PART A (1)- ADVOCACY

 The Advocates Act, 1961

Introduction – Legal profession is considered as a noble profession based on trust
and confidence between the lawyer and the client. The legal profession plays an
important role in the administration of justice. It is not possible for the state to
administer justice effectively without a well-organized legal profession because in
its absence who would collect legal materials relating to the case and present them
before a court and who would put forth the best arguments for and against the
litigating parties before the court. The administration of the law requires the
cooperation not only of judges, but of trained legal experts into whose hand the
parties to the disputes confine their interests.
As per the provisions of this Act, the disciplinary committee under the Act can
initiate proceedings and punish a lawyer. In this way, legal restrictions are imposed
on the lawyers, who are meant to promote public interest and administration of
justice.
Brief History of Legal Profession in India – Law, as a profession appears to have
been on vogue in ancient and medieval India though its concept was quite different
from what it is today. The legal profession as it exists in India today was created
and developed during the British period. However, it is notable that in early days
of the British period the legal profession was not paid due attention and it was not
well organized, because East India Company was not interested in organizing legal
profession. There was no uniform judicial system in the settlements of the East
India Company. Each settlement had its own judicial system distinct from that of
the other settlements. The whole administration was executive oriented and the
courts established were the Courts of east India Company and they derived their
authority not form the British Crown but from the East India Company and their
decision were not as authoritative as those of the courts in England.

The Advocate Act, 1961 – The recommendations of the 14TH report of Law
Commission provided a blue print for the Govt. of India towards bringing out a
comprehensive legislation on legal profession in India. Consequently, the Legal
Practitioners Bill 1959 was introduced in the Lok Sabha in Nov, 1959. The bill was
to amend and consolidate the law relating to legal practitioners and to provide for
the constitution of state bar councils and an All India Bar Council. When the bill
came to be passed, the name was changed into the Advocates Act 1961.

Object and Purpose of Advocates Act – the primary object of the Advocates Act,
1961 is to consolidate the various laws relating to legal practitioners and creation
of the various States Bar Councils and the All India Bar. The object of the Act is
thus to constitute one common Bar for the whole country and to provide machinery
for its regulated functioning. Since the Act sets up one Bar, autonomous in its
character, the Bar Councils set up thereunder have been entrusted with the power
to regulate the working of the profession and to prescribe rules.

Functions of State Bar Council – Section 6 (1) of the Act makes provisions in
respect of the functions of the state Bar Council. It provides that the functions of
the State Bar Council shall be –
i) To admit persons as advocate on its rolls
ii) To prepare and maintain such roll
iii) To entertain and determine cases of misconduct against advocates on its
roll
iv) To safeguard the rights, privileges and interests of advocates on its roll
v) To promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes referred to in section 7
vi) To promote and support law reform
vii) To conduct seminars and organize talks on legal topics by eminent jurists
and publish journals and paper of legal interest
viii) To organize legal aid to the poor in the prescribed manner
ix) To manage and invest the funds of the Bar Council
x) To provide for the election of its members
xi) To visit and inspect Universities in accordance with the directions given
under clause (i) of sub-section (1) of sec 7
xii) To perform all other functions conferred on it by or under this Act
xiii) To do all other things necessary for discharging the aforesaid functions.

Section 6 (2) provides that a State Bar Council may constitute one or more funds in
the prescribed manner for the purpose of;
 a) Giving financial assistance to organize welfare schemes for the indigent,
disabled or other advocates
b) Giving legal aid or advice in accordance with the rules made in this behalf
c) Establishing law libraries.

Section 6 (3) further provides that a State Bar Council may receive any grant,
donations, gifts or benefactions for all or any of these purposes and it shall be
credited to the appropriate fund constituted for this purpose under this sub-section.

Power of the State Bar Council

A part from the functions mentioned above, the State Bar Council has been
specifically conferred certain special powers which are as follows:

i) Power to admit advocates on a State roll – Section 24 of the Act lays

down the rules for persons to be admitted as advocates on the state roll. A
person shall be deemed qualified to be admitted as an advocate on the
state roll if; (a) He is a citizen of India, (b) He has completed the age of
twenty one years, (c) He has obtained a degree in law. If a person fulfills
the conditions required for admission as advocates, he may be enrolled as
an advocate by the State Bar Council.
ii) Power to maintain roll of Advocate – Section 17 of the Act provides
that every State Bar Council shall prepare and maintain a roll of
advocates in which shall be entered the name and address of all persons
who are admitted to be advocates on the role of the State Bar Council
under the Act on or after the appointed day.
iii) Power to appoint Committees – Section 10 (1) of the Act provides that
a State Bar Council shall constitute the following standing Committees,
namely;
a) An executive committee
b) An enrolment committee
iv) Power to punish for professional or other misconduct – The State Bar
Council has power to punish an advocate for professional or other
misconduct.
v) Rulemaking power – The State Bar Council has been empowered to
make rules to carry out the purposes of section 16 to 27 of the Advocates
 Act dealing with the admission and enrolment of the advocates. Further,
Section 28 (3) of the Act makes it clear that the rules so made shall not
have effect, unless they have been approved by the Bar Council of India.

 SEVEN LAMPS OF ADVOCACY

The Judge Edward Abbot Parry, in his admirable book “The Seven Lamps of
Advocacy” refers to the essential qualities that an advocate must possess to
succeed in his profession;
i) Honesty – Honesty is the most important quality that an advocate should
possess. His thoughts, words and deeds should have sincere co-relation to
each other with genuineness. An advocate should be dependable and
reliable to everyone who seeks his advice and services. The uprightness,
integrity and honesty of an advocate will increase his reputation and
respect in the society.
ii) Courage – It is the duty of an advocate to fearlessly uphold the interests
of his client by all fair means without fear of any unpleasant consequence
to himself or any other person. It is the knowledge and skill of the
advocate that gives him the necessary courage and confidence to present
the case fearlessly and to uphold the interest of the client. The knowledge
and the skill can be acquired and developed by mastery of facts, mastery
of laws, and mastery in drafting and presentation of convincing
arguments.
iii) Industry – It means hard work. Hard work is absolutely necessary for an
Advocate. His knowledge of law should be up to date. He shall never be
ignored of the current law in force. He shall get acquainted with the latest
law by systematic study. If one ignores the law, the law will also ignore
him. That is why it is said that “law is the jealous mistress.”
iv) Wit – Judges and lawyers have to deal with a variety of serious and
important matters affecting life and liberty of the people. So constant
clashes between them is common. Anxiety for a favorable verdict on the
part of the lawyers; and perpetual worry for the pursuit of truth on the
part of the judges generate strain and tension. Occasional wit and
humour, provoking a smile or laughter will help them to ease the tension,
 and refresh themselves to sharpen their brain for the effective discharges
of their duties. (Wit is the ability to use words or ideas in an amusing, clever,
and imaginative way.)
v) Eloquence – Eloquence means the fluency, force and style of using the
language. Strong vocabulary is one of the powerful weapons, which an
advocate should possess. Words are his keys of thought. Strong
vocabulary gives him assurance, builds his self-confidence and increases
his personality. Words must be employed with eloquence. The art of
persuasive and impressive speaking will give the desired result in his
favour. (Eloquence meaning - the quality of delivering a clear, strong message.)
vi) Judgment – It means the ability to come to a sensible conclusion and
make wise decisions at the relevant time in the proper way. It is on the
basis of these conclusion he should employ the necessary facts and
techniques in the case in which he is engaged. This quality is necessary
from the beginning of filing the case till its final disposal. An advocate
must always anticipate all the possible moves of the other side and must
develop the necessary presence of mind, alertness and tact to cope with
any awkward situation of difficulty that may arise in the case.
vii) Fellowship – Fellowship means the membership in friendly association
or companionship. Fellowship is exactly like great public schools the
boys of which have grown older and have exchanged boyish for manly
objects. There is no discrimination of age, ability, experience and riches
etc. between the advocates. All are equal, courts give them all respect.
Among advocates, there is just the same rough familiarly, the general
ardor of character, the same kind of public opinion expressed in exactly
the same blunt, unmistakable manner.

 Admissions and Enrollment of Advocates

Section 16 to 28 deal with admission and enrollment of an advocate. Section 16
(1) of the Advocate Act, 1961 provides that there shall be two class of
advocates, namely, senior or advocates and other advocates. The rolls of
advocates are prepared by the State Bar Councils on the basis of seniority and
the roll is divided into two parts. The first part contains the name of Senior
Advocates and the second part contains the names of other Advocates. Thus
under Advocates Act, 1961 there are two classes of advocates, namely, senior
advocates and other advocates. The senior advocates are further classified into
two categories under Advocates Act, 1961;
i) Senior Advocates prior to coming into force of Advocates Act, 1961 –
Section 16 (4) of the Act provides that an advocate of the SC who was a
senior advocate of that Court immediately before the coming into force
of the Advocates Act, 1961 shall be deemed to be a senior Advocate.
ii) Senior Advocates designated after coming into force of Advocates Act –
Section 16 (2) provides that an advocate may, with his consent, be
designated as senior advocate if the SC or a HC is of opinion that by
virtue of his ability, standing at the Bar or special knowledge or
experience in law he is deserving of such distinction.

