference by the judicial councils certifying that the
grounds might exist for impeachment. 19. Our Constitution permits removal of the Judge
only when the motion was carried out with requisite majority of both the Houses of
Parliament recommending to the President for removal. In other words, the Constitution
does not permit any action by any agency other than the initiation of the action under
Article 124(4) by Parliament. In Sub-Committee on Judicial Accountability v. Union of India
[(1991) 4 SCC 699], this Court at p. 54 held that the removal of a Judge culminating in the
presentation of an address by different Houses of Parliament to the President, is committed
to Parliament alone and no initiation of any investigation is possible 197 without the
initiative being taken by the Houses themselves. At p. 71 it was further held that the
constitutional scheme envisages removal of a Judge on proved misbehaviour or incapacity
and the conduct of the Judge was prohibited to be discussed in Parliament by Article 121.
Resultantly, discussion of the conduct of a Judge or any evaluation or inferences as to its
merit is not permissible elsewhere except during investigation before the Inquiry Committee
constituted under the Act for this purpose. 20. Articles 124(4) and 121 would thus put the
nail squarely on the projections, prosecutions or attempts by any other forum or group of
individuals or Associations, statutory or otherwise, either to investigate or inquire into or
discuss the conduct of a Judge or the performance of his duties and on/off court behaviour
except as per the procedure provided under Articles 124(4) and (5) of the Constitution, and
Act and the Rules. Thereby, equally no other agency or authority like the CBI, Ministry of
Finance, the Reserve Bank of India (Respondents 8 to 10) as sought for by the petitioner,
would investigate into the conduct or acts or actions of a Judge. No mandamus or direction
would be issued to the Speaker of Lok Sabha or Chairman of Rajya Sabha to initiate action
for impeachment. It is true, as contended by the petitioner, that in K. Veeraswami v. Union
of India [(1991) 3 SCC 655], majority of the Constitution Bench upheld the power of the
police to investigate into the disproportionate assets alleged to be possessed by a Judge, an
offence under Section 5 of the Prevention of Corruption Act, 1947 subject to prior sanction
of the Chief Justice of India to maintain independence of the judiciary. By interpretive
process, the Court carved out primacy to the role of the Chief Justice of India, whose efficacy
in a case like one at hand would be considered at a later stage. Duty of the Judge to maintain
high standard of conduct. Its judicial individualism — Whether protection imperative? 21.
Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a
Judge must be a man of high integrity, honesty and required to have moral vigour, ethical
firmness and impervious to corrupt or venial influences. He is required to keep most
exacting standards of propriety in judicial conduct. Any conduct which tends to undermine
public confidence in the integrity and impartiality of the court would be deleterious to the
efficacy of judicial process. Society, therefore, expects higher standards of conduct and
rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to
emulate and imbibe high moral or ethical standards expected of a higher judicial
functionary, as wholesome standard of conduct which would generate public confidence,
accord dignity to the judicial office and enhance public image, not only of the Judge but the
court itself. It is, therefore, a basic requirement that a Judge’s official and personal conduct
be free from impropriety; the same must be in tune with the highest standard of propriety
and probity. The standard of conduct is higher than that expected of a layman and also
higher than that expected of an advocate. In fact, even his private life must adhere to high
standards of probity and propriety, higher than those deemed acceptable for others.
Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society. 198
22. In Krishna Swami v. Union of India [(1992) 4 SCC 605], one of us (K. Ramaswamy, J.) held
that the holder of office of the Judge of the Supreme Court or the High Court should,
therefore, be above the conduct of ordinary mortals in the society. The standards of judicial
behaviour, both on and off the Bench, are normally high. There cannot, however, be any
fixed or set principles, but an unwritten code of conduct of well-established traditions is the
guidelines for judicial conduct. The conduct that tends to undermine the public confidence
in the character, integrity or impartiality of the Judge must be eschewed. It is expected of
him to voluntarily set forth wholesome standards of conduct reaffirming fitness to higher
responsibilities. 23. To keep the stream of justice clean and pure, the Judge must be
endowed with sterling character, impeccable integrity and upright behaviour. Erosion
thereof would undermine the efficacy of the rule of law and the working of the Constitution
itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the
frailties and foibles, human failings and weak character which may be found in those in
other walks of life. They should be men of fighting faith with tough fibre not susceptible to
any pressure, economic, political or of any sort. The actual as well as the apparent
independence of judiciary would be transparent only when the office-holders endow those
qualities which would operate as impregnable fortress against surreptitious attempts to
undermine the independence of the judiciary. In short, the behaviour of the Judge is the
bastion for the people to reap the fruits of the democracy, liberty and justice and the
antithesis rocks the bottom of the rule of law. Scope and meaning of ‘misbehaviour’ in
Article 124(4) 24. Article 124(4) of the Constitution sanctions action for removal of a Judge
on proved misbehaviour or incapacity. The word ‘misbehaviour’ was not advisedly defined. It
is a vague and elastic word and embraces within its sweep different facets of conduct as
opposed to good conduct. In the Law Lexicon by P. Ramanatha Aiyar, 1987 Edn. at p. 821,
collected from several decisions, the meaning of the word ‘misconduct’, is stated to be
vague and relative term. Literally, it means wrong conduct or improper conduct. It has to be
construed with reference to the subject-matter and the context wherein the term occurs
having regard to the scope of the Act or the statute under consideration. In the context of
disciplinary proceedings against a solicitor, the word misconduct was construed as
professional misconduct extending to conduct “which shows him to be unworthy member of
the legal profession”. In the context of misrepresentation made by a pleader, who obtained
adjournment of a case on grounds to his knowledge to be false a Full Bench of the Madras
High Court in First Grade Pleader, Re [AIR 1931 Mad 422], held that if a legal practitioner
deliberately made, for the purpose of impeding the course of justice, a statement to the
court which he believed to be untrue and thereby gained an advantage for his client, he was
guilty of gross improper conduct and as such rendered himself liable to be dealt with by the
High Court in the exercise of its disciplinary jurisdiction. Misconduct on the part of an
arbitrator was construed to mean that misconduct does not necessarily comprehend or
include misconduct of a fraudulent or improper character, but it does comprehend and
include action on the part of the arbitrator which is, upon the face of it, opposed to all
rational and reasonable principles that should govern the procedure of any person who is
called upon to decide upon 199 questions in difference and dispute referred to him by the
parties. Misconduct in office was construed to mean unlawful behaviour or include
negligence by public officer, by which the rights of the party have been affected. In Krishna
Swami case, one of us, K. Ramaswamy, J., considered the scope of ‘misbehaviour’ in Article
124(4) and held in para 71 that: Every act or conduct or even error of judgment or negligent
acts by higher judiciary per se does not amount to misbehaviour. Wilful abuse of judicial
office, wilful misconduct in the office, corruption, lack of integrity, or any other offence
involving moral turpitude would be misbehaviour. Misconduct implies actuation of some
degree of mens rea by the doer. Judicial finding of guilt of grave crime is misconduct.
Persistent failure to perform the judicial duties of the Judge or wilful abuse of the office
dolus malus would be misbehaviour. Misbehaviour would extend to conduct of the Judge in
or beyond the execution of judicial office. Even administrative actions or omissions too need
accompaniment of mens rea. 25. Guarantee of tenure and its protection by the Constitution
would not, however, accord sanctuary for corruption or grave misbehaviour. Yet every
action or omission by a judicial officer in the performance of his duties which is not a good
conduct necessarily, may not be misbehaviour indictable by impeachment, but its insidious
effect may be pervasive and may produce deleterious effect on the integrity and impartiality
of the Judge. Every misbehaviour in juxtaposition to good behaviour, as a constitutional
tautology, will not support impeachment but a misbehaviour which is not a good behaviour
may be improper conduct not befitting to the standard expected of a Judge. Threat of
impeachment process itself may swerve a Judge to fall prey to misconduct but it serves
disgrace to use impeachment process for minor offences or abrasive conduct on the part of
a Judge. The bad behaviour of one Judge has a rippling effect on the reputation of the
judiciary as a whole. When the edifice of judiciary is built heavily on public confidence and
respect, the damage by an obstinate Judge would rip apart the entire judicial structure built
in the Constitution. 26. Bad conduct or bad behaviour of a Judge, therefore, needs
correction to prevent erosion of public confidence in the efficacy of judicial process or
dignity of the institution or credibility to the judicial office held by the obstinate Judge.
When the Judge cannot be removed by impeachment process for such conduct but
generates widespread feeling of dissatisfaction among the general public, the question
would be who would stamp out the rot and judge the Judge or who would impress upon the
Judge either to desist from repetition or to demit the office in grace? Who would be the
appropriate authority? Who would be the principal mover in that behalf? The hiatus
between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion
of public confidence in the efficacy of judicial process. Whether the Bar of that Court has any
role to play either in an attempt to correct the perceived fallen standard or is entitled to
make a demand by a resolution or a group action to pressurise the Judge to resign his office
as a Judge? The resolution to these questions involves delicate but pragmatic approach to
the questions of constitutional law. 200 Role of the Bar Council or Bar Associations -
Whether unconstitutional? 27. The Advocates Act, 1961 gave autonomy to a Bar Council of a
State or Bar Council of India and Section 6(1) empowers them to make such action deemed
necessary to set their house in order, to prevent fall in professional conduct and to punish
the incorrigible as not befitting the noble profession apart from admission of the advocates
on its roll. Section 6(1)(c) and rules made in that behalf, Sections 9, 35, 36, 36-B and 37
enjoin it to entertain and determine cases of misconduct against advocates on its roll. The
members of the judiciary are drawn primarily and invariably from the Bar at different levels.
The high moral, ethical and professional standards among the members of the Bar are
preconditions even for high ethical standards of the Bench. Degeneration thereof inevitably
has its eruption and tends to reflect the other side of the coin. The Bar Council, therefore, is
enjoined by the Advocates Act to maintain high moral, ethical and professional standards
which of late is far from satisfactory. Their power under the Act ends thereat and extends no
further. Article 121 of the Constitution prohibits discussion by the members of Parliament of
the conduct of any Judge of the Supreme Court or of High Court in the discharge of his
duties except upon a motion for presenting an address to the President praying for the
removal of the Judge as provided under Article 124(4) and (5) and in the manner laid down
under the Act, the Rules and the rules of business of Parliament consistent therewith. By
necessary implication, no other forum or fora or platform is available for discussion of the
conduct of a Judge in the discharge of his duties as a Judge of the Supreme Court or the High
Court, much less a Bar Council or group of practising advocates. They are prohibited to
discuss the conduct of a Judge in the discharge of his duties or to pass any resolution in that
behalf. 28. Section 2(c) of the Contempt of Courts Act, 1971, defines “criminal contempt” to
mean publication whether by words spoken or written, signs, visible representations or
otherwise of any matter or the doing of any act whatsoever which scandalises or tends to
scandalise, lowers or tends to lower the authority of any court or prejudices or interferes or
tends to interfere with the due course of any judicial proceeding, or interferes or tends to
interfere with or obstructs or tends to obstruct the administration of justice in any other
manner. Freedom of expression and duty of Advocate 31. It is true that freedom of speech
and expression guaranteed by Article 19(1)(a) of the Constitution is one of the most precious
liberties in any democracy. But equally important is the maintenance of respect for judicial
independence which alone would protect the life, liberty and reputation of the citizen. So
the nation’s interest requires that criticism of the judiciary must be measured, strictly
rational, sober and proceed from the highest motives without being coloured by partisan
spirit or pressure tactics or intimidatory attitude. The Court must, therefore, harmonise
constitutional values of free criticism and the need for a fearless curial process and its
presiding functionary, the Judge. If freedom of expression subserves public interest in
reasonable measure, public justice cannot gag it or manacle it; but if the court considered
the attack on the Judge or Judges scurrilous, offensive, intimidatory or malicious, beyond
condonable limits, the strong arm of the law must strike a blow on him who challenges the
supremacy of the rule of the 201 law by fouling its source and stream. The power to punish
the contemner is, therefore, granted to the court not because Judges need the protection
but because the citizens need an impartial and strong judiciary. 32. It is enough if all of us
bear this in mind while expressing opinions on courts and Judges. But the question that still
remains is when the Bar of the Court, in which the Judge occupies the seat of office, honestly
believes that the conduct of the Judge or of the Bench fouls the fountain of justice, or
undermines or tends to undermine the dignity expected of a Judge and the people are
tending to disbelieve the impartiality or integrity of the Judge, who should bear the duty and
responsibility to have it/them corrected so as to restore the respect for judiciary? 33. In
Brahma Prakash Sharma v. State of U.P. [AIR 1954 SC 10], the Bar Association passed
resolutions and communicated to the superior authorities that certain judicial officers were
incompetent due to their conduct in the court and High Court took action for contempt of
the court. The question was whether the members of the Executive Committee of the Bar
Association had committed contempt of the court? This Court held that the attack on a
Judge is a wrong done to the public and if it tends to create apprehension in the minds of
the people regarding the integrity, ability or fairness of the Judge and to deter actual and
prospective litigants from placing complete reliance upon the court’s administration of
justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the
discharge of his judicial duties, it would be scandalising the court and be dealt with
accordingly. 34. The threat of action on vague grounds of dissatisfaction would create a
dragnet that would inevitably sweep into its grasp the maverick, the dissenter, the
innovator, the reformer - in one word the unpopular. Insidious attempts pave way for
removing the inconvenient. Therefore, proper care should be taken by the Bar Association
concerned. First, it should gather specific, authentic and acceptable material which would
show or tend to show that conduct on the part of a Judge creating a feeling in the mind of a
reasonable person doubting the honesty, integrity, impartiality or act which lowers the
dignity of the office but necessarily, is not impeachable misbehaviour. In all fairness to the
Judge, the responsible office-bearers should meet him in camera after securing interview
and apprise the Judge of the information they had with them. If there is truth in it, there is
every possibility that the Judge would mend himself. Or to avoid embarrassment to the
Judge, the office-bearers can approach the Chief Justice of that High Court and apprise him
of the situation with material they have in their possession and impress upon the Chief
Justice to deal with the matter appropriately. Primacy of the Chief Justice of India 35. It is
true that this Court has neither administrative control over the High Court nor power on the
judicial side to enquire into the misbehaviour of a Chief Justice or Judge of a High Court.
When the Bar of the High Court concerned reasonably and honestly doubts the conduct of
the Chief Justice of that Court, necessarily the only authority under the Constitution that
could be tapped is the Chief Justice of India, who in common parlance is known as the head
of the judiciary of the country. It is of importance to emphasise here that impeachment is
meant to be a 202 drastic remedy and needs to be used in serious cases. But there must
exist some other means to ensure that Judges do not abuse the trust the society has in
them. It seems to us that selfregulation by the judiciary is the only method which can be
tried and adopted. Chief Justice of India is the first among the Judges. Under Articles 124(2)
and 217(1), the President of India always consults the Chief Justice of India for appointment
of the Judges in the Supreme Court and High Courts. Under Article 222, the President
transfers Judges of High Courts in consultation with the Chief Justice of India. In Supreme
Court Advocates-on-Record Assn. v. Union of India [(1993) 4 SCC 441], it was reinforced and
the Chief Justice of India was given centre stage position. The primacy and importance of the
office of the Chief Justice was recognised judicially by this Court in Veeraswami case. This
Court, while upholding power to register a case against a retired Chief Justice of the High
Court, permitted to proceed with the investigation for the alleged offence under Section 5 of
the Prevention of Corruption Act. The Constitution Bench per majority, however, held that
the sanction and approval of the Chief Justice of India is a condition precedent to register a
case and investigate into the matter and sanction for prosecution of the said Judge by the
President after consultation with the Chief Justice of India. 36. In Sub-Committee on Judicial
Accountability also the same primacy had been accorded to the Chief Justice at p. 72 thus:
“It would also be reasonable to assume that the Chief Justice of India is expected to find a
desirable solution in such a situation to avoid embarrassment to the learned Judge and to
the institution in a manner which is conducive to the independence of judiciary and should
the Chief Justice of India be of the view that in the interests of the institution of judiciary it is
desirable for the learned Judge to abstain from judicial work till the final outcome under
Article 124(4), he would advise the learned Judge accordingly. It is further reasonable to
assume that the concerned learned Judge would ordinarily abide by the advice of the Chief
Justice of India.” 40. Bearing all the above in mind, we are of the considered view that where
the complaint relates to the Judge of the High Court, the Chief Justice of that High Court,
after verification, and if necessary, after confidential enquiry from his independent source,
should satisfy himself about the truth of the imputation made by the Bar Association
through its office-bearers against the Judge and consult the Chief Justice of India, where
deemed necessary, by placing all the information with him. When the Chief Justice of India is
seized of the matter, to avoid embarrassment to him and to allow fairness in the procedure
to be adopted in furtherance thereof, the Bar should suspend all further actions to enable
the Chief Justice of India to appropriately deal with the matter. This is necessary because any
action he may take must not only be just but must also appear to be just to all concerned,
i.e., it must not even appear to have been taken under pressure from any quarter. The Chief
Justice of India, on receipt of the information from the Chief Justice of the High Court, after
being satisfied about the correctness and truth touching the conduct of the Judge, may
tender such advice either directly or may initiate such action, as is deemed necessary or
warranted under given facts and circumstances. If circumstances permit, it 203 may be
salutary to take the Judge into confidence before initiating action. On the decision being
taken by the Chief Justice of India, the matter should rest at that. This procedure would not
only facilitate nipping in the bud the conduct of a Judge leading to loss of public confidence
in the courts and sustain public faith in the efficacy of the rule of law and respect for the
judiciary, but would also avoid needless embarrassment of contempt proceedings against
the office-bearers of the Bar Association and group libel against all concerned. The
independence of judiciary and the stream of public justice would remain pure and unsullied.
The Bar Association could remain a useful arm of the judiciary and in the case of sagging
reputation of the particular Judge, the Bar Association could take up the matter with the
Chief Justice of the High Court and await his response for the action taken thereunder for a
reasonable period. 41. In case the allegations are against Chief Justice of a High Court, the
Bar should bring them directly to the notice of the Chief Justice of India. On receipt of such
complaint, the Chief Justice of India would in the same way act as stated above qua
complaint against a Judge of the High Court, and the Bar would await for a reasonable
period the response of the Chief Justice of India. 42. It would thus be seen that yawning gap
between proved misbehaviour and bad conduct inconsistent with the high office on the part
of a non-cooperating Judge/Chief Justice of a High Court could be disciplined by self-
regulation through in-house procedure. This in-house procedure would fill in the
constitutional gap and would yield salutary effect. Unfortunately, recourse to this procedure
was not taken in the case at hand, may be, because of absence of legal sanction to such a
procedure. * * * * * 204 P.D. Gupta v. Ram Murti (1997) 7 SCC 147 D.P. WADHWA, J. - The
appellant is an advocate practising in Delhi. He has filed this appeal under Section 38 of the
Advocates Act, 1961 (“the Act”) against order dated 4-5-1996 of the Disciplinary Committee
of the Bar Council of India holding him guilty of misconduct and suspending him from
practice for a period of one year. This order by the Bar Council of India was passed as the
Disciplinary Committee of the Bar Council of Delhi could not dispose of the complaint
received by it within a period of one year and proceedings had thus been transferred to the
Bar Council of India under Section 36-B of the Act. Section 36-B enjoins upon the Disciplinary
Committee of the State Bar Council to dispose of the complaint received by it under Section
35 of the Act expeditiously and in any case to conclude the proceedings within one year
from the date of the receipt of the complaint or the date of initiation of the proceedings if at
the instance of the State Bar Council. Under Section 35 of the Act where on the receipt of a
complaint or otherwise the State Bar Council has reason to believe that any advocate on its
roll has been guilty of professional or other misconduct, it shall refer the case for disposal to
its Disciplinary Committee. 2. One Srikishan Dass died on 5-1-1980 leaving behind extensive
properties, both moveable and immovable. One Vidya Wati claiming to be the sister and the
only legal heir of Srikishan Dass filed a petition under Section 276 of the Indian Succession
Act in the Court of District Judge, Delhi for grant of probate/letters of administration to the
estate of deceased Srikishan Dass. This she filed in February 1980. It is not that there was
any Will. The complainant Ram Murti (who is now respondent before us) and two other
persons also laid claim to the properties of Srikishan Dass claiming themselves to be his heirs
and propounding three different Wills. They also filed separate proceedings under Section
276 of the Indian Succession Act before the District Judge, Delhi. Since there was dispute
regarding inheritance to the properties of Srikishan Dass, Vidya Wati also filed a civil suit in
the Delhi High Court for declaration and injunction against various defendants numbering
23, including the complainant Ram Murti who is Defendant 21. This suit was filed on 10-2-
1982. Vidya Wati had prayed for a decree of injunction against the defendants restraining
them from trespassing into property bearing No. 4852 Harbans Singh Street, 24 Daryaganj,
New Delhi or from interfering with or disturbing peaceful possession and enjoyment of
immovable properties detailed in Schedule A to the plaint. She also sought a declaration that
she was the absolute owner of the properties mentioned therein in the Schedule. It is not
necessary for us to detail the properties shown in Schedule A except to note two properties
at 24 Daryaganj, New Delhi bearing No. 4852 and 4852-A. It is stated that this suit is still
pending in the Delhi High Court and all the proceedings under Section 276 of the Indian
Succession Act filed by various persons relating to the estate of Srikishan Dass have also
been transferred from the Court of District Judge, Delhi to the High Court and are being tried
along with the suit filed by Vidya Wati as aforesaid. 205 3. It would appear that Vidya Wati
also filed various other proceedings respecting the properties left by deceased Srikishan
Dass against the occupants or otherwise. P.D. Gupta, Advocate, who is the appellant before
us had been her counsel throughout in all these proceedings. The complaint alleged against
him is that though he knew that there was doubt cast on the right of Vidya Wati inheriting
the properties of Srikishan Dass on account of pendency of various proceedings and further
that the complainant and others had alleged that she was in fact an impostor and her claim
to be sister of Srikishan Dass was false yet P.D. Gupta purchased the ground floor of
property bearing No. 4858-A, 24 Daryaganj from Vidya Wati by a sale deed dated 30-12-
1982. The complainant also alleged that Vidya Wati had been describing herself either as the
real sister, stepsister or even half-blood sister of Srikishan Dass which fact was well known to
P.D. Gupta, her counsel. 4. It is not for us to go into the merits or demerits of the
controversy raised by the parties in various proceedings pending in the courts and still
awaiting adjudication, the grievance of the complainant is as to how an advocate could
purchase property from his client which property is the subject-matter of dispute between
the parties in a court of law. During the course of hearing of this appeal it was also brought
to our notice that the second floor of the property bearing No. 4858-A, 24 Daryaganj was
purchased by Suresh Kumar Gupta, son-in-law of Advocate P.D. Gupta from Vidya Wati.
Then again it was brought to our notice that Advocate P.D. Gupta sold the property
purchased by him in November 1987 for a consideration of Rs 3,40,000 when he himself had
purchased the property for Rs 1,80,000 in December 1982. It is pointed out that the facts
relating to purchase of different portions of property No. 4858-A, 24 Daryaganj and
subsequent sale by P.D. Gupta were not brought on record of the said suit filed by Vidya
Wati. 5. Be that as it may the Bar Council of India has commented upon the conduct of P.D.
Gupta in buying the property from Vidya Wati in the circumstances aforesaid who had been
describing herself sometimes as a half-blood sister and sometimes as real sister or even
stepsister of Srikishan Dass. The explanation given by P.D. Gupta is that though Vidya Wati
was the stepsister of Srikishan Dass but the latter always treated her like his real sister and
that is how Vidya Wati also at times described herself as his real sister. 6. There are some
more facts which could also be noted. Vidya Wati herself has died and she is stated to be
survived by her only daughter Maya Devi who is also now dead. Before her death Vidya Wati
allegedly executed a Will in favour of her grandson Anand Prakash Bansal who is stated to be
the son of Maya Devi bequeathing all her properties to him. Vidya Wati died on 26- 10-1991
and Maya Devi on 13-4-1992. It is stated that P.P. Bansal, husband of Maya Devi and father
of Anand Prakash Bansal, has been acting as General Attorney of Vidya Wati and instructing
P.D. Gupta. 7. In support of his case P.D. Gupta filed affidavit of Anand Prakash Bansal
wherein it is claimed that sale deeds executed by Vidya Wati in favour of P.D. Gupta and his
son-in-law Suresh Kumar Gupta were without any pressure from anyone and were by free
will of Vidya Wati. P.D. Gupta has claimed that the complaint filed by Ram Murti is motivated
and he himself 206 had no title to the properties of Srikishan Dass being no relative of his
and the Will propounded by him had been found to be forged as opined by the CFSL/CBI
laboratory. The fact that the Will propounded by Ram Murti is forged or not is still to be
decided by the Court. In the affidavit filed by P.D. Gupta, in answer to the complaint of Ram
Murti, he has stated that “Lala Srikishan Dass left behind his sister Smt Vidya Wati who
succeeded to the estate on the death of Lala Srikishan Dass and took over the entire
moveable and immovable estate. Thereafter the complainant and two other persons
propounded the Will of Lala Srikishan Dass”. This statement of P.D. Gupta has been verified
by him as true and correct to his knowledge. It does appear to us to be rather odd for a
lawyer to verify such facts to his knowledge. It is claimed that when Srikishan Dass died,
subject immovable property was plot bearing No. 4858-A, 24 Daryaganj measuring 1500 sq.
feet and the same was got mutated in the name of Vidya Wati in the records of the
Municipal Corporation of Delhi and then she got plans sanctioned from the Municipal
Corporation of Delhi for construction of the house on this plot and which she did construct
and got completion certificate on 28-8-1981. It is peculiar, rather astounding, how Vidya
Wati could get the property of Srikishan Dass mutated in her name when she is yet to be
granted letters of administration or declaration to her title. 8. We examined the two sale
deeds transferring this property, one executed in favour of P.D. Gupta and the other in
favour of his son-in-law Suresh Kumar Gupta and we have also examined the proceedings on
the basis of which the Bar Council of India came to the conclusion that P.D. Gupta was guilty
of misconduct and he be debarred from practising for the period of one year. When Ram
Murti complained that P.D. Gupta had fraudulently purchased the property of deceased
Srikishan Dass being the entire ground floor property bearing No. 4858-A, 24 Daryaganj,
Delhi as per sale deed executed on 30-12-1982 from Vidya Wati as also in the name of his
son-in-law Suresh Kumar, son of Suraj Bhan, knowing fully well that Vidya Wati was not the
owner of the property, the reply given by P.D. Gupta is as under: “5. Para 5 as stated is false,
misleading and ill-motivated, in view of the above submissions. This respondent did
purchase the ground floor portion from Smt Vidya Wati by a registered sale deed and sold
the same by a registered sale deed in November 1987, and has no longer any concern with
any of the properties of Smt Vidya Wati. (As per) the information of the respondent, no
proceedings disputing the title of Smt Vidya Wati or cancellation of sale deed in favour of
any of the buyers from Smt Vidya Wati who are more than 20 in number, has been filed so
far. One of such buyers is Shri P.P. Sharma, the ex-Registrar of the Delhi High Court. This
respondent believed Smt Vidya Wati as the right owner according to the facts and law and
sold it as aforesaid. The applicant is in no way concerned with the rights of the respondent
and the matter pending for adjudication is between the complainant and the parties
concerned.” 9. In the sale deed which is dated 30-12-1982 executed in favour of P.D. Gupta
recitals show that the agreement for sale was entered into on 3-9-1980. The completion
certificate of the building was obtained on 28-8-1981, payment of Rs 1,50,000 made before
execution of the sale deed on various dates from 3-8-1980 to 20-11-1981 by means of
cheques except one 207 payment of Rs 10,000 made by cash on 3-9-1980. Balance amount
of consideration of Rs 30,000 was paid at the time of registration of the sale deed. In the sale
deed there is no mention of any civil suit respecting this property pending in the High Court.
Rather it is stated that the vendor had constructed various floors and had
assured/represented to the vendee that she had a good and marketable title to the property
and the same was free from all sorts of liens, charges, encumbrances or other like burdens,
and in case any defect in the title of the vendor was later on proved, the vendor undertook
to compensate the vendee for all losses, damages and claims, which might be caused to him
in this regard. In the other sale deed dated 2-12-1982 executed in favour of the son-in-law of
P.D. Gupta, which was filed during the course of the hearing of this appeal, it is mentioned
that after obtaining completion certificate on 28-8-1981 Vidya Wati let out the second floor
of the property comprising five rooms, kitchen, two bathrooms on a monthly rent of rupees
five hundred to Suraj Bhan Gupta. Recitals to this deed show that in order to fetch a better
price Vidya Wati agreed to sell the property being on the second floor which according to
her was not giving good returns for consideration of Rs 1,75,000 to Suresh Kumar Gupta.
Now this Suresh Kumar Gupta, son-in-law of P.D. Gupta, is no other person than the son of
Suraj Bhan Gupta, the tenant. There is no mention of any agreement to sell in this sale deed
but what we find is that first payment of Rs 20,000 towards consideration was made on 5-
11-1981, second payment of Rs 25,000 on 20-2-1982 and third of Rs 30,000 on 26-4-1982.
Balance payment has been made at the time of execution of the sale deed on 2-12-1982. 10.
The Bar Council of India has taken note of the following facts: 1. P.D. Gupta claims to know
Vidya Wati since 1980 when Srikishan Dass was alive. He knew Vidya Wati closely and yet
contradictory stands were taken by Vidya Wati when she varyingly described herself as half-
blood sister, real sister or stepsister of Srikishan Dass. These contradictory stands in fact cast
doubt on the very existence of Vidya Wati herself. This also created doubt about bona fides
of P.D. Gupta who seemed to be a family lawyer of Vidya Wati. 2. P.D. Gupta knew that the
property purchased by him from Vidya Wati was the subject-matter of litigation and title of
Vidya Wati to that property was in doubt. 3. Huge property situated in Daryaganj was
purchased by P.D. Gupta for a mere sum of Rs 1,80,000 in 1982. 4. The agreement for sale of
property was entered into as far back on 3-9-1980 and P.D. Gupta had been advancing
money to Vidya Wati from time to time which went to show that as per the version of P.D.
Gupta he knew Vidya Wati quite well. When P.D. Gupta knew Vidya Wati so closely how
could Vidya Wati take contradictory stands visà-vis her relationship with Srikishan Dass? 208
11. The Bar Council of India was thus of the view that the conduct of P.D. Gupta in the
circumstances was unbecoming of professional ethics and conduct. The Bar Council of India
also observed: “It is an acknowledged fact that a lawyer conducting the case of his client has
a commanding status and can exert influence on his client. As a member of the Bar it is in
our common knowledge that lawyers have started contracting with the clients and enter
into bargains that in case of success he will share the result. A number of instances have
been found in the cases of Motor Accident Claims. No doubt there is no bar for a lawyer to
purchase property but on account of common prudence specially a law-knowing person will
never prefer to purchase the property, the title of which is under doubt.” Finally it said: “But
for the purpose of the present complaint, having regard to all the facts and circumstances of
the case, the Committee is of the opinion that the conduct of the respondent is patently
unbecoming of a lawyer and against professional ethics. Consequently, we feel that as an
exemplary punishment, Shri P.D. Gupta should be suspended from practice for a period of
one year so that other erring lawyers should learn a lesson and refrain themselves from
indulging in such practice.” 12. The question which arises for consideration is: In view of the
aforementioned facts is P.D. Gupta guilty of professional or other misconduct and if so is the
punishment awarded to him disproportionate to the professional or other misconduct of
which he has been found guilty? 13. Mr Y.K. Jain, learned counsel appearing for the
appellant P.D. Gupta, submitted that if in a case like this it was held that a lawyer was guilty
of professional misconduct particularly on a complaint filed by an interested person like Ram
Murti no lawyer would be able to conduct henceforth the case of his client fearlessly. Mr
Jain said that the aggrieved person, if any, in this case would have been either Vidya Wati,
her daughter Maya Devi or her grandson Anand Prakash Bansal and neither of them had
complained. It was also submitted that though the property was purchased by P.D. Gupta in
late 1982 the complaint by Ram Murti was filed only on 16-12-1992. Mr Jain explained that
as to how Vidya Wati had been varyingly described in various litigations was on account of
instruction from her or her attorney and it was no fault of P.D. Gupta on that account. Then
it was submitted that no specific charges had been framed in the disciplinary proceedings
which had caused prejudice to P.D. Gupta in the conduct of his defence. Lastly, it was
contended that P.D. Gupta was no longer concerned with the property as he had sold away
the same. 14. There appears to be no substance in the submissions of Mr Jain. P.D. Gupta
was fully aware of the allegations he was to meet. It was not a complicated charge. He has
been 209 sufficiently long in practice. The argument that a charge had not been formulated
appears to be more out of the discontentment of P.D. Gupta in being unable to meet the
allegation. Now, P.D. Gupta says that he has washed his hands off the property and thus he
is not guilty of any misconduct. That is not the issue. It is his conduct in buying the property,
the subject-matter of litigation between the parties, from his client on which he could
exercise undue influence especially when there was a doubt cast on his client’s title to the
property. Had P.D. Gupta sold the property back to Vidya Wati and got the sale deed in his
favour cancelled something could have been said in his favour. But that is not so. He sold the
property to a third person, made profit and created more complications in the pending suit.
