ETHICS NOTES

SECTION A:
1.MEANING AND SIGNIFICANCE OF LEGAL PROFESSION AND LEGAL ETHICS:
Professional ethics encompasses an ethical code governing the conduct of persons engaged in
the practice of law as well as persons engaged in the legal sector. All members of the legal
profession have a paramount duty to the court and towards the administration of justice. This
duty prevail over all other duties, especially in the circumstances where there may be a conflict
of duties. It is important that legal practitioners conduct themselves with integrity, provide
proper assistance to the court, and promote public confidence in the legal system. In carrying
out their duties, they are required and expected to deal with other members of the legal
profession with courtesy and integrity.[1] Advocates, apart from being professionals, are also
officers of the court and play a vital role in the administration of justice.

Accordingly, the set of rules that govern their professional conduct arise out of the duties that
they owe to the court, the client, their opponents and other advocates. Rules on the professional
standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar
Council of India Rules. These Rules have been provided under section 49(1)(c) of the
Advocates Act, 1961.

The primary object of ethics in advocacy is to maintain the dignity and integrity of the legal
profession. Legal ethics ensure that the legal fraternity serves the society honestly and present
each case in the most formal way possible so that the litigants have faith on not only their legal
representative or lawyer but also on the justice system. Not only the lawyer but also the judge
needs to have a sense and understanding of legal ethics in order to maintain the functionality
of Indian Courts. One of the fundamental aims of legal ethics is to seek a spirit of friendly
cooperation amongst the bar, bench and the clients. Standards of ethics exist between the
lawyer and his client, opponent and the witness being questioned and of course between the
Judge and the lawyer.

The legal profession has been created by the state to serve the litigatory needs of the public.
Thus, it is not a business it’s a profession. Consequently, there is 3 fundamental basis of legal
ethics that gives an insight into the essence of the legal profession:

1. The organisation of its members in order for the performance of their function;
2. Maintain certain standards at both the intellectual and ethical level to preserve the
dignity of the profession;
3. Pecuniary gains must be subordinate to the client’s interest.
The Advocate Act, 1961

The All India Bar Committee had come up with a few recommendations based on the Law
Commission’s recommendations relating to the legal ethics and legal profession. Thus, under
the auspices of these recommendations, the Legislature implemented the Advocate Act, 1961.
Subsequently, the Bar Council of India was established by the Parliament under Section 4 of
the 1961 Act. This Act lays down the functions of the Bar Council of India (BCI) under Section
7. The Bare Council of India thus lays down standards of professional Code of conduct and
etiquettes to be followed by advocates under Section 7(1)(b). Interestingly, this very function
of the Bar is also laid down under Section 49(1)(c). According to Section 49(1)(c), the Bar is
empowered to make rules for the standard of professional ethics that needs to be observed by
advocates.

Bar Council of India Rules

Bar Council of India Rules is framed by the BCI under Part VI of Chapter 2. This chapter deals
with the standard of professional ethics and conduct of lawyers. It is important to go through
the rules briefly to understand the importance of professional ethics of a lawyer towards the
Court and the Client.

Rules on Advocates Duty towards Court

The Bar Council of India prescribes certain duties that an advocate must fulfil.

1. Act in a dignified manner: any advocate before the court (while presenting his
case) is required to have self-respect and conduct himself with dignity. In re D.C.
Saxena, AIR (1966)- This rule actually empowers an advocate to submit a complaint
against a judicial officer. However, such a complaint shall be submitted to the proper
authority.
2. An advocate must maintain a respectful attitude while at court and shall
respect the dignity of the judicial office: In the case of U.P. Sales Tax Service
Association v Taxation Bar Association (1995) it was stated that the survival of a
free community is endangered if an advocate doesn’t show respect or recognises the
dignity of the judicial officer. It potentially lowers the spirit of the court.
3. Not to communicate in private: this rule was well explained in the case of Rizwan-
Ul-Hassan v. State of U.P. (1953) It was observed that an advocate shall not try to
seek favourable decisions by any illegal means including bribing the court or
communicating any favour in private. Thus, this rule prohibits any private
communication with the judge which would be specifically regarding a pending
case. It is considered as a gross form of professional misconduct if at all an advocate
tries to influence the decision of the court by having private communication with
the judge.
 4. Refuse to act in an illegal manner towards the opposition: An advocate is also
required to prevent his client from resorting to unfair practices relating to the court,
opposing counsel or opposite parties or even co-parties. The advocate must earnestly
restrain and explain the implications and the consequences of such unfair practices.
This rule also empowers an advocate to refuse to represent a client if he/she insists
on such improper conduct.
5. An advocate shall have his own sense of judgement and mustn’t use strong
language in the court of law: This is another important Rule laid down that the
advocate is expected to have his own sense of judgment regarding the cause or the
case he/she is representing. In the case of M.Y. Shareef & Anothers. V. Hon’ble
Judges of Nagpur High Court & Ors. (1954), it was observed that an advocate is not
a mere mouthpiece of the client. Legal counsel must exercise his/her own
judgement. An advocate must also restrain oneself from the use of scurrilous
remarks while in pleadings. They shall use intemperate language during pleadings
in court.
6. Appear in proper dress code: Legal profession is one of the few professions that
have a designated uniform. The court demands that an advocate must necessarily
show up inappropriate dress code. There have been instances in court where cases
have either been postponed or dismissed for that matter due to the lack of proper
dress code that should have been followed by the representing legal counsel. Thus,
if an advocate is improperly or inadequately dressed, he is not only looked down
upon but also his appearance is a breach of the prescribed dress code.
7. Refuse to appear in front of relations: this rule is laid down in Section 30 of the
Advocates Act, 1961. This rule was laid down in order to avoid conflict of interest
and bias in judgment. If there is a family tie existing between the presiding judicial
officer and an advocate, then the advocate shall not appear in such cases and shall
request for the change in bench.
8. Not to wear bands or gowns in public places: the advocate cannot utilise his/her
gown or band in other public places unless in any ceremonial occasions that the Bar
Council of India and the court may prescribe.
9. Not to represent establishments of which he is a member: The rule simply
provides that an advocate is not allowed to represent, defend or even stand against
an organization, institution, society, corporation etc. if he is a part of the executive
committee of such institutions.
However, an advocate can appear as an ‘amicus curiae’ on behalf of a Bar Council.

1. Not appear in matters of pecuniary interest: An advocate shall not act or plead
in any matter in which he himself has some pecuniary interest.
2. Not stand as surety for the client: sometimes parties at court or litigants are
required to give surety to the court. An advocate shall not stand as a surety for his
client in any legal proceedings.
Rules on Advocates Duty towards Client

Just as an advocate owes duty towards the court he/she is also obligated to follow Rule 11 to
Rule 33 that prescribes an advocate’s duties towards his client. They are as follows:

1. Bound to accept briefs: Rule 11 lays down that an advocate is bound to accept any
brief in the court that is if he proposes to take up without any fee at the Bar council.
In S.J. Chaudhary v. State (1984), the Supreme Court held that if an advocate doesn’t attend a
case day to day he would be liable for breach of professional duty. This observation was based
on the fact that a lot of advocates don’t appear at the court and then his client has to bear the
brunt of it.

1. Not to withdraw from service: Rule 12 provides that an advocate shall give the
client reasonable and sufficient notice before withdrawing from an engagement. He
shall not withdraw without any reasonable grounds. If he withdraws himself with
sufficient cause he is bound to refund the fee (even a part of it if not earned).
2. Not to appear in matters where he himself is a witness: Rule 13 provides this rule
as it can give rise to a conflict of interest. It must be noted that if an advocate is a
witness of a party and he is asked to represent the other side then only such an
advocate shall refrain from taking up such matters
In Kokkanda B. Poondacha v. K.D. Ganpathi (1995) the Court has upheld this rule as the
parties could be disadvantaged.

1. Full and frank disclosure to the client: Rule 14 provides that an advocate is
expected to be honest with his client before the commencement of his engagement.
He is obligated to reveal whether he has any connection with the other side of parties
and any interest in their case. Otherwise, this creates controversies and also affects
his client’s judgment to carry forward such an engagement.
2. Uphold interest of the client: Rule 15 provides that an advocate owes his loyalty
to his client and must uphold the interest of his client fearlessly and honestly by all
fair means. He shall not give regard to unpleasant consequences that he may bear.
3. Not to suppress material or evidence: suppressing material evidence is absolutely
disregarded in the court of law. This rule is provided under Rule 16. It basically
provides that if a prosecutor in a criminal trial tries to suppress material evidence
that may lead to the innocence of the accused or taint the justice of the victim if shall
be considered a gross breach of professional conduct and can also invite legal
trouble for themselves. Thus, such an act or omission shall be scrupulously avoided.
4. Not to disclose the communications between the client and himself: Rule 17 is
also one of the most important obligations followed by an advocate. A non-
disclosure agreement is always signed between the client and the advocate. Since
there exists a fiduciary relationship between the client and the advocate, breach of
 confidentiality is taken seriously even at the court of law. This rule is also
incorporated in Section 126 of the Indian Evidence Act, 1872.
5. Not charge depending on the success of matters: Rule 20 provides that an
advocate shall not charge depending upon the success of the lawsuit. Such a practice
is opposed to public policy. Anu such contract for a contingent nature of fee
against Section 23 of the Indian Contract Act.
6. An advocate must not lend money to his client: Rule 32 provides that when an
advocate lends money to his client then interest is created. Such a creation of interest
if not allowed as it affects the advocate’s sense of judgment and also disallows the
client to think upon before commencing with engagement.
7. Not appear for opposite parties: Rule 33 provides that an advocate shall not
represent the opposite party after withdrawing from the case on behalf of the
previous party.

The fiduciary relationship between Lawyer and Client

On a general note, a fiduciary relationship is that of trust and confidence. Any client expects
their lawyer to maintain a high degree of fidelity and good faith as their confidential
information rests with the lawyer as they need to know the details of the case in order to find
out the best way to pull their clients out of the legal trouble or query. In the case of V.C.
Rangadurai v. D. Gopalan (1979), the Court observed that the relation between the advocate
and his client involves the highest personal trust and confidence. Thus, their relationship cannot
be completely treated as purely professional owing to the confidential nature of the information
that the client gives to his lawyer. Thus, the lawyer-client relationship is purely fiduciary in
nature.

Nature of Professional Ethics

Every profession has its own code of ethics. The legal profession in India is highly competitive
and dynamic. As it has been thoroughly discussed above that the standard of ethics of the legal
profession is codified under Indian law.

The nature of professional ethics is such that it is the essence of the legal profession. It
encourages a Lawyer to act in a dignified manner that is befitting of such a noble profession.
Thus, in order to maintain its dignity and integrity, professional ethics were codified. It brings
upon accountability upon the legal professionals for dishonest, irresponsible and
unprofessional behaviour. Furthermore, advocates can lose their license (to practice at
court/firm) if they resort to unethical practices that endanger and tarnish the dignity of the legal
profession.