Leading Case –

Indira Jaising Vs. SC of India Through Secretary General and Ors. 2015
[In this case SC lifts veil of Secrecy the System of Designating an Advocate as a Senior
Advocates and framed guidelines to designate lawyers as Senior Advocates]

Facts: - A PIL was filed by senior advocate Indira Jaising in July 2015, in
which she termed the present system of senior designation as arbitrary, non-
transparent and discriminatory. She had asked for the system to be made more
democratic. The process of senior designation in the apex court was on hold
since the filing of the PIL by Jaising.

Issue: - Whether present system of designating a lawyer as Senior Advocate is

arbitrary, non-transparent and discriminatory?

Decision: - The SC issues the following guidelines to be observed while

designating an advocate as senior advocate –

i) All matter shall be dealt with by a Permanent Committee to be known as

“Committee for Designation of Senior Advocates”
ii) The committee will be headed by the Hon`ble CJI and consist of two
senior-most judges of SC or HC; the ld. Attorney General of India
 (Advocate General of the State in the Case of HC) will be member of the
committee. The above four members will nominate another member of
the bar to be the fifth member of the committee.
iii) The said committee shall have a permanent secretariat, composition of
which will be decided by CJI or CJ of HC.
iv) All the applications including written proposals will be submitted to the
secretariat.
v) The secretariat will publish the proposal of designation of a particular
advocate in the official website of the concerned court inviting the
suggestions/views of other stakeholders in the proposed designation.
vi) After the data-base of respect of any particular candidate is collected, the
secretariat shall put up the case before the Committee for scrutiny.
vii) The committee will examine each case in the light of the data provided
by the Secretariat of the committee, interview the concerned Advocate,
and make its overall assessment on the basis of a point-based format
indicated below.
viii) All the names are listed before the committee and are cleared by the
committee will go to full court.

The court also held that the guidelines enumerated above may not be exhaustive
of the matter and may require reconsideration by suitable additions/deletions in
the light of the experience to be gained over a period of time. This is a course of
action that we leave open for consideration by this court at such point of time
that the same becomes necessary.

The SC further held that Section 16 of the Advocate Act which creates two
classes of Advocates, namely Advocates and other advocates is not invalid. The
object behind the classification is to recognize qualities of merit and ability
demonstrated by in-depth knowledge of intricate questions of law, and fairness
in court proceedings consistent with the duties of a counsel as an officer of the
court and contributions in assisting the court to charter the right course of action
in any given case.

The court held that the designation „Senior Advocate‟ is not a title. It is a
distinction; a recognition of the talent and special qualities of a person which
have been proved and tested over a period of time.
 Right to Practice:
Section 29 to 34 deal with core aspect of Right to Practice the profession of law
in India. Further, the Bar Council of India under Section 49 (1) (ah) had framed
the rules on condition for Right to Practice. The rules have been laid down in
Part VI, Chapter 3 of the Bar Council of India Rules.
Meaning and Scope of Right to Practice – The Act has not defined the
meaning and extent of the right to practice law. The right to practice generally
includes the right to act, appear and plead on behalf of clients.
The scope of right to practice is based on the notions of trust and faith between
a lawyer and his client. It involves performance of various activities which a
legal practitioner is expected to perform for the proper conduct of a case like
giving of legal opinions, sending notices, drafting of petitions and other legal
documents.
Section 29 – Advocates to be the only recognized class of persons entitled to
practice law.
Section 33 – Advocates by specifying that „Except as otherwise provided in this
Act or in any other law for the time being in force, 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 this Act. This section is a
prohibitory section in the sense that it debars any person from appearing before
any court or authority unless he is enrolled as an advocate under the 1961 Act.
Section 30 – Right of Advocates to Practice: - Provides that subject to the
provisions of this Act, every whose name is entered in the state roll shall be
entitled as of right to practice throughout the territory to which this act extends:
-
I) In all courts including the SC.
II) Before any tribunal or person legally authorized to take evidence
III) Before any other authority or person before whom such advocate is by or
under any law for the time being in force entitled to practice.

Section 30 is one of the most important provisions of the Act because it allows any
advocate whose name is entered in the state roll to practice law throughout the
territories of India to which the Act extends and before any court, tribunals and
other authority. However this right to practices is subject to rules framed by the HC
to make rules under section 34 of the Act.
 Bar Council of India Vs. A.K. Balaji and Ors. 2018
Facts: - A writ petition was filed by A.K. Balaji before the Madras HC seeking
directions against the foreign law films or foreign lawyers allegedly practicing the
profession of law in India.
Issues: -
i) Whether the expression „Practice the profession of law‟ includes only
litigation practice or non-litigation practice also;
ii) Whether such practice by foreign law firms or foreign lawyers is
permissible without fulfilling the requirements of Advocates Act and the
Bar Council of India Rules;
iii) If not, whether there is a bar for the said law firms or lawyers to visit India
on „fly in and fly out‟ basis for giving legal advice regarding foreign law on
diverse international legal issues;
iv) Whether there is no bar to foreign law firms and lawyers from conducting
arbitration proceedings and disputes arising out of contracts relating to
international commercial arbitration;
v) Whether BPO companies providing integrated services are not covered by
the Advocate Act or Bar Council of India Rules.

Decision: - Issue (i) on this issue the court referred the case of Pravin C. Shah Vs.
K.A. Mohd. Ali 2001 – Where it was observed that right to practice is genus of
which right to appear and conduct cases is specie. The right of the advocate to
practice 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 etc.

The same view was again reiterated in the case of Ex. Capt. Harish Uppal Vs. UOI
2003. Therefore the court observed that ethics of the legal profession apply not
only when an advocate appears before the court. The same also apply to regulate
practice outside the court; Adhering to such Ethics is integral to the administration
of justice. The professional standards laid down from time to time are required to
be followed. Thus, we uphold the view that the expression practice of law includes
both-litigation as well as non-litigation practice.
On Issue (ii) SC held that practicing of law includes not only appearance in courts
but also giving of opinion, drafting of instruments, participation in conferences
involving legal discussion. These are parts of non-litigation practice which is part
of practice of law. It is clear that advocates enrolled with the Bar Council alone
are entitled to practice law, except as otherwise provided in any other law. All
other can appear only with the permission of the court, authority or person before
whom the proceedings are pending. Regulatory mechanism for conduct of
advocates applies to non-litigation work also. The prohibition applicable to any
person in India, other than advocate enrolled under the Advocates Act, certainly
applies to any foreigner also.

On Issue (iii) SC held that visit of any foreign lawyer on fly in and fly out basis
may amount to practice of law if it is on regular basis. A casual visit for giving
advice may not be covered by the expression „Practice‟. Whether a particular visit
is casual or frequent so as to amount to practice is a question of fact to be
determined from situation to situation. Bar Council of India or UOI are at liberty
to make appropriate Rules in this regard. We may however make it clear that the
contention that the advocates act applies only if a person is practicing Indian law
cannot be accepted. Conversely, plea that a foreign lawyer is entitled to practice
foreign law in India without subjecting himself to the regulatory mechanism of the
Bar Council of India Rules can also be not accepted.

On Issue (IV) SC held that it is not possible to hold that there is absolutely no bar
to a foreign buyer for conducting arbitrations in India. If the matter is governed by
particular Rules of an institution, there is no bar to conduct such proceedings in
prescribed manner. If the matter is governed by an international commercial
arbitration agreement, conduct of proceedings may fall within the provisions of
the Arbitration Act. Even are such cases, Code of Conduct, if any applicable to the
legal profession in India had to be followed? Foreign lawyers could not be
debarred from coming to India to conduct arbitration proceedings in respect of
disputes arising out of a contract relating to international commercial arbitration.
The court therefore holds that there is no absolute right of the foreign lawyer to
conduct arbitration proceedings in respect of disputes arising out of a contract
relating to international commercial arbitration. Bar Council of India on the UOI
are at liberty to frame rules in this regard.
On Issue (V) SC held that the BPO companies providing range of customized and
integrated services and functions to its customers might not violate the provisions
of the Advocates Act, only if the activities in pith and substance did not amount to
practice of law. The manner in which they are styled might not be conclusive. If
their services did not directly or indirectly amount to practice of law, the
Advocates Act might not apply. The BPO companies providing wide range of
customized and integrated services and functions to its customers who did not
come within the purview of the Advocates Act, or the Bar Council of India Rules.
The court therefore holds that mere label of such services could not be treated as
conclusive. If in pith and substance the services amount to practice of law, the
provisions of the Advocates Act will apply and foreign law firms or foreign
lawyers will not be allowed to do so.