P.D. Gupta purchased the properties which were the subject-matter of the dispute for
himself and also for his son-in-law at almost throw-away prices and thus he himself became
a party to the litigation. The conduct of P.D. Gupta cannot be said to be above board. It is
not material that Vidya Wati or anyone claiming through her has not complained against
him. We are concerned with the professional conduct of P.D. Gupta as a lawyer conducting
the case for his client. A lawyer owes a duty to be fair not only to his client but also to the
court as well as to the opposite party in the conduct of the case. Administration of justice is
a stream which has to be kept pure and clean. It has to be kept unpolluted. Administration
of justice is not something which concerns the Bench only. It concerns the Bar as well. The
Bar is the principal ground for recruiting Judges. No one should be able to raise a finger
about the conduct of a lawyer. While conducting the case he functions as an officer of the
court. Here, P.D. Gupta in buying the property has in effect subverted the process of justice.
His action has raised serious questions about his fairness in the conduct of the trial touching
his professional conduct as an advocate. By his action he has brought the process of
administration of justice into disrepute. 15. The Bar Council of India and the State Bar
Councils are statutory bodies under the Act. These bodies perform varying functions under
the Act and the rules framed thereunder. The Bar Council of India has laid standards of
professional conduct for the members. The code of conduct in the circumstances can never
be exhaustive. The Bar Council of India and the State Bar Councils are representative bodies
of the advocates on their rolls and are charged with the responsibility of maintaining
discipline amongst members and punishing those who go astray from the path of rectitude
set out for them. In the present case the Bar Council of India, through its Disciplinary
Committee, has considered all the relevant circumstances and has come to the conclusion
that P.D. Gupta, Advocate is guilty of misconduct and we see no reason to take a different
view. We also find no ground to interfere with the punishment awarded to P.D. Gupta in the
circumstances of the case. 17. The appeal is dismissed. * * * * * 210 211 T.C. Mathai v.
District & Sessions Judge, Thiruvananthapuram (1999) 3 SCC 614 K.T. THOMAS, J. - 2. The
appellant claims to be the power-of-attorney holder of a couple (husband and wife) now
living in Kuwait. He sought permission of the Sessions Court, Trivandrum to appear and
plead on behalf of the said couple who are arrayed as respondents in a criminal revision
petition filed before the said Sessions Court (they will be referred to as the respondent-
couple). But the Sessions Judge declined to grant permission as the request for such
permission did not emanate from the respondent-couple themselves. Thereupon the
appellant moved the High Court of Kerala under Article 226 of the Constitution for issuance
of a direction to the Sessions Judge concerned to grant the permission sought for. A Single
Judge of the High Court dismissed the original petition against which the appellant filed a
writ appeal which too was dismissed by a Division Bench of the High Court. 3. Undeterred by
the successive setback in securing a right of audience on behalf of the aforesaid couple the
appellant travelled a long distance from the southern end of the country right up to the
national capital to personally argue before the Apex Court that he is entitled to plead for the
respondent-couple in the Sessions Court. We heard the appellant-in-person though we are
still now unable to appreciate why he, instead of incurring so much expenses and strain, did
not advise the respondent-couple to engage a counsel for pleading their cause before the
Sessions Court. 4. The appellant, during the course of his arguments, referred to a
commentary on criminal law to support his contention that a power-of-attorney holder has
all powers to act on behalf of his principal. We would assume that the respondent-couple
would have executed an instrument of power of attorney empowering the appellant to act
on their behalf. Can he become a pleader for the respondent-couple on the strength of it? 5.
Section 303 of the Code of Criminal Procedure (“the Code”) entitles a person to the right of
being defended by a “pleader” of his choice when proceedings are initiated against him
under the Code. “Pleader” is defined in Section 2(q) as thus: “2.(q) ‘pleader’, when used with
reference to any proceeding in any court, means a person authorised by or under any law
for the time being in force, to practise in such court, and includes any other person
appointed with the permission of the court to act in such proceeding;” 6. The definition
envelopes two kinds of pleaders within its ambit. The first refers to legal practitioners who
are authorised to practise law and the second refers to “any other person”. If it is the latter,
its essential requisite is that such person should have been appointed with the permission of
the court to act in such proceedings. This is in tune with Section 32 of the Advocates Act,
1961 which empowers a court to permit any person, who is not enrolled as an 212 advocate
to appear before it in any particular case. But if he is to plead for another person in a
criminal court, such permission should be sought for by that person. 7. It is not necessary
that the “pleader” so appointed should be the power-of-attorney holder of the party in the
case. What seems to be a condition precedent is that his appointment should have been
preceded by grant of permission of the court. It is for the court to consider whether such
permission is necessary in the given case and whether the person proposed to be appointed
is capable of helping the court by pleading for the party, for arriving at proper findings on
the issues involved in the case. 8. The work in a court of law is a serious and responsible
function. The primary duty of a criminal court is to administer criminal justice. Any lax or
wayward approach, if adopted towards the issues involved in the case, can cause serious
consequences for the parties concerned. It is not just somebody representing the party in
the criminal court who becomes the pleader of the party. In the adversary system which is
now being followed in India, both in civil and criminal litigation, it is very necessary that the
court gets proper assistance from both sides. 9. Legally qualified persons who are authorised
to practise in the courts by the authority prescribed under the statute concerned can appear
for parties in the proceedings pending against them. No party is required to obtain prior
permission of the court to appoint such persons to represent him in court. Section 30 of the
Advocates Act confers a right on every advocate whose name is entered in the Roll of
Advocates maintained by a State Bar Council to practise in all the courts in India including
the Supreme Court. Section 33 says that no person shall be entitled to practise in any court
unless he is enrolled as an advocate under that Act. Every advocate so enrolled becomes a
member of the Bar. The Bar is one of the main wings of the system of justice. An advocate is
the officer of the court and is hence accountable to the court. Efficacious discharge of
judicial process very often depends upon the valuable services rendered by the legal
profession. 10. But if the person proposed to be appointed by the party is not such a
qualified person, the court has first to satisfy itself whether the expected assistance would
be rendered by that person. The reason for Parliament for fixing such a filter in the definition
clause [Section 2(q) of the Code] that prior permission must be secured before a non-
advocate is appointed by the party to plead his cause in the court, is to enable the court to
verify the level of equipment of such a person for pleading on behalf of the party concerned.
11. V.R. Krishna Iyer, J. had occasion to deal with a similar matter while considering a plea
like this in a chamber proceeding in the Supreme Court. In that case, a party sought
permission to be represented by another person in a criminal case. Learned Judge then
struck a note of caution in the following terms in Harishankar Rastogi v. Girdhari Sharma [AIR
1978 SC 1019]: “If the man who seeks to represent has poor antecedents or irresponsible
behaviour or dubious character, the court may receive counter-productive service from him.
Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-
213 informed or blackguardly or blockheadedly private representatives filing arguments at
the court. Likewise, the party himself may suffer if his private representative deceives him or
destroys his case by mendacious or meaningless submissions and with no responsibility or
respect for the court. Other situations, settings and disqualifications may be conceived of
where grant of permission for a private person to represent another may be obstructive,
even destructive of justice.” 12. The appellant submitted that he is the duly appointed
attorney of the respondent-couple by virtue of an instrument of power of attorney executed
by them and on its strength he contended that his right to represent the respondent-couple
in the court would be governed by the said authority in the instrument. 14. Under the
English law, “every person who is sui juris has a right to appoint an agent for any purpose
whatsoever, and he can do so when he is exercising statutory right no less than when he is
exercising any other right”. But this Court has pointed out that the aforesaid common law
principle does not apply where the act to be performed is personal in character, or when it is
annexed to a public office or to an office involving any fiduciary obligation, 15. Section 2 of
the Power of Attorney Act cannot override the specific provision of a statute which requires
that a particular act should be done by a party-in-person. When the Code requires the
appearance of an accused in a court it is no compliance with it if a power-of-attorney holder
appears for him. It is a different thing that a party can be permitted to appear through
counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for
the appearance of the accused. Section 205 of the Code empowers the Magistrate to
dispense with “the personal attendance of the accused, and permit him to appear by his
pleader” if he sees reasons to do so. Section 273 of the Code speaks of the powers of the
court to record evidence in the presence of the pleader of the accused, in cases when
personal attendance of the accused is dispensed with. But in no case can the appearance of
the accused be made through a power-ofattorney holder. So the contention of the appellant
based on the instrument of power of attorney is of no avail in this case. 16. In this context
reference can be made to a decision rendered by a Full Bench of the Madras High Court in
M. Krishnammal v. T. Balasubramania Pillai [AIR 1937 Mad 937], when a person, who was
the power-of-attorney holder of another, claimed right of audience in the High Court on
behalf of his principal. A Single Judge referred three questions to be considered by the Full
Bench, of which the one which is relevant here was whether an agent with the power of
attorney to appear and conduct judicial proceedings has the right of audience in court.
Beasley, C.J., who delivered the judgment on behalf of the Full Bench stated the legal
position thus: (AIR Headnote) “An agent with a power of attorney to appear and conduct
judicial proceedings, but who has not been so authorised by the High Court, has no right of
audience on behalf of the principal, either in the appellate or original side of the High
Court. ... There is no warrant whatever for putting a power of attorney given to a recognized
agent to conduct 214 proceedings in court in the same category as a vakalat given to a legal
practitioner, though latter may be described as a power of attorney [which] is confined only
to pleaders, i.e., those who have a right to plead in courts.” 17. The aforesaid observations,
though stated sixty years ago, would represent the correct legal position even now. Be that
as it may, an agent cannot become a “pleader” for the party in criminal proceedings, unless
the party secures permission from the court to appoint him to act in such proceedings. The
respondent-couple have not even moved for such a permission and hence no occasion has
arisen so far to consider that aspect. 18. The appeal is accordingly dismissed. 215 R.D.
Saxena v. Balram Prasad Sharma (2000) 7 SCC 264 K.T. THOMAS, J. (for himself and Sethi, J.)
The main issue posed in this appeal has sequential importance for members of the legal
profession. The issue is this: has the advocate a lien for his fees on the litigation papers
entrusted to him by his client? In this case the Bar Council of India, without deciding the
above crucial issue, has chosen to impose punishment on a delinquent advocate debarring
him from practising for a period of 18 months and a fine of Rs 1000. The advocate concerned
was further directed to return all the case bundles which he got from his respondent client
without any delay. This appeal is filed by the said advocate under Section 38 of the
Advocates Act, 1961. The appellant, now a septuagenarian, has been practising as an
advocate mostly in the courts at Bhopal, after enrolling himself as a legal practitioner with
the State Bar Council of Madhya Pradesh. According to him, he was appointed as legal
advisor to Madhya Pradesh State Cooperative Bank Ltd. (“the Bank” for short) in 1990 and
the Bank continued to retain him in that capacity during the succeeding years. He was also
engaged by the said Bank to conduct cases in which the Bank was a party. However, the said
retainership did not last long. On 17-7- 1993 the Bank terminated the retainership of the
appellant and requested him to return all the case files relating to the Bank. Instead of
returning the files the appellant forwarded a consolidated bill to the Bank showing an
amount of Rs 97,100 as the balance payable by the Bank towards the legal remuneration to
which he is entitled. He informed the Bank that the files would be returned only after
settling his dues. 3. Correspondence went on between the appellant and the Bank regarding
the amount, if any, payable to the appellant as the balance due to him. The respondent Bank
disclaimed any liability outstanding from them to the appellant. The dispute remained
unresolved and the case bundles never passed from the appellant’s hands. As the cases
were pending the Bank was anxious to have the files for continuing the proceedings before
the courts/tribunals concerned. At the same time the Bank was not disposed to capitulate to
the terms dictated by the appellant which they regarded as grossly unreasonable. A
complaint was hence filed by the Managing Director of the Bank, before the State Bar
Council (Madhya Pradesh) on 3-2-1994. It was alleged in the complaint that the appellant is
guilty of professional misconduct by not returning the files to his client. 4. In the reply which
the appellant submitted before the Bar Council he admitted that the files were not returned
but claimed that he has a right to retain such files by exercising his right of lien and offered
to return the files as soon as payment is made to him. 5. The complaint was then forwarded
to the Disciplinary Committee of the District Bar Council. The State Bar Council failed to
dispose of the complaint even after the expiry of one year. So under Section 36-B of the
Advocates Act the proceedings stood transferred to the Bar 216 Council of India. After
holding inquiry the Disciplinary Committee of the Bar Council of India reached the conclusion
that the appellant is guilty of professional misconduct. The Disciplinary Committee has
stated the following in the impugned order: “On the basis of the complaint as well as the
documents available on record we are of the opinion that the respondent is guilty of
professional misconduct and thereby he is liable for punishment. The complainant is a public
institution. It was the duty of the respondent to return the briefs to the Bank and also to
appear before the Committee to revert his allegations made in application dated 8-11-1995.
No such attempt was made by him.” 6. In this appeal learned counsel for the appellant
contended that the failure of the Bar Council of India to consider the singular defence set up
by the appellant i.e. he has a lien over the files for his unpaid fees due to him, has resulted in
miscarriage of justice. The Bank contended that there was no fee payable to the appellant
and the amount shown by him was on account of inflating the fees. Alternatively, the
respondent contended that an advocate cannot retain the files after the client terminated
his engagement and that there is no lien on such files. 7. We would first examine whether an
advocate has lien on the files entrusted to him by the client. Learned counsel for the
appellant endeavoured to base his contention on Section 171 of the Indian Contract Act
which reads thus: “171. Bankers, factors, wharfingers, attorneys of a High Court and policy-
brokers may, in the absence of a contract to the contrary, retain as a security for a general
balance of account, any goods bailed to them; but no other persons have a right to retain, as
a security for such balance, goods bailed to them, unless there is an express contract to that
effect.” 8. Files containing copies of the records (perhaps some original documents also)
cannot be equated with the “goods” referred to in the section. The advocate keeping the
files cannot amount to “goods bailed”. The word “bailment” is defined in Section 148 of the
Contract Act as the delivery of goods by one person to another for some purpose, upon a
contract that they shall be returned or otherwise disposed of according to the directions of
the person delivering them, when the purpose is accomplished. In the case of litigation
papers in the hands of the advocate there is neither delivery of goods nor any contract that
they shall be returned or otherwise disposed of. That apart, the word “goods” mentioned in
Section 171 is to be understood in the sense in which that word is defined in the Sale of
Goods Act. 9. Thus understood “goods” to fall within the purview of Section 171 of the
Contract Act should have marketability and the person to whom they are bailed should be in
a position to dispose of them in consideration of money. In other words the goods referred
to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the
case files into money, nor can they be sold to any third party. Hence, the reliance placed on
Section 171 of the Contract Act has no merit. 217 10. In England the solicitor had a right to
retain any deed, paper or chattel which had come into his possession during the course of
his employment. It was the position in common law and it was later recognized as the
solicitor’s right under the Solicitors Act, 1860. 12. After independence the position would
have continued until the enactment of the Advocates Act, 1961 which has repealed a host of
enactments including the Indian Bar Council Act. When the new Bar Council of India came
into existence it framed rules called the Bar Council of India Rules as empowered by the
Advocates Act. Such Rules contain provisions specifically prohibiting an advocate from
adjusting the fees payable to him by a client against his own personal liability to the client.
As a rule an advocate shall not do anything whereby he abuses or takes advantage of the
confidence reposed in him by his client (vide Rule 24). In this context a reference can be
made to Rules 28 and 29. 13. Thus, even after providing a right for an advocate to deduct
the fees out of any money of the client remaining in his hand at the termination of the
proceeding for which the advocate was engaged, it is important to notice that no lien is
provided on the litigation files kept with him. In the conditions prevailing in India with lots of
illiterate people among the litigant public it may not be advisable also to permit the counsel
to retain the case bundle for the fees claimed by him. Any such lien if permitted would
become susceptible to great abuses and exploitation. 14. There is yet another reason which
dissuades us from giving approval to any such lien. We are sure that nobody would dispute
the proposition that the cause in a court/tribunal is far more important for all concerned
than the right of the legal practitioner for his remuneration in respect of the services
rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to
change his counsel pendente lite, that which is more important should have its even course
flow unimpeded. Retention of records for the unpaid remuneration of the advocate would
impede such course and the cause pending judicial disposal would be badly impaired. If a
medical practitioner is allowed a legal right to withhold the papers relating to the treatment
of his patient which he thus far administered to him for securing the unpaid bill, that would
lead to dangerous consequences for the uncured patient who is wanting to change his
doctor. Perhaps the said illustration may be an overstatement as a necessary corollary for
approving the lien claimed by the legal practitioner. Yet the illustration is not too far-
fetched. No professional can be given the right to withhold the returnable records relating to
the work done by him with his client’s matter on the strength of any claim for unpaid
remuneration. The alternative is that the professional concerned can resort to other legal
remedies for such unpaid remuneration. 15. A litigant must have the freedom to change his
advocate when he feels that the advocate engaged by him is not capable of espousing his
cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any
other reason. For whatever reason, if a client does not want to continue the engagement of
a particular advocate it would be a professional requirement consistent with the dignity of
the profession that he should return the brief to the client. It is time to hold that such
obligation is not only a legal duty but a moral imperative. 218 16. In civil cases, the
appointment of an advocate by a party would be deemed to be in force until it is determined
with the leave of the court [vide Order 3 Rule 4(1) of the Code of Civil Procedure]. In criminal
cases, every person accused of an offence has the right to consult and be defended by a
legal practitioner of his choice which is now made a fundamental right under Article 22(1) of
the Constitution. The said right is absolute in itself and it does not depend on other laws.
The words “of his choice” in Article 22(1) indicate that the right of the accused to change an
advocate whom he once engaged in the same case, cannot be whittled down by that
advocate by withholding the case bundle on the premise that he has to get the fees for the
services already rendered to the client. 17. If a party terminates the engagement of an
advocate before the culmination of the proceedings that party must have the entire file with
him to engage another advocate. But if the advocate who is changed midway adopts the
stand that he would not return the file until the fees claimed by him are paid, the situation
perhaps may turn to dangerous proportions. There may be cases when a party has no
resources to pay the huge amount claimed by the advocate as his remuneration. A party in a
litigation may have a version that he has already paid the legitimate fee to the advocate. At
any rate if the litigation is pending the party has the right to get the papers from the
advocate whom he has changed so that the new counsel can be briefed by him effectively. In
either case it is impermissible for the erstwhile counsel to retain the case bundle on the
premise that fees were yet to be paid. 18. Even if there is no lien on the litigation papers of
his client an advocate is not without remedies to realise the fee which he is legitimately
entitled to. But if he has a duty to return the files to his client on being discharged the
litigant too has a right to have the files returned to him, more so when the remaining part of
the lis has to be fought in the court. This right of the litigant is to be read as the
corresponding counterpart of the professional duty of the advocate. 19. Misconduct
envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression
“misconduct, professional or otherwise”. The word “misconduct” is a relative term. It has to
be considered with reference to the subject-matter and the context wherein such term
occurs. It literally means wrong conduct or improper conduct. 20. Corpus Juris Secundum
contains the following passage at p.740 (Vol. 7): “Professional misconduct may consist in
betraying the confidence of a client, in attempting by any means to practise a fraud or
impose on or deceive the court or the adverse party or his counsel, and in fact in any
conduct which tends to bring reproach on the legal profession or to alienate the favourable
opinion which the public should entertain concerning it.” 23. We, therefore, hold that the
refusal to return the files to the client when he demanded the same amounted to
misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to
punishment for such misconduct. 219 24. However, regarding the quantum of punishment
we are disposed to take into account two broad aspects: (1) This Court has not pronounced,
so far, on the question whether the advocate has a lien on the files for his fees. (2) The
appellant would have bona fide believed, in the light of decisions of certain High Courts, that
he did have a lien. In such circumstances it is not necessary to inflict a harsh punishment on
the appellant. A reprimand would be sufficient in the interest of justice on the special facts
of this case. 25. We, therefore, alter the punishment to one of reprimanding the appellant.
However, we make it clear that if any advocate commits this type of professional misconduct
in future he would be liable to such quantum of punishment as the Bar Council will
determine and the lesser punishment imposed now need not be counted as a precedent.
D.P. Chadha v. Triyugi Narain Mishra (2001) 2 SCC 221 R.C. LAHOTI, J. - Shri D.P. Chadha,
Advocate, the appellant, has been held guilty of professional misconduct by the Rajasthan
State Bar Council and punished with suspension from practice for a period of five years. Shri
Anil Sharma, Advocate was also proceeded against along with Shri D.P. Chadha, Advocate
and he too having been found guilty was reprimanded. An appeal preferred by Shri D.P.
Chadha, Advocate under Section 37 of the Advocates Act, 1961 has not only been dismissed
but the Bar Council of India has chosen to vary the punishment of the appellant by
enhancing the period of suspension from practice to ten years. The Bar Council of India has
also directed notice to show cause against enhancement of punishment to be issued to Shri
Anil Sharma, Advocate. The Bar Council of India has further directed proceedings for
professional misconduct to be initiated against one Shri Rajesh Jain, Advocate. Shri D.P.
Chadha, Advocate has preferred this appeal under Section 38 of the Advocates Act, 1961
(“the Act”). 2. It is not disputed that Upasana Construction Pvt. Ltd. had filed a suit for
ejectment based on landlord-tenant relationship against the complainant Shri Triyugi Narain
Mishra, who was running a school in the tenanted premises wherein about 2000 students
were studying. Shri D.P. Chadha was engaged by the complainant for defending him in the
suit. 3. It is not necessary to set out in extenso the contents of the complaint made by Shri
Triyugi Narain Mishra to the Bar Council. It would suffice to notice in brief the findings
concurrently arrived at by the State Bar Council and the Bar Council of India constituting the
gravamen of the charge against the appellant. While the proceedings in the ejectment suit
were going on in the civil court at Jaipur, the complainant was contesting an election in the
State of U.P. Polling was held on 18-11-1993 and again on 22-11-1993 on which dates as also
on the days intervening, Shri Triyugi Narain Mishra was in Chilpur in the State of U.P. looking
after the election and was 220 certainly not available at Jaipur. Shri D.P. Chadha was in
possession of a blank vakalatnama and a blank paper, both signed by the complainant, given
to him in the first week of October 1993. These documents were used for fabricating a
compromise petition whereby the complainant has been made to suffer a decree for
eviction. The blank vakalatnama was used for engaging Shri Anil Sharma, Advocate, on
behalf of the complainant, who got the compromise verified. Though the compromise was
detrimental to the interest of the complainant yet the factum of compromise and its
verification was never brought to the notice of the complainant in spite of ample time and
opportunity being available for the purpose. The proceedings of the court show a deliberate
attempt having been made by three erring advocates to avoid the appearance of the
complainant before the court, to prevent the complainant from gathering knowledge of the
compromise filed in court and creating a situation whereby the court was virtually
compelled to pass a decree though the court was feeling suspicious of the compromise and
wanted presence of the complainant to be secured before it before the decree was passed.
4. The proceedings of the court and the several documents relating thereto, go to show that
earlier the plaintiff Company was being represented by Shri Vidya Bhushan Sharma,
Advocate. An application was moved on behalf of the plaintiff discharging Shri Vidya
Bhushan Sharma from the case and instead engaging Shri Rajesh Jain, Advocate on behalf of
the plaintiff and in place of Shri Vidya Bhushan Sharma, Advocate. On 17-11-1993 Shri D.P.
Chadha was present in the court though the defendant was not present when an
adjournment was taken from the court stating that there was possibility of an amicable
settlement between the parties whereupon hearing was adjourned to 14-2-1994 for
reporting compromise or framing of issues. On 20-11- 1993, which was not a date fixed for
hearing, Shri Rajesh Jain and Shri Anil Sharma, Advocates appeared in the court on behalf of
the plaintiff and the defendant respectively and filed a compromise petition. Shri Anil
Sharma filed Vakalatnama purportedly on behalf of the complainant. 5. The compromise
petition purports to have been signed by the parties as also by Shri Rajesh Jain, Advocate on
behalf of the plaintiff and Shri Anil Sharma, Advocate on behalf of the defendant. The
compromise petition is accompanied by another document purporting to be a receipt
executed by the complainant acknowledging receipt of an amount of Rs. 5 lakhs by way of
damages for the loss of school building standing on the premises. The receipt is typed but
the date 20-11-1993 is written in hand. A revenue stamp of 20 p is fixed on the receipt in a
side of the paper and at a place where ordinarily the ticket is not affixed. The factum of the
defendant having received an amount of Rs 5 lakhs as consideration amount for the
compromise does not find a mention in the compromise petition. 6. The Learned Additional
Civil Judge before whom the compromise petition was filed directed the parties to remain
personally present before the court on 17-12-1993 so as to verify the compromise. Instead
of complying with the orders, Shri Rajesh Jain, Advocate filed a miscellaneous civil appeal
raising a plea that the trial court was not justified in directing personal appearance of the
parties and should have recorded the compromise on verification by the advocates. The
complainant Shri Triyugi Narain Mishra was impleaded as respondent “through 221
advocate Shri Anil Sharma” - as stated in the cause title of memo of appeal. The appeal was
filed on 20-12-1993. Notice of appeal was not issued to the complainant; the same was
issued in the name of Shri Anil Sharma, Advocate, who accepted the same. Shri Anil Sharma,
Advocate did not file any vakalatnama on behalf of the complainant in the appeal and
instead made his appearance by filing a memo of appearance reciting his authority to appear
in appeal on the basis of his being a counsel for the complainant in the trial court. This
appeal was dismissed by the Learned Additional District Judge on 24-1-1994 holding the
appeal to be not maintainable. 7. On 30-1-1994, the trial court’s record was returned to it by
the appellate court. On 17-12- 1993 also the trial court had directed personal appearance of
the parties. On 16-2-1994 the counsel appearing for the parties (the names of the counsel
not mentioned in the order-sheet dated 16-2-1994) took time for submitting case-law for
the perusal of the court. Similar prayer was made on 21-2-1994 and 18-3-1994. On 8-4-1994,
the plaintiff was present with his counsel. The defendant/complainant was not present. Shri
D.P. Chadha, Advocate appeared on behalf of the defendant and argued that personal
presence of Shri Triyugi Narain Mishra was not required for verification of compromise and
the presence of the advocate was enough for the court to verify the compromise and take
the same on record. The court was requested to recall its earlier order directing personal
appearance of the parties. A few decided cases were cited by Shri D.P. Chadha, Advocate
before the court for its consideration. The trial court suspected the conduct of the counsel
and passed a detailed order directing personal presence of the defendant to be secured
before the court. The trial court also directed a notice to be issued to the defendant for his
personal appearance on the next date of hearing before passing any order on the
compromise petition. 8. Shri Rajesh Jain, Advocate again filed an appeal against the order
dated 8-4-1994. Again the complainant was arrayed as a respondent in the cause title
“through Shri Anil Sharma, Advocate”. An application was moved before the appellate court
seeking a shorter date of hearing as the defendant was likely to go out. On 21-8-1994 the
appellate court directed the record of the trial court to be requisitioned. Shri Anil Sharma,
Advocate appeared in the appellate court without filing any vakalatnama from the
complainant. He conceded to the appeal being allowed and personal appearance of the
defendant not being insisted upon for the purpose of recording the compromise. The
appellate court was apparently oblivious of the legal position that such a miscellaneous
appeal was not maintainable under any provision of law. 9. Certified copy of the order of the
appellate court was obtained in hot haste. Unfortunately, the Presiding Officer of the trial
court who was dealing with the matter, had stood transferred in the meanwhile. An
application was filed before the successor trial Judge by Shri Rajesh Jain, Advocate
requesting compliance with the order of the appellate court and to record the compromise
and pass a decree in terms thereof, dispensing with the necessity of personal presence of
the parties. On 23-7-1994, the trial Judge, left with no other option, passed a decree in terms
of compromise in the presence of Shri Rajesh Jain and Shri Anil Sharma, Advocates. The
decree directed the suit premises to be vacated by 30-11-1993 (the date stated in the
compromise petition). 222 10. Shri Triyugi Narain Mishra, the complainant, moved the State
Bar Council complaining of the professional misconduct of the three advocates who had
colluded to bring the false compromise in existence without his knowledge and also made all
efforts to prevent the complainant gathering knowledge of the alleged compromise. 11. In
response of the notice issued by the State Bar Council, Shri Anil Sharma, Advocate submitted
that he did not know Shri Triyugi Narain Mishra personally. The vakalatnama and the
compromise petition were handed over to him by Shri D.P. Chadha, Advocate for the
purpose of being filed in the court. Shri Anil Sharma was told by Shri D.P. Chadha, Advocate
that he was not well and if there was any difficulty in securing the decree then he was
available to assist Shri Anil Sharma. In the two miscellaneous civil appeals preferred by Shri
Rajesh Jain, Advocate, Shri Anil Sharma accepted the notices of the appeals on the advice of
Shri D.P. Chadha, Advocate. 12. Shri D.P. Chadha, Advocate took the plea that he was not
aware of the compromise petition and the various proceedings relating thereto, leading to
verification of the compromise and passing of the decree. He submitted that he never
obtained blank paper or blank vakalatnama signed by anyone at any time and not even Shri
Triyugi Narain Mishra, the complainant. He also submitted that on 8-4-1994 his presence
had been wrongly recorded in the proceedings and he had not appeared before the court to
argue that the personal presence of the parties was not required for verification of
compromise petition filed in the court and that the counsel was competent to sign and verify
the compromise whereon the court should act. 13. Amongst other witnesses the
complainant and the three counsel have all been examined by the State Bar Council and
cross-examined by the parties to the disciplinary proceedings. The defence raised by the
appellant has been discarded by the State Bar Council as well as by the Bar Council of India
in their orders. Both the authorities have dealt extensively with the improbabilities of the
defence and assigned detailed reasons in support of the findings arrived at by them. Both
the authorities have found the charge against the appellant proved to the hilt. The
statement of the complainant has been believed that he had never entered into any
compromise and he did not even have knowledge of it. His statement that Shri D.P. Chadha,
the appellant, had obtained blank paper and blank vakalatnama signed by him and the same
have been utilised for the purpose of fabricating the compromise and appointing Shri Anil
Sharma, Advocate, has also been believed. Here it may be noted that Shri D.P. Chadha had
denied on oath having obtained any blank paper or vakalatnama from Shri Triyugi Narain
Mishra. However, while cross-examining the complainant first he was pinned down in
stating that only one paper and one vakalatnama (both blank) were signed by him and then
Shri D.P. Chadha produced from his possession one blank vakalatnama and one blank paper
signed by the complainant. The Bar Council has found that the blank paper, so produced by
the appellant, bore the signature of the complainant almost at the same place of the blank
space at which the signature appears on the disputed compromise. Production of signed
blank vakalatnama and blank paper from the custody of the complainant before the Bar
Council belied the appellant’s defence 223 emphatically raised in his written statement. On
8-4-1994 the presence of the appellant is recorded by the trial court at least at two places in
the order-sheet of that date. It is specifically recorded in the context of his making
submissions before the court relying on several rulings to submit that personal appearance
of the party was not necessary to have the compromise verified and taken on record. The
appellant had not moved the court at any time for correcting the record of the proceedings
and deleting his appearance only if the order-sheet did not correctly record the proceedings
of the court. On and around the filing of the compromise petition before the trial court the
appellant was keeping a watch on the proceedings and noting the appointed dates of
hearing though he was not actually appearing in the court on the dates other than 8-4-1994.