Even in general not only the legal profession but also various other professions like the medical
profession in India have codified standards of ethics. The Advocates Act, 1961 and Bar
Councils Act, 1926 lay down the professional ethics that need to be followed by lawyers. On
the other hand the Indian Medical Councils Act, 1956 and the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002 governs the standard of
professional ethics that needs to be followed by medical professionals.

The main intent behind these legislations is to prevent the exploitation of clients and patients
or anyone at the receiving end of their services and of course to maintain the integrity of the
profession. Just like every other provision and statute these rules and codes are not absolute in
nature and can be amended or repealed as and when need be felt.

Need for Professional ethics in Indian Courts

The need for codified legal ethics was well explained by the American Bar Association
Committee. Law is a keystone to the arch of Government. Thus, a proper code is needed in
order to prevent control of the judicial system by craft, greed or unworthy motives. Ethics is a
way by which an advocate owes a duty to the Bar, a judge to the Bench of justice. It shall be
noted that litigants or clients whom advocates represent don’t exactly owe the same standard
of ethics as an advocate or a judge in a Court. The duty to prevent the client from resorting to
unfair practices is also shouldered by the Bar and the Bench.

The committee also observed that a high standard of legal ethics must be codified in order to
further the administration of justice in a pure and unsullied manner. Every lawyer must follow
the prescribed legal ethics in order to retain membership in a professional organisation.

Professional Conduct & Professional ethics

There lies a necessary distinction between professional ethics and professional conduct. The
primary difference is between the obligation to be followed by a member of the profession. In
professional conduct, refers to acts or steps taken under some statutory obligation or contractual
powers. Such an obligation could be a legal obligation. On the other hand, in professional
ethics, one is expected to follow a moral obligation.

Bridging the Gap between Legal Ethics and the Legal Profession in Indian Courts
The traditional approach to legal education is that of the application of established legal rules
and principles to a certain set of facts in a case. However, with the commencement of law over
time it was realised that the mere existence of laws cannot bring justice due to a number of
reasons. Firstly, legal services are not as affordable as it should be for the whole economic
spectrum of citizens to be able to avail them. Especially in a poverty-stricken country like India,
the rights of the poor take a backseat due to lack of affordability. Secondly, legal aid services
are also limited. Thirdly, laws are not completely comprehensive and coherent and judges are
not consistent with their reasoning. Lastly, one of the biggest concerns is the lack of ethics
portrayed not only by the police but also the lawyers.
Thus, to bridge the gap between ethics and the legal profession, the codification of the standard
of ethics was a way to prevent the above-stated concern. However, the question raised is how
far is it successful in protecting the dignity of the profession?

It shall be noted that the institutions providing legal education often neglect the concept of
ethical lawyering. Therefore, it is argued that in order to produce good ethical lawyers who
would serve the interest of the country, it can only be possible if institutions providing legal
education educate the young lawyers to be ethical. The legal curriculum must give importance
to socio-legal issues and contemporary problems of society that can be solved through an
ethical and realistic perspective of everything. Law schools are somehow uncharacteristically
silent on the subject of duties to court and client and general responsibilities towards justice.

On the other hand, it is also argued that ethics cannot be taught and it is up to every. Lawyer’s
personal experience that will help them develop such ethics. The problem with this statement
is that it ignores the fact that before one enters a profession, one can be misguided. Later on,
the Bar is accused of lowering standards of professional ethics and discipline for failing to
provide moral and legal leadership when an advocate or a judge misbehaves or uses unfair
means to get by their respective cases.

The traditional way of teaching professional ethics in Indian law schools is not doing enough.
Young lawyers need more insight into the fact as to why legal ethics is more important than
subject knowledge. Legal knowledge can be gained (much more than the knowledge gained in
law schools) through practice and experience. However, a sense of ethics should be developed
earlier than that so that an intellectual legitimacy is created.

Traditional legal education must take up a humanistic approach and shall try to impart values
into young budding lawyers as their contribution to the future is going to become of great
consequence. There must exist a more holistic and humanising outlook towards the teaching
and studying of law. Even after legal ethics are codified in India, lawyers still practice unfair
means to seek favourable outcomes for their cases. The Code cannot bring about a sense of
ethics unless it is imparted to the law students at the very earliest. There are a few positive
examples, where some progressive law teachers have recognised the need for law students to
gain a deeper understanding of ethics and its needs in the legal forefront.

The present stance is that with changing times the existing methods used to impart legal
knowledge need to change. As stated above there is a gap between legal ethics and the legal
profession. Thus, the ‘vectors’ need to converge. The law schools need to understand that along
with the different disciplines in law, such as collaborative law, preventive law, problem-
solving, holistic justice, restorative justice etc. are all meaningless if the knowledge is not
implemented with morals, values, and ethics.
A sea change in the traditional methods of legal education can bring about an integration of
personal and professional values along with the assimilation of analytical thinking/application
of legal principles and emotional intelligence. A mere codification of legal ethics will not make
the young lawyers realise the nobility of the legal profession or the dignity of the Bar.

Advantages of having codified professional ethics

• Means of social control. It will keep up with the new perspectives brought to the
profession according to the social requirements and expectations. The dignity of the
profession will be required to be maintained in order to retain the confidence of the
public in it.
• Ethical codes prevent interference of government in such matters through its
agencies. If a degree of standardization is needed, it will keep Governmental
interference outside.
• Ethical codes are important in developing higher standards of conduct. The code
also brings about a sense of judgment towards the profession
• The existence of the code will have great educative, corrective and appreciable value
for both the lawyers and the common men.[3]

Authority Concerned

State Bar Council and its Disciplinary Committee

Section 35 of the Advocates Act deals with the provisions regarding formulation and
functioning of Disciplinary Committee under the State Bar Council. Under this, if any legal
practitioner is found guilty of any professional misconduct, after providing an opportunity of
being heard may make any of the following orders:

• Dismiss the complaint or where the proceedings were initiated at the instance of the
State Bar Council, direct that the proceedings be filed;
• Reprimand the advocate;
• Suspend the advocate for a period as it may deem fit;
• Remove the name of the advocate from the State roll of advocates.
In the case of Nortanmal Chauaisia v. M.R. Murli[4], the Supreme Court held that the term
Misconduct had not been defined under the Advocates Act. But the term envisages a breach of
discipline, although it would not be possible to lay down what would lead to misconduct or
indiscipline, which is wide enough to include wrongful act or omission, whether done
intentionally or unintentionally. It also means improper behaviour, intentional wrongdoing or
deliberate violation of a rule of the standard of behaviour.
Conclusion

Professional ethics can also be stated as the duties that have to be followed by an advocate
during his profession. These are moral duties and the very basic courtesy which every person
in this field should know. An advocate who does not work with sincerity and does not follow
the rules of conduct is said to have violated the code of ethics of this profession. The
fundamental aim of legal ethics is to maintain honor and dignity of the legal profession to
ensure the spirit of friendly co-operation, honorable and fair dealing of the counsel with his
clients as well as to secure the responsibilities of the lawyers towards the society

2.LEGAL PROFESSION IN INDIA- EVOLUTION AND HISTORICAL

DEVELOPMENT:

Legal Profession in India

The history of the legal profession in India can be traced back to the establishment of the First
British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed
in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of
the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.

The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right
of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. In
1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights
of his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition
from Council members or the Governor. A second principle was also established during the
period of the Mayor’s Courts. This was the right to dismiss an attorney guilty of
misconduct. The first example of dismissal was recorded by the Mayor’s Court at Madras
which dismissed attorney Jones.

The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme
Court was established as there was dissatisfaction with the weaknesses of the Court of the
Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The
first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As
barristers began to come into the Courts on work as advocates, the attorneys gave up pleading
and worked as solicitors. The two grades of legal practice gradually became distinct and
separate as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin
Sullivan.

Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the
legal profession. The charters of the Court stipulated that the Chief Justice and three puisne
Judges be English barristers of at least 5 years standing.
The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead
and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the
roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and
enrolled from practising in the Court. The Court maintained the right to admit, discipline and
dismiss attorneys and barristers. Attorneys were not admitted without recommendation from
a high official in England or a Judge in India. Permission to practice in Court could be refused
even to a barrister.

In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns
was established, guided and controlled by legislation. In the Diwani Courts, legal practice was
neither recognized nor controlled, and practice was carried on by vakils and agents. Vakils had
even been appearing in the Courts of the Nawabs and there were no laws concerning their
qualification, relationship to the Court, mode of procedure of ethics or practice. There were
two kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional
pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of 1793 was
enacted as it was felt that in order to administer justice, Courts, must have pleading of causes
administered by a distinct profession Only men of character and education, well versed in the
Mohamedan or Hindu law and in the Regulations passed by the British Government, would be
admitted to plead in the Courts. They should be subjected to rules and restrictions in order to
discharge their work diligently and faithfully by upholding the client’s trust.
Establishment of the High Courts

In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and
Madras. The High Court Bench was designed to combine Supreme Court and Sudder Court
traditions. This was done to unite the legal learning and judicial experience of the English
barristers with the intimate experience of civil servants in matters of Indian customs, usages
and laws possessed by the civil servants. Each of the High Courts was given the power to make
rules for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The
admission of vakils to practice before the High Courts ended the monopoly that the barristers
had enjoyed in the Supreme Courts. It greatly extended the practice and prestige of the Indian
laws by giving them opportunities and privileges equal to those enjoyed for many years by the
English lawyers. The learning of the best British traditions of Indian vakils began in a guru-
shishya tradition:
“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar
were quick to learn and absorb the traditions of the English Bar from their English friends and
colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in
the Bar passed on those traditions to the disciples who continued to do the good work.”
Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore
(1919).

There were six grades of legal practice in India after the founding of the High Courts – a)
Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f)
Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the six grades of the
profession into one system under the jurisdiction of the High Courts. The Legal Practitioners
Act and the Letters Patent of the High Courts formed the chief legislative governance of legal
practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was
enacted.
In order to be a vakil, the candidate had to study at a college or university, master the use of
English and pass a vakil’s examination. By 1940, a vakil was required to be a graduate with
an LL.B. from a university in India in addition to three other certified requirements. The
certificate should be proof that a. he had passed in the examination b. read in the chamber of a
qualified lawyer and was of a good character. In fact, Sir Sunder Lal, Jogendra Nath
Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an
Advocate.
Original and appellate jurisdiction of the High Court.

The High Courts of the three presidency towns had an original side. The original side included
major civil and criminal matters which had been earlier heard by predecessor Supreme Courts.
On the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney
and advocate. On the appellate side every lawyer practiced as his own attorney.

However, in Madras the vakils started practice since 1866. In 1874, the barristers challenged
their right to do original side work. However, in 1916, this right was firmly established in
favour of the vakils. Similarly, vakils in Bombay and Calcutta could be promoted as advocates
and become qualified to work on the original side. By attending the appellate side and original
side Courts each for one year, a vakil of 10 years service in the Court was permitted to sit for
the advocates’ examination.
Indian Bar Councils Act, 1926.

The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and
to provide self-government to the Bars attached to various Courts. The Act required that each
High Court must constitute a Bar Council made up of the Advocate General, four men
nominated by the High Court of whom two should be Judges and ten elected from among the
advocates of the Bar. The duties of the Bar Council were to decide all matters concerning legal
education, qualification for enrolment, discipline and control of the profession. It was
favourable to the advocates as it gave them authority previously held by the judiciary to
regulate the membership and discipline of their profession.