 ADVOCATES TOWARDS HIS CLIENT

Rules 11 to 33 of Bar Council of Indian Rules provides for the duties of
advocates towards his client which are as follows: -
 Bound to accept briefs – Rule 11 states that an advocate is bound to accept
any brief in the Courts or before tribunals or before any other Authority in or
before which he proposes to practice at a fee consistent with his standing at
the Bar and the nature of the case. Special circumstances may justify his
refusal to accept a particular brief.
 Not to withdraw from engagement – Rule 12 states that an advocate shall not
ordinarily withdraw from engagements, once accepted without sufficient
cause and unless reasonable and sufficient notice is given to the client. Upon
his withdrawal from a case, he shall refund such part of the fee as has not
been earned.
 Not to appear in matters where he himself could be a witness – Rule 13
states that an advocate should not accept a brief or a appear in a case in
which he has reason to believe that he will be a witness, and if being
engaged in a case, it becomes apparent that he is a witness on a material
 question of fact, he should not continue to appear as an advocate if he can
retire without jeopardizing his client`s interests.
 Full and frank disclosures to client – Rule 14 states that an advocate shall, at
the commencement of his engagement and during the continuance thereof,
make all such full and frank disclosures to his client relating to his
connection with the parties and any interest in or about the controversy as
are likely to affect his client`s judgment in either engaging him or continuing
the engagement.
 Uphold interest of the client fearlessly – Rule 15
 When appearing for prosecution not to suppress any material capable of
establishing innocence of accused – Rule 16
 Not to disclose the communications between client and himself – Rule 17
 Not be a party to foment litigation – Rule 18
 Not to act on the instructions of any person other than his client – Rule 19
 Not to charge depending on success of matter – Rule 20
 Not to receive a share in actionable claim – Rule 21
 Not to bid or purchase property arising of legal proceeding – Rule 22

 Conduct of Advocates and Disciplinary Proceedings

In simple term „Misconduct‟ means dereliction of duty and „Professional

Misconduct‟ means direction of duty relating to Legal professional. Professional
misconduct is nowhere defined in the Advocate Act. Even the Bar Council is silent
about what actually is professional misconduct.

In State of Punjab Vs. Ram Singh 1992 stated that any improper or wrongful
behavior which is unlawful in nature and is done deliberately by a professional
person, can be considered as professional misconduct. Further, performing any
forbidden act or a transgression of established and definite rule of action or code of
conduct may lead to professional misconduct.

Thus, „Professional misconduct‟ can be considered as unacceptable or improper

behavior, especially done by a professional person. In the legal sense, it means an
act done willfully with a wrong intention by the people engaged in the legal
profession, which betrays the client`s confidence or attempting to practice fraud or
to deceive the court or the adverse party or his counsel.
Chapter V of the Act comprising of Sections 35 to 44 deals with the conduct of
advocates. The exercise disciplinary jurisdiction the Bar Council of India and
every state Bar Council have a disciplinary committee.

Section 35 of the Act deals with the Punishment of advocates for misconduct and
talks about the disciplinary powers of the State Bar Councils. The Disciplinary
proceedings conducted by State Bar Council and its disciplinary committee can be
summarized in the following manner: -

i) Where the SBC has received a complaint or reason to believe of guilty of

professional misconduct, it shall be referring to Disciplinary Committee.
ii) The committee shall fix a date for hearing and send notice to the
concerned advocate and to Advocate General of State.
iii) After the hearing can take order –
 Dismiss the complaint
 Reprimand the advocate
 Suspend the advocate
 Remove the name of the advocate form the BAR.

Similar to section 35, Section 36 deals with the punishment of advocates for
misconduct and talks about the disciplinary powers of the Bar Council of India.
 PART A II - CONTEMPT OF COURT

(A) CONTEMPT
 Introduction
Judiciary is the most important pillar of any civilized society and an
indispensable organ of administration in a modern set up. Every govt. whether
socialist, capitalist, needs an independent judiciary for dispensation of justice
and administration of the rule of law. In a democracy governed by the rule of
law, just and fair trial, freedom of speech and expression are most valuable
assets available to every citizen. However, freedom of speech must be exercised
within reasonable limits as envisaged under the constitution. It must be neither
hinder nor put a stumbling block in the smooth, fair, impartial trial, and
administration of justice. For instance, if the comments, utterances made by an
individual or a group as to hinder or put an obstacle in the way of a fair and
impartial trial, in cannot be tolerated and allowed by the courts to go
unpunished. Such an act will amount to contempt of court and is punishable in
law.
 Contempt of Court under Constitution of India
The contempt of court is explicitly recognized under Article 129 SC and 215
HC of the Constitution. And both the courts have power to punish for contempt
of court.
 Development of Contempt Law in India
In India contempt of court as a device to prevent interference with
administration of justice was introduced by the advent of British Rule and
originally it was purely governed by common law principles. The Charter Act
of 1744, which had established the SC of Bengal, provided that the Judges of
the SC shall enjoy the same power of jurisdiction as the Court of the King`s
Bench in England.
Post-Independence, A-129 & 215 of the Constitution recognized the SC and HC
as Court of Record as well as their power to punish for contempt of its
respectively.
 Definition of Contempt of Court [Section 2 (a)]
In simple words „contempt of court‟ means any act done or writing published
which is calculated to bring a court or a judge into contempt or to lower his
 authority or to interfere with the due course of justice or the lawful process of
the court is a contempt of court.

In India, neither the Constitution nor Contempt of Court Act 1926 or the
Contempt of Courts Act 1952 contained any definition of the term contempt of
court. However the contempt of courts Act 1971 brought substantial changes to
the contempt law. For the first time it defined „Contempt of Court.‟
According to Sec 2 (a) of the Contempt of Courts Act 1971 „Contempt of
Court‟ means civil contempt or criminal contempt.
Section 2 (b) provides the „Civil Contempt‟ means willful disobedience to any
judgment, decree, direction, order, writ or other process of a court or willful
breach of an undertaking given to a court.
Section 2 (c) provides that „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) Scandalizes or tends to scandalize 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
iii) Interferes or tends to interfere with or obstructs or tends to obstruct,
the administration of justice in any other manner.

 Objective of Contempt Law

The object of contempt law is threefold;
i) To enable the parties to litigation and the witnesses to come before the
court without outside interference;
ii) To enable the courts to try cases without such interference and
iii) To ensure that authority and administration of law are maintained.

 Purpose of Contempt Law

The purpose of law of contempt is to protect the machinery of justice and the
interests of the public. In order to protect these dual interests, unwanted
interference with the administration of justice must be prevented. The power to
punish for contempt is conferred on courts for two reasons. Firstly, that the
 courts may be armed with the power to enforce their orders. Secondly, they may
be able to punish obstruction to the administration of justice.

 Kind of Contempt of Court

I) Civil Contempt and
II) Criminal Contempt

Civil contempt is brought into force when the rights and remedies of a party, as
recognized by the court through an order or decision, is willfully disobeyed or
breached, on the other hand, criminal contempt takes place if the authority or the
dignity of judiciary is lowered or questioned.

The distinction between civil and criminal contempt is not determined on the basis
of the penalty imposed, but is determined on the basis of the cause or the reason for
which the penalty was imposed. In the case of civil contempt the primary objective
is to provide the injured party with an enforceable remedy, whereas in the case of
criminal contempt the primary goal is to preserve the judiciary`s authority and
dignity.

 Principle of Mens Rea in Contempt Case

In proceedings for criminal contempt, mens rea is not relevant for the purpose
of determining guilt, though it is a relevant factor for the purpose of deciding
the punishment/penalty. Thus courts could hesitant to punish a contemnor if the
act or omission complained of was not willful.

 Leading Cases
 Maninderjit Singh Bitta Vs. UOI 2011

In this case SC held that, 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 behavior. This behavior, 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.
Further 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, liable for the
consequences of such disobedience. 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 court, which it had spent on
repeated hearings but would have also saved the public money that it had spent so
far. Therefore this court has 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. Having found guilty under the provisions of the 1971 Act and under Article
129 of the Constitution of India.

 R.K. Anand Vs. Registrar, Delhi HC 2009

The SC upheld the conviction of R.K Anand holding that his action in trying to
suborn (Meaning - bribe or otherwise induce (someone) to commit an unlawful act such
as perjury) the court witness in a criminal trial was reprehensible.