In short, it has been found both by the State Bar Council and the Bar Council of India that the
complainant had not entered into any compromise and that he was not even aware of it.
Blank vakalatnama and blank paper entrusted by him in confidence to his counsel, i.e. the
appellant, were used for the purpose of bringing a false compromise into existence and
appointing Shri Anil Sharma, Advocate for the defendant, without his knowledge, to have
compromise verified and brought on record followed by a decree. Shri Vidya Bhushan
Sharma, the counsel originally appointed by the plaintiff might not have agreed to a decree
being secured in favour of the plaintiff on the basis of a false compromise and that is why he
was excluded from the proceedings and instead Shri Rajesh Jain was brought to replace him.
The decree resulted into closure of the school, demolition of school building and about 2000
students studying in the school being thrown on the road. 14. We have heard the learned
counsel for the parties at length. We have also gone through the evidence and the relevant
documents available on record of the Bar Council. We are of the opinion that the State Bar
Council as well as the Bar Council of India have correctly arrived at the findings of the fact
and we too find ourselves entirely in agreement with the findings so arrived at. 15. In the
very nature of things there was nothing like emergency, not even an urgency for securing
verification of compromise and passing of a decree in terms thereof. Heavens were not
going to fall if the recording of the compromise was delayed a little and the defendant was
personally produced in the court who was certainly not available in Jaipur being away in the
State of U.P. contesting an election. The counsel for the parties were replaced apparently for
no reason. The trial court entertained doubts about the genuineness of the compromise and
therefore directed personal appearance of the parties for verification of the compromise.
The counsel appearing in the case made all possible efforts at avoiding compliance with the
direction of the trial court and to see that the compromise was verified and taken on record
culminating into a decree without the knowledge of the defendant/complainant. Instead of
securing presence of the defendant before the court, the counsel preferred miscellaneous
appeals twice and ultimately succeeded in securing an appellate order, which too is
collusive, directing the trial court to verify and take on record the compromise without
insisting on personal appearance of the defendant. Such miscellaneous appeal, as was
preferred, was not maintainable under Section 104 or Order 43 Rule 1 CPC or any other
provision of law. In an earlier round the appellate court had 224 expressed that view. The
proceedings in the appellate court as also before the trial court show an effort on the part of
the counsel appearing thereat to have the matter as to compromise disposed of hurriedly,
obviously with a view to exclude the possibility of the defendant-complainant gathering any
knowledge of what was transpiring. 17. Byram Pestonji Gariwala v. Union of India [AIR 1991
SC 2234] is an authority for the proposition that in spite of the 1976 Amendment in Order 23
Rule 3 CPC which requires agreement or compromise between the parties to be in writing
and signed by the parties, the implied authority of counsel engaged in the thick of the
proceedings in court, to compromise or agree on matters relating to the parties, was not
taken away. Neither the decision in Byram Pestonji Gariwala nor any other authority cited
on 8-4-1994 before the trial court dispenses with the need of the agreement or compromise
being proved to the satisfaction of the court. In order to be satisfied whether the
compromise was genuine and voluntarily entered into by the defendant, the trial court had
felt the need of parties appearing in person before the court and verifying the compromise.
In the facts and circumstances of the case the move of the counsel resisting compliance with
the direction of the court was nothing short of being sinister. The learned Additional District
Judge who allowed the appeal preferred by Shri Rajesh Jain unwittingly fell into trap. It was
expected of the learned Additional District Judge, who must have been a senior judicial
officer, to have seen that he was allowing an appeal which was not even maintainable. But
for his order the learned Judge of the trial court would not have taken on record the
compromise and passed decree in terms thereof unless the parties had personally appeared
before him. In our opinion the appellant Shri D.P. Chadha was not right in resisting the order
of the trial court requiring personal appearance of the defendant for verifying the
compromise. The resistance speaks volumes of sinister design working in the minds of the
guilty advocates. Even during the course of these proceedings and also during the course of
hearing of the appeal before us there is not the slightest indication of any justification
behind resistance offered by the counsel to the appearance of the defendant in the trial
court. The correctness of the proceedings dated 8-4-1994 as recorded by the court cannot
be doubted. The order-sheet of the trial court dated 8-4-1994 records as under: “8-4-1994
(Cutting). Plaintiff with counsel present. Defendant’s counsel Shri D.P. Chadha present.
Arguments heard. Judicial precedents Tashi Dorji v. Birendra Kumar Roy [AIR 1980 Cal 51],
Vishnu Kumar v. State Bank of Bikaner and Jaipur [AIR 1976 Raj 195], Byram Pestonji cited by
Shri D.P. Chadha perused. In the matter under consideration, compromise was filed on 20-
11- 1993 and the same day the counsel were directed to keep the parties present in court
but parties were not produced. On behalf of the plaintiff-appellant, an appeal was also
preferred against the order dated 20-11-1993 before the Hon’ble District and Sessions Judge
but the order of trial court being not appealable, appeal has been dismissed. Para 40 of the
decision Byram Pestonji is as under: 225 ‘Accordingly, we are of the view that the words ‘in
writing and signed by the parties’ inserted by the CPC (Amendment) Act, 1976, must
necessarily mean, to borrow the language of Order III Rule 1 CPC: “any appearance, …or by a
pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any
such appearance shall, if the court so directs, be made by the party in person.”’ Thus in my
view the court can direct any party to be present in court under Order III Rule 1 in
compliance with the said decision of the Hon’ble Supreme Court. The counsel for the
defendant has not produced the defendant in court. Therefore, notice be issued to the
defendant to appear personally in court. For service of notice, the case be put up on 5-5-
1994. Before (cutting) preparing the decree on the basis of compromise, I deem it proper in
the interest of justice to direct the opposite party to personally appear in the court. Sd/-
Illegible Seal of Additional Civil Judge and Additional Chief Judicial Magistrate No. 6, Jaipur
City.” 18. The record of the proceedings made by the court is sacrosanct. The correctness
thereof cannot be doubted merely for asking. In State of Maharashtra v. Ramdas Shrinivas
Nayak [AIR 1982 SC 1249], this Court has held: “(T)he Judges’ record was conclusive. Neither
lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere
else. The court could not launch into inquiry as to what transpired in the High Court. The
Court is bound to accept the statement of the Judges recorded in their judgment, as to what
transpired in court. It cannot allow the statement of the Judges to be contradicted by
statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment
that something was done, said or admitted before them, that has to be the last word on the
subject. The principle is well settled that statements of facts as to what transpired at the
hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no
one can contradict such statements by affidavit or other evidence. If a party thinks that the
happenings in court have been wrongly recorded in a judgment, it is incumbent upon the
party, while the matter is still fresh in the minds of the Judges, to call the attention of the
very Judges who have made the record to the fact that the statement made with regard to
his conduct was a statement that had been made in error. That is the only way to have the
record corrected. If no such step is taken, the matter must necessarily end there.” 20. The
explanation given by the appellant for not moving the trial court for rectification in the
record of proceedings is that the presiding Judge of the court had stood transferred and 226
therefore it would have been futile to move for rectification. Such an explanation is a ruse
merely. The application for rectification should have been moved as the only course
permissible and, if necessary, the record could have been sent to that very Judge for dealing
with the prayer of rectification wherever he was posted. In the absence of steps for
rectification having been taken a challenge to the correctness of the facts recorded in the
order-sheet of the court cannot be entertained, much less upheld. We agree with the finding
recorded in the order under appeal that the proceedings dated 8-4-1994 correctly state the
appellant having appeared in the court and argued the matter in the manner recited therein.
21. The term “misconduct” has not been defined in the Act. However, it is an expression
with a sufficiently wide meaning. In view of the prime position which the advocates occupy
in the process of administration of justice and justice delivery system, the courts justifiably
expect from the lawyers a high standard of professional and moral obligation in the
discharge of their duties. Any act or omission on the part of a lawyer which interrupts or
misdirects the sacred flow of justice or which renders a professional unworthy of right to
exercise the privilege of the profession would amount to misconduct attracting the wrath of
disciplinary jurisdiction. 22. A mere error of judgment or expression of a reasonable opinion
or taking a stand on a doubtful or debatable issue of law is not a misconduct; the term takes
its colour from the underlying intention. But at the same time misconduct is not necessarily
something involving moral turpitude. It is a relative term to be construed by reference to the
subject-matter and the context wherein the term is called upon to be employed. A lawyer in
discharging his professional assignment has a duty to his client, a duty to his opponent, a
duty to the court, a duty to the society at large and a duty to himself. It needs a high degree
of probity and poise to strike a balance and arrive at the place of righteous stand, more so,
when there are conflicting claims. While discharging duty to the court, a lawyer should never
knowingly be a party to any deception, design or fraud. While placing the law before the
court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his
wits and ability so as to persuade an exposition which would serve the interest of his client
so long as the issue is capable of that resolution by adopting a process of reasoning.
However, a point of law well settled or admitting of no controversy must not be dragged into
doubt solely with a view to confuse or mislead the Judge and thereby gaining an undue
advantage to the client to which he may not be entitled. Such conduct of an advocate
becomes worse when a view of the law canvassed by him is not only unsupportable in law
but if accepted would damage the interest of the client and confer an illegitimate advantage
on the opponent. In such a situation the wrong of the intention and impropriety of the
conduct is more than apparent. Professional misconduct is grave when it consists of
betraying the confidence of a client and is gravest when it is a deliberate attempt at
misleading the court or an attempt at practising deception or fraud on the court. The client
places his faith and fortune in the hands of the counsel for the purpose of that case; the
court places its confidence in the counsel in case after case and day after day. A client
dissatisfied with his counsel may change him but the same is not with the court. And so the
bondage of trust between the court and the counsel admits of no breaking. 227 24. It has
been a saying as old as the profession itself that the court and counsel are two wheels of the
chariot of justice. In the adversarial system, it will be more appropriate to say that while the
Judge holds the reigns, the two opponent counsel are the wheels of the chariot. While the
direction of the movement is controlled by the Judge holding the reigns, the movement
itself is facilitated by the wheels without which the chariot of justice may not move and may
even collapse. Mutual confidence in the discharge of duties and cordial relations between
Bench and Bar smoothen the movement of the chariot. As responsible officers of the court,
as they are called - and rightly, the counsel have an overall obligation of assisting the courts
in a just and proper manner in the just and proper administration of justice. Zeal and
enthusiasm are the traits of success in profession but overzealousness and misguided
enthusiasm have no place in the personality of a professional. 25. An advocate while
discharging duty to his client, has a right to do everything fearlessly and boldly that would
advance the cause of his client. After all he has been engaged by his client to secure justice
for him. A counsel need not make a concession merely because it would please the Judge.
Yet a counsel, in his zeal to earn success for a client, need not step over the welldefined
limits or propriety, repute and justness. Independence and fearlessness are not licences of
liberty to do anything in the court and to earn success to a client whatever be the cost and
whatever be the sacrifice of professional norms. 26. A lawyer must not hesitate in telling the
court the correct position of law when it is undisputed and admits of no exception. A view of
the law settled by the ruling of a superior court or a binding precedent even if it does not
serve the cause of his client, must be brought to the notice of court unhesitatingly. This
obligation of a counsel flows from the confidence reposed by the court in the counsel
appearing for any of the two sides. A counsel, being an officer of court, shall apprise the
Judge with the correct position of law whether for or against either party. 28. We are aware
that a charge of misconduct is a serious matter for a practising advocate. A verdict of guilt of
professional or other misconduct may result in reprimanding the advocate, suspending the
advocate from practice for such period as may be deemed fit or even removing the name of
the advocate from the roll of advocates which would cost the counsel his career. Therefore,
an allegation of misconduct has to be proved to the hilt. The evidence adduced should
enable a finding being recorded without any element of reasonable doubt. In the present
case, both the State Bar Council and the Bar Council of India have arrived at, on proper
appreciation of evidence, a finding of professional misconduct having been committed by
the appellant. No misreading or non-reading of the evidence has been pointed out. The
involvement of the appellant in creating a situation resulting into recording of a false and
fabricated compromise, apparently detrimental to the interest of his client, is clearly spelled
out by the findings concurrently arrived at with which we have found no reason to interfere.
The appellant canvassed a proposition of law before the court by pressing into service such
rulings which did not support the interpretation which he was frantically persuading the
court to accept. The provisions of Rule 3 of Order 23 are clear. The crucial issue in the case
was not the authority of a counsel to enter into a compromise, settlement or adjustment on
behalf of the client. The real 228 issue was of the satisfaction of the court whether the
defendant had really, and as a matter of fact, entered into settlement. The trial Judge
entertained a doubt about it and therefore insisted on the personal appearance of the party
to satisfy himself as to the correctness of the factum of compromise and genuineness of the
statement that the defendant had in fact compromised the suit in the manner set out in the
petition of compromise. 29. The power of the court to direct personal presence of any party
is inherent and implicit in jurisdiction vesting in the court to take decision. This power is a
necessary concomitant of court’s obligation to arrive at a satisfaction and record the same as
spelt out from the phraseology of Order 23 Rule 3 CPC. It is explicit in Order 3 Rule 1. This
position of law admits of no doubt. Strong resistance was offered to an innocuous and
cautious order of the court by canvassing an utterly misconceived proposition, even by
invoking a wrong appellate forum and with an ulterior motive. The counsel appearing for the
defendant, including the appellant, did their best to see that their own client did not appear
in the court and thereby, gather knowledge of such proceedings. At no stage, including the
hearing before this Court, the appellant has been able to explain how and in what manner
he was serving the interest of his client, i.e. the defendant in the suit by raising the plea
which he did. What was the urgency of having the compromise recorded without producing
the defendant in person before the court when the court was insisting on such appearance?
The compromise was filed in the court. The defendant was away electioneering in his
constituency. At best or at the worst, the recording of the compromise would have been
delayed by a few days. In the facts and circumstances of the case we find no reason to
dislodge the finding of professional misconduct as arrived at by the State Bar Council and the
Bar Council of India. 30. It has been lastly contended by the learned counsel for the
appellant that the Bar Council of India was not justified in enhancing the punishment by
increasing the period of suspension from practice from 5 years to 10 years. It is submitted
that the order enhancing the punishment to the prejudice of the appellant is vitiated by non-
compliance with principles of natural justice and also for having been passed without
affording the appellant a reasonable opportunity of being heard. 32. Very wide jurisdiction
has been conferred on the Bar Council of India by sub-section (2) of Section 37. The Bar
Council of India may confirm, vary or reverse the order of the State Bar Council and may
remit or remand the matter for further hearing or rehearing subject to such terms and
directions as it deems fit. The Bar Council of India may set aside an order dismissing the
complaint passed by the State Bar Council and convert it into an order holding the advocate
proceeded against guilty of professional or other misconduct. In such a case, obviously, the
Bar Council of India may pass an order of punishment which the State Bar Council could have
passed. While confirming the finding of guilt the Bar Council of India may vary the
punishment awarded by the Disciplinary Committee of the State Bar Council which power to
vary would include the power to enhance the punishment. An order enhancing the
punishment, being an order prejudicially affecting the advocate, the proviso mandates the
exercise of such power to be performed only after giving the advocate reasonable
opportunity of being heard. The proviso 229 embodies the rule of fair hearing. Accordingly,
and consistently with the well-settled principles of natural justice, if the Bar Council of India
proposes to enhance the punishment it must put the guilty advocate specifically on notice
that the punishment imposed on him is proposed to be enhanced. The advocate should be
given a reasonable opportunity of showing cause against such proposed enhancement and
then he should be heard. 33. In the case at hand we have perused the proceedings of the
Bar Council of India. The complainant did not file any appeal or application before the Bar
Council of India praying for enhancement of punishment. The appeal filed by the appellant
was being heard and during the course of such hearing it appears that the Disciplinary
Committee of the Bar Council of India indicated to the appellant’s counsel that it was
inclined to enhance the punishment. This is reflected by the following passage occurring in
the order under appeal: “While hearing the matter finally parties were also heard as to the
enhancement of sentence.” 34. The appellant himself was not present on the date of
hearing. He had prayed for an adjournment on the ground of his sickness which was refused.
The counsel for the appellant was heard in appeal. It would have been better if the Bar
Council of India having heard the appeal would have first placed its opinion on record that
the findings arrived at by the State Bar Council against the appellant were being upheld by it.
Then the appellant should have been issued a reasonable notice calling upon him to show
cause why the punishment imposed by the State Bar Council be not enhanced. After giving
him an opportunity of filing a reply and then hearing him the Bar Council could have for
reasons to be placed on record, enhanced the punishment. No such thing was done. The
exercise by the Bar Council of India of power to vary the sentence to the prejudice of the
appellant is vitiated in the present case for not giving the appellant reasonable opportunity
of being heard. The appellant is about 60 years of age. The misconduct alleged relates to the
year 1993. The order of the State Bar Council was passed in December 1995. In the facts and
circumstances of the case we are not inclined to remit the matter now to the Bar Council of
India for compliance with the requirements of proviso to sub-section (2) of Section 37 of the
Act as it would entail further delay and as we are also of the opinion that the punishment
awarded by the State Bar Council meets the ends of justice. 35. For the foregoing reasons
the appeal is partly allowed. The finding that the appellant is guilty of professional
misconduct is upheld but the sentence awarded by the Rajasthan State Bar Council
suspending the appellant from practice for a period of five years is upheld and restored.
Accordingly, the order of the Bar Council of India, only to the extent of enhancing the
punishment, is set aside. 230 Shambhu Ram Yadav v. Hanuman Das Khatry (2001) 6 SCC 1
Y.K. SABHARWAL, J. - Legal profession is not a trade or business. It is a noble profession.
Members belonging to this profession have not to encourage dishonesty and corruption but
have to strive to secure justice to their clients, if it is legally possible. The credibility and
reputation of the profession depends upon the manner in which the members of the
profession conduct themselves. There is a heavy responsibility on those on whom duty has
been vested under the Advocates Act, 1961 to take disciplinary action when the credibility
and reputation of the profession comes under a clout (sic cloud) on account of acts of
omission and commission by any member of the profession. A complaint filed by the
appellant against the respondent Advocate before the Bar Council of Rajasthan was referred
to the Disciplinary Committee constituted by the State Bar Council. In substance, the
complaint was that the respondent while appearing as a counsel in a suit pending in a civil
court wrote a letter to Mahant Rajgiri, his client inter alia stating that another client of his
has told him that the Judge concerned accepts bribe and he has obtained several favourable
orders from him in his favour; if he can influence the Judge through some other gentleman,
then it is a different thing, otherwise he should send to him a sum of Rs 10,000 so that
through the said client the suit is got decided in his (Mahant Rajgiri’s) favour. The letter
further stated that if Mahant can personally win over the Judge on his side then there is no
need to spend money. This letter is not disputed. In reply to the complaint, the respondent
pleaded that the services of the Presiding Judge were terminated on account of illegal
gratification and he had followed the norms of professional ethics and brought these facts to
the knowledge of his client to protect his interest and the money was not sent by his client
to him. Under these circumstances it was urged that the respondent had not committed any
professional misconduct. 3. The State Bar Council noticing that the respondent had admitted
the contents of the letter came to the conclusion that it constitutes misconduct. In the order
the State Bar Council stated that keeping in view the interest of the litigating public and the
legal profession such a practice whenever found has to be dealt with in an appropriate
manner. Holding the respondent guilty of misconduct under Section 35 of the Advocates Act,
the State Bar Council suspended him from practice for a period of two years with effect from
15-6-1997. 4. The respondent challenged the aforesaid order before the Disciplinary
Committee of the Bar Council of India. By order dated 31-7-1999 the Disciplinary Committee
of the Bar Council of India comprising of three members enhanced the punishment and
directed that the name of the respondent be struck off from the roll of advocates, thus
debarring him permanently from the practice. The concluding paragraph of the order dated
31-7-1999 reads thus: In the facts and circumstances of the case, we also heard the
appellant as to the punishment since the advocate has considerable standing in the
profession. He has served 231 as an advocate for 50 years and it was not expected of him to
indulge in such a practice of corrupting the judiciary or offering bribe to the Judge and he
admittedly demanded Rs 10,000 from his client and he orally stated that subsequently order
was passed in his client’s favour. This is enough to make him totally unfit to be a lawyer by
writing the letter in question. We cannot impose any lesser punishment than debarring him
permanently from the practice. His name should be struck off from the roll of advocates
maintained by the Bar Council of Rajasthan. Hereafter the appellant will not have any right
to appear in any court of law, tribunal or before any authority. We also impose a cost of Rs
5000 on the appellant which should be paid by the appellant to the Bar Council of India
which has to be paid within two months. 5. The respondent filed a review petition under
Section 44 of the Advocates Act against the order dated 31-7-1999. The review petition was
allowed and the earlier order modified by substituting the punishment already awarded
permanently debarring him with one of reprimanding him. The impugned order was passed
by the Disciplinary Committee comprising of three members of which two were not
members of the earlier Committee which had passed the order dated 31-7-1999. 6. The
review petition was allowed by the Disciplinary Committee for the reasons, which, in the
words of the Committee, are these: “(1) The Committee was under the impression as if it
was the petitioner who had written a letter to his client calling him to bribe the Judge. But a
perusal of the letter shows that the petitioner has simply given a reply to the query put by
his client regarding the conduct of the Judge and as such it remained a fact that it was not an
offer on the side of the delinquent advocate to bribe a Judge. This vital point which touches
the root of the controversy seems to have been ignored at the time of the passing of the
impugned order. (2) The petitioner is an old man of 80 years. He had joined the profession in
the year 1951 and during such a long innings of his profession, it was for the first time that
he conducted himself in such an irresponsible manner although he had no intention to bribe.
(3) The Committee does not approve the writing of such a letter on the part of the lawyer to
his client but keeping in view the age and the past clean record of the petitioner in the legal
profession the Committee is of the view that it would not be appropriate to remove the
advocate permanently from the roll of advocates…. The Committee is of the considered view
that ends of justice would be met in case the petitioner is reprimanded for the omission he
had committed. He is warned by the Committee that he should not encourage such activities
in life and he should be careful while corresponding with his client. In view of the aforesaid
observations, the review petition is accepted and the earlier judgment of the Committee
dated 31-7-1999 is modified to the extent and his suspension for life is revoked and he is
only reprimanded.” 232 7. We have perused the record. The original order has been
reviewed on non-existent grounds. All the factors taken into consideration in the impugned
order were already on record and were considered by the Committee when it passed the
order dated 31-7-1999. The power of review has not been exercised by applying well-settled
principles governing the exercise of such power. It is evident that the reasons and facts on
the basis whereof the order was reviewed had all been taken into consideration by the
earlier Committee. The relevant portion of the letter written by the advocate had been
reproduced in the earlier order. From that quotation it was evident that the said Committee
noticed that the advocate was replying to a letter received from his client. It is not in dispute
that the respondent had not produced the letter received by him from his client to which the
admitted letter was sent requiring his client to send Rs 10,000 for payment as bribe to the
Judge concerned. We are unable to understand as to how the Committee came to the
conclusion that any vital point in regard to the letter had been ignored at the time of the
passing of the order dated 31-7-1999. The age and the number of years the advocate had
put in had also been noticed in the order dated 31-7-1999. We do not know how the
Committee has come to the conclusion that the respondent “had no intention to bribe the
Judge”. There is nothing on the record to suggest it. The earlier order had taken into
consideration all relevant factors for coming to the conclusion that the advocate was totally
unfit to be a lawyer having written such a letter and punishment lesser than debarring him
permanently cannot be imposed. The exercise of power of review does not empower a
Disciplinary Committee to modify the earlier order passed by another Disciplinary
Committee taking a different view of the same set of facts. 8. The respondent was indeed
guilty of a serious misconduct by writing to his client the letter as aforesaid. Members of the
legal profession are officers of the court. Besides courts, they also owe a duty to the society
which has a vital public interest in the due administration of justice. The said public interest
is required to be protected by those on whom the power has been entrusted to take
disciplinary action. The disciplinary bodies are guardians of the due administration of justice.
They have requisite power and rather a duty while supervising the conduct of the members
of the legal profession, to inflict appropriate penalty when members are found to be guilty
of misconduct. Considering the nature of the misconduct, the penalty of permanent
debarment had been imposed on the respondent which without any valid ground has been
modified in exercise of power of review. It is the duty of the Bar Councils to ensure that
lawyers adhere to the required standards and on failure, to take appropriate action against
them. The credibility of a Council including its disciplinary body in respect of any profession
whether it is law, medicine, accountancy or any other vocation depends upon how they deal
with cases of delinquency involving serious misconduct which has a tendency to erode the
credibility and reputation of the said profession. The punishment, of course, has to be
commensurate with the gravity of the misconduct. 9. In the present case, the earlier order
considering all relevant aspects directed expulsion of the respondent from the profession
which order could not be lightly modified while deciding a review petition. It is evident that
the earlier Committee, on consideration of all relevant facts, 233 came to the conclusion
that the advocate was not worthy of remaining in the profession. The age factor and the
factor of number of years put in by the respondent were taken into consideration by the
Committee when removal from the roll of the State Council was directed. It is evident that
the Bar Council considered that a high standard of morality is required from lawyers, more
so from a person who has put in 50 years in the profession. One expects from such a person
a very high standard of morality and unimpeachable sense of legal and ethical propriety.
Since the Bar Councils under the Advocates Act have been entrusted with the duty of
guarding the professional ethics, they have to be more sensitive to the potential disrepute
on account of action of a few black sheep which may shake the credibility of the profession
and thereby put at stake other members of the Bar. Considering these factors, the Bar
Council had inflicted in its earlier order the condign penalty. Under these circumstances, we
have no hesitation in setting aside the impugned order dated 4-6-2000 and restoring the
original order of the Bar Council of India dated 31-7-1999. 10. The appeal is thus allowed in
the above terms with costs quantified at Rs 10,000. * * * * * Bhupinder Kumar Sharma v. Bar
Assn., Pathankot (2002) 1 SCC 470 SHIVARAJ V. PATIL, J. - The appellant has filed this appeal,
under Section 38 of the Advocates Act, 1961 (hereinafter referred to as “the Act”) against
the judgment and order dated 4-11-1998 passed by the Disciplinary Committee of the Bar
Council of India, confirming the 234 order passed by the Disciplinary Committee of the Bar
Council of Punjab and Haryana removing the name of the appellant from the State’s Roll of
Advocates under Section 35(3)(d) of the Act. 2. The appellant was enrolled with the State Bar
Council as an advocate on 16-9-1994 vide Enrolment No. P/771/94. On 9-9-1995, the
respondent-Association made a written complaint to the State Bar Council making
allegations of misconduct against the appellant. The State Bar Council took cognizance of the
complaint and referred the complaint to its Disciplinary Committee. After the completion of
the proceedings in DCE No. 1 of 1996, order was passed by the Disciplinary Committee of the
State Bar Council to remove the name of the appellant from the State’s Roll of Advocates
and the same was confirmed by the Disciplinary Committee of the Bar Council of India, in
appeal. Hence, this appeal. 3. The learned Senior Counsel for the appellant strongly
contended that the allegations made in the complaint were not established or proved,
judged by the standard of proof required in a case like this; the appellant was not actually
carrying on business and the evidence on this point was not properly appreciated; at any
rate, the punishment imposed on the appellant is grossly disproportionate even assuming
that the misconduct was proved. 4. Per contra, the learned Senior Counsel for the
respondent made submissions supporting the impugned order. He drew our attention to the
evidence brought on record to show how the findings recorded against the appellant are
justified. He also strongly contended that the misconduct of the appellant before and even
after filing of the appeals before the Bar Council of India and this Court in continuing the
business cannot be condoned; further in spite of giving undertaking before this Court, he is
still continuing his business as is supported by the report of the Sub-Judge made to this
Court. According to him, the punishment imposed on the appellant is proper in the absence
of any good ground to take any lenient view. 6. The complaint contained allegations of
misconduct against the appellant for the period prior to the date of enrolment as an
advocate and also subsequent to his enrolment. Since the Disciplinary Committee of the
State Bar Council did not go into the allegations of misconduct pertaining to the period prior
to the date of enrolment, it is unnecessary to refer to them. 7. According to the
complainant, the appellant was guilty of professional misconduct as he was carrying on and
continued his business and business activities even after his enrolment as an advocate,
stating thus: “(i) he was running a photocopier documentation centre in the court
compound, Pathankot, and the space for the same was allotted to the appellant in his
personal capacity on account of his being handicapped; (ii) he was running a PCO/STD booth
which was allotted in his name from the P&T Department under handicap quota; (iii) he was
the Proprietor/General Manager of the Punjab Coal Briquettes, Pathankot, a private concern
and he was pursuing the business/his interest in the said business even 235 on the date
when his statement was recorded by the Disciplinary Committee on 12-5- 1996.” 8. The
defence of the appellant was that although he was running business prior to his enrolment,
he did not continue the same after his enrolment as an advocate and he ceased to have any
business interest, and that it is his father and brother who were carrying on the business
after he became an advocate under some oral arrangement. The Disciplinary Committee of
the State Bar Council, after considering the evidence placed on record, both oral and
documentary, recorded a finding that the appellant was guilty of professional misconduct in
carrying on business in the aforementioned concerns even after his enrolment as an
advocate and passed order to remove his name from the State’s Roll of Advocates under
Section 35(3)(d) of the Act and debarred him from practising as an advocate. The Disciplinary
Committee of the Bar Council of India, in the appeal filed by the appellant on reappreciation
of the material on record, concurred with the finding recorded by the Disciplinary
Committee of the State Bar Council and held that the appellant was guilty of professional
misconduct and that the punishment imposed on him debarring the appellant from
practising for all time was just. Hence, dismissed the appeal. 9. In the impugned order, it is
also noticed that the appellant submitted his application form for enrolment. Column 12 of
the application form reads: “12. Whether or not applicant was engaged or has ever been
engaged in any trade, business or profession, if so the nature of such trade,
business/profession and the place where it is or was carried on. The answer submitted by
the appellant Advocate is as under: ‘No, not applicable.’ ” 10. According to the Disciplinary
Committee of the Bar Council of India, the appellant had not only procured enrolment by
submitting the false declaration but also suppressed the material fact; otherwise the
appellant would not have been enrolled at all. In the said order, it is further stated that as a
matter of fact, besides it being a case of misconduct, it is also a case where the name of the
appellant could be removed for suppressing the material fact; anyhow, since the reference
had not been made for the same, it is left open to the State Bar Council to take such action
under Section 26 of the Act. 11. CW 1 Shri Manohar Lal, Senior Telecommunication Office
Assistant, has deposed that STD/PCO has been allotted to the appellant on 6-4-1992 in the
handicap quota and the same is continuing in the name of the appellant as per the record
even after his enrolment as an advocate; no intimation was given by the appellant to the
Department to transfer STD/PCO in the name of his brother Satish Mohan. CW 3 Shri Vipin
Tripathi, a clerk in the office of SDO in his evidence has stated that space for kiosk for
installation of photocopy machine on payment of Rs 120 per month, was allotted on lease
basis on 6-5-1991 by the Deputy Commissioner, Gurdaspur, to the appellant in the handicap
quota; there was no intimation to change lease in favour of anybody and there is no transfer
of lease in favour of any other person; the lease amount is paid even after the appellant’s
enrolment as an advocate in his name. CW 3 H.S. Pathania, in his evidence has 236
supported the allegations made in the complaint. The appellant in his evidence has stated
that he has no concern with the business of STD/PCO and photostat machine. RW 2 Satish
Mohan, the brother of the appellant has stated that he has no arrangement with the
appellant regarding PCO. In his cross-examination he has admitted that he is still in the
service of Sugar Mills, Dasuya. Hence, it was rightly concluded that STD/PCO business is
being run by the appellant himself even after becoming an advocate. RW 3 Shri Puran Chand
Sharma, the father of the appellant in his evidence has admitted that the appellant is having
his office in the same cabin where the photocopier machine is installed. In the evidence led
on behalf of the complainant, it is stated that the site of kiosk for running the photostat
business is still in the name of the appellant and lease money is also being paid by the
appellant and in the absence of the appellant giving intimation to the
Department/authorities concerned regarding handing over of business to Shri Puran Chand
Sharma or Satish Mohan, the assertion regarding the oral agreement was not believed by
the Disciplinary Committee of the State Bar Council and rightly so in our opinion. The
Disciplinary Committee of the State Bar Council in its order has objectively considered the
evidence brought on record. As already stated above, the Disciplinary Committee of the Bar
Council of India on reappreciation of the evidence has concurred with the findings recorded
by the Disciplinary Committee of the State Bar Council based on oral and documentary
evidence. 12. Having perused both the orders and the evidence placed on record, we are of
the view that the finding recorded holding the appellant guilty of professional misconduct is
supported by and based on cogent and convincing evidence even judged by the standard
required to establish misconduct as required to prove a charge in a quasi-criminal case
beyond reasonable doubt. We do not find any merit in the argument that the misconduct
alleged against the appellant was not properly proved by the standard required to prove
such a misconduct. There is also no merit in the contention that the evidence was not
properly appreciated by both the Disciplinary Committees; nothing was brought on record to
discredit the evidence led on behalf of the complainant and no material was placed to
support the allegation of the appellant that the members of the respondent-Association had
any grudge or ill will against the appellant. 13. It is to be further noticed that this Court on
26-2-1999 passed the following order: “Learned counsel for the appellant wants to file an
affidavit in the form of an undertaking that the petitioner is not personally engaging himself
in any of the family businesses. Adjourned for two weeks.” 14. Pursuant to the said order,
the appellant has filed affidavit/ undertaking. Para 3 of the affidavit/undertaking reads: “I
state on oath before this Hon’ble Court that since the day of my enrolment as an advocate, I
have not engaged myself in any business except my practice of law as an advocate and I
undertake before this Hon’ble Court that I shall not ever engage either actively or otherwise,
in any other business or profession while I continue my enrolment as an advocate.” 237 15.