The Advocates Act, 1961 was a step to further this very initiative. As a result of the Advocates
Act, admission, practice, ethics, privileges, regulations, discipline and improvement of the
profession as well as law reform are now significantly in the hands of the profession itself.
SECTION B
1.Advocates Act 1961 Chapter V (S.35-45)

Introduction
Every country of the world requires certain systems that exclusively and solely work for the
purpose of that country's development on every front. Certain examples of these systems can
be political, social, or administrative, moreover, legal system also forms an integral part of the
list. A political system includes a structure of legislature that has the core purpose of
formulating laws, rules, and regulations for the smooth functioning of a country and for
maintaining equality and harmony among the people of the nation.

However, it is also obvious that in a geographical area occupied with so many people, there are
bound to be disputes, differences and the worst, crimes. Therefore, along with structures like
legislature, there is also a need of a properly laid down legal system. The legal system, also
known as the third pillar of a democracy, the judiciary, does not only have the work of
punishing people in case of crimes and disputes but it also plays a pivotal role in keeping the
whole system up to date by bringing necessary amendments in the already existing laws and
formulating such laws which are competent with the current societal conditions and needs.

The court of law is the first place that is approached by people of a country in case of any type
of dispute. Now, on an average, in a country like India, where hundreds and thousands of cases
are recorded on a daily or weekly basis, it is impossible for these many people to come to court
and represent themselves one by one. Therefore, for this purpose, people have the option of
hiring a lawyer. Lawyers are one of the most important part of a legal system performing the
most important duties and responsibilities.

Along with such important roles to play, they are also given their fair share of rights enlisted
under the advocates act, 1961 like the right to pre-audience (section 23), right to practice
(section 30) etc. However, rights are never exclusive, discretionary, or limitless and it is in the
best interest of the whole system for them to be like this.

A lawyer must conduct himself in such a way that his behavior does not deviate from a set code
of conduct of lawyers under the statutes. This is given in detail under chapter 5, section 35- 44
of the advocates act, 1961.

Right To Practice
Right to practice- the fist and the most basic right of a lawyer is laid under section 29 and 30
of the advocates Act, 1961. the section speaks volumes about the basic criteria and eligibility
to become a lawyer as well as the exclusive right given to them. It states that only those people
who are enrolled as lawyers in a state roll shall be allowed to practice. Once a lawyer is enrolled
under the state roll then he/she shall have all the rights to practice in any part of the country
including all the courts, tribunals, or any other authority as far as the advocates act, 1961 applies
to that area.

An Advocate's Obligations Towards The Court

In the most layman scenario, under an employee-employer relationship, the employer being
the highest authority requires respect, profits, new ideas etc. Such requirements can also be
considered as obligations, duties, or responsibilities of an employee towards the employer.
Similarly, in the legal field, lawyers have certain responsibilities towards the court of law,
which is their highest authority.

Some of these obligations are as follows:

1. The first and the most important duty of advocates towards the court is maintaining the
dignity and respect of the court and not conduct themselves in such a manner that it
jeopardizes its proper functioning. If the functioning of the court is jeopardized, then it
would cause a threat to the free and fair functioning of the democratic legal framework
of the country.

2. All advocates in India are prescribed a proper uniform exclusively for them. It is their
duty to always enter the court in that uniform and to wear the band and gown only in
the premises of the court and not outside it.

3. Justice and equality form the soul of not just the legal system but also the preamble of
the country. Therefore, in its best interest, an advocate who acts as a representative of
his/her client has the duty towards the whole legal system of not intentionally convict
an innocent person. It is one of the most important duties of an advocate towards the
court because if any innocent person is convicted and punished then it would lift the
faith of common people of the country from the judicial system and create fear which
would in turn stop them from voicing their opinions against the wrong.

Punishment For Misconduct- Section 35 Of Advocates Act,1961

Professional misconduct can be defined as such behavior by an employee which is
unacceptable and practically against the code of conduct of the organization that he is working
with. In the legal profession, the advocates act 1961 contains in chapter 5 under section 35, the
punishment to the lawyers for misconduct. Moreover, the section makes it clear that it not only
deals with professional misconduct but also other types of misconduct.
Other misconducts include those that may not be related to the legal profession. A lawyer
should conduct himself professionally so that the functioning of the court is smooth and, the
court's decorum and dignity is maintained. Section 49 of the Advocates act, 1961 gives the Bar
Council of India the power to formulate such standard of professional conduct as it may deem
fit.

Section 35 of the Advocates Act, 1961 explicates the punishment that an advocate shall be
given in case of professional or other type of misconduct. If an advocate is accused of
misconduct, then such information must be either provided to the State Bar Council (SBC) in
the form of a complaint by a person holding an interest or the SBC can also take up a matter of
such sort on its own i.e., Suo motu. However, even after the complaint is received by the
council, action shall be taken on it only if the state bar council has the reasons to believe that
the accused advocate is guilty for professional or any other type of misconduct.

The state bar council however, only because of presence of reasons to believe, cannot take any
action against the advocate. The state Bar council shall refer the case to a disciplinary
committee that will in turn dispose it off and bring a conclusion. An advocate accused of
professional or other misconduct has all the rights to defend himself before the committee, in
this way, the supremacy of justice and equality is maintained, and his basic rights are also
protected.

The disciplinary committee, to proceed with the case of misconduct filed or taken up Suo Motu
must first finalize a date of hearing, after which, a formalized notice is sent to the advocate
accused of misconduct and the advocate general of the state or the additional solicitor general
of India in case of a Union Territory. The advocate general is given the option of appearing
before the court either by himself or through a representative who shall also be an advocate.
This is an important step because it uplifts the core nature of Indian legal system that provides
all the people the right to be heard.

After hearing the part of the accused, the disciplinary committee can make the following orders
under sub section 3:

1. Dismissal
2. Reprimanding the advocate- which means reproving someone officially
3. Suspending the advocate- once an advocate is suspended by the order of the disciplinary
committee, he/she shall not practice legal profession anywhere in the country, not in
the court, for a person or any other authority.

4. Removing the name of the advocate from the state roll. This type of order from the
disciplinary committee is however rare and mostly not used.
Section 41 can be read along with section 35 as it provides for the alterations which
shall take place in the roll of advocates. It states that the following alterations should
 take place:

.
If an advocate is reprimanded or suspended as a punishment for misconduct,
then it should be specifically mentioned in the record in front of his name.
a. If, as a punishment for misconduct, an advocate is barred from practicing then
his name shall altogether be removed from the roll of advocates. Moreover, the
certificate of practice delivered to him under section 22 of the act shall also be
recalled.

Illustration- 'x' and 'y' are two advocates, plaintiff and defendant respectively handling a civil
case. 'y' after the hearing of the court was seen taking money outside the premises of the court.
The people giving money were x's clients. 'x', being an honest lawyer rendering his services
for the upliftment of the banner of justice, decided to complain to the state bar council. The
compliant could be filed because advocate 'y' held a clear interest in the case. Therefore, only
that person who holds an interest can complain formisconduct, otherwise the court can take up
a matter Suo- Motu.

The Disciplinary Committee Of The Bar Council Of India And Its Powers- Section 36
Section 35 exclusively deals with cases of misconduct taken up by the state bar council.
However, under section 36, another category of cases is stated. This section elucidates such
cases in which the advocate accused does not have his name enrolled in any state roll. The
procedure mentioned under section 35 shall apply to section 36 as well.

The only difference is that in section 35, the state bar council must have reasons to believe that
an advocate is guilty of misconduct and then refer the case to a disciplinary committee and
under section 36, the bar council of India must have reasons to believe the same. In both the
cases, compliant can be made Suo Motu. Another difference between the two is that under
section 35, the state bar council has the power to withdraw the enquiry of a pending case from
one disciplinary committee and prescribe it to another.

However, under section 36, the bar council of India has the power to withdraw any disciplinary
enquiry that is still pending before the state bar council's disciplinary committee and dispose it
off on its own. In section 35(2) talks about notifying the advocate general of India and under
36, the same provision shall apply to Attorney General of India.

Even the orders that can be made by the state bar shall remain the same for bar council as well.
Furthermore, under section 44 of the act, the disciplinary committee of the bar council of India
has the right to review any order on its own or after receiving an application for the same.
However, for the committee to be able to exercise this power, has to have the permission of the
Bar council of India itself.
Section 36A:
Just after the procedure to be followed by the state bar council and the bar council of India is
stated under sections 35 and 36 of the advocates acts 1961, section 36A states that when both
the bars exercise their powers of either withdrawing and assigning another disciplinary
committee or when a committee is succeeded by a new committee then such a committee does
not have to begin the proceeding from the start and can carry it forward from the point where
it was left.

Section 36B (1) lays down that as soon as a compliant is received by the state bar council
against an advocate for misconduct, the disciplinary committee has the task of disposing off
the case and passing an order within one year from the date of receipt of the case or the
beginning of the proceedings. If the disciplinary committee fails to dispose off the case in the
stipulated amount of time, then the proceedings as per the provisions of this section shall pass
to the bar council of India and such proceedings shall be treated as the transferred proceedings
under clause 2 of section 36 of the advocates act, 1961.

Similarly, 36B (2) states that if there are any cases already existing and pending on the
commencement of the advocates amendment act of 1973 then such cases have to be disposed
off withing 6 months of commencement or 1 year from the date of receipt otherwise they shall
be transferred to the bar council of India for final disposal.

Case Law:
Suresh Shiva Rao v.N.D. Upadhyaya through secretary, bar council of Maharashtra (1998)
In this case, the disciplinary committee of the Bar Council of India passed an order against
Suresh Shiva Rao for misconduct on 27th June 1998. After the proceedings began, the
disciplinary committee began with its examination and investigation on the matter through
documents and witnesses. After the examination ended, all the evidence were against Suresh
and the committee held him guilty and as a part of punishment for misconduct, his license was
withdrawn for a period of 2 years. However, Suresh was unsatisfied by the order of the court
and by exercising the rights given to him under the Indian statutes, preferred an appeal against
the same. Thereafter, an order of stay was issued on this order of the committee.

On the other hand, while the case was still going on and according to the previous order on
which the stay had been put, Suresh's license was withdrawn, he continued to practice legal
profession by working with a company named m/s Vulcan level ltd. The type of employment
he was under was full time. Besides being employed with the company, he was also practicing
in the court of Maharashtra and Goa. As per the norms, the accused for misconduct should have
told about the company and the employment offered to the court of law but he failed to do so.

Consequently, Shri N.D. Upadhyaya made a complained to the Bar council of the state that he
was practicing in i.e., Bar council of Maharashtra but interpreting the text of section 36-B, the
bar council of India was unable to take any step because the proceedings has exceeded the
period prescribed which is 1 year. After the expiration period is over, the matter was transferred
to the Bar council of India.