In this case the siting recording is true and correct and no more evidence is
required to see that R.K Anand was trying to suborn a witness. R.K 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 recording was fabricated and false.
Further we have gone through the transcripts of the exchange between the two
anchors and R.K Anand a number of times and we have also viewed the
programme recorded on CDs. To us, R.K. 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.

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
R.K Anand is concerned there was no violation of the principles of natural justice
in as much 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 HC 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 R.K. Anand
for contempt of court is proper, legal and valid calling for no interference.

 In Re: Arundhati Roy Vs. Unknown 2002

In this case court said that on the basis of the record, the position of law, our
findings on various pleas raised and the conduct of the respondent, court held that
the respondent has committed the criminal contempt of this court by scandalizing
its authority with Mala Fide intentions under section 2 (c) of the Act. The
respondent is, therefore, guilty for the contempt of court punishable under section
12 of the Act. Further 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 women, 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. In case of default in the
payment of fine, the respondent shall undergo simple imprisonment for three
months.

 Mrityunjoy Das & Anr. Vs. Sayed Hasibur Rahaman & Ors. 2001

Court said that, Incidentally, since the appeal is pending in this court for
adjudication and since the matter under consideration have no bearing on such
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
contemnors 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.

 In Re: Hon’ble Justice C S Karnan, 2017

Final allegations of Justice Karnan – Justice Karnan addressed to the Prime

Minister of India a list of twenty sitting and retired judges of the Supreme Court,
whom he alleged as corrupt. In his most controversial step, he passed a judgment
in which he held the then Chief Justice Of India, J.S. Kheher and seven other
Supreme Court judges were found guilty under the SC/ST Atrocities Act, 1989 as
amended in 2015 and sentenced them to five years of rigorous imprisonment.

Facts of the case – The reader, by now, would be clear with the fact that Justice
Karnan was involved in a number of controversies. He, with his unprecedented
moves, shook the Indian Judiciary to its core. These involved challenging the
appointment of a judge alleging that he had fake academic qualifications. He
accused some judges of giving decisions which reflected upon them being corrupt,
not independent and impartial.
Then he accused the Chief Justice of Madras High Court for approaching the
Supreme Court in retaliation for an order which was passed by Justice C.S.
Karnan. He even accused the Chief Justice of Madras of caste-based discrimination
against him. Justice Karnan went on to accuse some judges of having illicit
relations amongst themselves.

Combining all these issues, the Supreme Court of India constituted a seven-judge
bench comprising its senior-most judges to adjudge a case on contempt of court
against Justice C.S. Karnan. The name of this historic case is Justice C.S. Karnan
v. The Hon`rable Supreme Court Of India.

Highlights of the judgment – The seven-judge bench in this judgment ruled

against Justice C.S. Karnan. It was held that Justice Karnan was guilty of hurling
unpalatable accusations on Chief Justices of various High Courts, Justices of
Supreme Court and the Madras High Court, which were all held to be false. These
statements made by Judge C.S. Karnan were held to lack any bona fide intentions.
The judge, shielding himself with his Dalit card, made a completely unacceptable
public statement and dishonoured the decorum of the court. His actions were
disrespect towards the Indian judiciary. Therefore, it was held that Justice C.S.
Karnan, a sitting judge of the Calcutta High Court was guilty of contempt of court
and the Indian judiciary, and was sentenced to six years imprisonment.

(B) DEFENCES
 Defenses available to Contemnor under the Contempt of Court Act 1971
Section 3 to 7 of the Act provides certain defenses to the contemnor i.e., person
charged with criminal contempt. Section 8, further makes it clear that the
defenses other than those mentioned in section 3 to 7 of the Act are not
affected. The defences are discussed below: -
 Innocent Publication and Distribution of Matter [Section 3]
 Section 3 of the Act, deals with the defence of innocent publication and
distribution of matter.
1. No reasonable Grounds for believing that the proceeding was
pending [Sec 3 (1)]
Section 3 (1) protects a person from contempt of court proceedings if
it is done in ignorance of a pending suit. This section further explains
that judicial proceeding shall be deemed to be pending. Where appeal
or revision in the case is possible in future. All the same, it is not
deemed to be pending if proceedings for the execution of the decree,
order, or sentence passed therein are pending.
This clause creates an exception to the strict liability rule in the case
of publication. The defence is available only when the publication is
innocent and it is considered innocent if the person responsible for its
publication had, at the time of its publication, no reasonable grounds
for believing that the proceeding was pending.

2. If the proceeding is not pending at the time of publication [Section

3 (2)]
Provides that even though there has been publication of any matter
shall not be deemed to constitute contempt of court if the proceedings
in relation to which such publication is made, are not pending. The
immunity under this section is absolute.

3. Innocent Distribution of Publication [Sec 3 (3)]

Provides that a person shall not be guilty of contempt of court on the
ground that he has distributed a publication containing any matter, if
at the time of the distribution thereof, he had no reasonable ground for
believing that it contained or was likely to contain any such matter.

 Fair and accurate report of judicial proceeding not contempt

[Section 4] – provides that subject to section 7, a person shall not held
guilty of contempt of court for publishing a fair and accurate report of a
judicial proceeding or any stage thereof. Thus, the right under section 4 is
subject to section 7 of the Act.
  Fair Criticism of Fair Comment [Section 5] – This section protects,
fair and accurate report, section 5 protects fair criticism of a judicial
decision because the public has an interest in the proper administration of
justice.
Condition of Fair Comment:
1) It must be based on facts truly stated. No comment is fair if it is based
on a mistake of facts.
2) It must not contain imputation of corrupt or dishonourable motives on
the person, whose conduct or work is criticized, save in so far as such
imputations are warranted by the facts.
3) It must be honest expression of the writer`s real opinion.
 Complaint against presiding officers of subordinate courts when not
contempt [Section 6] – Enables a person to make bonafide complaint
concerning a subordinate judge to –
a) Another subordinate judge who is superior to him
b) The HC to which he is subordinate.
 Publication of information relating to proceedings in chambers or in
camera not contempt except in certain cases [Section 7] – A person shall
not be guilty of contempt of court for publishing the text or fair and accurate
summary of an order made by a court sitting in Chamber on in camera,
unless the court has prohibited such publication on grounds of public policy
or reasons connected with public order or security of the state or on the
ground that the information relates to the secret process discovery or
invention or in exercise of any power vested in it.

 Leading Cases
1. Bhuramal Swami v. Raghuveer Singh &Ors.2016

In this case SC rejected the contention of appellants and held that they indulged
in an assault on the integrity of the judges of the HC by making baseless and
unsubstantiated allegations. The court then referred the provisions of Contempt
of Court Act and some earlier decisions of this court. In the present case, we are
concerned with section 2 (c) (i) of the Act which deals with scandalizing or
lowering the authority of the court.
In this present case 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 HC by making baseless and
unsubstantiated allegations. They are not entitled to seek shelter under section 5
of the Act. We approve the findings recorded by the HC that the Appellants
have transgressed all decency by making serious allegations of corruption and
bias against the HC.

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 submissions made by both sides and the
evidence or record, we are in agreement with the judgment of the HC 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. 2000/- each. The appeal is dismissed with the said
modification.

2. Perspective Publication v. State of Maharashtra, AIR 1970

In the present case, the obvious implications and insinuations made in the
various paragraphs of the article, read as a whole, create a strong judicial impact
on the mind of the reader about the lack of honesty, integrity and impartiality on
the part of the judge in deciding the defamation suit.

The submission that the statements contained in the article made out only a
charge of bias against the judge and this cannot constitute contempt is rejected.
It is a new point and was never raised before the HC. 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 the transactions with the bank
of which Thackersey was a director is wholly baseless. The mere fact that his
brother happens to have a holding in it cannot per se establish that Justice
Tarkunde would also have some financial or pecuniary interest therein. The
entire argument on this point is wholly without substance.

The HC 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 suit
which, on the principles already stated, undoubtedly constituted contempt of
court. The appeal therefore, fails and is dismissed.

3. Narmada Bachao Andolan v. UOI, AIR 1999

The SC went through the statements, the press release, the article and certain
portions of the book referred to above and observed:

i) 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.
ii) 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 realize 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.
iii) 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
proceedings in this court. Judicial process and institution cannot be
permitted to be scandalized or subjected to contumacious violation in
such a blatant manner in which it has been done by her.
iv) Under the cover of freedom of speech and expression no party can be
given a license to misrepresent the proceedings and orders of the court
and deliberately paint an absolutely wrong and incomplete picture which
has the tendency to scandalize the court and bring it into disrepute or
ridicule. It is not only an offence under the Act but it is sui generis.

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.

We therefore consider it appropriate to now let the matter rest here and not to
pursue it any further. The application is accordingly disposed of.