The order made by this Court on 2-9-1999 reads: “Mr Sudhir Walia, learned counsel
appearing for the Bar Association, Pathankot placed before us the photographs of the cabin
where the photocopying machine is installed. The photograph discloses the name board of
the petitioner and also an inscription in Punjabi language ‘Bhupindra Photostat Centre’. The
learned counsel appearing for the Bar Association, Pathankot says that these photographs
placed before us have been taken yesterday only. It is contended that, therefore, the
undertaking filed in this Court that the petitioner was not conducting any business in his
name, could not be accepted. This fact is disputed by learned Senior Counsel appearing for
the petitioner. We are, therefore, constrained to call for a report from the learned Sub-
Judge at Pathankot as to whether the cabin in which the photocopying machine is installed
contains, apart from the name board of the petitioner an inscription ‘Bhupindra Photostat
Centre’ and whether such inscription was there till yesterday and is continuing as of today.
The learned Sub-Judge shall also furnish the details regarding the allotment of the place
within the court compound wherein this cabin has been put up. The report will be submitted
within four weeks from today. A copy of this order will be sent to the learned Sub-Judge at
Pathankot today itself. List the matter after the report from the learned Sub-Judge at
Pathankot is received.” 17. We are unable to say that the concurrent finding recorded by
both the Disciplinary Committees against the appellant as to his professional misconduct, is
a finding based on no evidence or is based on mere conjecture and unwarranted inference.
Hence, the same cannot be disturbed. 18. What remains to be seen is whether the
punishment imposed on the appellant is grossly disproportionate. Having regard to the
nature of misconduct and taking note of the handicap of the appellant, in our opinion,
debarring him from practising for all time is too harsh. We consider it just and appropriate to
modify the punishment to debar the appellant from practising up to the end of December
2006. Except the modification of punishment as stated above, the impugned order remains
undisturbed in all other respects. The appeal is disposed of in the above terms. * * * * * 238
239 Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 S.N. VARIAVA, J - All these
petitions raise the question whether lawyers have a right to strike and/or give a call for
boycott of court/s. In all these petitions a declaration is sought that such strikes and/or calls
for boycott are illegal. As the questions vitally concerned the legal profession, public notices
were issued to Bar Associations and Bar Councils all over the country. Pursuant to those
notices some Bar Associations and Bar Councils have filed their responses and have
appeared and made submissions before us. 2. In Writ Petition (C) No. 821 of 1990, an
interim order came to be passed. This order is reported in Common Cause, A Regd. Society v.
Union of India [(1995) 1 SCALE 6]. The circumstances under which it is passed and the nature
of the interim order are set out in the order. The relevant portion reads as under: “2. The
Officiating Secretary, Bar Council of India, Mr C.R. Balaram filed an affidavit on behalf of the
Bar Council of India wherein he states that a ‘National Conference’ of members of the Bar
Council of India and State Bar Councils was held on 10-9-1994 and 11-9-1994 and a working
paper was circulated on behalf of the Bar Council of India by Mr V.C. Misra, Chairman, Bar
Council of India, inter alia on the question of strike by lawyers. In that working paper a note
was taken that the Bar Associations had proceeded on strike on several occasions in the
past, at times, Statewide or nationwide, and ‘while the profession does not like it as
members of the profession are themselves the losers in the process’ and while it is not
necessary to sit in judgment over the wider question whether members of the profession
can at all go on strike or boycott of courts, it was felt that even if it is assumed that such a
right enures to the members of the profession, the circumstances in which such a step
should be resorted to should be clearly indicated. Referring to an earlier case before the
Delhi High Court, it was stated that the Bar Council of India had made its position clear to the
effect ‘(a) the Bar Council of India is against resorting to strike excepting in rarest of rare
cases involving the dignity and independence of the judiciary as well as of the Bar; and (b)
whenever strikes become inevitable, efforts shall be made to keep it short and peaceful to
avoid causing hardship to the litigant public.’ It was in response to the above that a
consensus emerged at the Bar at the hearing of the matter that instead of the court going
into the wider question whether or not the members of the legal profession can resort to
strike or abstain from appearing in cases in court in which they are engaged, the court may
see the working of the interim arrangement and if that is found to be satisfactory it may
perhaps not be required to go into the wider question at this stage. Pursuant to the
discussion that took place at the last hearing on 30- 240 11-1994, the following suggestions
have emerged as an interim measure consistent with the Bar Council of India’s thinking that
except in the rarest of rare cases strike should not be resorted to and instead peaceful
demonstration may be resorted to avoid causing hardship to the litigant public. The learned
counsel suggested that to begin with, the following interim measures may be sufficient for
the present: (1) In the rare instance where any association of lawyers including statutory Bar
Councils considers it imperative to call upon and/or advise members of the legal profession
to abstain from appearing in courts on any occasion, it must be left open to any individual
member/members of that association to be free to appear without let, fear or hindrance or
any other coercive steps. (2) No such member who appears in court or otherwise practises
his legal profession, shall be visited with any adverse or penal consequences whatever, by
any association of lawyers, and shall not suffer any expulsion or threat of expulsion
therefrom. (3) The above will not preclude other forms of protest by practising lawyers in
court such as, for instance, wearing of armbands and other forms of protest which in no way
interrupt or disrupt the court proceedings or adversely affect the interest of the litigant. Any
such form of protest shall not however be derogatory to the court or to the profession. (4)
Office-bearers of a Bar Association (including Bar Council) responsible for taking decisions
mentioned in clause (1) above shall ensure that such decisions are implemented in the spirit
of what is stated in clauses (1), (2) and (3) above. 3. Mr P.N. Duda, Senior Advocate
representing the Bar Council of India was good enough to state that he will suggest to the
Bar Council of India to incorporate clauses (1), (2), (3) and (4) in the Bar Council of India
(Conduct and Disciplinary) Rules, so that it can have statutory support should there be any
violation or contravention of the aforementioned four clauses. The suggestion that we defer
the hearing and decision on the larger question whether or not members of the profession
can abstain from work commends to us. We also agree with the suggestion that we see the
working of the suggestions in clauses (1) to (4) above for a period of at least six months by
making the said clauses the rule of the court. Accordingly we make clauses (1) to (4)
mentioned above the order of this Court and direct further course of action in terms
thereof. The same will operate prospectively. We also suggest to the Bar Councils and Bar
Associations that in order to clear the pitch and to uphold the high traditions of the
profession as well as to maintain the unity and integrity of the Bar they consider dropping
action already initiated against their members who had appeared in court notwithstanding
strike calls given by the Bar Council or Bar Association. Besides, members of the legal
profession should be alive to the possibility of Judges of different 241 courts refusing
adjournments merely on the ground of there being a strike call and insisting on proceeding
with cases.” The above interim order was passed in the hope that better sense could prevail
and lawyers would exercise self-restraint. In spite of the above interim directions and the
statement of Mr P.N. Duda, the Bar Council of India has not incorporated clauses (1) to (4) in
the Bar Council of India (Conduct and Disciplinary) Rules. The phenomenon of going on strike
at the slightest provocation is on the increase. Strikes and calls for boycott have paralysed
the functioning of courts for a number of days. It is now necessary to decide whether
lawyers have a right to strike and/or give a call for boycott of court/s. 4. Mr Dipankar Gupta
referred to various authorities of this Court and submitted that the reasons why strikes have
been called by the Bar Associations and/or Bar Councils are: (a) confrontation with the police
and/or the legal administration; (b) grievances against the Presiding Officer; (c) grievances
against judgments of courts; (d) clash of interest between groups of lawyers; and (e)
grievances against the legislature or a legislation. Mr Gupta submitted that the law was well
established. He pointed out that this Court has declared that strikes are illegal. He submitted
that even a call for strike is bad. He submitted that it is time that the Bar Council of India as
well as various State Bar Councils monitor strikes within their jurisdiction and ensure that
there are no call for strikes and/or boycotts. He submitted that in all cases where redressal
can be obtained by going to a court of law there should be no strike. 9. The learned
Attorney-General submitted that strike by lawyers cannot be equated with strikes resorted
to by other sections of the society. He submitted that the basic difference is that members of
the legal profession are officers of the court. He submitted that they are obliged by the very
nature of their calling to aid and assist in the dispensation of justice. He submitted that strike
or abstention from work impaired the administration of justice and that the same was thus
inconsistent with the calling and position of lawyers. He submitted that abstention from
work, by lawyers, may be resorted to in the rarest of rare cases, namely, where the action
protested against is detrimental to free and fair administration of justice such as there being
a direct assault on the independence of the judiciary or a provision is enacted nullifying a
judgment of a court by an executive order or in case of supersession of judges by departure
from the settled policy and convention of seniority. He submitted that even in cases where
the action eroded the autonomy of the legal profession e.g. dissolution of Bar Councils and
recognized Bar Associations or packing them with government nominees, a token strike of
one day may be resorted to. He submitted, even in the above situations the duration of
abstention from work should be limited to 242 a couple of hours or at the maximum one
day. He submitted that the purpose should be to register a protest and not to paralyse the
system. He suggested that alternative forms of protest can be explored e.g. giving press
statements, TV interviews, carrying banners and/or placards, wearing black armbands,
peaceful protest marches outside court premises etc. He submitted that abstention from
work for the redressal of a grievance should never be resorted to where other remedies for
seeking redressal are available. He submitted that all attempts should be made to seek
redressal from the authorities concerned. He submitted that where such redressal is not
available or not forthcoming, the direction of the protest can be against that authority and
should not be misdirected e.g. in cases of alleged police brutalities, courts and litigants
should not be targeted in respect of actions for which they are in no way responsible. He
agreed that no force or coercion should be employed against lawyers who are not in
agreement with the “strike call” and want to discharge their professional duties. 11. Before
considering the question raised it is necessary to keep in mind the role of lawyers in the
administration of justice and also their duties and obligations as officers of this Court. In the
case of Lt. Col. S.J. Chaudhary v. State (Delhi Admn.) [(1984) 1 SCC 722], the High Court had
directed that a criminal trial goes on from day to day. Before this Court it was urged that the
advocates were not willing to attend day to day as the trial was likely to be prolonged. It was
held that it is the duty of every advocate who accepts a brief in a criminal case to attend the
trial day to day. It was held that a lawyer would be committing breach of professional duties
if he fails to so attend. 12. In the case of K. John Koshy v. Dr Tarakeshwar Prasad Shaw
[(1998) 8 SCC 624], one of the questions was whether the court should refuse to hear a
matter and pass an order when counsel for both the sides were absent because of a strike
call by the Bar Association. This Court held that the court could not refuse to hear the matter
as otherwise it would tantamount to the court becoming a privy to the strike. 20. Thus the
law is already well settled. It is the duty of every advocate who has accepted a brief to
attend trial, even though it may go on day to day and for a prolonged period. It is also settled
law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott
call is given by the Bar Association. It is settled law that it is unprofessional as well as
unbecoming for a lawyer who has accepted a brief to refuse to attend court even in
pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled
law that courts are under an obligation to hear and decide cases brought before them and
cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty
and obligation of courts to go on with matters or otherwise it would tantamount to
becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar
Associations expressing want of confidence in judicial officers, it would amount to
scandalising the courts to undermine its authority and thereby the advocates will have
committed contempt of court. Lawyers have known, at least since Mahabir Singh case that if
they participate in a boycott or a strike, their action is ex facie bad in view of the declaration
of law by this Court. A lawyer’s duty is to boldly ignore a call for strike or boycott of court/s.
Lawyers have also known, at least since Ramon Services case 243 [(2001) 1 SCC 118], that
the advocates would be answerable for the consequences suffered by their clients if the
non-appearance was solely on grounds of a strike call. 21. It must also be remembered that
an advocate is an officer of the court and enjoys special status in society. Advocates have
obligations and duties to ensure smooth functioning of the court. They owe a duty to their
clients. Strikes interfere with administration of justice. They cannot thus disrupt court
proceedings and put interest of their clients in jeopardy. In the words of Mr H.M. Seervai, a
distinguished jurist: “Lawyers ought to know that at least as long as lawful redress is
available to aggrieved lawyers, there is no justification for lawyers to join in an illegal
conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the
liberty conferred on every person by our Constitution. Strike is an attempt to interfere with
the administration of justice. The principle is that those who have duties to discharge in a
court of justice are protected by the law and are shielded by the law to discharge those
duties, the advocates in return have duty to protect the courts. For, once conceded that
lawyers are above the law and the law courts, there can be no limit to lawyers taking the law
into their hands to paralyse the working of the courts. ‘In my submission’, he said that ‘it is
high time that the Supreme Court and the High Courts make it clear beyond doubt that they
will not tolerate any interference from any body or authority in the daily administration of
justice. For in no other way can the Supreme Court and the High Courts maintain the high
position and exercise the great powers conferred by the Constitution and the law to do
justice without fear or favour, affection or ill will.” 22. It was expected that having known the
well-settled law and having seen that repeated strikes and boycotts have shaken the
confidence of the public in the legal profession and affected administration of justice, there
would be self-regulation. The abovementioned interim order was passed in the hope that
with self-restraint and self-regulation the lawyers would retrieve their profession from lost
social respect. The hope has not fructified. Unfortunately strikes and boycott calls are
becoming a frequent spectacle. Strikes, boycott calls and even unruly and unbecoming
conduct are becoming a frequent spectacle. On the slightest pretence strikes and/or boycott
calls are resorted to. The judicial system is being held to ransom. Administration of law and
justice is threatened. The rule of law is undermined. 23. It is held that submissions made on
behalf of the Bar Council of U.P. merely need to be stated to be rejected. The submissions
based on the Advocates Act are also without merit. Section 7 of the Advocates Act provides
for the functions of the Bar Council of India. None of the functions mentioned therein
authorise paralysing of the working of courts in any manner. On the contrary, the Bar
Council of India is enjoined with the duty of laying down standards of professional conduct
and etiquette for advocates. This would mean that the Bar Council of India ensures that
advocates do not behave in an unprofessional and unbecoming manner. Section 48- A gives
a right to the Bar Council of India to give directions to the State Bar Councils. The Bar
Associations may be separate bodies but all advocates who are members of such
Associations are 244 under disciplinary jurisdiction of the Bar Councils and thus the Bar
Councils can always control their conduct. Further, even in respect of disciplinary jurisdiction
the final appellate authority is, by virtue of Section 38, the Supreme Court. 25. In the case of
Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409], it has been held that
professional misconduct may also amount to contempt of court (para 21). It has further
been held as follows: “79. An advocate who is found guilty of contempt of court may also, as
already noticed, be guilty of professional misconduct in a given case but it is for the Bar
Council of the State or Bar Council of India to punish that advocate by either debarring him
from practice or suspending his licence, as may be warranted, in the facts and circumstances
of each case. The learned Solicitor-General informed us that there have been cases where
the Bar Council of India taking note of the contumacious and objectionable conduct of an
advocate, had initiated disciplinary proceedings against him and even punished him for
‘professional misconduct’, on the basis of his having been found guilty of committing
contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar
Council of India, as the case may be, when apprised of the established contumacious
conduct of an advocate by the High Court or by this Court, would rise to the occasion, and
take appropriate action against such an advocate. Under Article 144 of the Constitution ‘all
authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court’.
The Bar Council which performs a public duty and is charged with the obligation to protect
the dignity of the profession and maintain professional standards and etiquette is also
obliged to act ‘in aid of the Supreme Court’. It must, whenever facts warrant, rise to the
occasion and discharge its duties uninfluenced by the position of the contemner advocate. It
must act in accordance with the prescribed procedure, whenever its attention is drawn by
this Court to the contumacious and unbecoming conduct of an advocate which has the
tendency to interfere with due administration of justice. It is possible for the High Courts
also to draw the attention of the Bar Council of the State to a case of professional
misconduct of a contemner advocate to enable the State Bar Council to proceed in the
manner prescribed by the Act and the Rules framed thereunder. There is no justification to
assume that the Bar Councils would not rise to the occasion, as they are equally responsible
to uphold the dignity of the courts and the majesty of law and prevent any interference in
the administration of justice. Learned counsel for the parties present before us do not
dispute and rightly so that whenever a court of record records its findings about the conduct
of an advocate while finding him guilty of committing contempt of court and desires or
refers the matter to be considered by the Bar Council concerned, appropriate action should
be initiated by the Bar Council concerned in accordance with law with a view to maintain the
dignity of the courts and to uphold the majesty of law and professional standards and
etiquette. Nothing is more destructive of public confidence in the administration of justice
than incivility, rudeness or disrespectful conduct on the part of a counsel towards the court
or disregard by the court 245 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 practise as an Advocate-on-Record because that privilege is conferred by this
Court and the power to grant the privilege includes the power to revoke or suspend it. The
withdrawal of that privilege, however, does not amount to suspending or revoking his
licence to practise as an advocate in other courts or tribunals.” Thus a Constitution Bench of
this Court has held that the Bar Councils are expected to rise to the occasion as they are
responsible to uphold the dignity of courts and majesty of law and to prevent interference in
administration of justice. In our view it is the duty of the Bar Councils to ensure that there is
no unprofessional and/or unbecoming conduct. This being their duty no Bar Council can
even consider giving a call for strike or a call for boycott. It follows that the Bar Councils and
even Bar Associations can never consider or take seriously any requisition calling for a
meeting to consider a call for a strike or a call for boycott. Such requisitions should be
consigned to the place where they belong viz. the waste-paper basket. In case any
Association calls for a strike or a call for boycott the State Bar Council concerned and on
their failure the Bar Council of India must immediately take disciplinary action against the
advocates who give a call for strike and if the Committee members permit calling of a
meeting for such purpose, against the Committee members. Further, it is the duty of every
advocate to boldly ignore a call for strike or boycott. 26. It must also be noted that courts are
not powerless or helpless. Section 38 of the Advocates Act provides that even in disciplinary
matters the final appellate authority is the Supreme Court. Thus even if the Bar Councils do
not rise to the occasion and perform their duties by taking disciplinary action on a complaint
from a client against an advocate for nonappearance by reason of a call for strike or boycott,
on an appeal the Supreme Court can and will. Apart from this, as set out in Ramon Services
case every court now should and must mulct advocates who hold vakalats but still refrain
from attending courts in pursuance of a strike call with costs. Such costs would be in addition
to the damages which the advocate may have to pay for the loss suffered by his client by
reason of his non-appearance. 246 28. The Bar Council of India has since filed an affidavit
wherein extracts of a joint meeting of the Chairmen of various State Bar Councils and
members of the Bar Council of India, held on 28-9-2002 and 29-9-2002, have been annexed.
The minutes set out that some of the causes which result in lawyers abstaining from work
are: (I) Local issues 1. Disputes between lawyer/lawyers and the police and other authorities.
2. Issues regarding corruption/misbehaviour of judicial officers and other authorities. 3. Non-
filling of vacancies arising in courts or non-appointment of judicial officers for a long period.
4. Absence of infrastructure in courts. (II) Issues relating to one section of the Bar and
another section 1. Withdrawal of jurisdiction and conferring it to other courts (both
pecuniary and territorial). 2. Constitution of Benches of High Courts. Disputes between the
competing District and other Bar Associations. (III) Issues involving dignity, integrity,
independence of the Bar and judiciary (IV) Legislation without consultation with the Bar
Councils (V) National issues and regional issues affecting the public at large/the insensitivity
of all concerned. 29. At the meeting, it is then resolved as follows: “RESOLVED to constitute
Grievance Redressal Committees at the taluk/sub-division or tehsil level, at the district level,
High Court and Supreme Court levels as follows: (I)(a) A committee consisting of the Hon’ble
Chief Justice of India or his nominee, Chairman, Bar Council of India, President, Supreme
Court Bar Association, Attorney-General of India. (b) At the High Court level a committee
consisting of the Hon’ble Chief Justice of the State High Court or his nominee, Chairman, Bar
Council of the State, President or Presidents of the High Court Bar Association, Advocate-
General, Member, Bar Council of India from the State. 247 (c) At the district level, District
Judge, President or Presidents of the District Bar Association, District Government Pleader,
member of the Bar Council from the district, if any, and if there are more than one, then
senior out of the two. (d) At taluk/tehsil/sub-division, seniormost Judge, President or
Presidents of the Bar Association, Government Pleader, representative of the State Bar
Council, if any. (II) Another reason for abstention at the district and taluk level is arrest of an
advocate or advocates by the police in matters in which the arrest is not justified. Practice
may be adopted that before arrest of an advocate or advocates, President, Bar Association,
the District Judge or the seniormost Judge at the place be consulted. This will avoid many
instances or abstentions from court. (III) IT IS FURTHER RESOLVED that in the past abstention
of work by advocates for more than a day was due to inaction of the authorities to solve the
problems that the advocates placed. (IV) IT IS FURTHER RESOLVED that in all cases of
legislation affecting the legal profession which includes enactment of new laws or
amendments of existing laws, matters relating to jurisdiction and creation of tribunal, the
Government both Central and State should initiate the consultative process with the
representatives of the profession and take into consideration the views of the Bar and give
utmost weight to the same and the State Government should instruct their officers to react
positively to the issues involving the profession when they are raised and take all steps to
avoid confrontation and inaction and in such an event of indifference, confrontation etc. to
initiate appropriate disciplinary action against the erring officials and including but not
limited to transfer. (V) The Councils are of the view that abstentions of work in courts should
not be resorted to except in exceptional circumstances. Even in exceptional circumstances,
the abstention should not be resorted to normally for more than one day in the first
instance. The decision for going on abstention will be taken by the General Body of the Bar
Association by a majority of two-third members present. (VI) It is further resolved that in all
issues as far as possible legal and constitutional methods should be pursued such as
representation to authorities, holding demonstrations and mobilising public opinion etc. (VII)
It is resolved further that in case the Bar Associations deviate from the above resolutions
and proceed on cessation of work in spite or without the decision of the Grievance Redressal
Committee concerned except in the case of emergency the Bar Council of the State will take
such action as it may deem fit and proper, the discretion being left to the Bar Council of the
State concerned as to enforcement of 248 such decisions and in the case of an emergency
the Bar Association concerned will inform the State Bar Council. The Bar Council of India
resolves that this resolution will be implemented strictly and the Bar Associations and the
individual members of the Bar Associations should take all steps to comply with the same
and avoid cessation of the work except in the manner and to the extent indicated above.”
30. Whilst we appreciate the efforts made, in view of the endemic situation prevailing in the
country, in our view, the above resolutions are not enough. It was expected that the Bar
Council of India would have incorporated clauses as those suggested in the interim order of
this Court in their disciplinary rules. This they have failed to do even now. What is at stake is
the administration of justice and the reputation of the legal profession. It is the duty and
obligation of the Bar Council of India to now incorporate clauses as suggested in the interim
order. No body or authority, statutory or not, vested with powers can abstain from
exercising the powers when an occasion warranting such exercise arises. Every power vested
in a public authority is coupled with a duty to exercise it, when a situation calls for such
exercise. The authority cannot refuse to act at its will or pleasure. It must be remembered
that if such omission continues, particularly when there is an apparent threat to the
administration of justice and fundamental rights of citizens i.e. the litigating public, courts
will always have authority to compel or enforce the exercise of the power by the statutory
authority. The courts would then be compelled to issue directions as are necessary to
compel the authority to do what it should have done on its own. 31. It must immediately be
mentioned that one understands and sympathises with the Bar wanting to vent their
grievances. But as has been pointed out there are other methods e.g. giving press
statements, TV interviews, carrying out of court premises banners and/or placards, wearing
black or white or any colour armbands, peaceful protest marches outside and away from
court premises, going on dharnas or relay fasts etc. More importantly in many instances
legal remedies are always available. A lawyer being part and parcel of the legal system is
instrumental in upholding the rule of law. A person cast with the legal and moral obligation
of upholding law can hardly be heard to say that he will take the law in his own hands. It is
therefore time that selfrestraint be exercised. 34. One last thing which must be mentioned is
that the right of appearance in courts is still within the control and jurisdiction of courts.
Section 30 of the Advocates Act has not been brought into force and rightly so. Control of
conduct in court can only be within the domain of courts. Thus Article 145 of the
Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives
to the High Court power to frame rules including rules regarding condition on which a
person (including an advocate) can practise in the Supreme Court and/or in the High Court
and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule
would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised,
courts may now have to consider framing specific rules debarring advocates, guilty of
contempt and/or unprofessional or unbecoming conduct, from appearing before the courts.
Such 249 a rule if framed would not have anything to do with the disciplinary jurisdiction of
the Bar Councils. It would be concerning the dignity and orderly functioning of the courts.
The right of the advocate to practise envelopes 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, he can work in any office or firm as a legal officer, he can appear for clients
before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts
done by an advocate during his practice. He may even file vakalat on behalf of a client even
though his appearance inside the court is not permitted. 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 them in exercise of their disciplinary powers. The
right to practise, no doubt, is the genus of which the right to appear and conduct cases in
the court may be a specie. But the right to appear and conduct cases in the court is a matter
on which the court must and does have major supervisory and controlling power. Hence
courts cannot be and are not divested of control or supervision of conduct in court merely
because it may involve the right of an advocate. A rule can stipulate that a person who has
committed contempt of court or has behaved unprofessionally and in an unbecoming
manner will not have the right to continue to appear and plead and conduct cases in courts.
The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court
proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by.
Courts of law are structured in such a design as to evoke respect and reverence to the
majesty of law and justice. The machinery for dispensation of justice according to law is
operated by the court. Proceedings inside the courts are always expected to be held in a
dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of
court or of unbecoming or unprofessional conduct, standing in the court would erode the
dignity of the court and even corrode its majesty besides impairing the confidence of the
public in the efficacy of the institution of the courts. The power to frame such rules should
not be confused with the right to practise law. While the Bar Council can exercise control
over the latter, the courts are in control of the former. This distinction is clearly brought out
by the difference in language in Section 49 of the Advocates Act on the one hand and Article
145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section
49 merely empowers the Bar Council to frame rules laying down conditions subject to which
an advocate shall have a right to practise i.e. do all the other acts set out above. However,
Article 145 of the Constitution of India empowers the Supreme Court to make rules for
regulating this practice and procedure of the court including inter alia rules as to persons
practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts
to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to
practise in courts. Article 145 of the Constitution of India and Section 34 of the Advocates
Act clearly show that there is no absolute right to an advocate to appear in a court. An
advocate appears in a court subject to such conditions as are laid down by the court. It must
be remembered that Section 30 has not been brought into force and this also 250 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. 35. In
conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not
even on a token strike. The protest, if any is required, can only be by giving press
statements, TV interviews, carrying out of court premises banners and/or placards, wearing
black or white or any colour armbands, peaceful protest marches outside and away from
court premises, going on dharnas or relay fasts etc. It is held that lawyers holding vakalats on
behalf of their clients cannot refuse to attend courts in pursuance of a call for strike or
boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer
can be visited with any adverse consequences by the Association or the Council and no
threat or coercion of any nature including that of expulsion can be held out. It is held that no
Bar Council or Bar Association can permit calling of a meeting for purposes of considering a
call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held
that only in the rarest of rare cases where the dignity, integrity and independence of the Bar
and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention
from work for not more than one day. It is being clarified that it will be for the court to
decide whether or not the issue involves dignity or integrity or independence of the Bar
and/or the Bench. Therefore in such cases the President of the Bar must first consult the
Chief Justice or the District Judge before advocates decide to absent themselves from court.
The decision of the Chief Justice or the District Judge would be final and have to be abided
by the Bar. It is held that courts are under no obligation to adjourn matters because lawyers
are on strike. On the contrary, it is the duty of all courts to go on with matters on their
boards even in the absence of lawyers. In other words, courts must not be privy to strikes or
calls for boycotts. It is held that if a lawyer, holding a vakalat of a client, abstains from
attending court due to a strike call, he shall be personally liable to pay costs which shall be in
addition to damages which he might have to pay his client for loss suffered by him. 36. It is
now hoped that with the above clarifications, there will be no strikes and/or calls for
boycott. It is hoped that better sense will prevail and self-restraint will be exercised. The
petitions stand disposed of accordingly. 37. Hence, it is directed that (a) all the Bar
Associations in the country shall implement the resolution dated 29-9-2002 passed by the
Bar Council of India, and (b) under Section 34 of the Advocates Act, the High Courts would
frame necessary rules so that appropriate action can be taken against defaulting
advocate/advocates. * * * * * 251 ADVOCATES RIGHT TO TAKE UP LAW TEACHING The
Advocates Right to take up Law Teaching Rules, 1979 [Rules made by the Bar Council of India
under Section 49A of the Advocates Act, 1961] “3. Right of practicing advocates to take up
law teaching.- (1) Notwithstanding anything to the contrary contained in any rule under this
Act, an advocate may, while practising, take up teaching of law in any educational institution
which is affiliated to a University within the meaning of the University Grants Comission Act,
1956 (3 of 1956), so long as the hours during which he is so engaged in the teaching of law
do not exceed three hours a day.” * * * * * Anees Ahmed v. University of Delhi AIR 2002 Del
440 CW. 3412/97 : This writ petition was filed by the petitioners by way of public interest
litigation for a direction to respondent No. 1/Delhi University to take disciplinary action
against all Full Time Law Teachers of the Delhi University, who were practicing in the courts
and also praying for a direction to prohibit all Full Time Law Teachers of the Faculty of Law of
the University of Delhi from carrying on legal practice/profession and also from appearing in
the courts of law any manner. The petitioner had also sought for a direction to the Delhi
State Bar Council, respondent No. 3 to cancel the enrolment/licence to practice given to Full
Time Law Teachers. The petitioner No. 1 was an Advocate practicing in the High Court of
Delhi and had filed the writ petition as he was interested in the advancement of legal
education in India. The petitioner No. 2, at the time of filing of the writ petition, was a Law
Graduate, who passed out and obtained Degree of law at the relevant time when the writ
petition was being filed. C.W. 3519/97 : This writ petition was filed by the petitioner, who
was a Professor of Law the Faculty of Law, of the University of Delhi. The petitioner was
initially appointed as a Lecturer in Law and posted at Law Centre-II of the Faculty of Law of
the University of Delhi in August, 1971. Thereafter the petitioner got his promotion and in
due course of time, became a Professor in Law in the Faculty of Law of the University of
Delhi. The petitioner filed the present petition challenging the order passed by the Bar
Council of India on 9-8-1997 cancelling and removing the name of the petitioner from the
roll of Advocates of the Bar Council with a further direction 252 that it would be open to the
petitioner to make a fresh application for enrolment as an Advocate on his ceasing to be in
employment. The common question that arose for consideration was whether a faculty
member in the Faculty of Law, University of Delhi could subsequently enroll himself as an
advocate and appear in a court of law and simultaneously carry on the duties of a full-time
faculty member of the Faculty of Law, University of Delhi. The private respondents in the
writ petition filed by way of public interest litigation were all full time faculty members of
the University of Delhi, who employed as full time faculty members in the University of Delhi
and subsequently got themselves enrolled as Advocates with Delhi State Bar Council. DR.