Relation Between The Advocates Act, 1961and The Limitations Act, 1963
Section 37 and 38 of the Advocates act, 1961
The Indian judicial system under all its statutes analyses every situation and form such laws
which accelerate the process of justice and takes away the slightest chance of injustice. One
such way in which the judiciary uplifts justice is by the system of appeals. This provision is
laid down under section 37 of the advocates act also. Appeal is one of the biggest rights
provided to people of a country because it increases the accountability of the justice system
towards the people.

Moreover, it also keeps an open window for amends if the person punished is not convinced
with the decision of the court and wants the higher court to interfere and give the decision again
after considering all the facts of the case. Section 37 of the advocates act, 1961 lays down the
same thing and states that if an advocate is not satisfied by an order passed by the state bar
council's disciplinary committee or the Advocate General of the state, then he/she can appeal
the same to the bar council of India.

However, to exercise this right it is important to prefer an appeal withing 60 days from the pass
of the order by the disciplinary committee of the state bar council. After the appeal has been
made to the bar council of India, it shall be obliged to hear the appeal and pass such order
which is the most appropriate according to them and the order of the state bar council can also
be uplifted.

The most important question that arises after interpreting section 37 is, what provisions shall
apply if an advocate is not convinced with order passed by the Bar council of India's
disciplinary committee? To make the whole system more accountable and just for the people
section 37 of the advocates act, 1961 provides for the provision of appeal to the supreme court
of India if an advocate believes that he is aggrieved by the order passed by the bar council of
India's disciplinary council under section 36 and 37. The time limit to prefer an appeal is the
same as mentioned under section 37, i.e., withing 6 months from the date on which the order
of the Bar council of India was communicated to the parties.

Section 5 and 12 of the limitations Act, 1963

It is evident by various sections mentioned under various statutes of the Indian legal system
that the judiciary is not very rigid and provides correct amount of flexibility exactly where it is
needed. One such example is the 5th section of the limitations act, 1963. The court of law never
rules out the possibility of genuine causes that might lead to a delay in the filing or initiation
of proceedings.

Therefore, in this section it is provided that if any of the parties to the case had actual reasons
for not preferring an appeal or filing an application in the stipulated period and those reasons
can satisfy the court then there can be an extension to the limitation period prescribed in the
acts. However, it is also stated that if the cases belong the category of execution of a decree
after it has attained it's final judgement without any pending stay orders(order 21, CPC, 1908)
, this section shall not apply.

Similarly, section 12 of the limitations act lays down such provisions which helps in the
interpretation f various statues. For example, it computes the limitation period for an appeal
and elucidates that such time that shall take place between the pronouncement of the judgement
and the court receiving the official decree against which the appeal has been raised and the
time taken by the court to interpret it shall be excluded from the limitation time.

Relevance between the two acts of 1961 and 1962- section 39 of the advocates act states that
for cases of appeal under section 37 and 38, the provisions given under section 5 and 12 of the
limitations act shall apply.

Order Of Stay
A stay order means a temporary stay on the judicial proceedings. Such a stay can only be put
by an official order of the court. However, if read along with the provisions of appeal mentioned
under section 37 and 38 of the advocatesact1961, it is stated under section 40 of the act that
even if an appeal has been preferred, it does not mean that the a stay has been put on the
previous order issued by the bar council of India or the Supreme court.

However, the Supreme court or the Bar council of India's disciplinary committee should by
themselves order a stay on their previous order even if theapplication for stay is made before
the expiration of the time allowed, till the time a new order is passed or the last one is uplifted.

Powers Of The Disciplinary Committee

The disciplinary committee is the only way by which an advocate can be punished for
misconduct. Apart from the provisions of appeal mentioned in various sections of chapter 5,
there are some powers exclusive to the disciplinary committee.

Section 42 of the act states that a disciplinary committee shall have the same rights as those
given to a civil court under the Code of Civil procedure and such rights, under section 42A also
apply to the Bar council of India.

These powers are as follows:

1. The committee can summon any person it sees as directly or indirectly connected to the
case or for any such reasons as it deems fit for examination and it can also issue
commissions for the purpose of such examinations of documents or witnesses.
 2. The committee has the power to command for production of relevant documents before
it.
3. It has the power to receive evidence on affidavits
4. It has the power to demand for any public record from any court to dispose of the case.

However, there are two cases in which a disciplinary committee does not have discretionary
power of demanding presence of a person before it. first, if the committee wants the presence
of any presiding officer of a court, then it musttake permission from the high court in advance.
That officer shall not appear at the comfort of the committee. Second, if the committee wants
the presence of a revenue officer for any case of misconduct, then it shall summon him/her
only if the committee has a valid sanction or permission of the state government.

NG Dastane v/s Srikant S. Shivde Air 2001 SC 2018

This court is a landmark case because the court analyzed section 35 of the advocates act, 1961
and stated that the phrase used, 'reason to believe' is unnecessary and can act as a barrier against
the initiation of the proceedings because it is one of the procedural requirements. Moreover,
this phrase also violates rule 11 of the Bar council of India chapter-II.

The bench of judges included Honorable justice KT Thomas, honorable justice R.P. Sethi and
honorable justiceS.N. Phukan
Appellant- Advocate P.H. Parekh and advocate Amit Dhingra
Respondents- Advocate Shakil Ahmed Syed and senior advocate Vijay S. Kotwal

The case is related to the defendants knowingly, for the purpose of cross examining a witness,
repeatedly demanding adjournments. This repeated act of adjournments caused inconvenience
to the witness as most of his time got wasted in the court and he had to commute whenever he
must be examined on his own expense. It was further found out that the two advocates
continuously postponed the cross examination just to delay the process.

After suffering, the aggrieved witness decided to complain against the advocates for
misconduct and consequently moved to the state bar council which shut off his complaint on
the pretext that there was no strong case of misconduct against the lawyers. Similarly, thing
happened when he put a review mechanism to the bar council of India. Thereafter, seeking
justice, he filled a case in the apex court.

The appellant was an agricultural scientist working in the United Nations organizations and
while the case was going on, he had retired. He had filed a case against a person for the crime
of theft of electricity. The two advocates, Shri Shivdeand Kulkarni were from the side of the
accused and were jointly arguing in the court of law in his favor. Thereafter, the case had
officially begun in 1993 and the appellant was examined in chief.

The real problem of the appellant began when he started facing inconvenience because of the
advocates. He was called all the way from New York for cross examination on 30.07.1993 but
upon his coming, the two advocates decided to postpone the cross examination stating that all
the witnesses in the list were not present in the court and examination can only be dome once
all the witness are together in the court room. The date of cross examination was shifted to
23.08.1993.

However, on 23.08.1993 also the two advocates decided to postpone the cross examination
stating another reason that one of them had work outside the court which could not be
postponed and the other has to leave as his friend's father has died. The magistrate again
decided to postpone the date for cross examination. The new date set was 13.09.1993 but
following the previous pattern, the advocates again postponed the cross-examination date.

This time however, the other party raised an objection against the postponement, but the
magistrate again decided to assign a new date which was 16.10.1993 but again on the pretext
that one of the advocates were out of station, the date was postponed to 20.11.1993after which
yet again another date was given by the magistrate which was 4.12.1993.

On the prescribed date, the two advocates submitted a written statement to the court that one
of the advocates was severely affected by throat infection and could not carry forward the cross
examination as the doctor had advised him complete rest for at least 2 weeks. However, the
aggrieved witness decided to complain against the advocates when on the same date he found
the same advocate who according to the written statement was suffering from throat infection
arguing in another court room.

The aggrieved appellant filed a complaint to the state bar council and after that to the Bar
council of India but both of them did not take up the case stating that there is no misconduct,
but the appellant did not put down his arms and preferred an appeal to the Supreme Court of
India.

The court held that the two advocates were guilty of misconduct under section 35 of the
Advocates Act, 1961 and stated that if and whenever a witness is present in the court of law
for cross examination then such examination shall be conducted on that very day and cannot
be postponed without appropriate reasons because otherwise it can be misused and can cause
unnecessary plight for the witness and just a phrase used in the statue of advocates act 1961
(section 35), 'reason to believe' cannot act as a roadblock or barrier against notorious or
frivolous activities.

2.BAR COUNCIL OF INDIA RULES PART 6 AND 7:

Advocates, in addition to being professionals, are also officers of the courts and play a vital
role in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arise out of the duty that
they owe the court, the client, their opponents and other advocates.
Rules on the professional standards that an advocate needs to maintain are mentioned in
Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under
section 49(1)(c) of the Advocates Act, 1961.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

1. Act in a dignified manner

During the presentation of his case and also while acting before a court, an advocate should act
in a dignified manner. He should at all times conduct himself with self-respect. However,
whenever there is proper ground for serious complaint against a judicial officer, the advocate
has a right and duty to submit his grievance to proper authorities.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in mind
that the dignity and respect maintained towards judicial office is essential for the survival of a
free community.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge. An advocate should not influence the decision of a court
in any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing counsel
or the opposing parties. He shall also use his best efforts to restrain and prevent his client from
acting in any illegal, improper manner or use unfair practices in any mater towards the
judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper means.
An advocate shall excise his own judgment in such matters. He shall not blindly follow the
instructions of the client. He shall be dignified in use of his language in correspondence and
during arguments in court. He shall not scandalously damage the reputation of the parties on
false grounds during pleadings. He shall not use unparliamentary language during arguments
in the court.

6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.

7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father, grandfather,
son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister,
aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-
in-law.

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council,
Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt.He
should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs

An advocate is bound to accept any brief in the courts or tribunals or before any other authority
in or before which he proposes to practise. He should levy fees which is at par with the fees
collected by fellow advocates of his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient
notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued
to the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If
he has a reason to believe that in due course of events he will be a witness, then he should not
continue to appear for the client. He should retire from the case without jeopardising his client’s
interests.

4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure 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 judgement
in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and
honourable means. An advocate shall do so without regard to any unpleasant consequences to
himself or any other. He shall defend a person accused of a crime regardless of his personal
opinion as to the guilt of the accused. An advocate should always remember that his loyalty is
to the law, which requires that no man should be punished without adequate evidence.

6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings
in a manner that it does not lead to conviction of the innocent. An advocate shall by no means
suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the communications made
by his client to him. He also shall not disclose the advice given by him in the proceedings.
However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or
the client’s authorised agent.

10. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or property
received after the success of the matter.

11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable claim.
Nothing in this rule shall apply to stock, shares and debentures of government securities, or to
any instruments, which are, for the time being, by law or custom, negotiable or to any
mercantile document of title to goods.

12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in any
legal proceeding in which he was in any way professionally engaged. However, it does not
prevent an advocate from bidding for or purchasing for his client any property on behalf of the
client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for his
own benefit or for the benefit of any other person), any property which is the subject matter of
any suit, appeal or other proceedings in which he is in any way professionally engaged.

14. Not adjust fees against personal liability

An advocate should not adjust fee payable to him by his client against his own personal liability
to the client, which does not arise in the course of his employment as an advocate.

15.An advocate should not misuse or takes advantage of the confidence reposed in him
by his client.

16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted to him. The accounts
should show the amounts received from the client or on his behalf. The account should show
along with the expenses incurred for him and the deductions made on account of fees with
respective dates and all other necessary particulars.