4. EMS Naboodiripad v. T Narayanan Nambiar, 1970

In this case court said that A-19 (1) (a) guaranteed the freedom of speech and
expression, but A-19 (2) showed that it was also intended that contempt of court
should not be committed in exercising that right. The liberty of free expression is
not being compounded with licence to make unfounded allegations of corruption
against judiciary.

(C) Contempt by Judges and Magistrate [Section 16)

Section 16 (1) of the Act provides that judges, magistrate or other person acting
judicially will be liable for contempt to the same extent as an individual. However
section 16 (2) makes it clear that observation or remarks made by a judge or
magistrate or any other person acting judicially regarding a subordinate court when
any appeal or revision is pending before such judge, magistrate or other person
from the order or judgment of that subordinate court.

(D) Punishment for Contempt

Section 10 to 13 of the Act provides for the punishment for contempt.

 Power of the HC to punish contempt of Subordinate Courts

Section 10 – Every HC shall have exercise the same jurisdiction, powers, and
authority in accordance with the same procedure and practice in respect of
contempt of the courts subordinate to it as it has and exercises in respect of
contempt of itself;
Provided that no HC shall take cognizance of contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an
offence punishable under the Indian Penal Code.
Analysis of section 10 – It recognizes the power of each HC to punish contempt
of subordinate courts functioning within the territorial jurisdiction of the HC as
if the contempt committed was of the HC itself.

 Punishment for contempt of court [Section 12]

Section 12 (1) of the Act provides that 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. Thus, section 12
(1) of the Act limits the maximum punishments to be imposed for contempt.

The use of the word „may‟ in section 12 (1) shows that the court enjoys
discretion in the matter of sentencing. In deciding whether an act of contempt is
serious enough to merit imprisonment, the court will take into account the
likelihood of interference with the administration of justice and the culpability
of the offender. (SC Bar Association Vs. UOI 1998)

The proviso to section 12 (1) of the Act provides that the contemnor may be
discharged or the punishment awarded may be remitted on apology being made
to the satisfaction of the court. Further an apology should not be rejected merely
on the ground that it is qualified or conditional, if the contemnor makes it bona
fide.
In SC Bar Association Vs. UOI 1998, the SC observed from A-142 (2) that it
becomes clear that the contempt jurisdiction is subject to the law made by
Parliament. Parliament has enacted the Advocates Act which empowers the Bar
Council to suspend or cancel the licence of an Advocate to practice by way of
punishment for professional misconduct after putting him on notice as required
by the proviso to section 38. It is notable that this appellate power under said
section 38 is available to the SC only and not to the HC.
However the HC as well as the SC may prevent the contemnor advocate to
appear before it till he purges himself of the contempt. After laying down the
above principle the SC punished an advocate for contempt of court and referred
the matter to the Bar Council for appropriate action under the Advocates Act.

In Smt. Pushpaben & Anr. Vs. Narandas V. Badiani 1979, SC held that in the
case of a person found guilty of civil contempt, the general rule is to impose
fine and imprisonment is an exception.

In Daroga Singh v. B K Pandey, (2004), SC held that in this 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 y 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 affect 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.
In the present case the HC had decided to precede with the contempt
proceedings in a summary manner. Due opportunity was afforded to all the
contemnors ad after verifying and cross checking the material available before
it, coming from different reliable sources the HC convicted only nine persons
out of twenty six persons arrayed as contemnors before it. The HC took due
care to ascertain the identity of the contemnors by cross checking with the
affidavits filed by the different persons. It is also based on the independent
report submitted by the Director General of Police and Superintendent of
Police. We do not find any fault in the procedure adopted by the HC 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.

In Pravin C. Shah v. K.A. Mohd. Ali, (2001), The SC observed as follows: -

i) Rule 11 of the Rules framed by the HC of Kerala under Section 34 (1) of
the Advocate Act, provides that, 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. 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.

ii) Rule 11 is not a provision intended for the Disciplinary Committee of the
Bar of the State or the Bar of India. It is a matter entirely concerning the
dignity and the orderly functioning of the courts. The right of the
advocate to practice 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 client, 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.

iii) When the rule 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 cannot
overrule such a regulation concerning the orderly conduct or court
proceedings. Courts of law are structured in such a design as to evoke
respect and reverence to the majesty of law and justice. Proceedings
inside the courts are always expected to be held in a dignified and orderly
manner. The very sight of an advocate, who was found guilty of
contempt of court on the previous hour, standing in the court and arguing
a case or cross-examining a witness on the same day, unaffected by the
contemptuous behavior 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.

iv) If an advocate who found guilty and his authority to act or plead in any
court stands snapped, though perhaps for the time being. If he does such
things without the permission of the court he would again be guilty of
contempt.

v) How can a contemnor purge himself of the contempt? Purring oneself of

contempt can be only by regretting or apologizing 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 off. There is no procedural provision in law to get purged of
contempt by an order of an appropriate court.

In this case, the respondent-advocate continued to appear in all the courts where he
was earlier appearing even after he was convicted by the HC 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 HC for contempt of
court, the Registrar of that HC shall intimate the fact to all the courts within the
jurisdiction of that HC so that presiding officers of all courts would get the
information that the particular advocate is under the spell of the interdict contained
in Rule 11 of the Rules until he purges himself of the contempt. It is still open to
the respondent-advocate to purge himself of the contempt. It is still open to the
 Respondent advocate to purge himself of the contempt in the manner indicated
above. But until that process is within the domain of the Kerala HC including the
subordinate courts thereunder. The Registrar of the HC shall intimate all the courts
about this interdict as against the respondent. Appeal dismissed.

(E) Procedure Section 14- 15, 17-18

 Procedure for Initiation of Contempt
The procedure for initiation and conducting proceedings for contempt of court
are contained in sections 14, 15, 17 and 18. The procedure for contempt cases
will depend on whether the proceedings are in respect of: -
i) Contempt in the face of SC or a HC (Section 14)
ii) Other cases of criminal contempt [(Section 15 (1)]
iii) Contempt of subordinate courts [ Section 15 (2)]

 Procedure where contempt is in the face of the SC or a HC (Section 14)

Section 14 of the Act deals with the contempt in the face of the SC or the HC.
Section 14 (1) provides that when it appears that contempt has been committed
in the face of the HC or SC, the court may cause the person concerned to be
detained in custody. Thereafter the person must be informed in writing of the
contempt with which he is charged. He must be given an opportunity to make
his defence to the charge. The court may then take such evidence as may be
necessary or offered by such person after hearing him, determine the matter of
the charge and make such order as may be just for the punishment or discharge
of such person. The use of word „shall‟ in section 14 (1) indicates that the court
is bound to follow the procedure prescribed in clauses (a) to (d) of section 14
(1).
Section 14 (2) of the Act deals with a particular aspect of natural justice i.e., no
man should be a judge of his own cause. It makes an important provision for the
transfer of the case from the judges in whose presence and hearing the alleged
contempt has been committed if the following two conditions are satisfied:
a) Where a person charged with contempt under section 14 (1) applies to have
the charge tried by a judge other than the judge before whom the contempt is
alleged to have been committed;
 b) The court is of the opinion that it is practicable to do so and that in the
interests of proper administration of justice the application should be
allowed,

Then the court is required to have the matter placed before the Chief Justice for
such directions as he may think fit to issue in respect of the trial of the case.

 Cognizance of Criminal Contempt in other Cases (Section 15)

Section 15 of the Act prescribes the procedure applicable to cases of criminal
contempt other than contempt in facie curiae i.e., this procedure is not
applicable to cases of civil contempt.
Section 15 (1) of the Act provides that the Court may take cognizance of
criminal contempt in three ways –
a) Acting on its own motion
b) On a motion made by advocate general
c) On a motion made by another person with the written consent of the
Advocate General.

Section 15 (2) provides for cases of criminal contempt of subordinate courts. It

provides that action may be taken by the HC –

a) On a reference made to it by subordinate court

b) On a motion made by the advocate general or by a law officer specified by
the central government.

This shows that in regard to the contempt of subordinate courts HC cannot suo
motu initiate action. The HC must be moved by a reference by the subordinate
court itself or by a motion made by the advocate general himself.

Section 15 (3) provides that every motion or reference made under this section
shall specify the contempt of which the person charged is alleged to be guilty.
 Procedure after Cognizance (Section 17)
Section 17 of the Contempt Act provides for procedure after cognizance of
Criminal Contempt of the subordinate Court.
Section 17 (1) of the Act provides that notice of every proceeding under section
15 shall be served personally on the person charged, unless the court directs
otherwise. [Section Read]

 Hearing of cases of criminal contempt to be by Benches [Section 18]

Section 18 of the Act provides that every case of criminal contempt under
section 15 shall be heard and determined by a Bench of not less than two
judges. Section 18 (2) then provides further that section 18 (1) shall not apply to
the court of a judicial commissioner.