MUKUNDAKAM SHARMA, J. - 7. The petitioners No. 1 in the writ petition filed by way of
public interest litigation, appeared in person and during the course of his arguments
referred to various statutes and ordinances or the University of Delhi as also the provisions
of The Advocates Act, 1961 and the rules framed by the Bar Council of India and in the light
thereof submitted that the aforesaid provisions prohibit Full Time Law Teachers from
practicing in the law courts and, therefore, the Full Time Law Teachers, who are taking up
law practice in law courts subsequently, after enrolling themselves as advocate are liable to
be prohibited/restrained from pursuing the aforesaid two avocations simultaneously. He
submitted that in view of the fact that most of the full time law teachers are also practicing
as advocates, the students community pursing the law course in the University of Delhi has
been neglecting their obligation to their students and number of complaints to their
students and number of complaints on that count have been lodged. In support of his
contention, the petitioner No. 1 relied upon the report submitted by a committee
comprising of Prof. Andre Beteille of Delhi School of Economics and Prof.. K.R. Sharma of the
Faculty of Law, University of Delhi. He also relied upon various decisions of the Supreme
Court of India in support of his contention and also to the Keynotes address in American Bar
association Meeting in August, 2000 by John Sexton of the new York Universities Law School.
8. The Bar Council of India was also represented by their counsel at the time of arguments,
who had drawn our attention to the various provisions of the Advocates Act, 1961 read with
rules framed by the Bar Council of Delhi, particularly to Rule 103 of the Rules as also the
rules framed by the Central Government called Advocates (Right to take up Law Teaching)
Rules, 1979, hereinafter referred to in short the 1979 Rules. Referring to the said provisions,
it was submitted by the counsel that under rule 103 of the Rules framed by the State Bar
Council any person, who is either in part time or full time service cannot be enrolled as an
Advocate, whereas a part-time teacher of law could be admitted as an Advocate under the
proviso to the aforesaid rule 103 of the Delhi Bar Council Rules. He further submitted that
Full Time Law Teachers could not have been enrolled as Advocates as provided for under
rule 103 of the Delhi 253 Bar Council Rules and that the 1979 Rule is a rule that operates
post-enrolment and has no application to a person, who is not an Advocate. He also referred
to the provisions of Rules 49 of Chapter - II (Standards of Professional Conduct and
Etiquette). Section VII (Restrictions on other employment) of the Bar Council of India rules
laying down that an Advocate shall not be a full time salaried employee of any person,
Government, firm, corporation or concern, so long as he continues to practice, and shall, on
taking up any such employment, intimate the fact to the Bar Council, on whose roll his name
appears and shall thereupon cease to practice as an Advocate so long as he continues in
such employment. 9. He also referred to Resolution No. 108 of 1996, which was passed by
the Bar Council of India giving stress to the need of improving the standards of legal
education in India. The said resolution states that the Bar Council of India disapproves the
practice of enrolling full time salaried teachers in law, who were not enrolled as advocates at
the time of their whole time appointment as teachers by misinterpreting the Rules made by
the Central Government under S. 49-A of the Advocates Act, 1961 viz. Advocates (Right to
take up Law Teaching) Rules, 1979 and direct all the Star Bar Councils to take immediate
steps to initiate removal proceedings under the provisions of the Advocates Act and the
Rules framed thereunder against such full time salaried law teachers, who have been
enrolled as advocates. He submitted that Theban on legal practice by Full Time Law Teachers
has salutary objective to achieve, namely, to maintain high standards of legal standards. He
further submitted that so far the right of the practicing Advocates to take up the law
teaching is concerned, the same is a right, which has been conferred on the practicing
Advocates to take up teaching of law under the Rules made by the Central Government
under S. 49-A of the Advocates Act, 1961 and , therefore, the members of the Bar would
have a right to take up teaching of law. He also submitted that the Full Time Teachers of Law
were never entitled to be enrolled as Advocates and were wrongly enrolled by the Bar
Council of Delhi by misinterpreting the Rules made by the Central Government under S. 49-A
of the Advocates Act, 1961 and as such the Bar Council of India has initiated action against
such persons, who have been wrongly enrolled as advocates. 10. He also relied upon various
statutes and ordinances of the University of Delhi and, particularly referred to Clause 5 of
Ordinance XI, which provides that a teacher shall devote his/her whole time to the service of
the University and shall not, without the permission of the University, engage directly or
indirectly, in any trade or business whatsoever, or in any private tuition or other work to
which and emolument or honorarium is attached. 11. Counsel appearing for the University
of Delhi also relied upon various ordinances and statutes of the University of Delhi, in
support of his contention that the service conditions of Full Time Teachers of the University
of Delhi incorporated in the contract of service, are statutory in nature and that they are
binding on the teachers and that a Full Time Teacher of the University of Delhi is required to
devote his/her time only to teaching and research in the University and that a Full time
Teacher can not undertake any other professional activity such as practicing law as an
Advocate, without the express permission of the University authorities and that the
University has not granted any permission to Full Time Teachers either in the Faculty of Law
or any other 254 Faculty to practice as a Lawyer and only Sh. N.S. Bawa was granted a very
limited permission to appear in the case of riot victims of 1984. Counsel reiterated the stand
taken in the counter affidavit filed by University of Delhi that no Full Time Teacher of the
University of Delhi, be it a teacher in the Law Faculty or any other Faculty of the University,
is entitled to practice as a Lawyer so long as he is a Full time Teacher in the University. 12. In
support of his contention, he referred to various clauses of the University ordinances and
the resolutions of the University as also of the University Grants Commission, Referring to
the same he submitted that it is imperative that the Full time Teachers devote their time and
energy to teach the students in the Faculty of Law and to do research and publication and
that the said teachers are not simultaneously entitled to also practice law, as a lawyer. 40.
The Petitioner Nos. 1 and 2 were students in the Law Faculty of the Delhi University. During
their tenure as students they had first hand knowledge about the manner and mode in
which legal education is imparted in the Delhi University. After being enrolled as Advocates
the petitioner No.1 filed the present petition in the Court with the intention for betterment
and advancement of legal education in Delhi. The other two writ petitions are directed
against the impugned orders passed by the Bar Council of India removing two of the full time
Law teachers from the roll of Advocates. The teachers from the roll of Advocates. The
aforesaid orders are also challenged before this Court on the ground that the Bar Council of
India has no such jurisdiction. 41. In view of the aforesaid position, the issues that are raised
in the Public Interest Litigation shall have to be dealt with and decided even in order to
answer the issues raised by Shri Vats and Shri Srivastav in their writ petitions. Besides if a
writ petition is filed by a person driven by public interest and such a writ petitioner comes
with clean heart, clean mind and clean objectives and is filed bona fide for the purpose of
only serving a public interest, such a petition cannot be dismissed. This was what was held
by the Supreme Court in the decision in K. R. Srinivas v. R. M. Premchand [(1994) 6 SCC 620],
wherein the Supreme Court held that the writ petitioner who comes to the Court for relief in
public interest petition must come not only with clean hands, like any other writ petitioner
but must further come with a clean heart, clean mind and clean objective. 42. In a Public
Interest Litigation the Court in order to check and prevent misuse of the remedy ought to
examine the motive, if any, of the petitioner and ask itself the question, “Is there anything
more than what meets the eyes”? That was exactly what was laid down by the Supreme
Court in Sachidanand Pandey v. State of West Bengal [AIR 1987 SC 1109]. 43. The motive for
filing a Public Interest writ petition must be examined by the Court with care and caution. In
case the High Court finds the filing of the Public Interest Litigation to be motivated by self
interest of the petitioner for wreaking vengeance it will not entertain the same. In Dr.
Ambedkar Basti Vikassabha v. Delhi Vidyut Board [AIR 2001 Del. 223] it was held by the
Division Bench of this Court that the Court has to be satisfied about, (a) the correctness of
the credentials of the applicant; (b) the prime facie correctness of nature of information
given by 255 him; (c) the information being not vague and indefinite. It was also held by this
Court that the Court has to strike balance between two conflicting interest namely, (i) no
body should be allowed to indulge in wild and reckless allegations besmirching the character
of others; and (ii) avoidance of public mischief and to avoid mischievous petitioner seeking
to assail, for oblique motives, justifiable executive actions. 44. The allegations of the full time
Law teachers against the petitioners are based on surmises and conjecture. The petitioner
No. 1, who has filed the present public interest litigation is an Advocate of this Court and is a
responsible officer of the Court. No clear evidence is led by the Respondents - Full time Law
teachers to prove and establish that filing of the writ petition is in any manner motivated or
instigated by the aforesaid two Professors of the Law Faculty of Delhi, who according to the
said respondents were inimical towards them. The cause which is sought to be espoused
through the present writ petition is of public importance. The same is also required to be
looked into as the Bar Council of India which is the primary body for maintaining discipline
amongst the enrolled Advocates has also proceeded to take action against some of the full
time Law teachers and against the rest it is dependent on the outcome of these petitions.
Therefore, in our considered opinion this writ petition cannot be dismissed on the ground of
maintainability. This writ petition filed under the category of Public Interest Litigation by the
writ petitioner, who is an Officer of the Court is maintainable and the issues raised being
important and having wide remifications are required to be dealt with and answered. 45.
Having held thus, we may now proceed to examine the issues that arise for consideration on
merits of the case. Reference is made to the provision of Section 2 (1) (a) of the Advocates
Act, 1961 which defines the term “advocate” meaning an Advocate entered in any roll under
the provisions of the said Act. Rule 103 of the Rules framed by the Bar Council of Delhi has
been extracted above. In the aforesaid rule it is provided that any person either in part-time
or full time employment cannot be enrolled as an advocate but under the proviso is
provided that a part-time teacher of Law could be admitted as an advocate. Therefore,
under the aforesaid provision a parttime Law teacher could be enrolled as an advocate but
no such privilege or benefit is available to a full time Law teacher. 46. Strong reliance was
placed by the respondent-Full time Law teachers on the provisions of Advocates rights to
take up Law Teaching Rules, 1979 (“the 1979 Rules”). The said provisions are also extracted
hereinabove. A bare reading of the said Rules indicate that the said rule uses the
terminology “advocates” and deals with the right of practicing advocate to take up law
teaching. By virtue of the aforesaid provision an advocate is empowered to take up law
teaching provided the same does not exceed three hours a day. Therefore, the said rules
clearly establish that the same are applicable and come into operation post enrollment and
have no application to a person prior to his enrollment as an advocate. It was sought to be
contended by all the law teachers that a person can combine law teaching and law practice
simultaneously provided law teaching does not exceed three hours a day. It was submitted
by them that after adaptation of the aforesaid rules, a lawyer could take up full time law
teaching in regular scale of pay and, therefore, the converse is also possible and, therefore, a
Law teacher could also be enrolled as an 256 Advocate. However, on proper reading of the
said provision would make it crystal clear that such an interpretation is not only fallacious
but also absurd. It is settled law that an interpretation which leads to absurdity should
always be avoided. 47. It is also settled law that when the provisions of a statute is plain,
clear and unambiguous, no word could be added to such a plain wordings of the statute nor
it is permissible to add words into it which are not there. In this connection reference may
be made to the decision of the Supreme Court in Union of India v. Deoki Nandan Aggarwal
[AIR 1992 SC 96] wherein it is held as follows at page 101: “It is not the duty of the Court
either to enlarge the scope of the legislation or the intention of the Legislature when the
language of the provision is plain and unambiguous. The Court cannot rewrite, recast or
reframe the legislation for the very good reason that it has no power to legislate. The power
to legislate has not been conferred on the Courts. The Court cannot add words to a statute
or read words into it which are not there. Assuming there is a defect or an omission in the
words used by the Legislature the Court could not go its aid to correct or make up the
deficiency. Courts shall decide what the law is and not what it should be.” 51. When in the
context of the aforesaid decisions the wordings used in the Notification issued by the Central
Government is read it would make it explicit that under the said notification a right is given
to practicing advocate to take up law teaching but no such parallel right is given to teachers
of law to be enrolled as advocates. The wordings used in the aforesaid provisions is plain and
unambiguous and requires no addition of words to the said statute. The intention of the
legislature is also clear and apparent and, therefore, the Court would not proceed to
reframe the legislation by giving a meaning which the respondent teachers seek to give. 52.
It is true that the course of law particularly the LL.B. course being a professional course,
there is a necessity of association of and guidance of the Advocates to the law students so as
to enable such students to gain practical experience and to acquire Court craft and
professional skills. But at the same time the obligation of the teaching faculty to the students
cannot be ignored. There are several facts of teaching namely, delivering lectures, taking
tutorials and seminars. Over and above the teaching Faculty also has an obligation of doing
research which includes one’s own research as well as supervision of research required to be
done by the students. Besides there are other responsibilities to be discharged by a teacher
like, administrative responsibilities etc. In order to give an exposure to the students
undergoing the law course to acquire some practical experience, permission is granted to
lawyers practicing in the Courts to undertake such law teaching provided such teaching does
not take up more than three hours a day. 53. It was argued by the law teachers that they are
in fact not required to teach for more than three hours in a day and that they are, therefore,
eligible to practice in the Courts and to retain their membership of the Bar Council. When
the statute does not by itself permit such a situation and when Rule 103 has specifically
prohibited full time law teachers from enrolling as advocate, 257 no such permission could
be granted to a full time law teacher to be enrolled as an advocate. The aforesaid
interpretation is also in consonance with Statutes, Ordinance and the Resolutions adopted
by the Delhi University and the University Grants Commission. Since both Rule 103 of the
Delhi State Bar Council Rules and Rule 3 of the Rules framed by the Central Government
operate in two distinct and different fields and relate to different set of persons, there is no
repugnancy as sought to be submitted by the full time law teachers and, therefore, the said
contention is rejected. It is also worthwhile to mention at this stage that the validity of the
1979 Rules is not under challenge before us. Therefore, we are to decide this matter
proceeding on the basis that the said Rules are valid and are applicable to the set of persons
who are specifically mentioned in the said Rules. No deviation or addition is permissible to
the clean and the plain intention and meaning. Therefore, we also hold that reliance by the
full time law teachers on the said Rules to advance their cause is misplaced. 54. The service
conditions of full time teachers of the Delhi University are incorporated in the Contract of
Service and, therefore, they are statutory in nature and they are binding on the teachers.
Reference is already made to Clause 5 of the Ordinance which provides that a full time
teacher of the Delhi University is required to devote his time only to teaching and research
in the University and, therefore, a full time teacher cannot undertake any other professional
activity, such as practicing law as an advocate. The University which is arrayed as one of the
respondents in the present cases has specifically stated in the counter affidavit filed by it
that the University has not granted any permission to full time teachers either in the Law
Faculty or in any other Faculty to practice as a Lawyer and that one Mr. N. S. Bawa was
granted a very limited permission to appear in the case of Riot Victims of 1984. The
averments in the Public Interest writ petition disclose that request made by the members of
the Law Faculty of Delhi that in legal aid cases teachers of the Law Faculty may be permitted
to appear in Court was considered by the Executive Council of the Delhi University and it was
rejected by the Executive Council, which is the final administrative Body of the University.
The same position was again reiterated by the University in a communication to all the
teachers dated 3-11-1995. It is, therefore, the specific stand of the Delhi University that no
full time teacher of the Delhi be he or she is in the Law Faculty or in any other Faculty of the
University is not entitled to practice as a lawyer as long as he is a full time teacher in the
University. If such a privilege is granted to the law teacher to be enrolled as an advocate,
there could be no reasonable ground to deny the same privilege to other Faculty Members
of other departments of the University. The aforesaid stand of the Delhi University is found
to be valid and reasonable. Under the 1979 Rules and Advocate is permitted to take up law
teaching based no the number of hours of teaching being undertaken. The Committee
constituted by the University upon enquiry has held that the obligation of a teacher, though
somewhat diffuse but is extensive in nature which include not only class from teaching but
also research and administration. It was held that such obligations even though cannot be
put down to departmental time table the same, however, exists and such time should be
included and read into their daily routine. The directions of the University Grants
Commission are based on the aforesaid analogy when it conveyed the decision that in order
to promote quality education 258 full time law teachers would not be permitted to enroll as
members of the Bar entitling them to full time practice in law. Even the permission granted
to such teacher to appear and represent in social action/public interest litigation is in the
nature of legal aid and social activity and not as a lawyer. 55. In our considered opinion, the
same would not by itself empower or enable a full time teacher of the Delhi University to
practice as a Lawyer. Even in a case where enrolment is granted by the Bar Council and
thereafter the advocate seeks to take up law teaching, the same could be permitted only
within the parameter of the 1979 Rules read with the University Statutes and Ordinance. 56.
The University Grants Commission also by its letter dated 7-12-1995 informed the Registrar
of the Delhi University that full time law teachers in University Departments and affiliated
Law Colleges would not be permitted to enroll as members of the Bar entitling them to be a
full time lawyer but they should be allowed and permitted to appear in Courts for social
action or public interest litigation matters as well as legal aid/public interest litigation
connected therewith. The aforesaid permission is restricted and limited to the aforesaid
extent only and was allowed to give impetus to the concept of legal aid and making the
students of law also aware of the aforesaid concept. The Report of the Committee which
was adopted by the Executive Council of the Delhi University on 19-4-1998, the extract of
which is quoted hereinbefore would also support the same position. 57. In that view of the
matter we hold that the interpretation sought to be given by the respondent-Faculty
Members to Rule 103 and to the 1979 Rules cannot be accepted. We also hold that the said
teachers are bound by the provisions of Rule 103 of the Bar Council of Delhi Rules and the
Rules of 1979 are neither applicable to their cases nor they can seek assistance from the said
Rules unless the rules framed by the Competent Authority allow the privilege specifically. No
such privilege could be claimed by way of implication or on the basis of surmises or
conjectures. Therefore, no such right or privilege could be claimed by the full time law
teachers of the Delhi University which is not permitted under the rules. 58. Reference could
also be made to Rule 49 of Chapter II, (Standards of Professional Conduct and Etiquette)
Section VII (Restrictions on other employments) of the Bar Council of India Rules which
provides that an advocate shall not be a full time salaried employee of any person,
government, firm corporation or concern, so long as he continues to practice, and shall, on
taking up any such employment, intimate the fact to the Bar Council on whose roll his name
appears and shall thereupon cease to practice as an advocate so long as he continues in such
employment. 59. We are also of the considered opinion that the Resolution adopted by the
Bar Council of India in 1996 under Resolution No. 108 correctly lays down the law and the
practice and we hold that no objection could be taken as against the said Resolution. The
said decision is in consonance with the observations of the Supreme Court in the decision of
Dr. Haniraj L. 259 Chulani. Therefore, if the interpretation sought to be given by the full time
law teachers are accepted the same would not only run counter to the statutory legal
position but the same would also be contrary to the law of the land. 60. In terms of the said
Resolution the Bar Council of India has proceeded to take suo motu action and has directed
all the State Bar Councils to take necessary steps to implement the aforesaid Resolution. The
Bar Council of India proceeded to take suo motu action initiating removal proceedings
against such full time salaried teachers of law who were subsequently enrolled as advocates
by an erroneous interpretation of 1979 Rules. It was held by the Bar Council of India that full
time law teachers were enrolled as advocates by misinterpreting the rules made by the
Central Government under Section 49A of the Advocates Act, 1961. By adopting the
aforesaid Resolution No. 108 of 1996 the Bar Council of India has tried to rectify the mistake
by removing the names of such persons who are full time salaried law teachers and who
were enrolled as Advocates overlooking the specific provisions of Rule 103 of Bar Council of
Delhi Rules and by misinterpreting the provisions of the 1979 Rules. 61. It was contended
that no such power could be exercised by the Bar Council of India and that also after expiry
of about 20 years from the date of enrolment. Counsel appearing for the Bar Council of
India, however, submitted that such a power could be exercised by the Bar Council of India
under the provisions of Section 48A of the Advocates Act, 1961. 62. In the foregoing
discussions it is held that no full time law teacher drawing regular salary from the University
could enroll himself as an advocate. Such full time teachers were allowed to take enrolment
by the State Bar Council misinterpreting the provisions of the 1979 Rules. The said full time
law teachers were not eligible to be enrolled as an advocate and, therefore, enrolment itself
was clearly contrary to Rule 103 of the Rules. When such persons who suffered a bar at the
threshold are given enrolment in violation of and contrary to rules, they cannot take up a
plea of estoppel. In this connection reference may be made to the decision of the Supreme
Court in Satish Kumar Sharma v. Bar Council of Himachal Pradesh [AIR 2001 SC 509], wherein
it was held as follows at page 517, of AIR:- “The contention that the respondent could not
have cancelled enrolment of the appellant almost after a decade and half and that the
respondent was estopped from doing so on the principle of promissory estoppel, did not
impress us for the simple reason that the appellant suffered threshold bar and was not
eligible to be enrolled as an Advocate and his enrolment itself as clearly contrary to Rule 49
of the Rules in the light of the facts stated above. Hence neither the principles of equity not
promissory estoppel will come to the aid of the appellant.” 63. It is also a settled law that
there cannot be any estoppel as against statue to defeat the provisions of law. That is
exactly what was laid down by the Supreme Court in Indira Bai v. Nand Kishore [AIR 1991 SC
1055] wherein it was held as follows:- 260 “There can be no estoppel against statute. Equity,
usually, follows law. Therefore that which is statutorily illegal and void cannot be enforced
by resorting to the rule of estoppel.” 64. As the full time law teachers suffered a threshold
bar to get themselves enrolled as advocate the enrolment given to them by the State Bar
Council was per se void and illegal and contrary to Rule 103 of the State Bar Council Rules
and, therefore, the Bar Council of India acted within its jurisdiction in canceling such
enrolment which was done in violation of the extent rules. 65. A power of revision is vested
in the Bar Council of India which is a power of general superintendence over the powers
exercised by the State Bar Council. As and when the Bar Council of India is of the opinion
that a particular action is taken by such a State Bar Council without any proper sanction of
law the same can always be corrected and rectified by exercising the powers of Revision by
the Bar Council. A similar plea raised by the aggrieved person in the case of Satish Kumar
Sharma (supra) was rejected by the Supreme Court holding that such a contention that the
respondent could not have cancelled enrolment after a decade and half is not acceptable,
Section 26 of the Advocates Act may not be strictly applicable to the facts of the present
cases but if such action could be taken by the Bar Council of India in exercise of its other
statutory powers the same would be held to be valid. 66. In terms of the aforesaid
observations and directions all the writ petitions stand disposed of holding that the full time
law teachers of the Law Faculty of the Delhi University could not have enrolled themselves
as advocates and, therefore, enrolment given to the said teachers by the State Bar Council
was per se void and illegal and any action taken by the Bar Council of India to rectify the said
mistake in exercise of its powers cannot be said to be bad or illegal. We also hold that a part
time teacher of law could be enrolled as an advocate and also that an advocate after being
enrolled could take up part time law teaching. We find no fetter put to the aforesaid
position. Interim order stands vacated. * * * * * 261 Don Peters: The Joy of Lawyering
CLIENTINTERVIEWING "I want a divorce." "It's all so confusing. I don't know why I am here or
where to begin." "I still love him but I can't take anymore." "He tried to kill me last night."
"She never loved me. I don't want her to get a cent." It's the lawyer's move. What should she
do? Her client is sitting there, looking at her expectantly. She could remain silent and convey
a non-verbal message that her client should continue. Or she could say something. But if she
decides to say something, what should she say? Lawyers need information before they can
apply their knowledge of matrimonial law and practice to their client's situation. Information
about their clients, their situations, and what they would like to do about them is absolutely
essential. They also need to build rapport with their clients. They want working relationships
where trust and accurate communication can flourish. How can they achieve these goals in
interviews with matrimonial clients? Matrimonial practice attaches to a set of human
experiences that are laden with emotional content. Matrimonial interviews typically involve
discussing the possible dissolution of what was once a close human bond, allocation of
custody and support privileges and obligations, and distribution of marital assets. Building
rapport and acquiring accurate information simultaneously in this environment is
challenging. No model exists that helps lawyers attain these twin objectives in every
matrimonial interview. Several specific techniques, however, can be consciously employed
to reach these goals. These techniques are the tools of an effective matrimonial interviewer.
They are the building blocks of all effective interviewing approaches and the units with
which lawyers may analyze their performances. This chapter will describe and demonstrate
them using specific examples from matrimonial contexts. Although lawyers who choose to
dominate or compete with clients use these tools to some degree, they work best with a
decision to collaborate with clients using a participatory model of representation. This
choice proceeds from an assumption that matrimonial clients are rational, self-directed, and
capable of making their own decisions. Although the strong emotional currents of the
divorce experience occasionally challenge these assumptions, most clients ultimately derive
more satisfaction from a divorce outcome in which they actively participate. A client-
centered choice makes sense in interviewing. Clients must participate in the fact gathering
process because lawyers cannot function competently unless they know basic information
about both their clients' marital situations and what they want to do about them. Lawyers
also need client participation to develop a working relationship featuring mutual trust,
understanding, and respect. A client-centered approach is the most likely way to generate a
client commitment to this type of working relationship. This value bias underlies this and all
subsequent chapters. A. LISTENING Assume a matrimonial interview begins this way: 262 C:
She never loved me. I don't want her to get a cent. L: How long have you been married? C:
Seven years and love's been dead the last six. She's never respected me (spoken with
increasing agitation and vocal tone) L: Where were you married? C: Here.Downtown, at the
Courthouse. L: Are you living together now? C: No .... (short pause) Not exactly, you see, she
ran off with . . . L: (interrupting) How long have you been separated? Crisp, probing
questions like these are not the only way to gather information. Although they may be
entirely appropriate in chambers or a courtroom before a judge who wants to hear a
preordained testimonial checklist, they usually are an inefficient way to gather information
at the beginning of an interview. They often are also not an effective way to build rapport
and they can harm the relationship between lawyer and client. The lawyer in this excerpt
took immediate control of the interview and forced the client to respond to questions from
his agenda. This approach does not gather information efficiently because the lawyer
cannot, at least at this stage, ask every conceivably relevant question. This approach may
also harm rapport because it communicates implicitly that the lawyer knows what is
important and what should be talked about. The client here, for example, may incorrectly
conclude that his wife's running off with someone is not relevant because the lawyer did not
seem to want to hear about it. He may also become passive and dependent, a non-
participant in a process that will ultimately ask him to make the inevitably difficult human
choices that most matrimonial cases present. There are other ways to gather information
and build rapport. Listening is an excellent way to accomplish both. Lawyers cannot hear and
understand information if they are talking and not listening. In addition, a particular kind of
listening, called active listening, is the most effective rapport-building tool available to
lawyers. So this exploration of effective interviewing tools begins with listening. To talk and
be listened to is a deep and basic hum3n need. This need is often particularly acute for
clients suffering the stresses and storms of matrimonial dissolutions. Notwithstanding its
basic value, the skill 0f listening is elusive. It is hard work and difficult to do well. Perhaps it is
the demise of radio. Maybe it stems from the fact that many people learn in infancy that
being quiet accomplished little while initiating communication by talking or yelling
sometimes worked better. Whatever the reason or reasons, lawyers, like many others, are
often not effective listeners. Many lawyers think listening is inconsistent with their duty and
desire to "do something" for their clients. They fail to see that supportive listening is a way
to help clients. These lawyers, during those few times when they are not talking, are usually
busy thinking about 263 what they will do, say, or ask next. Listening fully with their ears,
eyes, and complete attention is seldom thought important and "lawyerly." It is done skillfully
even less frequently. Listening well can be surprisingly difficult to do. Although it may seem
to involve simply sitting back, not talking, and hearing what clients say, it is not that easy.
Studies show that people normally speak at the rate of about 125 words per minute while
we are able to listen at a rate of 500 words a minute. How lawyers fill this gap determines
whether they are listening effectively. Sometimes lawyer fill this gap with preoccupations
about what is going on in their minds. Anxiety and insecurity, which can accompany an
inexperienced lawyer's first interviews, are common, distracting preoccupations. They can
intensify concern about what to do or say next and minimize concentration on hearing what
the client is saying. Thistendency also may be aggravated by the chaotic way that
information often flows inmatrimonial interviews. A client tells a fact relevant to custody in
one sentence and jumpsto an aspect of property distribution in the next. He then contradicts
himself about his feelings toward his wife in the same sentence. This can be both very hard
to follow andunderstand and a so terribly unsettling to a lawyer's need for order and
structure. Experienced lawyers need to beware of filling the gap with anticipated
information that may or may not actually be involved in the client's situation. The routines of
legal practice can easily lead to incorrect factual assumptions and premature diagnoses of
situations. Not all divorcing thirty-five year old mothers of two children, for example,
fitpatterns that a lawyer may have evolved over years of matrimonial practice. Another
common listening mistake that lawyers often make is keeping quiet only to find an opening
to get the floor again. This dynamic often occurs when lawyers feel a needto regain control
of the interaction. Asking questions retakes control so lawyersconcentrate on what to ask
next rather than what their clients communicate. Daydreaming and fantasizing, although
vital to psychological wellbeing, are two more common listening errors. Lawyers must resist
them and concentrate on listening to their clients during interviews. Another similar
listening problem involve associations which lawyers make to client statements which can
distract attention and even cause them to change topics. A client's mention of disciplinary
problems with children, for example, may prompt an association with the lawyer's children
or parents and cause him to lose track of what his client is saying. These associations can
also cause lawyers unconsciously to attribute aspects of their experience to their clients, a
phenomenon which psychologists call counter-transference. This can affect the content or
tone of what the lawyer says next and trigger a response by the client. The risk of such
distracting associations is great because matrimonial cases inevitably involve fundamental
human dynamics that everyone has experienced on either a personal or vicarious level.
Awareness of, and determination to avoid, these and other listening traps may help lawyers
listen more effectively. The skill of listening involves two broad approaches, passive and
active listening: 1. Passive Listening 264 Passive listening is what most people probably
conceptualize listening to be: not talking and letting someone else speak. It is a skill that
begins with being silent. Doing it well requires learning to be comfortable with periods of
silence. It also requires consciously realizing that being passive is not being incompetent.
Talking connotes power and control. Remaining silent, however, is not necessarily the
reverse. Lawyers do not lose control of interviews by listening passively. They may by
listening, bear amazing things; things that can save them and their clients enormous
amounts, of time and energy as their relationship progresses. Listening also builds rapport
by conveying, in a powerful way, that lawyers care enough about their clients to stop talking
and allow them to speak. One specific way to use passive listening effectively in matrimonial
interviews is to avoid filling every pause in a client's narration with a question. Assume a
client suddenly stops speaking. What does that mean? It could mean that she has exhausted
that topic and wants further direction from her lawyer. It could also mean that she is pausing
to catch her breath; or she has seen a relationship between what she was saying and
something else that she wants to organize mentally before sharing. She may even be
generating her courage to tell something that is very difficult for her to articulate. There are
countless other possibilities. A new question from her lawyer could easily destroy something
important. It probably will change the topic. A more effective response would be passive
listening, remaining silent and conveying a non-verbal expectation that she should continue.
The non-verbal and non-committal encouragers of communication that are frequently used
in social discourse are another type of essentially passive listening responses. Non- verbal
encouragers include attentive eye contact, bead nods, and receptive posture. Non-
evaluative responses include the "I sees," ''yeses," "sures," and all of the other variations
that are used to communicate nothing more than the speaker's statement is followed.
Although these verbal remarks become troublesome echoes at deposition and trial, they are
useful in interviewing. These remarks and actions acknowledge that lawyers are listening
while not indicating how they are evaluating the client's messages. They remove the
discomfort that might be caused to both participants if lawyers remain completely silent.
They also combat inferences that lawyers are bored, disinterested, or falling asleep,
possibilities that may be enhanced if nothing is said for long periods of time. Passive
listening is valuable because it lets lawyers receive information from their clients. It also
affords a way of giving their clients freedom to communicate thoughts and feelings in
interviews. 2 Active Listening Another type of listening response that builds rapport and
gathers information even more effectively than passive listening, is called active listening.