17. Divert money from accounts

An advocate should mention in his accounts whether any monies received by him from the
client are on account of fees or expenses during the course of any proceeding or opinion. He
shall not divert any part of the amounts received for expenses as fees without written instruction
from the client.

18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the advocate must without
any delay intimate the client of the fact of such receipt.

19. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to
him from the account of the client. The balance in the account can be the amount paid by the
client or an amount that has come in that proceeding. Any amount left after the deduction of
the fees and expenses from the account must be returned to the client.

20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by him
on demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.

22. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such client. An advocate cannot be held guilty for a
breach of this rule, if in the course of a pending suit or proceeding, and without any arrangement
with the client in respect of the same, the advocate feels compelled by reason of the rule of the
Court to make a payment to the Court on account of the client for the progress of the suit or
proceeding.

23. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or other
matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite
party in the same matter.

RULES ON ADVOCATE’S DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through the
advocate representing the parties.

2. Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite party
even though not reduced to writing or enforceable under the rules of the Court.

RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES

1. Not advertise or solicit work

An advocate shall not solicit work or advertise in any manner. He shall not promote himself by
circulars, advertisements, touts, personal communications, interviews other than through
personal relations, furnishing or inspiring newspaper comments or producing his photographs
to be published in connection with cases in which he has been engaged or concerned.

2. Sign-board and Name-plate

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or

name-plate or stationery should not indicate that he is or has been President or Member of a
Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular type
of work or that he has been a Judge or an Advocate General.
3. Not promote unauthorized practice of law

An advocate shall not permit his professional services or his name to be used for promoting or
starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules
when the client is able to pay more.

5. Consent of fellow advocate to appear

An advocate should not appear in any matter where another advocate has filed a vakalt or memo
for the same party. However, the advocate can take the consent of the other advocate for
appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter
for the same party, then he should apply to the court for appearance. He shall in such application
mention the reason as to why he could not obtain such consent. He shall appear only after
obtaining the permission of the Court.

3.CASE LAW: CK DAPHTRI v OP GUPTA:

FACTS OF THE CASE

The respondent (O. P. Gupta) published and circulated a booklet in public purporting to ascribe
bias and dishonesty to Justice Shah while acting in his judicial capacity. Mr C.K. Daphtary,
along with others, filed a petition alleging that the booklet has scandalised the judges who
participated in the decision and brought into contempt the authority of the highest court of the
land and thus weakened the confidence of the people in it.

ISSUES
1. Whether the act done amounts to contempt of court?
2. Whether the wrong is done to judge personally or it is done to the public?
ARGUMENTS
1. The first respondent has urged that the existing law relating to contempt of court
by writings in respect of proceedings which have finished is repugnant to Article
19(1)(a), read with Article 19(2). He contends that the existing law imposes
unreasonable restrictions on a citizen’s right to freedom of speech guaranteed
under Article 19(1)(a). He urges that we should follow the law existing in the
 United States of America. Mr. C.K. Daphtary, on the other hand, contends, first,
that Article 19(1)(a) and Article 19(2) do not apply to the law relating to contempt
of this Court because of Article 129 of the Constitution, which reads:
“The Supreme Court shall be a Court of Record and shall have all the powers of such a court
including the powers to punish for contempt of itself.”

Secondly, Mr. Daphtary urges that the existing law relating to contempt of court is not a ‘law”
covered by the definition of the word “law” in Article 13(3)(a).

Thirdly, Mr. Daphtary contends that the existing law only imposes reasonable restrictions
within the meaning of Article 19(2) of the Constitution. [1]
JUDGEMENT GIVEN BY COURT
The Supreme Court, in examining the scope of the contempt of court, laid down that the test in
each case is whether the impugned publication is a mere defamatory attack on the judge or
whether it will interfere with the due course of justice or the proper administration of law by
the court.

In the result it is held that O.P. Gupta, respondent No. 1, is guilty of contempt of this Court and
sentenced to simple imprisonment for two months

Responded no.2 Melaram partner of press stated that he did not look into the material which
the 1st responded brought for printing and expressed his unconditional and unqualified apology
to this court. No further action was taken against him.
3RD respondent has not been served or traced.
CONCLUSION
The law of Contempt has been enacted to secure public respect and confidence in the Judicial
process. If such confidence is shaken or broken, the confidence of the common man in the
institution of judiciary and democratic set up is likely to be eroded which, if not checked, is
sure to be disastrous for the society itself”.

CASE LAW 2: EMS NAMBOODRIPAD V TL NAMBIYAR

Facts Of The Case

Mr. E.M.S. Namboodiripad's conviction is based on certain utterances of the Appellant, when
he was Chief Minister, at a Press Conference held by him at Trivandrum, on November 9,
1967.
The report of the Press Conference was published the following day in some Indian
newspapers.
This is what was reported: Marx and Engels considered the judiciary as an instrument of
oppression and even today when the State set up his (sic) not undergone any change continues
to be so; Mr. Nambudiripad told a news conference this morning. He also said that Judges are
lead and dominated by class hatred, class interests and class prejudices and where the evidence
is balanced between a well-dressed pot-bellied rich man and a poor ill and unable to read person
the judge instinctively favors the former the Chief Minister alleged. The Chief Minister said
that election of Judges would a better arrangement, but unless the basic state set up is changed,
it could not solve the problem. Referring to the Constitution the Chief Minister said the oath
he had taken was limited only to see that the constitutional provisions are practiced. 'I have not
taken any oath' because "every word and every clause in the Constitution is sacred."
And thereafter the proceedings commenced in the High Court, the appellant was calls upon to
show why he should not be committed for contempt.

In an affidavit in reply, the appellant stated that the reports were "substantially correct", though
incomplete in some respects. He supplied some omissions and pleaded want of intention to
show disrespect to the judiciary and justification on the ground that the offence charged could
not be held to be committed, in view of the guarantees of freedom of speech and expression
under the Constitution.

He claimed that his observations did no more than give expression to the Marxist philosophy -
and what was contained in the programme of the Communist Party of India. By a majority
judgment the appellant was convicted for contempt of court and fined Rs. 1000/- or simple
imprisonment for one month.

In appeal to this Court it was contended on behalf of the appellant that the law of contempt
must be read without encroaching upon the guarantee of freedom of speech and expression in
Article 19(1)(a) : and that the intention of the appellant in making his remarks at the press
conference should be examined in the light of his political views which he was at liberty to put
before the people.

He sought to justify the remarks as an exposition of his ideology which claimed was 'based on
the teachings of Marx and Engels and on this ground claimed protection of The first clause of
Art. 19(1).
Issues Raised
Issue I:
Whether the Appellant has said anything which brings him out of the protection Article
19(1)(a).

Issue II:
Whether the appellant has said anything which exposes him to the charge of contempt of
court.

Principles Involved
Freedom To Speech And Expression:

Article 19(1) (a) is the fundamental right of freedom of speech and expression for the entire
citizen. One�s opinions may be expressed by words of mouth, in writing, printing, pictures,
or any other mode. This freedom includes a person�s right to propagate or publish the views
of other people.

The freedom of speech under Article 19(1) (a) includes the entitlement to express one�s
views and opinions at any matter through any medium.

But this right is not absolute and restricted by Article 19(2)

following are the restrictions:

security of the State,
Friendly relations The freedom of speech under Article 19(1) (a) includes the right to express
one�s with foreign States,
Public order,
Decency and morality,
contempt of court,
Defamation,
Incitement to an offence, and
Sovereignty and integrity of India.
Judgement
Decision:
Appellant is held liable for the contempt of court and the conviction was upheld by sentencing
him to a nominal fine. They accordingly reduce the sentence of fine to Rs. 50/-. In default of
payment of fine he will (sic) mint for one week. With this modification the appeal will be(sic).

Ratio Decidendi
Article 19(1)(a) guarantees complete freedom of speech and expression but it also makes an
exception in respect of contempt of Court.

Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law or prevent
the state from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right granted by the sub-clause........in relation to contempt of Court, defamation
or incitement to an offence.

But this right is not absolute. It is restricted by Art 19(2) which lays down the restrictions in
case of contempt of court.

Obiter Dicta:
Other than the judgment which was pertaining to the provisions provided for the freedom of
expression and contempt of court which largely constitutes the ratio decidendi of the judgment
the other opinions of judge Hidayatullah mostly revolved around the statement he made and
how that statement was contradicting in itself. He also talked about how the statement he made
was a misinterpretation of the teachings of Marx, Engels and Lenin and also how their teachings
doesn�t involve the system of judiciary explicitly in any of their writings.

The appellant termed judiciary as an instrument of oppression and justice Hidayatullah through
his learned view about the teachings in the judgement enlighten us that why judiciary will not
be an instrument of oppression. The judge starts with telling about why essentially Marx and
Engels come up with their writings ant texts about class oppression. He says that they were
concerned with the idea of social justice and equality. So as to provide a solution for this
problem he found that the Class capitalist exploit the class workers and gain from their works
by not providing their fair share for the work they have done.

Exploiting the working class provides this capitalist themselves with surplus labor value which
makes them indulge capitalist luxuries. Also this capitalist will then turn to the state and the
law to influence them to turn the laws and rules towards their favor. All this social divides and
inequalities between working class and the capitalists create tensions and eventually eliminate
the capitalist system existing in that society. Justice deliberated upon all this details was to
come to the observation that this was how and why there was this hostility towards the state
and the law.

There was this large distrust on the state and its institutions because it can be influenced by
those capitalists for their own betterment. So in order to avoid this social injustice Marx tried
to come up with scientific and ethical approach to provide equality among the capitalists and
the working class so that their fruit of their work and labor can be divided among them
accordingly. This was the concept on which Marx build up his work das capital.

Even though Marx�s writing didn�t include certain aspects of the system of judiciary his
texts was misinterpreted by people until Lenin came up with the right interpretations of his
teachings and texts. Marx in his works wrote that state is an instrument in the hands of the
capitalists and rule in favor of this people making the people in the oppressed class in a worse
position and Engels in his text explicitly writes that state is mostly formed class capitalists to
protect their own interests and in this way state gets above the society by using its facilities.
Lenin in his texts tries to interpret texts of Marx and Engels and told that state cannot be formed
in favor of the class capitalists in the modern society because there won�t be consensus
between the society and the state formed by this people since the state is for the society.

Lenin again asserts in his work that state cannot become an instrument of the class capitalists
especially when it is a democratic republic and it ensures that there won�t be bourgeois
republic existing in that society. So in the works of Marx and Engels writes that laws in a
society should be to ensure the social equality and shouldn�t be corrupted with that of the
likes of the bourgeois society when they talked about a deviation from the state which can be
manipulated by capitalists.

Even though they talked about how law and state should be in the other paradigm where there
is no chance of a state growing above society especially under bourgeois republic they never
directly broached upon the subject of the judicial system in the society. Adding to the fact that
they never directly attacked judiciary system justice Hidayatullah brought in the fact that
Engels stating that judiciary as a system is effective in achieving the social justice that is
necessary and can serve as a tool to keep the bourgeois forces at bay from influencing the state.
Justice Hidayatullah stated the relevant facts stated in the works of Marx, Engels and Lenin
about the state, law and judiciary to explain that the appellant has misinterpreted the teachings
of Marx, Lenin and Engels on whose teachings the appellant made his statements about the
judiciary in India.