Leading Cases

 R.K. Anand v. Registrar, Delhi High Court, (2009)

The apex court comprising of Justice Arun Mishra and Justice Vineet Saran
quashed rules 14A to rule D of the Rule of HC of Madras 1970, stating that
rules were ultra vires to section 34 of the Advocates Act and usurps the power
of the Bar for disciplinary matters. The bench observed that the Advocates Act
never intended to confer the disciplinary powers upon the HC or SC except to
the extend dealing with an appeal under section 38 of the Act. Therefore the
Madras HC had no power to exercise the disciplinary control usurping the
power of Bar. The court also observed that the power to debar for contempt of
court is different from suspension of enrollment by disciplinary measure.
Explaining the difference, the court said: “In case of debarment, enrollment
continues but a person cannot appear in court once he is guilty of contempt of
court until he purges himself as provided in the rule. Debarment due to having
been found guilty of contempt of court is not punishment of suspending the
license for a specified period or permanently removing him from the roll of
Advocates. While guilty of contempt his name still continuous on the roll of
concerned Bar unless removed or suspended by Bar by taking appropriate
disciplinary proceedings.”
 Finally we have no hesitation to hold that in this case the HC has overstretched
and exceeded its power even in the situation which was so grim which appears
to have compelled it to take such a measure. In fact, its powers are much more
in Contempt Act to deal with such situation court need not look for Bar to act. It
can take action, punish for contempt in case it involves misconduct done in
court/proceedings.
Circumstances may be grim, but the autonomy of the Bar in the disciplinary
matters cannot be taken over by the courts. Resultantly we have no hesitation to
strike down impugned rules 14A to 14D as framed in May 2016 by the HC of
Madras as they are ultra vires to section 34 of the Act Advocates Act and are
hereby quashed.

 R. Muthukrishnan v. The Registrar General of the High Court of

Judicature at Madras, AIR 2019
It was held that even if there was no Rule framed under section 34 of the
Advocate Act disallowing an advocate who is convicted or criminal contempt is
not only a measure to maintain dignity and orderly function of courts, it may
become necessary for the protection of the court and for preservation of the
purity of court proceedings.
Thus, the court not only has a right but also an obligation to protect itself and
save the purity of its proceedings from being polluted, by barring the advocate
concerned from appearing before the courts for an appropriate period of time.
This court noticed the observation about the decline of ethical and professional
standards of the Bar, and need to arrest such trend in the interests of
administration of justice. It was observed that in absence of unqualified trust
and confidence of people in the bar, the judicial system could not work
satisfactorily.
Further observations are that the performance of the Bar in maintaining
professional standards and enforcing discipline did not match its achievements
in other areas. This court expressed hope and expected that the Bar will take
appropriate action for the restoration of high professional standards among the
lawyers working of their position in the judicial system and the society.
 Bal Thackery v. Harish Pimpa and Others, (2005)
The SC held that section 15 of the Contempt of Court Act makes it clear that
cognizance of a contempt at the instance of any other person, cannot be taken
without the consent in writing of the Advocate General and in the absence of the
consent of the Advocate General in respect of a criminal contempt filed by a party
under section 15 of the Act, taking suo motu action for contempt without a prayer
was not maintainable.
PART B – PROFESSIONAL ETHICS

(A) Restrictionson Senior Advocates

Section 16 (3) read with section 49 (1) (g) of Advocates Act, empowers the Bar
Council of India to make rules so as to prescribe restrictions which a senior
advocate shall follow. Using the above powers, the Bar has farmed rules to
prescribed restrictions which a senior advocate shall follow under the Bar
Council of India Rules. The Rules provides as follows: -
Senior Advocate shall, in the matter of their practice of the profession of law
mentioned in section 30 of the Act, be subject to the following restrictions: -
a) A senior advocate shall not file a vakalatnama or act in any court or tribunal
or before any person or other authority mentioned in section 30 of the act.
b) (i) A Senior Advocate shall not appear without an advocate on record in the
SC or without an advocate in Part II of the state roll in any court, or tribunal
or before any person or other authorities mentioned in section 30 of the Act.

(ii) Where a senior advocate has been engaged prior to the coming into force
of the rule in this chapter, he shall not continue thereafter unless an advocate
in part II of the state roll is engaged with him. Provided that a senior
advocate may continue to appear without an advocate in Part II of the state
roll in cases in which he had been briefed to appear for the prosecution or
the defence in a case, if he was so briefed before he is designated as a senior
advocate or before coming into operation of the rules in this chapter as the
case may be.

c) He shall not accept instructions to draft pleading or affidavits, advice on

evidence or to do any drafting work of an analogous kind in any court or
tribunal, or before any person or other authority mentioned in section 30 of
the Act or undertake convincing work of any kind whatsoever. This
restriction however shall not extend to setting any such matter as aforesaid
in consultation with an advocate in Part II.
d) A senior advocate shall however be free to make concession or give an
undertaking on the course in the course of arguments on behalf of his clients
on instructions from the junior advocate.
 e) He shall not accept directly from a client any brief or instructions to appear
in any court, or tribunal or before any person or other authorities mentioned
in section 30 of the Act.
f) A senior advocate who had acted as an junior advocate in a case, shall not
after he has been designated as a senior advocate advice on grounds of
appeal in a court of appeal or in SC except with an advocate as aforesaid.
g) A senior advocate may in recognition of the services rendered by an
advocate in Part II of the state appearing in any matter pay him a fee which
he considers reasonable.

 Right to Strike
Advocacy Is The Art Of Seeking Justice And Advocate Are The Artists. Justice
delivered in Courts largely depends on the conduct a deficiency of the
advocates. In recent years, the litigants have often faced the dire consequences
of unprofessional attitude of lawyers and their refusal to appear before the
courts as a token of protest in the form of strike.
Right to Strike is a fundamental right as provided under article 19 (1) (c) of the
constitution. Under the umbrella of this freedom advocates also go on strike.
This right of strike of advocates is always in question and debated hotly. An
advocate is considered as the person who helps people to achieve justice. And
this right of advocate to go on strike usually strives general public from getting
and boycott courts. Judiciary is the third pillar of Democracy and this right of
strike of advocates many a times have led to conflict between Bar and the
Bench.
In the case of Arunava Ghosh Vs. Bar Council of West Bengal 1996, the court
touched upon the issue of whether the Bar has a right to call a strike by
advocates. It was observed that the call for a strike of advocates by the Bar will
lead to the case of Mahavir Prasad Vs. Jacks Aviation Ltd. 1999, the court
remarked that the advocates have no right to boycott any court or stop any court
from executing its powers. Despite there being famous judgments on the right
to strike by advocates, there seemed to be a lot of confusion. The SC finally put
this issue to rest in 2002 by delivering a landmark judgment in the case of Ex
Capt. Harish Uppal Vs. UOI 2003. In this case, the issue before the court was
whether advocates have a right to strike and or give a call for boycott of court?
 i. SC first discussed the role of lawyers in administration of justice and also their
duties and obligations as officers of the court. In Indian Council of Legal Aid
and Avice Vs. BCI this court has “It is generally believed that members of the
legal profession have certain social obligations, to render „Pro Bono Publico‟
service to the poor and the under privileged. Since the duty of a lawyer is to
assist the court in the administration of justice, the practice of law has a public
utility flavor and therefore an advocate must strictly and scrupulously abide by
the code of conduct behaving the noble profession and must not indulge in any
activity which may tend to lower the image of the profession in society.
ii. 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 own 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. Thus strike is an
attempt to interfere with the administration of justice.
iii. No bar council can ever consider giving a call for a strike or boycott the
concerned state bar council of India must immediately take disciplinary action
against the advocates who gives a call for a strike. It is the duty of every
advocate to ignore a call of strike or boycott.
iv. Finally court held that the lawyers have no right to go on strike or even token
strike or to give a call for strike. 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.
Further, it is unprofessional as well as unbecoming for a lawyer to refuse to
attend the court even in pursuance of a call for strike or boycott by the Bar
Association or the Bar Council. It is further observed that an advocate is an
officer of the court and enjoys a special status in the society. Advocates have
obligations and duties to ensure the smooth functioning of the Court, they owe a
duty to their client and strikes interfere with the administration of justice. They
cannot thus disrupt court proceedings and put interest of their clients in
jeopardy.
 MISCONDUCT AND PROFESSIONAL MISCONDUCT

In simple term „Misconduct‟ means dereliction of duty and „Professional

Misconduct‟ means direction of duty relating to legal professional.