This involves responding to pauses, and sometimes even questions, with a response that
reflects, in different words, what clients have said. It is called active listening because it
forces lawyers to bear what is said, and then to communicate it back in different words that
prove an understanding of the client's message. The understandings generated by active
listening may be crucial. A client who fears for her physical safety, for example, should
receive different information about the economic importance of remaining in the marital
home if her lawyer beard and understood her concerns. 265 An effective active listening
response is probably a lawyer's best rapport-building tool. It proves that the lawyer bas both
heard and comprehended what the client communicated. Passive listening, even when
accompanied by non-verbal and non-committal encouragers, only implies that bearing and
understanding have occurred. Clients have to believe that their lawyer was listening because
no explicit proof is provided. Being heard and understood usually makes speakers feel better
both about the person with whom they are communicating and the process of talking with
that person. It creates a motivation for, and a climate conducive to, further sharing. This is
particularly true when the topic is a personal, private matter and the listener is a busy
professional; precisely the environment of matrimonial interviews. Making a short speech
which produces no feedback from the audience either during or after the presentation is
roughly analogous to bow matrimonial clients feel when their lawyers provide no active
listening. Active listening is a way to provide feedback, and no feedback is usually
experienced negatively. The speech was probably so bad that no one wants to talk about it.
Withholding feedback also encourages less sharing, not more. Getting no feedback on a
speech can minimize desire to give another. Similarly, withholding feedback from clients
often makes them unwilling to share by narrating. Speeches also seldom involve the
personal, intimate, and emotionally charged topics that clients commonly discuss in
matrimonial interviews. Feedback in these situations can be crucially important for reasons
that will be developed later. Analogizing active listening to feedback is not completely
accurate because feedback often implies evaluation and the most effective active listening
responses are neutral and nonevaluative. They convey only proof of hearing and
understanding by reflecting statements in different words. They are mirrors, not evaluations.
The speech-maker probably wants someone to tell him how good the speech was.
Matrimonial clients often also want their lawyers to tell them how good they are but neutral
reflections ultimately are more effective. Active listening responses may be directed at
either the content or feelings contained in client statements. Content refers to objective
"facts" the who, what, where, and when of situations. It is what courts are usually concerned
with. Peelings are the terms clients use to describe their emotional reactions, both past and
present, to events and situation. Formulating an active listening response on either level
builds rapport and facilitates information gathering. a. Content Reflections C: I'd like custody
but I just don't think I've got the time it takes to see to their needs. My job is very time-
consuming and requires a lot of travel. L: It would be difficult to balance the time demands
of parenting with those of your career. This is an example of an active listening response
focused on the content of a client's statement; the conflict between parenting and a job
requiring a lot of time and travel. The listener could have also reflected feeling here, perhaps
frustration or anger about this conflict. The content reflection chosen had several
advantages over passive listening. It proved that the lawyer heard and understood what the
client said. Assuming an appropriate voice tone was used, it was neutral conveying no
judgment about the merits of the choice of career over custody. It permitted clarification. If
the client's present job was not his career objective, for example, the client could 266 have
clarified that and by doing so, perhaps identified a decision to be made regarding the
importance of the position. The response also encouraged further sharing on this topic
because the client could choose to respond by elaborating further about the conflict, or the
career, or both. This content reflection also left the client free to choose whether to
continue on this topic or go to another one. An open question such as "tell me more" might
have been more intrusive and less likely to produce information. Such a question, for
example, might cause the client to wonder why more detail is wanted. A concealed
judgment also might be implied in the question. Content reflections typically follow a short
statement about one fact or a related series of events. It is usually a single statement that
follows a fairly short client narrative. You said this about that is how the response is phrased.
Here are other examples: C: I want the house because I was responsible for acquiring it. L:
Getting the house is a priority because your efforts enabled you to get it. C: I was in the park
walking to the subway. He was supposed to be watching our son. He was reading and not
paying any attention. Then Jeremy fell from the jungle gym. L: You saw both the fall and that
your husband was not supervising Jeremy. The phrasing of content reflections is similar to
leading questions because they follow a "you said this about that" pattern. If reflections are
limited to what the client said, mistakes usually present no problem because clients will
usually correct them. Content reflections are usually heard as requests for clarification if
they are inaccurate. Additional information is then often provided. C: I was in the park
walking to the subway. He was supposed to be watching our son but he was reading and not
paying any attention. Then Jeremy fell from the jungle gym. L You were coming out of free
subway and saw the fall. C: No. I was walking to the subway. I had not gone down into the
station. I was still in the park when Jeremy fell. Problems can develop, however, with
inaccurate content reflections that go beyond what the client has said. These typically occur
when lawyers either reflect content that the client did not present or anticipate what they
think the client will say next. If the lawyer in the last illustration had said, "you saw Jordan
fall and your husband did not," for example, she would be reflecting something that the
client did not say; whether her husband saw the accident. The suggestive phrasing raises a
risk that the client will agree with the content reflection thinking that it is what the lawyer
wants to heat. Anticipating what the client will say can result from an empathetic presence
with the client to the extent that the lawyer has a strong, perhaps intuitive, sense of what is
coming next. Supplying the words on the content level, however, runs the same risk of
suggestiveness. It should be avoided unless the client will not respond to suggestiveness.
This is difficult to ascertain, particularly early in an interview. Anticipating and identifying
unexpressed feelings do not present the same problem. 267 Both of these problems can be
minimized by using frequent invitations to correct errors if accuracy is uncertain. "Please
correct me if I get this wrong," "Let me see if I understand this," and "am I correct that" are
useful introductory clauses to minimize risks that content reflections are inaccurate. Content
responses should also be reflective, not interrogative. Conversational, neutral voice tones
should be used. Content summaries which synopsize larger segments of information are
useful and should be used frequently in matrimonial interviewing. Summaries work best
after long client narratives. Summarizing the "facts" after a long narrative to see if they are
"right" can be an effective way to prove both listening and understanding. They solicit
clarification of anything either missed or erroneously understood. They often also invite
further elaboration effectively. Another technique involves phrasing a question by
incorporating a portion of the client's previous remarks. This technique, commonly done
during direct examination to provide repetition and emphasis, is useful in interviewing to
build rapport and stimulate memory. It works best after initial rapport has been established
when information gathering is the primary objective. For example, the statement "my
husband came home that night very intoxicated; it was quite unusual behavior for him"
might be met with a question. Phrasing the question this way builds more rapport than
simply saying ''what happened next" because it proves that at least a portion of the client's
previous statement was heard and understood. A response that asked "what else did he do
that night besides come home drunk" also can stimulate memory by indicating that
intoxication has already been mentioned and understood. Since these responses accompany
questions focusing on specific information, however, their rapport-building potential are
limited. Noninterrogative content reflections are more effective earlier in interviews because
they invite further elaboration. Reflecting the above statement by saying "it was surprising
to see him that way," for example, would permit this client either to elaborate more on this
episode. Many lawyers may find it difficult to conceptualize listening as a process of
reflecting back messages received from clients. It takes practice to develop this skill once the
values of active listening are acknowledged. Practicing content reflections is a good way to
start because reflecting the content of what matrimonial clients say may be easier to do
than reflecting the feelings they either express or imply. Most lawyers can identify facts
more easily than feelings because they are the building blocks used in litigation. Claims for
relief are constructed on facts so lawyers are thinking about and looking for them during
matrimonial interviews. b. Feeling Reflections Representing matrimonial clients often means
working with people experiencing emotional crises. Matrimonial interviews explore the
disintegration of what was presumably once a very important, personal relationship and
clients typically experience a progression of emotional reactions as they divorce. Discussing
the marital breakdown and its consequences, including how children should be cared for
and supported and how marital property should be divided, inevitably generates strong
feelings and emotions. These feelings and emotions are neither logical nor rational requiring
neither legal analysis nor therapeutic intervention by matrimonial lawyers. They should,
however, be acknowledged 268 because they are important parts of the human experience
of divorce. They should not be ignored. They are facts in the sense that they often influence
outcomes as much as or even more than objective data. The most effective way to respond
to emotional expressions is with active listening statements that reflect them non-
judgmentally. Here is an example: Ms. smith: (clenching her fist, speaking with an
increasingly loud tone of voice) Then I found out he has been playing around with his
secretary. (bangs her fist on the table) I couldn't believe it: Lawyer: His conduct makes you
furious. The lawyer here identified a strong feeling expressed non-verbally and reflected it.
The statement mirrored the feeling; it did not evaluate it. Doing this can both build rapport
and generate information with extraordinary effectiveness. Rapport is built by this type of
active listening response in two ways. The most powerful way is its potential for conveying
empathy. Reflecting the emotional content of client statements and capturing their correct
feeling tone conclusively demonstrates an understanding of their situation. It conveys that
the lawyer can enter the client's world and see the situation from that perspective. It proves
that the lawyer is, in a sense, feeling with, not for, the client, the crucial distinction between
empathy and sympathy. No one knows exactly why skillful feeling reflections are so
effective. Perhaps it is because it is such an unusual experience to have someone listen to
intimate feelings without either judging them or substituting other agendas. It also feels
good to share a difficult experience in both its factual and emotional components and to be
heard and understood on both levels. That good feeling generates rapport and motivates
continued disclosure. It also engenders feelings of importance and self-worth when a busy
professional listens this carefully. A neutral, non-judgmental feeling reflection is what most
people want when seeking out a friend with whom to share a disturbing personal situation.
People want to have their feelings heard and understood, rather than ignored, judged or
minimized. Secrets are told to friends who listen well and complete disclosure from most
matrimonial clients usually involves sharing several. Skillful active listening responses will
uncover these secrets much quicker than reassurances that the communications are
protected by evidential privileges will. Feeling reflections also build rapport by removing
blocks to communication. They allow a potential release of emotion because clients who
encounter understanding of their feelings may experience a discharge and a sense of relief.
This discharge of feelings often makes clients feel better. It also may facilitate their
willingness to move on and talk about other issues after their emotions have been
acknowledged and discharged. Ms. Smith in the above illustration, for example, may
continue to display her anger by other non-verbal means and vague statements if it is not
acknowledged. Once it is reflected, however, she may be more inclined to move on to talk
about other things. She may sense that there is no point dwelling on her anger since it has
been heard and understood. 269 Reflecting feelings can temporarily intensify the emotions
experienced by matrimonial clients. This intensification can be an unpleasant experience for
lawyers. It can also discourage them from using additional feeling reflections even though
more active listening is usually the best response to make if these storms develop.
Remembering that most clients experience this discharge positively may also help lawyers
weather these storms. Although this discharge has slight therapeutic potential, lawyers
should not reflect feelings for this purpose. They should reflect feelings to demonstrate
empathy and tomotivate further communication. They should not press a client to discharge
emotion. Ifclients choose to do so; fine; if not, fine. It is their choice. If the intensification
continues and no discharge occurs, a lawyer could share his desire to move to another topic
and make a motivating statement to encourage it. A statementlike this might be effective,
for example, with a client who demonstrated a reluctance to do anything other than share
anger: "Ms. Smith, you clearly express your anger. I understand it. It is something you have
to live with. You may want to work on resolving it. I have a reading list here of books that
may help you start. I will also be happy to refer you to another helping professional who has
the skills to work with you on this process. Without minimizing your anger, I'm feeling a
need to get additional information about your situation. Could you tell me about… If this
doesn't work, the other option to consider is adjourning the interview and making a
therapeutic referral. A matrimonial client who chooses not to discharge emotion may often
respond to a feeling reflection in a way that generates information because the response is
heard as an invitation to talk more about the facts underlying the emotion. The angry Ms.
Smith in the above illustration, for example, may respond: "Yes, I am angry. And let me tell
you what else that rat has done." Then she may tell me bout his penchant for poisoning
neighborhood cats. This is a fact that may be relevant to case strategy and probably was not
on the lawyer's checklist of topics to explore. Feeling reflections also generate information in
the same clarifying or self-correcting way wat content summaries do because clients are
usually happy to clarify or correct inaccurate responses. These clarifications also often add
additional facts that enhance understanding of the overall situation. Consider this example:
C: I couldn't believe he would stoop so low as to associate with that woman. L: You were
angry. C: No, I was disgusted, and convinced that the marriage was over. After that I cleaned
out our joint accounts and moved in with my sister. (1) Phrasing Feeling Reflections Accuracy
in reflecting feelings requires correctly gauging the intensity of the emotion rather than its
existence. Rapport and motivation to communicate are developed best by feeling 270
reflections that accurately capture the intensity of the emotion mirrored. Grossly inaccurate
reflections may actually harm rapport. Responding to a clients clenched fist, desk- banging
remarks about her husband's behavior by saying, ''you seem a little bit upset about what he
did" demonstrates the point. This client communicated a much more intense feeling than
"upset." The minimizing phrase "a little bit" was also inaccurate. Common conversational
phrases like "little bit," "sort of," "kind of," and the like often make feeling reflections
inaccurate. This client may clarify and correct these mistakes and appreciate the effort to
hear and understand. On the other hand, she may react negatively and wonder why her
strong feelings were minimized. Although content summaries should be limited only to the
facts communicated, reflecting unexpressed feelings and emotions can be very effective
because empathy can be dramatically displayed where feelings are either implied by tone
and non-verbal conduct or stated vaguely. Bearing and understanding emotions that were
not clearly communicated vividly demonstrates careful, attentive listening. Erroneous feeling
reflections also seldom cause substantive harm. Reflecting anger when clients feel
frustration, for example, usually has little effect even if they choose not to correct it. Since
substantive results do not hinge on feelings, erroneous reflections do not compare to the
havoc that occurs when mistaken facts stemming from inaccurate and uncorrected content
responses are blasted away by the other lawyer at deposition or trial. Phrasing feeling
reflections is more challenging than content responses for several reasons. The non-
objective nature of feelings often tempts lawyers to deviate from neutral responses and use
judgmental or reassuring formulations. Both of these common responses present problems.
Neither is fully empathetic. Judgmental responses inhibit subsequent communication
because even positive evaluations imply a willingness to judge less than favorable situations
negatively. Statements approving a client's anger at her husband's infidelity, for example,
may inhibit her willingness to disclose her extra-marital activity. Matrimonial clients typically
receive a lot of judgment, much of it predictably negative, from their spouse, children,
family, and friends. They don't need more from their lawyers and they may be less than
candid to avoid it. Positive judgments can also inadvertently minimize client emotions and
overlook the complexity of situations. Saying "Its good to be angry at that drunken, abusive
man" 'minimizes a client's anger by not acknowledging its intensity. It also communicates
unclear, disturbing implications about her choice to live with this person for years. Many
matrimonial clients have strong needs to express anger at their spouses and want their
lawyers to share their bitterness. Judgmental statements responding to this wish should be
avoided. They will undermine explanations that the legal system is no longer concerned with
finding fault and vindicating victims that may be necessary later. They also keep clients
extremely partisan which usually harms chances to achieve either a creative settlement that
benefits both spouses or a favorable outcome if the matter is ultimately litigated. Lawyers
should also recognize that powerful urges to help their clients may cause them to offer
reassurances. They are not as effective as neutral reflections are despite their noble
motivation. Reassuring responses are often heard as minimizations of feeling. Telling a
matrimonial client, "don't worry, everyone is anxious at the start of a divorce,you'll get over
it," 271 minimizes the feeling by not acknowledging its intensity. It also communicates subtly
that it, and perhaps other emotions as well, are not relevant. Another ineffective tendency is
to use an introductory phrase, often the same one, to begin every feeling reflection. "I can
understand," as in "I can understand how that would make you angry," is the chief culprit.
Clients often hear this as phony and patronizing,particularly when they are talking about
feelings relating to events that, in their perception, a lawyer would never have experienced.
If Ms. Smith was talking about her husband's sexual abuse of her daughter, for example, a
lawyer expressing understanding of her anger probably is damaging rather than building
rapport. Ms. Smith will probably find it hard to accept that her lawyer has ever dealt with
such a situation personally. She will feel patronized arid belittled. Using other introductory
phrases like "so you're saying," "I hear you saying," and "as I see it," all lengthen feeling
reflections and threaten their effectiveness. They often make feeling reflections seem hollow
and insincere. The goal is reflecting emotions that clients express without mechanically
applying a communication technique. It is usually more effective to eliminate introductory
phrases and use simple reflective statements like ''you're angry, frustrated, anxious,
frightened," etc. Making feeling reflections often feels awkward, forced and uncomfortable
initially. These problems can seep into voice tones causing reflections to sound mechanical
and insincere. An empathetic, confident reflection of the feeling or emotion either expressed
or implied should be the goal. The cure for the problem is practice. Another possible
problem may involve finding the right words. Lawyers get so preoccupied with the rational
and objective aspects of lawyering that their vocabulary for describing emotions often
diminishes. Here is a list of thirty feeling words that may enlarge feeling vocabularies: happy,
anxious, depressed, inadequate, fearful, confused, hurt, angry, lonely, guilty, suspicious,
resentful, vulnerable, bored, miserable, disappointed, helpless, rejected, embarrassed,
distressed, uncomfortable, abandoned, cheated, tricked, nervous, afraid, impatient, worried,
troubled, and shocked. Most matrimonial clients will experience all of these feelings, and
others, during their divorce. Some may experience this entire vocabulary during their initial
interviews. Looking for opportunities to reflect these feelings neutrally and non-
judgmentally with these words will increase rapport and improve communication. (2) Types
of Feeling Reflections Effectively reflecting client feelings that are either implied by non-
verbal conduct or vaguely expressed requires identifying the emotion communicated.
Precise identification can help clients understand their emotional reactions and facilitate
their ability to make decisions later. Anger is a good guess when a client clenches fists, bangs
on the desk, and increases voice tones. Vaguely expressed emotions can be more difficult to
discern. What does a client mean, for example, when he says "I'm really freaked." Is he
angry, surprised, shocked, disgusted, frightened, or happy? Although identifying this
emotion is not easy, wrong guesses run few risks because errors do not affect substantive
results. 272 Feeling reflections can be even more difficult when emotions are expressed
clearly and when none are communicated in situations where some would be expected. For
example, it can be difficult to reflect with a paraphrase if a client says, "I am so angry when
be acts this way." The emotion bas been expressed clearly. Reflecting by parroting, or using
the exact words, usually produces a negative reaction. At best it only produces a
confirmation as clients either think or say "Yes, that's what I said." using a synonym, like
furious or livid, also does little to build rapport and motivate further communication. Several
options are more effective when feelings have been expressed clearly. Passive listening
involving pausing and not saying anything is one approach. The silence, accompanied by
supportive and encouraging non-verbal conduct, may produce the same reactions that are
generated by effective reflections of implied or vaguely expressed feelings. Passively
listening to clients who express anger clearly, for example, might encourage them to discuss
the reasons for their anger and generate additional information. A neutral statement that
both comments on a process point and reflects using the same words is another effective
response. Clients, for example, can be rewarded for expressing themselves clearly. Examples
of this include: "You express your anger clearly;" ''you are in touch with that anger;"
''understanding that you are angry is important because it helps me to get the full picture."
Another option is a statement that mirrors the client's tone. Saying with intensity ''yes, you
are angry," for example, can minimize the damage done by the paraphrase. This emphasizes
that the lawyer has heard the intensity of the emotion that has been clearly expressed.
Lawyers may also express understanding of the feelingif the situation is somethingeither
very common or clearly within the client's perception of their experience. No understanding
should be expressed if neither is true to avoid patronizing the client. Saying"I can understand
how angry you'd feel after seeing your husband drunk again," is probably acceptable
because intoxication is an unfortunately common experience. A short statement that
explains credibly how the lawyer can understand may also be effective. For example, saying
"I've had family experiences with alcoholism and I can relate to how angry that makes you,"
for example, can make an expression of understanding more credible. These bridging
statements should not, however, divert focus from the client's situation to the lawyers
experience. Occasionally matrimonial clients describe situations which would be extremely
emotional for most people without expressing or implying any feeling. What should lawyers
do then? Speculating about an expressed emotion might be received as intrusive prying." On
the other hand, it might be either facilitative or correctedthe speculation wasinaccurate.
Judging which way to go depends on an almost intuitive sense of how clients will respond.
This is another occasion when a feeling reflection should include a short introductory
phrase, such as "I imagine you felt angry and frustrated," or "the situationcould have made
you quite concerned about your health." There is no easy answer to the question of how
much feeling reflection should be done in matrimonial interviews. Much more that most
lawyers do now is probably a safe prescription. After every client response is too often. It's
always a judgment call inbetween. Factors in making 273 these judgments include an
evaluation of how much rapport has been developed, how openly and freely the client is
narrating, and the intensity of the expression. It may also be useful to distinguish between
de3criptions of past feelings and emotions that clients are presently experiencing.
Matrimonial interviews present ample numbers of each. Strongly implied present feelings
should usually be reflected early in the interviews because little rapport has developed and
the intensity suggests strong potential for empathetic facilitation of further communication.
A clenched fist, desk banging implication of anger is an example of an opportunity to listen
actively that should not be ignored. Although brief reflections of past feelings when they are
expressed or implied can be empathetic, exploring them in depth may sidetrack interviews.
A weak implication of a past feeling later in an interview thus might not warrant a reflection.
A statement of how angry it made a client when her husband ignored her birthday seven
years ago made late in the interview, for example, should probably be left unreflected. Every
feeling reflection should be purposeful. Lawyers are not going to resolve emotional conflicts
therapeutically so they should not focus on feelings unnecessarily. Feeling reflections should
not be used for voyeuristic reasons, to satisfy curiosity, or to control clients. Developing and
using active listening skills neither manipulates clients to express their feelings nor invades
their privacy. It is simply a way to gain information and build rapport. It is a way to respond
to the fact that lawyers can listen faster than clients can speak. It gives lawyers something to
think about and concentrate on while their clients are talking. It also gives them a safe
harbor during the emotional storms that matrimonial clients frequently experience during
interviews. Lawyers often feel that they must say something when these storms come and
feeling reflections are usually the most appropriate and effective responses they can make.
They usually help both lawyers and clients weather the storm and emerge more fit for a
better voyage together. B. MOTIVATING STATEMENTS Although active listening is the best
general tool for encouraging matrimonial clients to talk during interviews, statements
designed to motivate communication can also be effective. They can often be combined with
active listening responses but they do not involve reflections of the client's message using
different words. Instead, they focus on other aspects of the communication process. The
three primary types of motivating statements are: positive feedback about the
communication process; expectative motivators; and remarks that recognize and combat
communication inhibitors. 1. Positive Feedback about the Communication Process The
technique is simple but important and often overlooked. It involves giving clients occasional,
sincere praise for behavior that is cooperative and helpful. Here are some common
examples: "You are doing an excellent job giving me details; I understand much better now."
"This is very helpful narration; I'll be able to focus my questions much more effectivelylater."
274 "Your sharing of this information even though it brought back unpleasant memories, has
been valuable to my understanding of your situation." A client-centered interviewing
approach stresses active client participation in the information gathering and rapport
building processes. Giving clients positive feedback about the valuable contributions they
make during interviews motivates them to be more cooperative and communicative. This
feedback responds to human needs for recognition and the esteem of others. Statements
providing positive feedback should identify and reinforce specific behaviors. Focusing
positive evaluation on communication behavior rather than on either the content or the
emotional aspects of client messages is important. Positive feedback about communication
behaviors motivates by providing recognition and desire to repeat the rewarded conduct. 2
Expectative Motivators This technique simply involves sharing expectations with clients.
Making statements about expectations motivates communication in two ways. First, it
alleviates client anxiety and discomfort creating greater freedom and willingness to
communicate. Second, communicating expectations that information will be forthcoming
often overcomes a reluctance to talk because the client's need to meet his lawyer's
expectation may be stronger than his need to block disclosure. Many matrimonial clients
lack realistic expectations about the process, the law and lawyers. These inaccurate
expectations can generate threatening perceptions and be a significant source of stress.
Sharing how the system actually works can help many clients communicate better during
interviews. Clients who present routine cases from the system's perspective, for example,
may unrealistically fear that massive publicity will accompany their divorces. They don't
know that the final hearing will take three minutes or less, be held in the virtual privacy of a
judge's chambers, and be totally unpublicized. A general explanation of these kinds of
systematic features may alleviate many of these concerns and it is probably an appropriate
thing to do later in the interviews even if no block has been discerned. Specific expectative
statements are usually effective any time client confusion or concern about a role or legal
issue is sensed. Many matrimonial clients have unrealistic expectations about interviews
that can be alleviated by expectative statements. Some, for example, will be concerned
about the role they should adopt during the interview. They may find a participatory
approach discomforting if they expect their lawyer to ask the questions and see their
responsibility only as answering them. A statement explaining an expectation that they
should be an active participant throughout, beginning with a narration explaining both what
their situation is and wishes are, may help alleviate that discomfort. All clients want to know
how much the divorce and their" lawyer are going to cost and concerns about these
questions can produce anxiety and harm communication throughout an interview. Stating
early what fee, if any, is charged for the initial consultation -together with an explanation
that later fees and costs will be explained thoroughly usually allays these concerns. Some
clients are concerned about how long the interview will last. An expectative statement on
this topic is usually effective. This and the initial consultation fee can also be communicated
at 275 the time the appointment is made. Questions produced by any of these general
expectative statements provide additional opportunities to minimize client worries.
Expectative motivators can also be focused effectively on specific pieces of information.
Telling clients that information on a particular topic is expected can powerfully motivate
them to meet that expectation. This technique works because of the human tendency to
conform o another's explicit expectation. This desire to conform may also be stronger than
other client needs being met by not sharing information. Research shows that this dynamic
is even more pronounced when the suggestion comes from one perceived, as lawyers often
are, as having higher status. An empathetic identification of the difficulty of remembering
the information can often be combined with an expectative statement on specific
information. Lawyers need to be explicit about their expectation that information will be
forthcoming because simply empathizing with the difficulty in remembering sends a
message that no information is expected. Assume a client indicates that she cannot
remember what happened immediately after her husband caught her with a lover. An
effective empathetic, expectational motivator would be: "I understand how hard it can be to
recall unpleasant details that happened some time ago. I have the same difficulty myself. I
often find that if I concentrate for a few minutes, things start to come back. Why don't you
think about it for a bit? The information could be very significant to our decision-making
down the road." C. RECOGNIZING AND COMBATIING COMMUNICATION INHIBITORS
Matrimonial clients do not block information simply to make their lawyer's lives miserable
even though it sometimes seems that they do. Subjectively valid reasons for the non-
disclosure usually exist. Lawyers need to know the psychological factors that inhibit
communication to make effective judgments about when and how to use motivating
statements regarding these blocks. Although the underlying psychological sources of these
inhibitors do not need to be diagnosed, lawyers should know the common blocks and how
to counter them. Professors Binder and Price describe the following six common inhibitors
which impede complete communication in legal interviews. All of them are often present in
matrimonial interviews. 1. Ego Threat Most matrimonial clients do not share information
which they perceive as threatening to their self-esteem easily. People want to be evaluated
favorably; that's why positive feedback is an effective motivator. They also typically fear and
seek to avoid negative evaluations. Negative feelings about past or anticipated conduct
make it difficult to disclose that information. This concern about self-esteem may also carry
over to worry about these negative acts becoming public through the litigation process. In
matrimonial cases these inhibitors range from feelings of embarrassment and failure that
the marriage did not work to shame and guilt about either past acts or future plans.
Motivations for wanting the divorce may be ego threatening. Aspects of relationships to
children may threaten clients' self-esteem. Remaining fault issues such as the relationship of
marital misconduct to alimony also require inquiry about potentially ego-threatening topics.
276 2. Case Threat This block is the reluctance to share information which clients perceive to
be harmful to their case. Substantial misinformation about matrimonial law and procedure
exists on cocktail and other circuits. It often produces strange ideas about what and what
will not affect a position in a divorce adversely. This inhibitor is similar to ego threat but the
two are not always present simultaneously. A client, for example, may have no ego qualms
about sharing information about his extra-marital sexual activity. He may even derive ego
satisfaction from talking about it. That same client, however, may be reluctant to mention it
because he perceives that it could be harmful to his case. 3. Etiquette This inhibitor includes
all of the reasons that information is not disclosed because of role, cultural, or status
notions. Candidly disclosing this kind of information would violate client notions of
propriety. A man, for example, may think it is inappropriate to talk about relevant but
intimate sexual matters with a female lawyer he has just met. There are things that black
clients more easily tell black attorneys. 4. Trauma This block occurs when a person has such
unpleasant associations with a topic that recalling and retelling it are extremely painful.
Most people are strongly motivated to avoid thinking and talking about unpleasant past
events. A spouse who had been savagely beaten in the past, for example, might be very
reluctant to discuss it. Recalling and retelling the unpleasant situation can also generate a re-
experience of these feelings. Gathering information in matrimonial interviews often requires
exploring areas where this inhibitor may be present. 5. Greater Need This block occurs when
a client has a need to talk about a topic different than the one which the lawyer wants to
discuss. The inhibition does not come from a perception that the questions are either
threatening or irrelevant but rather from a greater need to talk about something else.
Clients who insist on sharing angry feelings about their spouses and resist sensitive efforts to
move on after a reasonable time offer one common temple of this inhibitor. 6. Perceived
Irrelevancy This block stems from client perceptions that there is no reason to communicate
on the point since it has nothing to do with what he or she perceives to be relevant. This
block also does not involve client feelings of either threat or discomfort. It is often resolved
by a motivational statement indicating why, in general terms, the topic is important. A
matrimonial client discussing a custody question, for example, may not be motivated to
respond to questions about his spouse's friends until he is told that they may be important
sources of information to refute parental fitness claims. Combatting these communication
inhibitors requires recognizing them initially. Then an empathetic statement showing
understanding of the difficulty combined with an appropriate motivating expression often
dissolves the block. The diagnosis of the block may need to be either 277 general or specific
because many topics involve more than one inhibitor. A client who is manifesting verbal and
non-verbal reluctance to discuss how she cared for her four year old son immediately after
leaving her husband and moving in with another man, for example, could be inhibited by
ego threat, case threat, trauma, or perceived irrelevancy. Attempting to identify the specific
blocks that are present could both confuse the client and waste time. A general empathetic
statement is probably more appropriate. This, for example, might work. "I sense that this
topic is difficult for you to discuss. The information could be very important so I need to ask
these questions. Your cooperation will help me analyze the case and give you better
information about your options and their consequences." If it is pretty clear what the block
is, a more specific diagnosis and motivating statement will probably be more effective.
Assume a client has been divorced for several years and is now living with another man. Her
ex-husband has filed a motion to modify the final judgment seeking to acquire custody of
their children. The client has not fully answered questions about how the potential step-
father gets along with her children and the block is probably either ego or case threat or
both. This might be an effective motivator in this situation: “This seems to be a difficult area.
It is an important topic that I must explore fully before I can help you develop options and
information about them. I will not think less of you if there have been some problems here.
It is not my role to judge you or your behavior. I want to help you make the best decisions
possible and, to do that, I need you help in sharing all relevant information. That includes
even things that you fear might either harm our case may embarrass you." Facilitating
communication from a client blocked by trauma is also best done by a specific diagnosis and
motivating statement. Motivating clients blocked by trauma also often requires extensive
feeling reflections and may produce the same type of cathartic discharge that can occur
when other emotions are mirrored by active listening. This, for example, might work with
the client who was savagely beaten and who doesn't want to remember, much less talk,
about it: "This is a painful memory for you and talking about it may cause you to relive some
of that agony. I regret that our legal system makes this information important to our case
but it does. That's why we need this information. Iassure you that I'm not asking these
questions to cause pain. These details could be crucial to our case." Motivating statements
indicating that the topic is open for discussion and important can also be used to combat
etiquette blocks. This, for example, might be an effective way to begin asking questions
about a client's past sexual conduct to ascertain whether an adultery defense will be an
obstacle to an alimony claim: "You may think it is inappropriate to discuss extra-marital
sexual conduct by both you and your spouse in this interview These issues, however, have
important legal significance and could bear directly on some decisions you will have to make
about the case in the near future. I have to ask you some questions on these topics to help
you make fully informed decisions. I don't ask you these questions to pry into your life or to
embarrass you. I hope you will understand and give me complete answers." 278 Motivating
statements can also help clients blocked by a greater need to talk about something else.