Justice Hidayatullah also states that the judiciary in India derives its power from the
constitution and laws which gives it autonomy from the state and other factors that could have
influenced the judiciary. This also ensures that the courts are impartial when it comes to giving
away judgments when it the verdicts of the court may or may not come in favor of either
oppressed class or the majority. Justice Hidayatullah also states that even if the people think
that the law is not providing the justice it was supposed to give that law can be changed for
better in India but weakening judiciary can also mean the weakening of democracy because
judiciary becomes the quintessential part in democracy to provide justice and ensuring equality.

Analysis Of Case
The case throws light on the two major issues which are whether the criticism of the judiciary
must be protected under the fundamental right of freedom of speech and expression i.e. article
19(1)(a)

And the other is whether such statements as that made by the appellant, in the press conference
should amount to contempt of court.

Law Perspective
In the present case the appellant is held liable for the contempt of court and is not protected
under the right to freedom of speech and expression. As per our opinion the guarantee to
expression must always prevail over law of contempt whereas according to law,

For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which
deals with such a concept. Article 129 and 215 of the Constitution of India empowers the
Supreme Court and High Court respectively to punish people for their contempt. Section 10 of
The Contempt of Courts Act of 1971 defines the power of the High Court to punish
contempt�s of its subordinate courts. Power to punish for the contempt of court under the
constitution Articles 129 and 215 is not subject to Article 19(1)(a).

Essentials
The general elements needed to establish a contempt of court are:
The making of a valid court order,
Knowledge of the order by respondent,
Ability of the respondent to render compliance
Wilful disobedience of the order.

The constitution which is the supreme law in the country is the one wherein which the judiciary
draws it powers from. Even if the laws that were made is to be believed is in derogation of any
fundamental rights there are provisions to bring in certain amendments to the particular law
thus explaining the rigid and flexible nature of the constitution. Judiciary in this country is
believed to maintain its impartiality throughout the case proceedings for the sake of providing
justice.

A statement made by a public figure like the appellant jeopardize the judicial system by
creating distrust among people about the functioning of the judicial system. Weakening the
judicial system means the weakening of the democracy in the state because judiciary has its
own autonomy in carrying forward its function and it is also an institution which safeguards
the democratic nature of the country
SECTION C:
1.CONTEMPT OF COURTS ACT 1971
Contempt of Court definition
“The term ‘Contempt of Court’ is a generic term descriptive of conduct in relation to particular
proceedings in a court of law which tends to undermine that system or to inhibit citizens from
availing themselves of it for the settlement of their disputes.”This definition is given by Lord
Diplock when he was giving the judgment in the case of Attorney-General v. Times
Newspapers Ltd. [1]

This term Contempt of Court can be easily understood as when we are disrespectful or
disobedience towards the court of law which means that we wilfully fail to obey the court order
or disrespect the legal authorities. Then the judge has the right to impose sanctions such as
fines or can send the contemnor to jail for a certain period of time if he is found guilty of
Contempt of Court.

This term can also be understood in terms of the freedom of limits of the judicial proceeding.
As we know that all judges in courts can give judicial proceedings which have a certain limit
in which it has the freedom to make any judicial proceeding and anything which curtails or
stops it in making any judicial proceeding which is of necessity can amount to contempt of
court.

Halsbury, Oswald, and Black Odgers have also given the definition of Contempt of Court and
in addition to that, they have talked about its misuse and its wrong interpretation and also its
broad prospectus.

In India, the concept of Contempt of Court is defined in Section 2(a) of the Contempt of Courts
Act, 1971 which has broadly describe it as civil contempt or criminal contempt.

There are two Articles in the Constitution of India which talk about the Contempt of Court and
these are Article 129 and Article 142(2) .

Article 129

Article 129 says that the Supreme Court shall be the ‘Court of Record’ and it has all the powers
of such courts including the power to punish for contempt of itself.

Now, we should know about the meaning of ‘Court of Record’ to understand why anything
commented wrongly against the decision of the courts leads to Contempt of Court.
Here, is the answer to this question. The ‘Court of Record’ means a Court having its acts and
proceedings registered for everlasting memory or that memory which has no end and as
evidence or proof. The truth of these records cannot be questioned and also these records are
treated as a higher authority. And anything stated against the truth of these records comprised
Contempt of Court.

Article 142(2)

This article also talks about Contempt of Court. This Article says that when any law is made
by the Parliament on the provisions mentioned in clause 1 of this Article, the Supreme Court
has all the power to make an order for securing any person’s attendance, production of any
documents or has the power to give punishment to anyone for its contempt.

This also does not mean that the Supreme Court can do anything against the right of personal
liberty if it has the power to punish for Contempt of Court. We know that it is the guardian of
all the rights that we get from the Indian Constitution so it has to safeguard these rights and
cannot violate these rights itself.

Origin of Contempt of Court

The legal system that we see today is the summit of the long journey which has started from
the divine rule that was in proclamation to the natural law and more further to the positive law
that we see today. Contempt of Court is a matter which regards that justice should be
administered fairly and it also punishes anyone who aims to hurt the dignity or authority of the
judicial tribunals. This law has its origin from the medieval times when the royal powers of the
monarch were transferred to the court and at this time the monarch was believed to be appointed
by God and everyone was accountable to him. This power of accountability clearly depicts the
same accountability the Supreme Court possesses nowadays under Article 129 and 142 of the
Indian constitution against its contempt. In the English medieval ages the Judiciary was an
important tool of the Monarch. At that time these judges and legislatures were representatives
of the divine rule monarchy and these judges and legislatures played an important role in
legitimizing the functions of these monarchs. The king was the superior head of justice and this
power he has given to the judicial system and if anyone or the king himself disrespect or
question the courts it became a challenge to the superiority of the king and as well as to his
wisdom. So, this can be seen as although the source of the law has transformed in the society
the unquestionability quality that a king enjoyed was upheld by the monarchy. There is a case
of contempt against J. Almon in the year 1765; a statement was made by the Irish judge Sir
Eardley Wilmot in regard to this contempt attacks on the judges. In this case, Almon has
published a pamphlet libelling the decision of the bench of kings and the judgment given by
the judge had given rise to many questions of several aspects of the judiciary which had not
been questioned yet. This matter gives a great push in the establishment of the contempt of
court. This judgement also recognised that the unbiasedness is also one of the features of the
judiciary in making the decision which makes this institution different from its peer
institutions.
History of Law of Contempt in India
Sanyal Committee report deals with the historical aspect of the Law of Contempt in India. This
committee has been responsible for starting the amendment process in this law. The law of
contempt similar to many other laws has been brought from the English laws and statutes but
this law has not been absolutely taken from the English laws it has other origins too. How has
the indigenous development of contempt law taken place? It can be understood by the age-old
system which our country was having to protect court or assemblies (sabhas) in the past. We
know about the philosopher Kautilya, in his book Arthashastra has written about the
governance at that time. He has written that “Any person who exposes the king or insults his
council or make any type of bad attempt on the kings then the tongue of that person should be
cut off.” Adding to this statement, he also said that “When a judge threatens, bully or make
silence to any of the disputants in the court then he should be punished.”

Until the year 1952, there were no statutory provisions for the contempt of court in India but
after the enactment of Contempt of Court Act, 1952 statutory provisions for contempt of court
in India has established. This Act extends to the whole of India except Jammu and Kashmir.
This Act gives power to the High Court to punish contempt of the subordinate court. This Act
has repealed the existing law from the Contempt of Court Act, 1926 that was prevailing in the
state of Rajasthan and the state of Saurashtra. Although this Act was extended to the whole of
Bangladesh. It can be surprising knowing that although these Acts have been introduced earlier
then also these Acts do not give the definition of the term ‘Contempt’ and also there was still
a lot of ambiguity present around the law of contempt. This law has to be dealt with in light of
two fundamental rights given by our Indian Constitution and these rights are (i) freedom of
speech and expression and (ii) right to personal liberty.

There was a bill introduced in the Lok Sabha to make any changes or to make the existing law
relating to contempt more strong. This law was introduced by Shri B B Das Gupta on 1st of
April 1960. The government after examining the bill discern the need for reform in the existing
Act. So, they made a special committee to look into the matter or inspect the existing Act. This
committee was set up in 1961, under the chairmanship of H.N. Sanyal which gives its report
on 28th February, 1963. The report of this committee took the form of Contempt of Court Act,
1971. The procedure and application of enactment something that was done earlier by the
Contempt of Court Act of 1926 and 1952 was given several changes through the Contempt of
Court Act, 1971. This Act segregates the ‘Contempt of Court’ into criminal and civil contempt
with their definition respectively. This thing was not mentioned in the earlier existing courts.
Now, let us know something about the Contempt of Court Act, 1971.

Contempts of Courts Act 1971 notes

This Act extended to the whole of India and it has also provided that this Act shall not apply
to the state of Jammu and Kashmir except in certain conditions in which the provision of the
Act is connected to the Contempt of Supreme Court. Another thing is that this Act provides the
definition of Contempt of Court which has not been given by the earlier Act of Contempt of
Court. This Act under Section 2(a) defines Contempt of Court as ‘Civil Contempt’ and
‘Criminal Contempt’. There is a case of Noorali Babul Thanewala v. K.M.M. Shetty [2] in
which an undertaking was given to a Court in civil proceedings by a person, on the faith that
undertaking was correct the Court sanctions a course of action in regard to that undertaking but
the undertaking seems to be incorrect. Hence, this was considered as misconduct and amount
to Contempt of Court. In this act there are several provisions given that it does not amount to
Contempt of Court. Although, these provisions have to be discussed later in this article some
of them you should know at this point in time. These are: (i) innocent publication of a matter
or its distribution does not amount to Contempt of Court. (ii) publishing of fair and accurate
reports of the Judicial proceedings does not amount to Contempt of Court. (iii) fair criticism
on judicial acts does not amount to Contempt of Court. Next, in this Act, the High Court has
been given the power to make decisions on the matter which is outside its jurisdiction.
Punishment for Contempt of Court has been given in this Act and also what type of misconduct
not amount to Contempt of Court has been given, how we can deal with that contempt has also
been given. The Judge, Magistrate or any other person who is acting judicially can also be
contempt for their actions. Also, this Act gives certain limitations where this Act does not
apply. This Act does not apply to the Courts of Nyaya Panchayat and other Courts of the
village. This Act repealed the old existing Act of Contempt of Court which came into force in
1952.

Essentials of Contempt of Court

If a person named Akash has to prove that the other person named Sita is guilty of committing
an act which is an offence in a court of law. Then he has to show the court that the offence
which Sita has done is fulfilling the essential required to commit that act or not. If the essentials
of that will be fulfilled then he will be liable for that act. Similarly, every offence has certain
exceptions that has to be fulfilled for making the person liable for doing that act. Contempt of
Court also has certain essentials and these are as follows:

1. Disobedience to any type of court proceedings, its orders, judgment, decree, etc
should be done ‘willfully’ in case of Civil Contempt.
2. In Criminal Contempt ‘publication’ is the most important thing and this publication
can be either spoken or written, or by words, or by signs, or by visible representation.
3. The court should make a ‘valid order’ and this order should be in ‘knowledge’ of
the respondent.
4. The action of contemnor should be deliberate and also it should be clearly disregard
of the court’s order.
These essentials should be fulfilled while making someone accused of Contempt of Court.