[Read from the Misconduct Part]

Case: - Shambhu Ram Yadav Vs. Hanuman Das Khatry 2001

Issue – Whether the disciplinary Committee in exercise of its review powers could
alter the initial order of suspension and modify the sentence imposed on the
respondent.

Decision – The SC held that the legal profession is not a trade or business.
Members belonging to the profession have a particular duty to uphold the integrity
of the profession and to discourage corruption in order to ensure that justice is
secured in a legal manner. The act of the advocate was misconduct of the highest
degree as it not only obstructed the administration of justice, but eroded the
reputation of the profession in the opinion of the public so the punishment lesser
than permanently debarring him, cannot be imposed on the guilty respondent. The
court further held that the power of review does not empower the Disciplinary
Committee for taking a different view of the same facts of the case.

The penalty of permanent debarment of practice was imposed on the respondent in

view of the nature of misconduct committed by the advocate, which has been
modified in exercise of review power. It the duty of Bar to adhere to the required
standards and on its failure to take appropriate action against the erring advocates.

Finally the court set aside the review order to the Bar of India and restored its
original order.

 P.D. Gupta Vs. Ramurti 1997

In this case, one Mr. Sri krishan das died in 1980 leaving behind extensive
property. His sister Vidyawati filed a suit for declaration of title of his properties in
her favour. Ram Murti and other resisted the suit and claimed title in their favour.
P.D. Gupta was the advocate of Vidyawati. While the suit was pending, P.D.Gupta
purchased a part of disputed property from Vidyawati at a petty amount and later
sold it at double the price.
The complaint was made against the Gupta to the Bar Council of Delhi. But the
Disciplinary Committee of the said Bar Council could not dispose of the complaint
within a period of one year and therefore the proceedings had been transferred to
the Bar Council of India under section 36B of the Advocates Act. The disciplinary
committee of the BCI found him guilty of professional misconduct and suspended
him from practice for a period of one year.

Thereafter Gupta filed an appeal under section 38 of the Advocates Act before the
SC.

The SC dismissed the appeal and gave judgment confirming the punishment
awarded by the disciplinary committee.

The Court observed as follows –

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 receiving 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.

In this case, 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 trail touching his professional conduct as an advocate. By his action he has
brought the process of administration of justice into disrepute. Further BCI through
its disciplinary committee has considered all the relevant circumstances and has
come to the conclusion that Gupta 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 Gupta in the circumstances of the case.

 D.P. Chadha Vs. Triyugi Narain Mishra 2001

In this case SC said, 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.

In the present case, strong resistance was offered to the 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, 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.

Finally the SC held that in the case at hand we have perused the proceedings of the
BCI. The complainant did not file any appeal or application before the BCI praying
for enhancement of punishment. 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 BCI having heard the appeal would have first placed its opinion on
record that the findings arrived at by the State Bar be not enhanced. After giving
him an opportunity of filing a reply and then hearing him the BC could have for
reasons to be placed on record, enhanced the punishment. No such thing was done.

The exercise by the BCI 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
Dec 1995. In the facts and circumstances of the case we are not inclined to remit
the matter now to the BCI 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.

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.

 An Advocate Vs. BCI 1989

In this case SC observed as follow –

In exercise of power under section 35 entitled “conduct of advocates” on receipt of

a complaint against an advocate or suo motu if the State Bar 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.

The SC then held that in 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 account and he was not an income tax assesse 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 RW3 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. 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 Gautam Chand who had brought the
complainant to the appellant`s office for instituting the suit and who was a close
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 BCI, it would not
be proper for this court to render an opinion on this matter without the benefit of
the opinion of the BCI 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 accordingly allow this appeal, set aside the order of the Bar insofar. 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.

 Salil Dutta Vs. T.M and M.C 1993

The appeal is allowed and observed –

1. It was not an appeal preferred by outstation litigation 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 neither are not rustic
villagers nor are they innocent illiterates unaware of court procedures.
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 businessman 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.
2. 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. 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, 1988… 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
advocate in his deposition stated that he did not file an application for
adjournment. But from the record it was evident that it was on the basis of
the application filed on June 9, 1988, the case was called on the next date.
3. 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, the party who engaged him. It is true that in certain situation, the
court may, in the interest of justice, set aside a dismissal order or an ex-parte
decree notwithstanding the negligence and misdemeanor 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 stage and any time
and seek relief. It is clear here that they chose to non-cooperate 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.
For the above reasons the appeal is allowed.

 C. Ravichandran Iyer Vs J. A.M Bhattacharjee 1995

 Background
• The petitioner (an advocate) has initiated the PIL under Article 32 seeking to
issue an appropriate writ/ order/ direction restraining permanently the Bar Council
of Maharashtra and Goa (BCMG), Bombay Bar Association (BBA) and the
Advocates Association of Western India (AAWI), coercing Justice A.M.
Bhattacharjee , Chief Justice of Bombay High Court, to resign from the office as
Judge.
• He also sought an investigation by the CBI into the allegations made against the
Justice A.M. Bhattacharjee and if the same are found true, to direct the, 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 (Inquiry) Act, 1968
• This Court on 24-3-1995 issued notice to BCMG, BBA and AAWI only and
rejected the prayer for interim direction to the President of India and the Union of
India not to give effect to the resignation by the Justice A.M. Bhattacharjee. SC
also issued notice to the Attorney General for India and the President of the
Supreme Court Bar Association (SCBA). The BBA filed a counter-affidavit
through its President, Shri Iqbal Mahomedali Chagla.
• 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.

Issue – 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?
• 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. The Constitution does not permit any action by any agency
other than the initiation of the action under Article 124(4) by Parliament.
• Ref: Sub-Committee on Judicial Accountability v. Union of India [(1991) 4 SCC
699] “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”
• “…no other agency or authority like the CBI, Ministry of Finance, the Reserve
Bank of India … 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.

Duty of the Judge to maintain high standard of conduct

• “..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.
• Ref: Krishna Swami v. Union of India [(1992) 4 SCC 605] – “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”
• 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.

Procedure
• “…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 mutation
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 may be salutary to take the Judge into confidence before
initiating action.”

Held
• “It would thus be seen that yawning gap between proved misbehavior 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.
• Since the 1st respondent has already demitted the office, we have stated as above
so that it would form a precedent for future.
• The writ petition is accordingly disposed of.”

 R.D. Saxena Vs. Balram Prasad Sharma 2000

Issue – Whether an advocate has a lien for his fees on the litigation papers
entrusted to him by his client?

Decision – The two Judge Bench dismissed the appeal holding that a lawyer does
not have a right to lien with respect to case files and papers of the client, wherein
an advocate has other remedies to claim his remuneration and observed as follows;

i. Section 171 of Indian Contract Act permits attorneys of a HC to retain any

goods bailed to them as a security for a general balance of account. For this
purpose it was necessary to understand the meeting of the terms good and
bailment. The definition of goods, under section 2 (7) of the Sale of Goods
Act means every kind of movable property other than actionable claims and
money, and includes stock and shares, growing crops, grass and things
attached to or forming part of the land which are agreed to be served before
sale or under a contract of sale.
ii. Case files do not amount to goods – Files containing copies of the records
cannot be equated with the „goods‟ referred to in the section 171 of Indian
Contract Act 1872. 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. Thus understood „goods‟ to fall within the purview of section 171 of the
Contract Act should have marketability and the person to whom it is bailed
should be in a position to dispose it of in consideration of money. There is
no scope for converting the case files into money, nor can they be sold to
any third party.
iii. Bailment – The advocate keeping the files cannot amount to „good bailed‟.
The word bailment is defined in section 148 of the contract act, which states
 that if goods are transferred from one person to another for a specific
purpose and the goods must be returned to; or otherwise disposed of
according to the directions of the person who delivered them, then the
transfer is a bailment. 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. It is the duty of solicitor, when called
upon by his client to deliver him the documents in his charge.
iv. Professional misconduct – Misconduct envisaged in section 35 of the
Advocate Act is not defined. The section uses the expression „misconduct,
professional or otherwise‟. It literally means wrong conduct or improper
conduct.

The Court held that the refusal to return the files to the client when he
demanded the same amounted to misconduct under section 35 of the Act by the
appellant. No professional can be given the right to withhold the returnable
records relating to the work done by him with his client matter on the strength
of any claim for unpaid remuneration. The alternative is the professional
concerned can resort to other legal remedies for such unpaid remuneration.

 Kaushal Kishore Awasthi Vs. Balwant Singh Thakur and Ors. 2018

Court said that, in order to appreciate the contention of appellant one has to refer to
rule 22 under chapter II of the standards of Professional Conduct and Etiquette
framed by the BCI in exercise of its power u/s 49 (1) (c) of the Advocates Act.