Sensitively phrased comments can help clients who insist on staying on intensely emotional
levels see the need to discuss other topics. Greater need blocks that are not based on
emotions can also be removed by statements of the lawyer's need. This, for example, could
be effective: "I'm concerned that we have only twenty minutes left today and I need to find
out more information about other topics so that I can do the legal research necessary before
our next appointment. I sense that you need to keep talking about this topic but I've got
enough detail on it for now. I would prefer moving on." Motivating statements should be
phrased supportively, empathetically, and flexibly. They should not be presented as
demands. Effective motivating statements often produce questions because they usually
indicate that the information sought could be important to either the lawyer's full
understanding of the situation or the legal standards that apply to it. Clients, after hearing
this, occasionally ask why the information is important. Lawyers should respond to these
questions to build rapport and keep the interview a shared, non-threatening experience.
They should not be specific about the law if the facts are unknown, however, because of the
possibility that clients will then tailor their remarks to produce the best result. A client who
learns that marital misconduct might preclude alimony before answering questions
exploring this topic, for example, might be motivated to give answers that avoid this result.
The best response to such inquiries is a statement slightly more specific than the motivating
expression but one that provides no detail that might distort. Here is an example: L: I need
to know whether you have been sexually involved with any men other than your husband
since you were married. This information is important. It will help me determine what our
options are so I ask the question not intending to embarrass you or to pry needlessly into
your privacy. C: Why is it important? L: It bears upon some of the options and their potential
consequences that you may want to consider. C: I thought we have no-fault divorce. L: We
do. This information has no effect on your ability to get the divorce. It affects some of the
relief you said you wanted. C: What relief? L: I'd rather not get into an extensive discussion
of bow the law applies to your situation until I understand it better. We can certainly talk
about this topic later if you wish. It is, however, possibly relevant Everything you tell me is
completely confidential. Should we move to another topic and come back to this later? C:
No, I'm willing to talk about this if it is really important. L: It is. 279 D. QUESTIONING
Although asking for information may seem to be the easiest way to get it, that is not the
case in matrimonial interviews. Passive listening, reflections of content and feelings, and
motivating statements often produce information and build rapport better than questions
do. There are times during interviews with matrimonial clients, of course, when asking
questions is totally appropriate. Using responses other than questions fifty percent of the
time is a good rule of thumb in matrimonial interviews. Although this percentage should be
even higher near the beginning of interviews if clients are comfortable narrating, a fifty
percent rule should help most lawyers avoid taking control of interviews prematurely by
excessive questioning. 280 Global Alliance for Justice Education (TOT) December 2013 Client
Interviewing and Counseling Margaret Barry and Brian Landsberg (Excerpts adapted for CLE
Course from Teaching Materials) Client Interviewing and Counselling – 1. Initial Client
Interview Lawyer’s Goals: Some Ideas --Obtain necessary facts and information (Get leads
for further investigation) --Obtain client’s version of facts --Establish appropriate A/C
relationship (Characteristics: respect and mutual trust) --Establish rapport (Open questions
and active listening are important techniques) --Identify and clarify client’s goals (Caution:
don’t leap to conclusions prematurely) --Get authorization; establish contractual relationship
* Written retainer agreement; supervisor’s express approval required * Release of
Documents * Conflict check * Explain student status, sign certified student form -Determine
if lawyer can/should accept the case --Professional expertise and experience --Time --
Personal and professional values --Motivate client to participate fully Client’s Goals: Some
Ideas --Desire to tell her/his story to helping professional --Desire to control to some extent
how the interview proceeds 281 (What topics are discussed; what details are discussed) --
Reassurance --Emotional contact with professional (analogy: doctor, dentist, car mechanic) --
Basis for deciding whether s/he wants to enter into an attorney/client relationship (N.B. You
should always approach relationship as if the client has a choice b/ she/he does!) --Wants to
accomplish some substantive result * Wants violence to stop * Wants to have c/s at
adequate level to cover expenses * Wants to know what options are --Gain understanding of
the legal system (legal options; what she can expect) --Fees (potential fees, costs, expenses)
--Closure (Wants to know what to expect next and when) D. The Lawyer/Client Relationship
1. Opening/small talk --How to plan for small talk --Things that put people at ease (greeting,
small talk, furniture arrangement, appearance, genuine-ness, listening, empathy) 2. Was
There Rapport? -Did lawyer promote a relationship of trust and confidence? -Was lawyer
able to remain nonjudgmental? -Did lawyer seem to be on the client’s side? -Was lawyer
prepared to answer client’s questions and deal with client’s concerns? 3. Did Lawyer Use
Active Listening Responses? -Were they successful? -What other types of listening did lawyer
try (passive, silence, body language, etc.) -Why is listening so difficult? 282 4. Nature of
Questioning -Did lawyer use sufficiently open-ended questions to enable client to tell the
story from her own point of view? -Was the lawyer able to refrain from asking closed,
probing questions until the story had sufficiently emerged? -Did lawyer use T-Funnel
technique to clarify, gain specific information? 5. Organization -Was the organization of the
interview helpful? -How could it have been improved? -How was interviewed structured?
Opening: Open question such as: Please tell me about your problem, how it began, and what
you’d like to do about it. Chronological Overview: Open questions/ Active listening Minimum
of probing for details Minimum interruption Preparatory Explanation: Step by step - from
beginning - in your own words event by event Basically, I want you to do the talking Planning
on one hour today Theory Development: -juggling info -T-funnel -topic by topic (spark other
topics) -systematically 283 Conclusion of Interview: -What you will do and by when -What
client needs to do -Tell client expectations – don’t expect her to read your mind -establish
attorney/client relationship -signed retainer agreement 6. Did Lawyer Find Out The
Necessary Facts: -What other topics should have been covered? -Any significant details
omitted? 7. Conclusion of Interview -Did client leave the interview knowing what the lawyer
was going to do next, and when they would meet again? -Did the lawyer give the client any
info re the law, legal rights, instructions on how to behave, or the legal system? -Should
more (or less) have been said? -Was information accurate? 8. Dealing with the Unexpected -
How did lawyer deal with the unexpected? -Ideas re how to get comfortable with chaos? -
Was lawyer open and encouraging and nonjudgmental? -Idea: ask client’s permission to
address topic X, then Y. Shows her she has been heard and understood. -Watch tone of voice
and body-language. -What was lawyer communicating 9. What Information Should You
Share With Clients? When? -personal experiences/-personal values 284 -legal theories -legal
advice -court process Avoid Premature Diagnosis! 10. Safety Planning: what it is and how to
do it A. Other Critique Topics 1. Techniques -eye contact -body language -tone of voice -
speed of voice 2. Form of Questions and Listening -open -closed -leading -did questions elicit
relevant info -active listening -silence 3. Substance -other questions should have asked -set
up next contact -explain process -explanation of role and supervisor’s role (asked them to
skip this time) -accuracy of info provided re law and process 4. Team Coordination 5. Ice-
Breaking/Small Talk 285 SPECIAL CONSIDERATIONS WHEN COUNSELING DOMESTIC
VIOLENCE CLIENTS? Domestic Violence • Non-legal as well as legal consequences are critical,
i.e., safety, client’s feelings • Possibility of PTSD – can impair client’s ability to make
decisions • Safety planning continues at counseling stage Impact of race/economic class/
gender on ability to effectively counsel client? • May affect ability to empathize or see from
their perspective • May affect ability to generate alternatives or see all consequences What
to do? • Be extra careful to ensure partnership model where you leave space for client to
generate alternatives, examine consequences • Identify your own personal position, what
you would do --- make sure this is not what is guiding your advice Some advice given by Dr.
Mary Ann Dutton, clinical psychologist at George Washington University 1. Willingness to
Hear Details of Violence 2. You might feel like an intruder or may not want to hear al the
gory details, make sure your hesitation does not inhibit gathering of relevant information. 3.
Avoid Being A Voyeur, Eliciting Details Just To Hear Details 4. Support, Validation Role 5.
Don’t get so focused on professional role and forget to be human (e.g., client who confides
to you that she is HIV positive) 6. Understand dynamics of control, be aware of power
dynamics between you and client 7. (giving decision-making power to clients rather than
making decisions for clients) 8. 5. Be aware of compassion fatigue, secondary traumatic
stress which can affect those assisting clients who have been battered 286 ADVICE
Conference Skills, Inns of Court School of Law, pp 131-150 (1999/2000) 7.1 Introduction As a
barrister you hold yourself out as a specialist in various fields of practice and offer your
professional expertise and experience in a way that should benefit the client. Commonly the
client comes to the lawyer because he or she has been unable to resolve a problem alone. It
is likely that this problem is a complex one and almost certainly of great importance to the
lay client. From the outset it is important to recognise that the term 'advising the client' has
many connotations. The type of advice you give varies to meet the needs of the different
stages of the client's case. You will continue to advise the client throughout your
professional involvement, not just at the initial conference. Consider the many decisions that
remain to be made by the client during the rest of the litigation process: the pre-trial
negotiation, the trial, and in the post-trial period; sentencing and enforcement etc. At each
stage you will have some contact with the client and naturally questions will have to be
asked and the issues of the case thoroughly investigated. The additional information thrown
up by this process will have to be assimilated with any existing knowledge of the case and its
issues. Any preliminary conclusions will have to be adjusted to reflect this new, informed
picture of the case. It is only at the end of these steps that you will be able to offer the client
some concrete advice on the issues in the case. It is crucial that the client not only finds this
advice satisfactory and of practical benefit at each stage but that he or she has a thorough
understanding of its consequences. In order to meet these requirements you will have to
appreciate the client's level of comprehension and be sympathetic to his or her level of
education, age, background and so on as well as having an understanding of the legal and
factual issues in the case. The steps that go to make up the advice process are recorded in
note form below. Whilst at first glance they may appear mechanical, after some practice the
process will become more natural. 7.2 Advising: A Step by Step Guide (a) Identify the
objectives of the conference and isolate all the legal and factual issues of the case. Compare
the two to isolate the relevant issues which require your advice in the conference. (See 5.6.)
(b) Gather all necessary information from the papers and ask the client questions as
necessary to complete your knowledge of the case. (See 6.6.) (c) Assimilate the new
information with existing knowledge by filling the gaps and clarifying any ambiguities. (d)
Analyse the legal and factual issues in the case considering the new information and your
revised view of the client's instructions. (e) Consider the merits of the case, application and
so on with the benefit of this additional legal and factual analysis. (f) Adjust as necessary any
preliminary view that you formulated before the conference. (g) Formulate your opinion and
advice so that it is both practical and appropriate to the needs of the client and the
requirements of the case. (h) Consider how best you may communicate your conclusions to
the client b using appropriate language and sufficient explanation. (i) Identify all the
strengths and weaknesses of the case for the client. 287 (j) Articulate your opinion to the
client in a way that he or she can understand. (k) Take the client's final decision and any
further instructions. 7.3 Terminology Before continuing to discuss the advice stage in greater
detail it will be helpful to give some explanation of the terminology used in the study of
advising clients on legal matters. 7.3.1 ADVICE This term can be used in a general sense to
include the whole process by which a barrister communicates information to clients and
assists them during the conference. The information and help may take the form of one or
more of the processes described elsewhere in this section. However, the term 'advice' may
also be used more narrowly to include the barrister's particular instructions and detailed
suggestions for action given to the client. Some commentators on the role of lawyers in
conferences suggest that giving specific advice is not appropriate as it imposes the view of
the lawyer on the client. However, on many occasions barristers in England and Wales do
give overt advice to their clients. Indeed, some would argue that this is what they are
engaged to do; in short it is what the client is paying them for. 7.3.2 OPINION Used in the
context of a conference an opinion is a discussion of the merits of the case by the barrister.
For example, this might include the chances of success should the case go to trial or the
likely outcomes and consequences of a negotiated settlement. In a broad sense this term is
also applied to suggestions for future action made by the barrister to the client, but always
following an evaluation of the strengths and weaknesses of the relevant features of the case.
7.3.3 COUNSELLING This is a specific method of advising clients employed by some legal
advisors and there is much debate amongst commentators about its various merits. It is
designed to be used by the lawyer to advise the client of the full range of options, and the
client invited to take the initiative. This involves the selection of a range of options that b
suit the client's identified needs and personal characteristics or that accord with the
emotional demands of the client. (See 7.16 for a full discussion of this method.) This method
of advising should not be confused with psychological support. The sort of counselling that
might be offered by a qualified counsellor is not an appropriate method of advising in a legal
conference. 7.3.4 EXPLANATION This is a neutral method of assistance used to give the client
definitions, descriptions and explanations. The lawyer acts as a guide and interpreter of the
legal process and it may include explanations of legal terminology. Thus although statements
of personal preference and suggestions of best choice are not relevant, various and
numerous explanations will usually precede another form of advice-giving. 7.4 Standard of
Advice No matter in what style or method you advise your client, as a practising barrister
you must reach the standards set by the profession. Generally, a barrister should ensure that
advice which he gives is practical, appropriate to the needs and circumstances of the
particular client, and clearly and comprehensibly expressed. (Paragraph 5.7, Annex F, Code
of Conduct of the Bar of England and Wales: Written Standards for the Conduct of
Professional Work.) 288 The standard is a high one, and rightly so, as you will be helping
people to make some of the most important decisions in their lives. There are three key
objectives for the quality of your advice that can be identified from this paragraph of the
Code: (a) your advice should be practical; (b) your advice should be appropriate; (c) your
advice should be expressed in a way that your client can understand. In this chapter we will
discuss the advice process in detail and investigate the skills you need to develop to meet
the standard set by the profession. When in pupillage and practice you should refresh your
memory periodically of the duties you owe your lay and professional clients and the court.
Regular reference should be made to the Bar Code of Conduct. The Code's paragraphs and
appendices are not merely collections of professional ethics, but also offer clear guidance on
good practice. Sometimes the Code deals with very specific circumstances, but it also
indicates the spirit of the Bar's preferred approach to client care and the execution of the
barrister's professional duties. For these reasons the Code's contents should form part of
every barrister's general knowledge. (See Chapter 9 and the Professional Conduct Manual.)
7.5 Reaching the Advice Stage: Assimilating New Information The question stage of the
conference will only conclude once you have gathered all the information necessary to
enable you to advise your client. Before completing that section of the conference you ought
to check with the client that you have addressed all the relevant issues in the case. Next it
will be necessary to assimilate this extra information with your existing knowledge of the
case and the preparation that you carried out beforehand. When considering your
preliminary view of the case you must remember that it was based upon facts that might
now have to be revised, changed or rejected altogether. Further this provisional opinion will
be based to some extent upon guesswork and speculation. In other words you will have
passed judgment before you were in full command of all the relevant facts. If necessary you
should adjust this prejudged view so that it is suitable to the circumstances of the client as
they now appear. Finally you must take into account your impressions of the client formed
from listening to his or her concerns and expectations. This will enable you to formulate
advice that is both appropriate to these circumstances and practical to the needs of the
individual client. This process is not time-consuming, laborious nor mechanical. Indeed, you
cannot afford to be dilatory when a client eager to hear your advice is in front of you. With
practice and the experience that it brings this process will become swifter and more natural.
Throughout the conference you must analyse the legal and non-legal options open to your
client. At various times during the questioning stage take an opportunity to collect your
thoughts. Consult your notes briefly and consider the client's instructions in light of your
preparation. A practical and thorough plan with a clear layout can be your touchstone in the
conference. Such a plan will highlight gaps in your knowledge and contain the appropriate
legal research and suggest your preliminary view of the case. 7.6 Preparing for Your Oral
Advice in the Conference To give your opinion of the case you will need to be fully prepared
beforehand. This is because you will have little opportunity to consider the case in depth
during the conference. The mental and social tasks that are part of the conference itself will
occupy your mind most of your time. However, new 289 information and perhaps a revised
view of the case will materialise during your discussions with the client. Therefore you will
have to rely upon your preparation whilst doing some thinking on your feet or seat. Only
rarely will there be the chance to consult legal works or seek assistance from colleagues. The
client's responses to your questions must be assimilated, analysed and compared with your
preliminary view of the case. The client may introduce additional facts and instructions
which will demand additional analysis and broaden the areas upon which the client will
require advice. All this will have to be done whilst the client and solicitor are with you. The
client expects and is entitled to professional advice that will help to resolve the problems he
or she is facing. The lay and professional client may wish to participate and add to your
comments, questions and opinion and you must listen to these interruptions and deal with
them appropriately and tactfully. Always remember the needs of the client are immediate
and real; the person in front of you is the individual experiencing the difficulties firsthand.
7.7 How and When to Give the Client Advice Special care is required when you communicate
your advice to the client. A common question is, 'when is it appropriate to inform the client
of your advice?'. In the majority of conferences some if not all of your advice can be
communicated orally and immediately. However, on certain occasions there will be a reason
to delay the advice, if the client needs time to consider the options further or because you
need to carry out additional research. A choice arises whether to telephone through this
delayed advice to the solicitor or to put it into a written form. In either event it is important
to let the client know when to expect your advice. However, if you have fully researched the
law and understood the brief and received full answers to your questions you should be able
to offer the client your advice at the conference itself. When you are about to communicate
your opinion let the client know that you are doing exactly this and ensure you have his or
her undivided attention. Check that the client understands that you are moving to the advice
stage. This will not only ensure that the client is listening attentively to what you have to say
but also maintain your control of the conference. To avoid confusing the client by delivering
ill-informed advice you must exercise control over the conference. A logical order must be
maintained. Ensure that you have covered all the issues with the client and that all relevant
questions have been answered. Further you ought continuously to monitor the progress of
the conference; keep an eye on the time and how efficiently you are addressing the issues of
the case and achieving the objectives of the conference. It is your responsibility to decide
when it is appropriate to give your opinion of the case to the client; this can only follow a
thorough assessment of the issues by you. However, it does not follow that your advice will
be at the end of the conference. If it is communicated too late there will be insufficient time
to address the consequences of the client's decision. Often there will be many issues to
address and several areas to advise upon. On each instance you will need to gather
information on various topics, analyse the facts against the law and formulate and present
your opinion. Of course, if you have adequately planned in advance, these tasks will be dealt
with more efficiently and fully. 7.7.1 HOW TO DO IT: GIVING ADVICE (a) Any conclusion
reached ought to be clear to yourself so that you appear confident and are able to justify
your advice. (b) Formulate the advice in language that is readily comprehensible to the
client. Remember to be precise and practical, not vague or patronising. (c) Explain how you
have reached your conclusion and set out the strengths and weaknesses of its consequences
for the client personally. (d) Check that the client has correctly heard your advice and
understood it. 290 (e) Finally, it is of the utmost importance that the client is aware that the
final decision is his or hers. Remember, your opinion is merely offered; the client has the
freedom to accept or reject it. 7.8 Making Your Advice Clear to the Client A measure of the
acceptable degree of conviction with which you can express your opinion to the client is
given in an annex to the Code of Conduct. Although it deals specifically with a conference
with a defendant in a criminal case, the spirit of the Code suggests that it may be applied
generally to civil and criminal cases. A barrister acting for a defendant should advise his lay
client generally about his plea. In doing so he may, if necessary, express his advice in strong
terms. He must, however, make it clear that the client has complete freedom of choice and
that the responsibility for the plea is the client's. (Paragraph 12.3, Annex F. Code of Conduct
of the Bar of England and Wales: Standards Applicable to Criminal Cases.) As is clear from
the Code, the client always has freedom to accept or reject the advice that is given. Thus you
must make this freedom to choose explicit. This should be done in a way that encourages
the client to accept the responsibility rather than in a tone that might suggest that your
interest in the conference ends with the client's decision. At is crucial stage of the
conference, when the client is on tenterhooks to hear your opinion of the best course to
take, you must proceed with the utmost caution and sensitivity. It is unacceptable, for
example, to state your advice boldly in the following way: What you've just told me suggests
that a guilty plea would be appropriate and I must warn you that the maximum sentence for
violent disorder is five years' imprisonment. Imagine the devastating effect of such a
bombshell on the client! Also in part at least this advice is misleading. The suggestion to
plead guilty may well be founded on a realistic analysis of the client's position and therefore
be justifiable in the circumstances. However, there is a world of difference between robust
advice presented with justification to the client and an insensitive instruction to take the
course of action that you as the lawyer have decided upon. Further, the bold and
intimidating advice on possible sentence is incomplete therefore erroneous. The maximum
sentence is only ever used in those rare ca.. l where the offence is at the top end of the
bracket; that is, it contains many aggravating features and few if any mitigating ones. There
is always something that can be in the defendant's favour and in the majority of cases a
sentence well below the maximum can be expected. To overburden the client with the
shadow of five years in custody is both inhuman and unprofessional. 7.9 Warning the Client
of the Consequences Clients may not always fully appreciate the consequences of any
decision that they take, for example, the implications it might have on costs, the ensuing
delay, inconvenience or litigation stress. Some side effects are of great importance to the
individual client. Consider, for example, the effect of having a criminal record if the client is a
wage earner looking for a new job; or the effect of receiving a bad credit rating if the client is
setting up a business. Certain consequences will have a less tangible equally devastating
effect. The social effect of being convicted for a violent sexual or the loss of face when an
employer loses a case of discrimination are two exam It is therefore part of your duty to
offer advice in the light of the consequences o decisions that the client has made. This advice
on collateral issues may in non-legal considerations as well as the usual advice on the legal
consequences of your client's decision. 291 7.10 Giving the Client the Full Benefit of Your
Services: Time Management It will be rare for you to receive instructions to hold a
conference that covers only o area for advice. If there are several areas to advise upon, time
can be scarce during di conference. Clearly you are required to meet all the objectives of the
conference to satisfaction of both your lay and professional clients. However, there are
limits upon the powers of concentration of both you and your client. Therefore it is
legitimate to recognise that some of the issues faced by the client are of greater importance
than others. It is possible to construct a hierarchy of issues that require your advice. Some
issues will have priority over others. Some are easy to prioritise; for example, those
identified for you in the brief by your solicitor. The relative urgency of other issues can also
assist you to decide whether they can be left until later. Thus a sound knowledge of the rules
of procedure and the various time limits imposed on litigation is essential. Non-legal
considerations that do not have a direct influence on the case may form part of the
secondary issues and so may be left until later. Those which are at the heart of the matter,
however, cannot. These will be the issues that are priorities in the case, issues that must be
addressed and resolved as a matter of urgency or which take precedence over other
peripheral issues. It is not possible to make a list of priorities in the abstract. Only the
individual circumstances of the case and the client will be able to tell you which needs are of
greater or lesser importance. It is your responsibility to find out from the client what are the
central issues. It is always worth considering to which areas to give priority and which to deal
with either later or at another meeting. No one is superhuman so you must make a realistic
estimation of your powers of concentration and those of the client before and during the
conference. If you are really pushed for time it may be appropriate to prioritise the issues
upon which you intend to give your advice based upon your brief fee. You are only paid for
that for which you are instructed and it is legitimate, but not automatically appropriate, to
emphasise the legal function of the barrister. In any event non-legal advice, as opposed to
consideration of non-legal options, may be more suitably given by another professional. For
example, if a client instructs you to represent him or her in a personal injury case you might
suggest an application for state benefits and even give an estimation of the likely financial
award. However, it would be negligent not to add that the client should seek professional
advice from a benefits officer or a financial advisor working for a disability charity if
appropriate. 7.11 Helping the Client to Understand Your Advice The lay client cannot be
expected to understand the legal process nor the legal context of their case to the degree of
sophistication that you do. It is therefore common to spend a significant amount of time
explaining in everyday language the effect of the law on the client's case. Legal terminology
and the court procedures that surround the case will also need to be explained. Further,
some extra time may have to be spent explaining to the client why court litigation takes a
certain route and warning him or her how to avoid delays. There are two objectives when
you communicate your advice. You will obviously want the client to make a decision fully
informed of all the consequences of that decision. And you will wish to pass on your advice
to the client clearly and comprehensibly. In part you will realise these objectives if you
ensure that the client appreciates the legal context of the decision. This might include the
finality of the decision, its consequences for the future and the financial obligations that
surround litigation. It is your responsibility to guide the client through the labyrinth of the
law. 7.11.1 HOW TO CHECK COMPREHENSION You must avoid prejudice and preconceptions
when evaluating your client's apparent intelligence, but you should observe and appraise
the client's level of comprehension. His or her formal education alone 292 will not be an
adequate indicator. Many clients will feel intimidated or overawed by the complexity of their
case even though they have a wide experience of life apart from it. Therefore be patient
with the client. This does not mean that you need to be condescending or unnecessarily
simplistic in your explanations. For example, an illiterate defendant with a long record will
not be able to read the charge sheet but he or she may know a lot about bail application
procedures. Further, although the client may appear bewildered to be in a road traffic court,
his or her thirty years' experience as a driver has probably given some insight into what is
and what is not safe driving. It is easy to belittle clients inadvertently by forgetting that they
are capable of contributing their knowledge or experience to assist themselves. Apart from
making for poor manners this lapse of common sense can seriously disrupt the rapport
established between you and the client. If you treat clients as slow, unintelligent beings, why
should they take an active part in the conference? Further, how can you be surprised that
they will not trust your judgment or integrity? An observant stance and a carefully selected
vocabulary are the keys to intelligent and considerate explanations. Gauge what you have to
say to the client. Avoid clichés and pat phrases; they rarely have a long shelf life. Remember
what is comprehensible to one client is not always understood by the next. So try to adapt
your approach to suit the individual in front of you after you have learnt something about
their personality and level of intelligence. If asking a question to confirm understanding it is
often wise to avoid leading or simple yes/no questions. Attempt to encourage the client to
repeat back to you what you have explained or methodically investigate the client's
comprehension with a series of open and closed questions. Illustrate to the client why it is in
his or her interest to understand what you are explaining. By showing the benefit of this
additional knowledge you will facilitate greater powers of concentration and interest. If the
client fails to see the benefit, ask yourself whether this information is wholly relevant. There
is little point in overburdening the client with material of little relevance or import to his or
her case. 7.11.2 EXPLAINING THE LAW At different stages in the life of the case the relevance
of the substantive law to the client's case will be greater than at others. It can be expected
that by the time the client comes to see the barrister in chambers he or she has some idea of
the legal principles of the case. This is usually formed with the help of the solicitor. However,
there can be no guarantee that this will always be so. The initial meeting may have been a
brief one; the solicitor might not have explained the law sufficiently clearly or the client
might simply have forgotten what he or she has been told. In some circumstances you will
be the first lawyer to discuss the case with the client. For example, at a magistrates' court
first appearance hearing after a night in the cells the client may be totally ignorant of the
legal basis of the charge. A similar position in a civil setting is an urgent without notice
injunction for an ouster, for example. It is always wise to check with the client personally
how much they understand with some open questions inviting a statement in simple terms
of the case. This knowledge, no matter how rudimentary, can be built upon. If it is wide of
the mark then some tactful re-tracking may be called for. Always concentrate on the specific
case and avoid taking a textbook approach to the law. The average lawyer spends three
years studying his or her subject at university and the lay client cannot be expected to follow
lengthy explanations of the law of evidence or intent. By using the client's case as a starting
point you will focus your mind and help him or her to grasp the essentials of the law as it
relates to the case. As part of your preparation you should consider what law needs to be
explained to the client and how you are going to do this. As well as being relevant and pithy
your explanations should avoid legal terminology where possible and always be free of
lawyers' jargon and slang. (During your pupillage you 293 will soon discover how barristers
derive great delight from using their own dialect and shorthand when discussing a case with
one another, but, hopefully, how this argot is dropped once they meet the client and
address the court.) 7.11.3 EXPLAINING PROCEDURE Clients are often unaware of the
procedural context of their case. The lack of an appreciation of the need for the numerous
stages of litigation is illustrated by the common complaint that the law is oblique and
unnecessarily slow. This is hardly surprising as it is the solicitor who prepares the papers in
the case and during the initial stages of litigation the client is not always informed of
developments that do not have immediate effect upon the conduct of the case. Also there
are many stages in the early life of a case at which the client is not personally involved,
interlocutory applications or solicitor-to-solicitor correspondence, for example. Lawyers on
the other hand are only too aware of the mundane, run-ofthe-mill stages through which
both civil and criminal cases go. Therefore lawyers can easily overlook the fact that the client
will not understand their purpose or indeed the necessity for each step in the litigation
process. Your client has a right to a full explanation of what is taking place. There is an
advantage for you too: the informed client will more readily take an active role in the case's
progress. Thus apart from the tactical advantages of a thorough understanding of the
litigation processes, this knowledge is essential so that you can assist your client with clear
and accurate explanations of civil and criminal litigation. When explaining procedure to the
client think carefully about how much detail he or she needs at this stage. Your concern is
not to protect an arcane system, but rather to keep the client's attention on the issues that
are important to the conference. The test is one of relevance: does the client need to know?
When the client is being asked to make a choice or take a decision, obviously it will be
necessary to a greater or lesser degree to inform him or her of the procedural implications;
for example: (a) what delays might be met? (b) how long does the client have before he or
she must act? (c) what are the cost or legal aid considerations? Whilst not advocating the
'you needn't worry yourself about that, leave it to the lawyers' approach, you will need to
consider how much time you can allocate to any explanation of procedure. Further, you
must consider how easily the client will comprehend and how long he or she will be able to
remember this information. Nonetheless the client who is fully informed will be less anxious
about the future and will feel more in control of the destiny of the case. The benefit to you is
that you will find that the client is more willing to collaborate with you. Most importantly,
once people understand what is happening or likely to happen to their case they are better
placed to take decisions for themselves and feel confident about the future. The fear of the
unknown can be a great impediment to the successful conclusion of the conference. 7.11.4
EXPLAINING FINANCIAL COSTS OF THE CASE The question of money and indeed figures
generally will arise in most conferences and it is always wise to carry a pocket calculator and
have an understanding of rudimentary arithmetic. What follows is merely an outline to assist
you to think about the difficulties that you and the client can expect to face. (See the Case
Preparation Manual, Chapter 18.) 7.11.4.1 Fees The barrister never accepts money or other
forms of payment from the client personally. The solicitor will deal with the financial affairs
of the client and your clerk will negotiate any fee on your behalf. Great 294 circumspection
is therefore needed when discussing fees with a client. Nonetheless when advising the client
on possible future action the financial costs must be discussed. No precise figures can be
offered but a sensible range should be given where possible to give the client an accurate
estimate of the financial cost of any legal help they seek. This projection will be based upon
your experience as well as your knowledge. It may be some time before you feel confident
enough to give this advice to the client without some assistance. If you feel unable to advise
yourself it may be appropriate to refer the client to the solicitor. Indeed it is your
professional client who has the final responsibility of collecting the fees from your lay client.
7.11.4.2 Costs In civil cases some costs can be stated with a greater degree of certainty than
others, but the vast majority will be liable to taxation. Remember that whilst most costs
follow the event there are numerous exceptions particularly at interim hearings. In any post-
hearing conference you will have to be prepared to explain the effect of the order as to
costs. Following a finding of guilt or a plea of guilty the prosecution may request that the
defendant pays some of their costs. Care should be taken to discover from the prosecution
what costs they are seeking from the defendant if there is a conviction. Note that these are
often in addition to any fine or compensation that the court might impose. Again a range can
be given based upon experience and knowledge of similar cases. (See further the Civil
Litigation Manual and the Criminal Litigation and Sentencing Manual.) 7.11.4.3 Legal aid In
both civil and criminal cases the Legal Aid Board may require a financial contribution from
the client and in these circumstances the cost of litigation can be a real concern for the
client. The solicitor should include a copy of the Legal Aid Certificate in the brief which
contains information about the level of the contribution and the extent and terms of the
certificate. Obviously the longer the case goes on the greater the total sum the client will
have to pay. In civil cases there is the added danger that the successful client, whether a
claimant or a defendant, may have to repay the total amount of legal aid received through a
process of recoupment. (See further the Civil Litigation Manual, Chapter 32.) Indeed civil
legal aid has been described as being more in the form of a loan than a grant. All of these
implications will need to be explained to the client and he or she will also need to be
reminded of them at the appropriate times. 7.11.4.4 Non-legal financial considerations
Clients will often be under financial strain besides the cost of litigation. This may because
they are prevented from earning a wage following imprisonment or because the demands
that the litigation is making on their time. At the early stages proceedings the client may not
appreciate the degree of impact that the case will, on his or her time or purse. You have a
duty to keep the client aware of the co litigation and this will include the non-legal costs.