Types of Contempt of Court in India

Depending on the nature of the case in India, Contempt of Court is of two types.
 1. Civil Contempt
2. Criminal Contempt

Civil Contempt

Section 2(a) of the Contempt of Court Act, 1971 states Civil Contempt as wilful disobedience
to the order, decree, direction, any judgment or writ of the Court by any person or willfully
breach of undertakings by a person given to a Court. Since Civil Contempt deprives a party of
the benefit for which the order was made so these are the offences essential of private nature.
In other words, a person who is entitled to get the benefit of the court order, this wrong is
generally done to this person.

There is a case on the willful disobedience of the court order which a person should know.

Utpal Kumar Das v. Court of the Munsiff, Kamrup [3]

This is the case of non-rendering of assistance, although the court has ordered to render
assistance. Decree executed by the court to deliver immovable property but because of certain
obstruction, the defendant failed to do so. Hence, he was held liable for constituting
disobedience to the orders of the competent Civil Court.

Another case is on the breach of an undertaking which leads to Contempt of Court.

U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority [4]

In this case, the Supreme Court has directed the Noida Authorities to verify and state on the
affidavit details given by persons for allotment of plots. In pursuance to the same direction by
the Supreme Court a person Mr. S filed a false affidavit to mislead the court. The Registry
directed a show-cause notice against him to say that why an act of contempt should not be
taken against him for misleading the Supreme Court.

Defences to Civil Contempt

A person who is accused of Civil Contempt of case can take the following defences:

• Lack of Knowledge of the order: A person can not be held liable for Contempt of
Court if he does not know the order given by the court or he claims to be unaware
of the order. There is a duty binding on the successful party by the courts that the
order that has passed should be served to the Individual by the post or personally or
through the certified copy. It can be successfully pleaded by the contemner that the
certified copy of the order was not formally served to him.
 • The disobedience or the breach done should not be : If someone is pleading under
this defence then he can say that the act done by him was not done willfully, it was
just a mere accident or he/she can say that it is beyond their control. But this plead
can only be successful if it found to be reasonable otherwise your plead can be
discarded.

• The order that has disobeyed should be vague or ambiguous: If the order passed
by the court is vague or ambiguous or this order is not specific or complete in itself
then a person can get the defence of contempt if he says something against that
order. In R.N. Ramaul v. State of Himachal Pradesh [5], this defence has been taken
by the respondent. In this case, the Supreme Court has directed the corporation of
the respondent to restore the promotion of the petitioner from a particular date in the
service. But the respondent has not produced the monetary benefit for the given
period and a complaint was filed against him for Contempt of Court. He pleads for
the defence on the given evidence that it has not mentioned by the court in order to
pay the monetary benefit. Finally, he gets the defence.

• Orders involve more than one reasonable interpretation: If the contempt of any
order declared by the court and the order seems to be given more than one reasonable
and rational interpretation and the respondent adopts one of those interpretations
and works in accordance with that then he will not be liable for Contempt of Court.

• Command of the order is impossible: If compliance of the order is impossible or it

can not be done easily then it would be taken as a defence in the case of Contempt
of Court. However, one should differentiate the case of impossibility with the case
of mere difficulties. Because this defence can be given only in the case of the
impossibility of doing an order.

Criminal Contempt

According to Section 2(c) of the Contempt of Court Act, 1971, Criminal Contempt is Defined
as (i) the publication of any matter by words, spoken or written, or by gesture, or by signs, or
by visible representation or (ii) doing of any act which includes:

1. a) Scandalize or tends to scandalise, or lowers or tends to lower the authority of any

court, or
2. b) Biasness, interferes or tends to interfere with the due course of any type of Judicial
proceedings, or
3. c) obstructs or tends to obstruct, interfere or tend to interfere with the administration
of justice in any manner.
Case on Scandalizing the Court:
Jaswant Singh v. Virender Singh [6]

In this case an advocate caste derogatory and scandalous attack on the judge of the High Court.
An application was filed an election petitioner in the High Court, who was an advocate. He
wanted to seek to stay for further arguments in an election petition and also the transfer of
election petitions. These things cause an attack on the judicial proceeding of the High Court
and had the tendency to scandalize the Court. It was held in this case that it was an attempt to
intimidate the judge of the High Court and cause an interface in the conduct of a fair trial.

Punishment for Contempt of Court

Section 12 of the Contempt of Court Act, 1971 deals with the punishment for Contempt of
Court. High Court and the Supreme Court have been given the power to punish someone for
the Contempt of Court. Section 12(1) of this Act states that a person who alleged with the
Contempt of Court can be punished with simple imprisonment and this imprisonment can
extend to six months, or with fine which may extend to two thousand rupees or can be of both
type punishment. However, an accused may be discharged or the punishment that was awarded
to him maybe remitted on the condition that if he makes an apology and this apology should
satisfy the court then only he can be exempted from the punishment of Contempt of Court.
Explanation of this sentence is that if the accused made an apology in the bona fide then this
apology shall not be rejected on the ground that it is conditional or qualified.

The court can not impose a sentence for Contempt of Court in excess of what is prescribed
under the given section of this Act either in respect of itself or of a court subordinate to it.

Remedies against an order of Punishment

Section 13 has been added in the Contempt of Court Act, 1971 after amendment in 2006. The
new Act may be called The Contempt of Court (Amendment) Act, 2006. This Section tells that
contempt of court cannot be punished under certain circumstances or certain cases.

Clause (a) of Section 13 of the Contempt of Court (Amendment) Act, 2006 states that no Court
under this Act shall be punished for Contempt of Court unless it is satisfied that the Contempt
is of such a nature that it substantially interferes or tend to substantially interfere with the due
course of Justice.

Clause (b) of Section 13 of this Act states that the court may give the defence on the justification
of truth if it finds that the act done in the public interest and the request for invoking that
defence is bona fide.
Contempt Proceedings
Two Sections of the Contempt of Court Act, 1971 deals with the procedure of Contempt
proceeding. One talks about the proceeding in the face of the court of records and other talks
about the proceedings other than the court of records.

Section 14 of the Contempt of Court deals with the procedure of contempt proceeding in the
face of the court of record whereas Section 15 of this Act deals with the procedure of the
contempt proceeding outside the court of records.

These courts of record have got the power to punish for its contempt inherently. Therefore,
these courts of record can deal with the matter of content by making their own procedure. While
exercising the contempt jurisdiction by the courts of record the only case to be observed is that
the procedure adopted must be fair and reasonable in which the alleged contemnor should be
given full opportunity to defend himself. If the specific charge against the person who is
punished for the contempt is distinctly stated and he is given a reasonable opportunity to answer
and to defend himself against the charge then only he will be liable for contempt of court and
the court proceeding runs against him. Where the person charged with contempt under this
section applies whether orally or in writing to have the charge against him, tried by some judge
other than the judge or judges in whose presence or hearing the contempt is alleged to have
been committed and the court is of the opinion that it is necessary in the interest of justice that
the application should be allowed, it shall cause the matter to be transferred before such judge
as the Chief Justice may think fit and proper under the circumstances of the case or placed
before the Chief Justice with the statement of facts of the case.

Contempt committed outside the court

Criminal Contempt rather than Civil Contempt committed outside the Court. Section 15(1) of
the Contempt of Court Act, 1971 deals with the notice of Criminal Contempt by Court of
Record such as the Supreme Court and the High Court. Following manners can be taken by the
Supreme Court and the High Court for cognizance of the Criminal Contempt:

1. On the motion of court of records.

2. On the motion of the Advocate General of the Supreme Court and the High Court.
3. If any person proceeds the motion with the consent of the Advocate General in
writing.
4. If the law officer who is related to the High Court for the Union Territory of Delhi
as the Central Government notify proceeds the motion. Then it can be considered as
contempt committed outside the court.
Section 15(2) of this Act states that in the criminal contempt of the subordinate court, the high
court may take certain actions in the manner given in this Act.
Contempt by a Company
In case any person is found guilty of contempt of court for any undertaking given to a court
while he is a member of the company. Then the person who at that time was in charge of that
company will be responsible for the conduct of the business of that company and shall be
deemed to be guilty of the contempt. The punishment may be enforced by the detention in the
civil prison of such person with the leave of the court

However, that person can be free from liability if such person proves that the contempt was
committed without his knowledge or that he exercised all possible means to prevent its
commission.

Liability of officer of the company

If the contempt of court has been committed by a company and it is provided that the contempt
has been committed with the consent of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officers of the company, then such persons shall also be
deemed to be guilty of the contempt and the punishment will be enforced against them by the
detention in civil prison of such director, manager, secretary or other officer with the leave of
the court.

Contempt by the third party to the proceeding

If a third party has a part to play in the offence then the third party to the offence may be guilty
of contempt of court and proceeding can initiate against him. In LED Builders Pty Ltd v Eagles
Homes Pty Ltd [7] Lindgren J stated:

“It is not necessary to show that a person who has breached the order of the court can be liable
for contempt of court but the only necessary thing to confirm his liability for contempt is to
show that the person knew of the order which was breached.”

In another case of M/S. Gatraj Jain & Sons v. Janakiraman [8] it has been stated about the
third party to the proceeding that if a third party to the contempt petition found to be wilfully
disobeying the court order then he cannot prevent the court from restoring the status quo.

Criminal contempt and criminal defamation proceedings

A question has been asked by the person that can an action for criminal contempt and criminal
defamation initiated simultaneously. This can be understood by knowing the concept of
Criminal contempt and criminal defamation. Earlier, in this article, we have talked about
Criminal Contempt. But for an overview, we should know what does a criminal contempt
mean. According to Section 2(c) of the Contempt of Court Act, 1971, criminal contempt is
defined as (i) the publication of any matter by words, spoken or written, or by gestures, or by
signs, or by visible representation or (ii) doing of any act which includes:
 1. a) Scandalize or tends to scandalise, or lowers or tends to lower the authority of any
court, or
2. b) Biasness, interferes or tends to interfere with the due course of any type of Judicial
proceedings, or
3. c) obstructs or tends to obstruct, interfere or tend to interfere with the administration
of justice in any manner.
Now, we will know the concept of criminal defamation.

The definition of criminal defamation has been given under Section 499 of the Indian Penal
Code, 1860. It states about defamation that “Whoever, by words either spoken or intended to
be read, or by signs or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, except in the cases hereinafter
expected, to defame that person.”

There are certain exceptions of criminal defamation and these are:

1. If the publication of anything is in truth and for public good then it cannot be treated
as defamation.
2. When a person touches any public questions then for that he cannot be liable.
3. If the publication is of the reports of the proceedings of the court.
As the right to reputation is an important facet of the right to life and personal liberty guaranteed
under Article 21 of the Indian Constitution, hence, the aim of the criminal defamation is to
prevent a person from maligning harming the reputation of others by using absurd or malign
words with malafide intentions.