The court held that it is very clear from the provisions of section 35 that
punishment can be awarded to advocates if he is found guilty of professional or
other misconduct. Rule 22 is the relevant rule in the instant case which proscribes
an advocate from directly or indirectly making a bid for or purchase either in his
own name or in other`s name for his own benefit or for the benefit of any other
person any property sold in the execution of a decree or order in any suit, appeal or
other proceedings in which he was in any way professionally engaged.

In this case the complainant was selling the property to the intending buyer which
was an arrangement between them unconnected with any legal proceedings. The
said property was not being sold in execution of any decree, in which proceedings
the appellant was engaged. The complainant intended to sell the property in
question when he found himself in need of money. It is this sale which the
appellant tried to interdict. He was not doing so in the capacity of an advocate.

As per him the complainant was not authorized to sell the property without
repaying his debt. Whether the appellant was right in this submission or not, is not
relevant. What is relevant is that this act has nothing to do with the professional
conduct of the appellant. Therefore the very initiation of disciplinary proceedings
against the appellant by the state bar council was improper and without
jurisdiction. We accordingly allow this appeal and set aside the impugned orders
passed by the BCI.

 T.C. Mathai Vs. Dist. Judge, Thiruvananthapuram 1999

The SC held that though sixty years ago, would represent the correct legal position
even now, 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 could have not even moved for such
permission and hence no occasion has arisen so far to consider that aspect. Appeal
dismissed.

 Mahipal Singh Rana Vs. State of UP 2016

The court observed that while this appeal will stand disposed of in the manner
indicated above; we do feel it necessary to say something. Legal profession being
the most important component of justice delivery system, it must continue to
perform its significant role and regulatory mechanism and should not be seen to be
wanting in taking prompt action against any malpractice. We have noticed the
inaction of the Bar Council of UP as well as the BCI in spite of direction in the
impugned order of the HC and in spite of notice to the BCI by this court.
We have also noticed the failure of all concerned to advert to the observations
made by the Gujarat HC 33 years ago. Thus there appears to be urgent need to
review the provisions of the advocates act dealing with regulatory mechanism for
the legal profession and other incidental issues, in consultation with all concerned.
In view of above, we request the law commission of India to go into all relevant
aspects relating to regulation of legal profession in consultation with all concerned
at an early date.

We hope the govt. will consider taking further appropriate steps in the light of
report of the law commission within six months thereafter. The central govt. may
file an appropriate affidavit in this regard within one month after expiry of one
year.

 Rules relating to Advocates’ Right to take up Law Teaching

The issue under consideration in the present question requires discussion on Rules
49, 51 and 52 of the Standard of Professional Conduct and Etiquette as laid down
by the Bar Council of India Rules as framed under section 49 (1) (C) of the
Advocates Act, 1961 and Rules relating to Advocate`s Right to take up Law
teaching and cognizance of criminal contempt by a court as described under
section 15 of the Contempt of Courts Act 1971.

Standards of Professional Conduct and Etiquette – Section VII of the Standard

of Professional Conduct and Etiquette containing Rules 49, 50 and 51 provides for
restriction on other employment for advocates which are as follows –

 Not to be a full-time salaried employee [Rule 49] – Rule 49 states that an

advocate shall not be a full-time salaried employee of any person, govt., firm,
corporation or concern, so long as he continues to practice and shall on taking
up any employment, intimate the fact to the Bar on whose roll his name appears
 and shall thereupon cease to practice as an advocate so long as he continues in
such employment.
 Can review Parliamentary bills, edit legal text books at salary etc. [Rule
51] – States that an advocate may review Parliamentary Bills for a
remuneration, edit legal text books at a salary, do press-vetting for newspapers,
coach pupils for legal examination, set and examine question papers and subject
to the rules against advertising and full time employment, engage in
broadcasting journalism, lecturing and teaching subjects, both legal and non-
legal.
 Part time employment with the consent of Bar Council [Rule 52] – Nothing
in these rules shall prevent an advocate from accepting after obtaining the
consent of the state Bar Council Part-time employment provided that in the
opinion of the State bar council the nature of the employment does not conflict
with his professional; work and is not inconsistent with the dignity of the
profession. The rule shall be subject to such directives if any as may be issued
by the BCI from time to time.
 Rules relating to Advocate`s Right to take up Law Teaching – In exercise of
the powers conferred by Section 49-A of the Advocates Act, 1961, the Central
Government have made the Advocates (Right to take up Law Teaching) Rules
1979.
Rule 3 (i) of the above Rules provides that an advocate while practicing may
take up teaching of law in any educational institution which is affiliated to a
university within the meaning of the University Grants. Commission Act 1956
for three hours in a day. Rule 3 (ii) further provides that when any advocate is
employed in any such educational institution for the teaching of law not
exceeding three hours, then such employment shall be deemed for the purpose
of the Act and the rules made thereunder, to be part-time employment
irrespective of the manner in which such employment is described or the
remuneration receivable by the Advocate for such employment.

The aforesaid rules were examined in the landmark case of Anees Ahmed vs.
University of Delhi 2022 – HC first referred the relevant provision of law under
various statutes and rules framed thereunder: -

IMPORTANT PROVISIONS
• RULE 3 of Advocates Right to take up law Teaching Rules, 1979
• Rule 49 of Chapter II of Section VII of BCI Rules
• Rule 103 of State bar Council
• Resolution 108 of 1996 passed by the BCI
• Clause 5 of Ordinance XI of Delhi University

FACTS
• A writ petition was filed by the petitioners by way of PIL 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.
• Another petition was filed by the petitioner, who was a Professor of Law the
Faculty of Law, of the challenging the order passed by the BCI removing he name
of the petitioner from the roll of Advocates of the Bar Council with a further
direction 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.

ISSUE
• 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.

CONTENTIONS OF PARTIES
• The petitioners referred to various statutes and provisions which prohibit full time
teachers from practicing on courts and that by doing so, they are neglecting their
obligation towards the students.

• Respondents were all full time faculty members of the University of Delhi, who
contended that as per Rule 3 of The Advocates Right to take up Law Teaching
Rules 1979, they were entitled to practice in courts.
What is Rule 3 of The Advocates Right to take up Law Teaching Rules 1979
• Notwithstanding anything to the contrary contained in any rule under this Act, an
advocate may, while practicing, take up teaching of law in any educational
institution which is affiliated to a University within the meaning of the University
Grants Commission Act, 1956, so long as the hours during which he is so engaged
in the teaching of law do not exceed three hours a day.

Submissions of the BCI

• The counsel of the BCI referred to Rule 103 of the Delhi State Bar Council Rules
which states that any 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. He further submitted that Full Time Law Teachers could
not have been enrolled as Advocates as provided for under rule 103 of the Delhi
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.
• Resolution No. 108 of 1996 passed by the BCI 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 and direct all the Star Bar
Councils to take immediate steps to initiate removal proceedings against such
teachers.
• Clause 5 of Ordinance XI of Delhi University 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 himself in other

Observations of Delhi High Court

• If a writ it 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 (K.R. Srinivas v. R.M. Premchand)
• The allegations of the full time Law teachers against the petitioners are based on
surmises and conjecture. The petitioner has filed the present public interest
litigation is an Advocate of this Court and is a responsible officer of the Court. The
cause which is sought to be espoused is of public importance hence writ petition
cannot be dismissed on the ground of maintainability.
• In Rule 103 of Bar Council of Delhi Rules, 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 part-time Law teacher could
be enrolled as an advocate but no such privilege or benefit is available to a full
time Law teacher.
• The 1979 Rules state that 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 students cannot be
ignored. There are several facts of teaching namely, delivering lectures, taking
tutorials and seminars, doing research work 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.
• Clause 5 of the Ordinance of DU 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 specific stand of the Delhi University that no full time teacher of the Delhi is
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
appears to be valid and reasonable.
• The University Grants Commission had also informed the Registrar of the
University that full time law teachers in University Departments and affiliated Law
Colleges would not be permitted to enroll as members of the Bar but they should
be allowed and permitted to appear in Courts for social action or PIL matters as
well as legal aid/public interest litigation connected therewith but said permission
is restricted.
• The Court also held that Rule 49 of Chapter II, (Standards of Professional
Conduct and Etiquette) Section VII (Restrictions on other employments) of the
BCI Rules which provides that “an advocate shall not be a full time salaried
employee of any person, government, firm corporation or concern, as 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.”
• On the contention that the BCI could not take up removal proceedings against
such full time salaried teachers of law who were subsequently enrolled as
advocates as 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, Court referred
to Satish Kumar Sharma v. Bar Council of Himachal Pradesh where it was
held ,“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.

Conclusion
• The Court held that there can be no estopple against the statute, as held in Indira
Bai v. Nand Kishore.
• 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.
• However the court held 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.