Some clients will lose their livelihoods as a result of their involvement with the criminal
courts or by becoming embroiled in civil proceedings. You should not only alert the client to
these possible consequences but also offer some practical advice. Suggestions of the non-
legal options, or references to other professionals who will be able to offer assistance, ought
to be made when appropriate. A working knowledge of the social benefits system is
essential if practising family or criminal law where the means of the parties are often of
interest to the court itself. (See Remedies Manual.) Once again, when dealing with figures, it
is best to think in terms of ranges and to admit uncertainty if it is appropriate to do so.
Remember that most social benefits are discretionary so there can be few guarantees. 7. 12
Dealing With Conflicting Advice 295 Occasionally the advice that you believe is appropriate
will differ from that already communicated to the client by the solicitor or a counsel who
previously held the brief. Two or more lawyers looking at the same case may hold differing,
sometimes conflicting opinions. This is not as uncommon as some lay people may expect.
Indeed in an adversarial system there is rarely certainty when applying the law to a set of
facts identifying the strength or weaknesses of a case. The particular difficulty for the
barrister in a situation such as this is that there are two clients and three duties. There is a
professional client and a lay client, with separate duties owed to each and a third duty to the
court. For the newly qualified lawyer this three-way pull can be the source of great anxiety.
This is particularly so when there is the nagging feeling that any upset caused to either of the
clients or the court will be reported back to chambers. In this part of the chapter we will look
at this dilemma and offer some suggestions to assist you to overcome it. The Code has set
out some clear guidance and rules to assist in such difficult circumstances. The relevant
paragraphs are quoted below, but the gist of the rules is that your primary duty is to your lay
client. A practising barrister: (a) must promote and protect fearlessly and by all proper and
lawful means his lay client's best interests and do so without regard to his own interests or
to any consequences to himself or to any other person (including his professional client or
fellow members of the legal profession); ... (Paragraph 203.) A practising barrister must not:
(a) permit his absolute independence, integrity and freedom from external pressures to be
compromised; ... (Paragraph 205.) A practising barrister is individually and personally
responsible for his own conduct and for his professional work: he must exercise his own
personal judgment in all his professional activities ... (Paragraph 206.) There is also the
danger of confusing the client by offering an opinion different from that already indicated by
the solicitor. This can be merely irksome to the client or place additional stress on him or her
at an already stressful time. In most circumstances the client will only have received a
preliminary view of the possibilities from the solicitor. The alert client will appreciate that
you are a specialist to whom they have been referred for more certain advice. If the client
shows a reluctance to accept your view rather than the solicitor's, you must take control and
justify why your views differ. Often the easiest way to support your view is to highlight to the
client the additional information that you have gathered at the conference and explain how
this affects the legal analysis of their case. 7.12.1 DEALING WITH CONFLICTING ADVICE:
HOW TO DO IT If your view of the case leads you to give advice which, if followed, would
alter the litigation to a great degree, you may wish to consider the following suggested
approach: (a) Avoid confusing clients or undermining their faith in their solicitor unless
strictly appropriate. (b) If possible speak with the other lawyer with whom you disagree to
discuss his or her views. That lawyer may know something that you do not. 296 (c) If
appropriate and practical recover the process by which you reached your advice to double-
check your conclusions. (d) Highlight to the client your advice and identify its strengths and
weaknesses. (e) Allow clients to make their decision, reminding them if necessary that the
final decision remains theirs. (f) Inform clients of the effect of any change or adjustment that
will result, e.g., extra costs, effect on procedure. (g) Inform the professional client of any
changes - be prepared to explain and justify what has taken place. (h) Ensure that the court
is informed of any developments and material changes. 7.13 Expressing Risk to the Client
This section introduces various methods by which you might express the risk involved in
litigation to the client and considers the strengths and weaknesses of these methods. It is
important to communicate the degree of chance directly to the client who can then make a
decision in the full knowledge of the attendant risks of litigation. There are few certainties in
law, trials, for example, are not so much investigations of the truth as testing conflicting
testimonies to ascertain which is more believable. The verdict is guilty or not guilty rather
than guilty or innocent. Likewise the levels of damages to be awarded for personal injury are
not scientifically assessed but approximated. They are often only a symbolic sum to reflect
what was suffered by the injured party. The client, however, will want to know what is going
to happen: what the chances are of success at trial; how will the damages be assessed and at
what level? Clearly, it is part of the lawyer's role to give estimations of these risks and
chances. 7.13.1 PRELIMINARY CONSIDERATIONS You should always attempt to be practical
and realistic: do not forget the specific problem faced by the client before you. Any
expression of risk will have to be effectively communicated to the individual client: will he or
she be able to comprehend what you are saying? There are several methods and styles of
expressing risk, which one you choose will depend upon your preference and its suitability
for the issue in question. It may, of course, be necessary to experiment, particularly in the
early stages of practice. Much can be learnt by observing other members of the profession
and lessons can help to develop your repertoire. 7.13.2 INTRODUCING RISK ANALYSIS TO
THE CLIENT: A SUGGESTED APPROACH (a) Check that the client is fully satisfied that he or
she has sufficient inform about the strengths and weaknesses of the case. (b) Allow the
client to raise any additional concerns if appropriate. (c) Ask the client to consider how the
risk of failure/success is affected by the strengths and weaknesses. (d) Invite the client to
estimate whether the relevant risk is high, nothing. (e) Ask the client to state explicitly
whether he or she is willing to accept that level of risk of failure/success. 7.13. 3 USE OF
LANGUAGE The most common way of expressing a risk is to use everyday expressions: 'x is
less risky than y'. Alternatively, phrases such as 'there's a good chance that .. .', or 'such and
such is unlikely to succeed' 297 also give a measure of the risks involved. When adopting
such expressions the speaker is attempting to pass on his or her judgment as swiftly as
possible. Difficulties soon arise, however, once the recipient of this information requests
explanation or justification of the estimate, or a clearer statement of what the precise risk is.
Sometimes the answer may be that the lawyer runs through the strengths and weaknesses
of the case again. For example, the number and quality of witnesses for the prosecution may
be used to justify the estimation of the risk of conviction as 'great'. But if the client wants a
clearer statement of what is meant by great' problems can arise. This is because the client
wishes to know what the risk is not the lawyer's reasons for thinking that there is a risk of
conviction in the first place. On occasion the lawyer may be able to side step the issue by
using the following: 'by "great" I mean it's more likely than not that you will be convicted'.
Although to a la graduate this answer is transparently insufficient and inappropriate, to the
lay client it may appear to be an acceptable one. In the worst circumstances it may even be
taken as an indication that he or she ought not to question the barrister's advice. Thus there
are some shortcomings with this method. However, it also has some advantages. By using
everyday language and employing common phrases the level of communication from the
lawyer to the client is often high. At a superficial level at least the client will understand
what is being said. Further, this style can be utilised several times in the same conference
when dealing with the various issues or options, thus maintaining some consistency, e.g., by
using a series of comparatives: better than, worse than, etc. Naturally it is important for the
lawyer to keep a tally of which item he or she lists as better than the next and so on. Some
review of this list may be necessary as and when changes affect the order of the items on it.
In this way the running order can be adjusted in a useful way during the life of the case, for
example, if fresh evidence is revealed or a witness does not come up to proof. If this
happens the lawyer can then say to the client: ‘The chances of success have been reduced
from a reasonably good chance to a poor chance of the judge finding in favour of our case'.
A second advantage is that the lawyer will be protected against criticism from the client.
Some clients will not have a disinterested memory and may complain that the court has
imposed costs on them for an unsuccessful trial when the lawyer said that there was an
excellent chance of success. The client's faulty memory can be checked against your record.
A final warning must be given. As was suggested, explanations of what is meant by good or
bad and so on are not easy to give. One reason is that everyone has their own innate
understanding of these words but few have the ability to articulate precisely their
personalised meaning to others when applied to a particular situation. The inevitable
vagueness that follows often leads to misunderstanding. 7.13.4 METAPHORS AND SIMILES
One can take everyday experiences and adapt them to the particular dilemma faced by the
client. The client can, for example, be invited to compare the risks with a financial
investment which might provide a series of bonuses. There is a likelihood that the
investment may go down as well as up. If the chances of success are particularly low you
might compare them with a lottery. These sorts of comparisons can be useful particularly if
talking to a client with little or no experience of the law but able to think in an independent
fashion. It goes without saying that a simile or comparison must be within the client's
personal experience. You cannot expect everyone to have a working knowledge of gambling
terms or of the stock market. Whilst this method of communicating risk is entertaining and
readily comprehensible, it merely communicates the degree of risk superficially. There is
only the hope that the client will be able to pick up intuitively that which is not being
communicated explicitly. Thus an appeal to the client's real or imagined experiences is made
in the hope that there will be a process of convergence. In short the lawyer hopes that the
client will come to share his or her belief of the estimate of the risk without lengthy
reasoning. 298 7.13.5 NUMBERS, RATIOS, RANGES, FRACTIONS, PERCENTAGES, STATISTICS
Figures carry their own mystique and should be used with caution. Some people will
understand that the expressions 'the chances of success are 50:50' and 'the likelihood of us
winning is 25%', do not mean that in the first case the chance of success is precisely half or in
the second precisely one quarter. However, some people if asked what these two phrases
are saying about the risks involved may fall into this trap. Therefore it is necessary to guard
against the temptation to believe that what sounds like an accurate statement of the risk is
what it appears to be. You therefore have a responsibility to explain to the client clearly and
without condescension that you are using the numbers, figures and ratios adverbially; this is
to say, not as scientific measurements of the risk but as helpful expressions of your
estimation of it. 7.13.6 POUNDS AND PENCE If discussing monetary figures there are again
several ways of expressing them. The most common way of expressing the outcome will be
in pounds and pence. The obvious danger here is that the courts do not award monies in a
precise fashion. Note should be made of the difference in civil law between liquidated and
unliquidated damages (see the Civil Litigation Manual) and in criminal law between fixed and
non-fixed fines (see the Criminal Litigation and Sentencing Manual). Most lawyers favour
stating a range within which the final figure can be expected to fall. For example, 'In these
sorts of whiplash cases the courts usually award damages from £2,000 to £4,000. With the
facts as they are in your case I'd expect the final award to be in the £3,000 to £3,500 range'.
A similar approach can be taken to fines and so on. Note should be made of the two ranges
given. The first sets the general limits found in cases of the same nature, the second the
specific limits that apply to the particular case. In this way the client is informed of the whole
picture - it can be of particular use when it comes to advising on appeal. If the court in the
whiplash case above only awarded £2,750 the lawyer may wish to point out that whilst it is
low, and in his professional opinion appealable, it is not advisable to endure the extra costs
and stresses of appeal for only a further £750 at most. 7.14 Non-Verbal Expressions of Your
Opinion The lawyer will be closely scrutinised by the client, especially when passing on vital
information such as the length of sentence or the chances of successfully defending a civil
case. The client will react to the way you give the information which (for him or her at least)
is of vital importance. The client will be sensitive to your posture, eye contact and other
indicators of confidence as well as the pitch of your voice. The eli may be able to understand
much of your opinion of his or her case and its merits observing you as well as listening to
you. You ought to be aware of these facts throughout the advising stage and remember how
it might affect the client's appreciation of the issues and merits of the case. At different
times some deference to the client's emotions ought to be given. Before dismissing an
appeal against a custodial sentence some moments' reflection will you that no matter how
slim the chance is, the client may be willing to take it. This may be the case even if there are
some attendant risks. Even so, there is the danger being insufficiently forthright if the risk is
particularly slim. Clients will often detect your hesitancy but it is up to you to give the client
the benefit of your express an honest opinion. There may be occasions when you think that
the client's chances are rightly low or that he or she richly deserves the sentence that he or
she has received. You must not sit in judgment and must keep your opinion on this point to
yourself. On these occasions it is particularly important to guard against inappropriate non-
verb communication: practice itself is the best tutor. This is not merely a question of
politeness nor a counsel for empathy. It is a central consideration when deciding ho best to
communicate your professional advice clearly and accurately to the client. 7.15 Assisting the
Client to Estimate Risk 299 In some circumstances it is not the barrister who has the
necessary knowledge to assess the risk but the client. We have seen in Chapter 6 various
methods to collect such information and the present chapter has stressed the importance of
allowing the client to make the final decision. Just how far the barrister can assist (or
interfere) in this process is a matter of degree and context. Clearly on occasions clients may
require a little more time or some extra information or simply some reassurance that it is
their role to make the decision. As we have already seen, language has its limitations and
non-verbal communication can have its own shortcomings. How can you ensure that the
client absorbs the information and goes through the process of reflection and assesses the
risks involved for himself or herself? There is no easy answer to this problem. However. if
you have ensured that you and the client have acted collaboratively and cooperated during
the advising process, there ought to be a convergence of estimates. In the best situations
there may be perhaps even a shared, mutually understood language in which the different
risks can be described and compared freely and clearly. 7. 16 Legal Counselling 7. 16.1
INTRODUCTION In this section we will look at an approach to client advice that takes a
different perspective on the client and his or her problems. This approach is known as legal
counselling. This form of advice addresses the client's problems broadly and does not
particularly isolate the legal options in order to resolve them. As we have already seen. no
matter what approach you take to the client's case you should consider the non-legal
options as well as the purely legal ones. However, legal counselling gives special prominence
to the specifically non-legal options. The philosophy behind this approach is that the law is
the refuge of last resort and anything that can help to avoid or cut short the client's
involvement with the legal process is preferable to utilisation of purely legal options.
However, this is not to say that the law or legal procedures must or can be avoided. Often
the client has no option but to accept that they must continue to take part in the legal
process if they are a defendant in a criminal case, for example. Nor does this process of
client advice seek to avoid exploiting the procedures that are favourable to his or her cause,
for example, using an interlocutory injunction to settle a neighbours' dispute. Nonetheless,
the emphasis is on the future beyond the court-room and the lawyer seeks to help the client
to resolve the underlying problems he or she is faced with. Clearly, legal counselling takes
you to the limits of your role as a lawyer and stretches your abilities and resources. It can be
a demanding but greatly satisfying process for you and the client. But there are dangers, too.
It is important to realise the difference between your professional duties and functions and
those of other professionals, for example, social workers, marriage guidance counsellors or
financial advisors. You are first and foremost a lawyer and the client instructs you because
you can fulfil that specialist function. Given the demands and risks involved you may not feel
sufficiently confident to use this form of advising the client in the initial stages of practice.
However, it is important that you understand how it functions so that you are prepared to
observe it being carried out by senior barristers. Finally, with the ever-rising cost of litigation
and the increasing importance of alternative dispute resolution, mediation and conciliation
you are likely to have to address this type of conference with your clients regularly in the not
too distant future. 7.16.2 THE LEGAL COUNSELLING PROCESS As with any form of advice,
before attempting to engage the client in legal counselling you must gather all the necessary
information. It is of particular importance when adopting this method of advising to gather
sufficient information from the client to reveal all the relevant legal and non-legal options
that are available. As in the advising method you will need to assimilate these new
instructions with your 300 existing knowledge of the case. You may need to adjust your
preliminary views and opinions of the case if you go ahead with legal counselling. The next
stage is to order the options into logical sets. It may be appropriate to mix legal and non-
legal options or to separate contentious from non-contentious options; each case will have
to be investigated separately. Then you should analyse and attempt to prioritise the options
within each category, or altogether, as is sensible and practical. Finally, before you present
these to the client, ensure that the options are appropriate and specifically suited to his or
her circumstances. A brief example should help to clarify that the process is more fluid than
it might appear at first sight. Imagine that you are instructed by a client to make a bail
application. The client tells you that he wants bail but knows that he is wanted for charges
on other offences at another magistrates' court. You gather as much information as is
relevant on the current charges and background personal details of the client as far as they
are relevant to the application for bail. However, you also go further and invite the client to
state why bail is so important to him today. During this process you learn that the client is 27
years old and is planning to marry. However, he also adds that his girlfriend has told him 'to
clean up his act' otherwise the engagement will be broken. From your conference and
instructions you identify the following factors: (a) the client values his freedom; (b) he
dislikes custody but is realistic about the danger of being picked up on the warrants for his
arrest; (c) he has a real incentive to put his involvement with the wrong side of the law
behind him. Given the legal and factual circumstances of the case the options of possible
action to take today are limited: (a) You could advise that the client does not make an
application for bail as the chances of it being granted are slim. (b) You could go ahead and
make a bail application in the hope that it will be granted and that the client will
subsequently leave court before the police inform the prosecutor that there are outstanding
warrants for his arrest. (c) Alternatively you could counsel the client of the advantages of
getting bail today and subsequently surrendering to custody on the outstanding warrants.
Once he does that, he could request that all the charges are dealt with together and swiftly.
This would enable him to begin to put his past behind him and face the future with his
fiancée without the risk of his previous criminal career endangering their marriage. Options
(a) and (b) are both viable, but they ignore the client's background and his non-legal
aspirations which option (c) puts at the centre of the advice. Only by asking the right sort of
questions in the appropriate circumstances can you expect to discover sufficient insight into
the client to be able to counsel him or her on the full range of options available. There are
several approaches to counselling that can be utilised but most follow a similar pattern. It is
advisable to follow a suggested pattern if you are unfamiliar with this form of advising, this is
because there is often a well-intentioned but misplaced temptation to usurp the client's role
of decision maker at the same time as fulfilling one's own as counsellor or adviser. As with
any form of advice this process follows an investigation of the client as a source of further
information and instructions. The lawyer establishes and maintains control of the process by
setting before the client the list of options that are suitable to the client's requirements. The
client is then invited to add any options not included. This list will be broad and general; the
object at this stage is to consider as many options as possible. A short 301 discussion of the
options may be appropriate here. However, the lawyer does not pass comment on their
suitability, rather the client is encouraged by the lawyer to lead the discussion of the
suitability of the full range of options. The lawyer assists the client to express his or her
preferences and to investigate the suitability of the various options. In particular the various
strengths and weaknesses of each option are identified and evaluated. An arrangement of
options in order of suitability often follows from these investigations. 7.16.3 KEY AIMS OF
COUNSELLING • To communicate the full range of options to the client in an order that is
easy to follow. • To allow the client sufficient time to consider the options as presented. • To
invite questions or comment from the client to establish clarity. • To allow the client to
make a choice without inappropriate assistance. • To check that you have correctly
understood the client's response. • If no response is forthcoming, to investigate why and
address the reasons for this. • If more time is required you must give the client a realistic
time estimate or deadline for the final decision. 7.16.4 CLIENT CENTRED COUNSELLING The
primary strength and defining feature of this process is the role of the client who is
encouraged to be proactive, co-operative and collaborative. The client should be working as
hard as, if not harder than, the lawyer during the counselling stage. Within the bounds of
reason and the constraints of the time available a complete range of options ought to be
discussed. An appropriate style to adopt here is that of the experienced or advising friend.
Compare this with the common advice-giving process where the most relevant role will
often be that of the expert or specialist. Obviously with a little subtlety the same lawyer can
exploit both roles in one conference. You might consider adopting one strategy for one issue
and another for further issues. The key is to maintain control of the conference and to guide
the client. There are some disadvantages to the counselling process. It can be time
consuming and the client is required to have a clear understanding of the whole case for the
process to be a successful one. However, there are benefits. Because he or she is fully
informed and has participated throughout the procedure, the client is more likely to be
satisfied with the decision that is reached. There may be, for example, less uncertainty about
the appropriateness and desirability of the next steps in the litigation. Addition ally there
may be occasions when the process can be covered in a short time, for example, when there
are only limited options to consider. Because the process does demand a lot from the client
as well as the lawyer, the client must be informed about what is taking place at each stage.
Simple questions such as 'what do you think?' are often inadequate and so careful
preparation is required to get the most out of the client and out of the available time. In the
final stage of the process the client makes a decision. The client is now on his or her own -
the lawyer should only assist when specifically asked to do so or when the client is in clear
difficulty, for example, acting under a misapprehension. The client may need time to
consider the options and make the final selection. As this can be of significant length the
lawyer ought to manage the available time appropriately. Once a preference is expressed,
the lawyer may invite or pose questions to the client or invite comment to establish absolute
clarity of his or her understanding of the final decision. Further, it may be wise to recap
briefly the strengths and weaknesses of the final choice. It is 302 vital that the client makes
the choice independently. It is the client who has to live with the consequences of that
decision. In this process the lawyer must be vigilant against assuming the client's role. This
may even necessitate gently informing the client that you cannot take on the burden of
telling the client what to do. 7.16.5 SUMMARY The advantage of this method of advising is
that the client enjoys the freedom to make an informed choice. This is a result of the
presentation of the full range of options that are open to him or her. Naturally you will need
to encourage the client to think and work independently when you investigate possible
options. Thus you should use questions that are designed to help the client to select and
order the options. A cooperative and collaborative approach at these early stages will assist
the process and set the right atmosphere for its later stages. However, the time that is
necessary to carry out this process effectively can militate against its use when both client
and lawyer are under a lot of pressure. 7.16.6 USING LEGAL COUNSELLING There is some
debate amongst the commentators about the role of the lawyer in counselling, particularly
at the decision stage. Lawyers in the USA are said to be less willing to state their preference
to the client as it is seen to be important to allow the client to choose the options unaided.
However, what happens in practice is hard to say. Among Commonwealth lawyers, for
example, those from New Zealand are said to be more willing to share or at least assist in
the process of sifting and selection. The English and Welsh Bar does not appear to have a
commonly accepted view; little research has taken place in this jurisdiction in any case.
There does not appear to be any professional or ethical objection to the British lawyer
effectively mixing joint selection of options with some overt expression of opinions based
upon professional experience. (You may wish to experiment with a pure counselling process
and one with a mixed constitution.) 7.17 Some Specific Advising Situations In the final
section of this chapter we will look at some conferences that follow a court hearing. These
can be particularly difficult to plan for. Most court hearings have an element of the
unknown: indeed this is why they can be stressful experiences for the client and the source
of no little anxiety for the advocate, too. After a hearing both you and the client will want to
discuss its outcome in detail and address the immediate effects of the result. Following your
performance in court as an advocate there is often little time for you to do more than to
come down and collect your thoughts. During your preparation for the court appearance
therefore you should always plan for this very important post-hearing conference. You will
have little time to produce a plan for this conference as you leave the body of the court and
meet the client in the corridor. It is essential, therefore, to have considered the main
objectives of this conference in advance. The following how-to-do-it guides are neither
exhaustive nor prescriptive, but they do offer a general format for advising the client that
can be applied in most circumstances. However, the post-hearing conference will make
similar demands upon your skills as a barrister as that at which you gave your initial advice
about the prospect of the case. Therefore remember to apply all the skills discussed above
so as to enable you to advise the client satisfactorily. Finally, to ensure that you meet the
high standards of the profession you must be flexible in your approach to both the unique
characteristics of each case and the individual needs of every client. (See generally Chapter
8.) 7.17.1 CONFERENCE AFTER A SUCCESSFUL CIVIL HEARING 303 • Ensure that the losing
party is out of earshot (it may be wise to allow him or her to leave the court building). •
Attend to any urgent post-hearing court business first, e.g., lodging the draft order. • Explain
the judgment or order to the client in plain English, remembering the effect of the costs
order and confirm his or her understanding of its effect (note: legal aid recoupment if
applicable). • Consider the need for preliminary advice on entering or enforcing the
judgment. • Check with the solicitor or his representative that all necessary documentation
is in order and tell the client that you will telephone the solicitor from chambers, if
appropriate. 7.17.2 CONFERENCE FOLLOWING AN UNSUCCESSFUL CIVIL HEARING • Ensure
that the client understands that the hearing has ended unsuccessfully and explain why his or
her case was defeated. Allow time for the client to absorb this. • Explain in plain terms the
effect of the judgment or order to the client and confirm that he or she understands this
clearly. For example, spell out the danger of being arrested and placed in custody if the
client breaches a non-molestation order with a power of arrest attached to it. • Encourage
the client to raise any questions about the effect of the judgment. • Offer your preliminary
advice on routes of appeal and the chances of success. Remember also to discuss the
financial, emotional and other non-legal implications of an appeal. • Offer the client the
opportunity to reconsider alternative legal and non-legal options in the face of the defeat if
there are any. • Discuss and confirm the action that the client must take next, e.g., return of
property, payment of money, observance of injunctions. • Explain to the client the likely
methods of enforcement of the judgment or order and any financial effects it will have. • If
appropriate explain to the client the sanctions that the court may apply if he or she disobeys
its orders. • Check with the solicitor or representative that all necessary documentation is in
order; inform the client that you will telephone the solicitor from chambers, if appropriate.
7.17.3 CONFERENCE FOLLOWING A SUCCESSFUL CRIMINAL TRIAL • Ensure that all adverse
witnesses and the public are out of earshot, or have left the court building. • Advise the
client on the effect of the 'not guilty' verdict, discontinuance, dismissal, etc. • Advise the
client of any further procedural matters that are outstanding, e.g., sentencing of offences
pleaded to before the trial. • Advise the client on the retrieval of any property retained by
the prosecution, police or prison authorities. • Counsel on immediate future arrangements if
appropriate, e.g., accommodation, benefits. 7.17.4 CONFERENCE FOLLOWING AN
UNSUCCESSFUL CRIMINAL TRIAL • Ensure that all adverse witnesses, police officers,
prosecutors and so on are out of earshot or have left the court building. 304 • Explain to the
client the effect of the finding of guilt and allow time for this to be absorbed. • If the
sentence has not already been passed, inform the client of the process that will lead to
sentence: pre-sentence report interviews, procedure at sentence hearing, the plea in
mitigation, etc. • Give your preliminary advice on the likely form of sentence and its
duration. • If the client has been found guilty after a trial: give your preliminary opinion on
the likelihood of success and the attendant risks of an appeal against conviction. • If bail
with conditions attached is granted pending sentence, explain that breach of any condition
may result in the client being arrested without warrant and his or her bail being withdrawn.
• If sentence has been passed: see below. • Offer to address any immediate non-legal
concerns. 7.17.5 CONFERENCE FOLLOWING CASE LISTED FOR SENTENCE • If appropriate,
ensure that all adverse witnesses and prosecution counsel are out of earshot or have left the
court. • Explain to the client in plain terms what he or she is required to do by the sentence.
Allow the client time to absorb this. • Explain to the client any comments passed by the
judge when sentencing including why the court has passed that form of punishment for that
period of time. • Express your preliminary opinion on the likelihood of success of an appeal
against sentence and the attendant risks. • Advise as to any steps that must be taken by the
client, e.g., the payment of a fine by installments or the requirement to co-operate with the
Probation Service. • If appropriate, inform the client that you will furnish the solicitor with a
written advice on appeal against sentence within 21 days. • Offer to investigate any non-
legal concerns the client has, e.g., by ensuring the solicitor tells his or her family which
prison the client has been sent to. 305 Summary prepared by Ved Kumari From Don Peters,
The Joy of Lawyering: Readings For Civil Clinic (1996) KINDS OF QUESTIONS Kindsof
questions Advantages Disadvantages Open– leaveclients free to providebroad range of
information • Permitclientsto selectresponses fromtheir frames of reference and relevance •
Allowfree recall withoutinterrupting questionsfrom lawyer’sagenda • Clientscan/dotell
informationwhich lawyermayhave never thoughtof asking • Better atrapport buildingandas
communication motivators • Develop details poorly • No impetustogo backtospecific time
and searchfor specificpoints • Rapportdifficulties with  Clientswhoare uncomfortable
narratingdueto differentrole expectation  Clientswhomay ramble onto  irrelevantmatters
due totoomuch freedom Closed –seekspecific Informationabout specifictopic • Excellentfor
rapport for initiallyreluctant speakers • Allownavigation pastthreatening areassurfacing
before rapport building • Elicitingdetails • Generatingrecall • Earlyuse may
inhibitinformation • Leave clientfeeling notheard or allowed tospeak/express • Loose
opportunities toletoffsteam • Lawyerscannot showempathy • Premature intrusion
inthreateningareas Leading–completely closethe inquiryas clientsare expectedtoagree
withthe suggestion • Usefulwhen elicitingknown informationwhich maynotbe
forthcomingdue to ego/case threat • enhance chancesof distortionand inaccurate answers •
implylack of confidencein client’sabilityto givesuitable answers 306 Questionnaire for
Interviewers Name . ................................. . (Partner's Name)…………………………. Date of
interview …….. ............. SECTION ONE (To be completedbefore you conduct the interview)
Please read the following questions and answer them briefly in the space provided. 1. Before
you meet the 'client' describe briefly: A. What are the objectives of the interview? B.
Describe briefly how you plan to structure the interview (topics, order, time, etc.): C. What
have you learned from your reading about interviewing that you intend to practice or avoid?
D. What is your role in the interview and what standpoint do you wish to adopt?
SECTIONTWO (To be completed after the Interview) 2. In your conduct of the interview how
well/poorly do you think that you performed the following? a. Very Well Well Average Not
well Poorly b. Placing client at ease c. Empathizing with the client d. Eliciting facts e.
Checking facts and changes f. Explaining law g. Advising about implications h. Agreeing
follow up i. Reassuring client j. Note taking k. Time management B. What, if any, ethical
ormoral issues did you encounter? 3.A.What in brief are the key facts of the client's legal
problem? B.What is /are the legal issue(s) involved? C. Were there otherfactsinthe case
which seriously concerned the clientbutwhichwerenot relatedto the legal issue(s)? 4. A. List
the other possible outcomes in this case: B. Which in your opinionis the most likely
outcome? 307 C. What is/are the client'sdesired outcome(s)? D. What are the main
obstacles,if any, to this/thesebeing achieved? E. How will it/they(client's desired outcome(s))
be achieved? F. What alternative strategieswere available? 5. A. What did you learn from the
interview? B. What did the interview remind you of from your previous reading about
interviewing? C. What could you have done to improve the interview? D. What do you think
the client thought of the interview? Name................ (Partner's Name) …………………. Date of
interview 308 PART D- PROFESSIONAL ACCOUNTING Section II- Duty to the Client 25. An
advocate should keep accounts of the client’s money entrusted to him, and the accounts
should show the amounts received from the client or on his behalf, the expenses incurred
for him and the debits made on account of fees with respective dates and all other
necessary particulars. 26. Where moneys are received from or on account of a client, the
entries in the accounts should contain a reference as to whether the amounts have been
received for fees or expenses, and during the course of the proceedings, no advocate shall,
except with the consent in writing of the client concerned, be at liberty to divert any portion
of the expenses towards fees. 27. Where any amount is received or given to him on behalf of
his client, the fact of such receipt must be intimated to the client, as early as possible. 28.
After the termination of the proceedings, the advocate shall be at liberty to appropriate
towards the settled fee due to him, any sum remaining unexpended out of the amount paid
or sent to him for expenses, or any amount that has come into his hands in that proceeding.
29. Where the fee has been left unsettled, the advocate shall be entitled to deduct, out of
any moneys of the client remaining in his hands, at the termination of the proceeding for
which he had been engaged, the fee payable under the rules of the Court, in force for the
time being, or by then settled and the balance, if any, shall be refunded to the client. 30. A
copy of the client’s account shall be furnished to him on demand provided the necessary
copying charge is paid. 31. An advocate shall not enter into arrangements whereby funds in
his hands are concerned into loans. 32. An advocate shall not lend money to his client for
the purpose or any action or legal proceedings in which he engaged by such client.
Explanation – An advocate shall not be held guilty for a breach of this rule, if in the course a
pending suit or proceeding, and without any arrangement with the client in respect of the
same, the advocate feels compelled by reason of the rule of the court to make a payment to
the court on account of the client for the progress of the suit or proceeding. Rules for
Advocate on Record: 1. Every advocate-on·record shall keep such books ofaccount as may be
necessary to show and distinguish in connection with his practice as an advocate-on-record-
(i) moneys received from or on account ofand the moneys paid to or on account of each of
his clients; and (ii) the moneys received and the moneys paid on his own account. 2. Every
advocate-on-record shall, before taxation of the Bill of Costs, file with the Taxing Officer a
Certificate showing the amount of fee paid to him or agreed to be paid to him by his client.