In the case of Dr. Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors. [9]
the constitutional validity of the criminal defamation was upheld.

Limitation

Section 20 of the Contempt of Court Act, 1971 deals with the limitation for the action of
Contempt. It states that no court shall initiate any proceedings of contempt in two conditions:

1. Either the proceedings are on his own motion, or,

2. After the period of one year from the date on which the contempt is alleged to have
been committed.
Landmark Contempt Judgments

• Supreme Court Bar Association vs Union Of India & Anr [10]

In this case, the Judge held that procedural aspect for Contempt of Court may still be prescribed
by the Parliament so that it could be applicable in the Supreme Court and the High Court. This
means that Section 12(1) of the Contempt of Court Act, 1971 which prescribed a maximum
fine of Rs. 5000 and imprisonment for a term of six months shall be applicable in this case.

• Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors[11]

It was held in this case that the punishment that is given for contempt in the Contempt of Court
Act, 1971 shall only be applicable to the High Court but for Supreme Court, it acts as a guide.
The judgment that was given was not accompanied by rationality, this was worrisome because
the Supreme Court has been given great powers that the drafters of the Indian Constitution has
also not given.

• Sudhakar Prasad vs. Govt. of A.P. and Ors.[12]

This case is also similar to the Supreme Court Bar Association Case. In this case also once
again the Supreme Court declared that the powers to punish for contempt are inherent in nature
and the provision of the Constitution only recognised the said pre-existing situation.

The provision of the Contempt of Court cannot be used to limit the exercise of jurisdiction
given in Article 129 and Article 215 of the Constitution.

Famous cases of contempt

• P.N. Duda vs V. P. Shiv Shankar & Others[13]

In this case, the Supreme Court observed that the judges cannot use the contempt jurisdiction
for upholding their own dignity. Our country is the free marketplace of ideas and no one could
be restricted to criticise the judicial system unless this criticism hampers the ‘administration of
justice’.

• R. Rajagopal vs State Of T.N[14]

This case is also known as the Auto Shankar case; in this case, Justice Jeevan Reddy invoked
the very famous doctrine of John Sullivan. This doctrine states that public must be open to
strict comments and accusations as long as made with bonafide diligence, even if it is untrue.

• In Re: Arundhati Roy [15]

In this case, the Supreme Court observed that the fair criticism on the conduct of a Judge or the
institution of Judiciary and its function may not amount to contempt if it is made in good faith
and in the public interest.

• Indirect Tax practitioners’ Association v. R.K. Jain[16]

In this case, the Supreme court observed that the defence of truth can be permitted to the person
accused of contempt if the two conditions are satisfied. These are: (i) if it is in the interest of
public and (ii) the request for invoking the said defence is bonafide. These are given in Section
13 of the Contempt of Court Act, 1971.

• Justice Karnan’s case

He was the first sitting High Court Judge to be jailed for six months on the accusation of
Contempt of Court. In February 2017, contempt of court proceeding was initiated against him
after he accused twenty Judges of the Higher Judiciary of Corruption. He wrote a letter to PM
Modi against this but he did not provide any evidence against them.

Compared with foreign Jurisdictions

United Kingdom

There was no conviction for the offence of Scandalizing the Court from the common law in
England since 1993. The origin of contempt by scandalizing the court can be traced back to
1765. The case of King v. Almon,[17] in which the Almon faced judicial trial against him for
libel against a judge. Justice Wilmort, in this case, gives special punishment to Almon for libel
and from here the scandalizing a court became a form of Contempt of Court. Around a hundred
years later the above case, Lord Morris in the case McLeod v. St.Aubin[18] made a very
wonderful statement that for contempt by scandalizing has become outdated and in place of
that the court should leave on the public opinion whether the attacks or contempt that are
derogatory or scandalous to the Judiciary or not. However, within a year, his words about the
contempt by scandalizing being old or outdated and this has proved false in another case
of Queen v. Grey[19]. In this case, it has been conceded by the court that the judiciary is still
open to criticism by the media, but it should qualify the statement “ reasonable arguments or
expostulation” must be offered to treat a statement as a contempt.

United States of America

This country has considered the offence of contempt by scandalizing to be too extreme. Every
criticism that we do to the judiciary undermines the authority of the Court. Right to freely
comment or criticise the action of a public institution is of primary importance to the public
and also for the American idea of Democracy. For abolishing the offence of contempt by
scandalizing, the UK consultation paper relied on the landmark decision of the US Supreme
Court decision in case Bridges v. California[20]. This offence has been considered
unconstitutional in the United States of America.

Criticism of the power of contempt of court

The discretion that a judge has in determining the contempt and its punishment has been a
debatable issue in the eyes of some scholars because the contempt power has given too much
authority to the Judges. A professor from Virginia University has about this contempt power
that the role of victim, judge, and prosecutor are dangerously mixed.
Much of the criticism goes around the due process or lack of restraint in the punishment for
contempt of court. Critics have argued that the judge in the Criminal contempt may be too
harsh while giving the Judgment. For example, in 1994, the Virginia Court has fined Mine
Workers of America $52 million in connection in violence that occurred in 1989. Similarly,
sometimes the person who refused to provide the information to the court has been to jail for
one year or for many years under the charge of contempt. There is some loophole in this context
and it should be fulfilled.

Apart from criticism there are also some good things about contempt. Contempt of Court Act,
1971 is one of the most powerful statutes in the country. This statute gives the Constitutional
Court the wide power to restrict an individual’s fundamental rights to personal liberty (that he
got under Article 21 of the Indian Constitution) for ‘scandalizing the court’ or willfully
disobeying the court’s order, judgment, decree, and direction, etc.

Conclusion
The existing role relating to ex facie contempt of lower courts is unsatisfactory and misleading
in India. It appears that evidently, the difficulties in this regard are the after product of overlap
of contempt powers under the Indian Penal Code, Contempt of Courts Act and contempt
powers of the Supreme Court and High Court under the Indian constitution. The scenario has
emerged as more complicated by way of the inconsistent interpretations followed through the
Supreme Court and High Court regarding diverse provisions under the Indian Penal Code
dealing with interference with the administration of justice and exclusion clause contained in
the Contempt of Courts Act. Not only the higher court should be given the power to deal with
contempt but also the lower court should be given this power. Contempt of Court if seen from
the perspective of the judges, higher judicial officials seems good but if it comes to the
perspective of common people it turns towards its bad effect.

2. Constitutional Provisions regarding Powers of Supreme Court and High Courts &
Houses of Parliament & State Legislatures for Punishing for their Contempt.

2.1 HOUSES
Parliamentary privilege can be defined as the rights and immunities that are provided to the
members of Parliament and the Parliament itself. The objective behind granting these
privileges is to allow the members of the Parliament to perform their functions free from any
external barriers/constraints. The Parliament has the authority to determine the extent of these
rights and immunities and legislate in this regard. However, no legislation has been passed by
the Parliament wherein the extent of these privileges has been provided.

A breach of privilege occurs when any person commits an act that is in violation of the
privileges granted to the members of parliament or the Parliament itself. This includes acts of
publishing news items/speeches without the consent of the house, obstruction of the
proceedings of the house etc. When such a breach of privilege occurs, it is called contempt of
the Parliament House and the person who is charged with the contempt of the Parliament
House can be punished with imprisonment or fine or can be given a warning against future
contempt.

Parliamentary privilege can be defined as the rights and immunities that are provided to the
members of Parliament and the Parliament itself. The objective behind granting these
privileges is to allow the members of the Parliament to perform their functions free from any
external barriers/constraints. The Parliament has the authority to determine the extent of these
rights and immunities and legislate in this regard. However, no legislation has been passed by
the Parliament wherein the extent of these privileges has been provided.

A breach of privilege occurs when any person commits an act that is in violation of the
privileges granted to the members of parliament or the Parliament itself. This includes acts of
publishing news items/speeches without the consent of the house, obstruction of the
proceedings of the house etc. When such a breach of privilege occurs, it is called contempt of
the Parliament House and the person who is charged with the contempt of the Parliament
House can be punished with imprisonment or fine or can be given a warning against future
contempt.

FOR STATE LEGISLATURE THE ARTICLE IS 194 BUT THE PROVISIONS ARE
DITTO SAME.

2.2 FOR THE COURTS:

Examining the concept of Contempt of Court

Introduction

A government mainly has three important organs i.e. Legislative, Executive, and Judiciary.
Each of them has its functions. Judiciary is primarily responsible for the administration of
Justice. Justice is mainly done through Courts. The concept of Contempt of Court again came
into the limelight after a Famous Prashant Bhusan Contempt case. As the case had great
attention from mainstream media and was highly debated.

According to Merriam-Webster Dictionary, the word "Contempt" means, "Lack of Respect or

Reverence for something".1 Contempt of Court refers to a legal violation by a person who
disrespects/disobeys the Judge

or tries to interrupt the flow of court. In simple words, it is a wrongful act committed by
someone which lowers/challenges/diminishes the superior authority of the Court. The act can
be in the form of failing to comply with guidelines, tampering with evidence, defying the Court,
interrupting the normal procedure of the Court, etc. It can be committed by Advocates, Officers
in charge, Witnesses, or anyone else. Article 129 and 215 empower Supreme Court and High
Court respectively to punish for contempt of themselves. Contempt of Court Act 1971 is
legislation specifically dealing with the issues related to Contempt.

A Brief Historical Background of Contempt of Court

The concept of contempt of court is not a recent phenomenon but has its deep roots in History.
In History, we witnessed many laws similar to this. There are instances where people were
punished when their act was in contradiction with the administration of Justice. Generally, the
Kings had this power or those who presided over the issue.

The current Indian concept of Contempt of Court has been taken from the Pre-independence
era. The Contempt of Court Act 1926 was the first legislation in India dealing specifically with
Contempt issues. Section 2 of the Act specifies the powers of High Courts to punish Contempt
of Court. According to it, "The High Court shall have and exercise the same jurisdiction,
powers, and authority, in accordance with the same procedure and practice, in respect of
contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that the High Court shall not take cognizance of a contempt alleged to have been
committed in respect of a Court subordinate to it where such contempt is an offence punishable
under the Penal Code." Later after independence, the act was repealed and new legislation
came into existence i.e. Contempt of Courts Act 1952. In 1960, a bill was introduced in
Parliament to alter the existing law on Contempt. The government was of an opinion to recheck
the existing law, which subsequently led to a formation of a Committee (Sanyal Committee) to
examine the current law and the proposed bill. The committee submitted its report in 1963 and
thereafter a lot of discussions took place with many intellectuals and stakeholders. The bill was
then sent to the Joint Select Committee which was of the opinion to alter the provision related
to limiting a period for going for contempt proceedings. The bill finally became an act in the
year 1971 and repealed the previous one.

Classification of Contempt of Court

Contempt of Court Act 1971, classifies contempt into two different heads i.e. Civil
Contempt and Criminal Contempt.

Civil Contempt

Section 2(b) of Contempt of Court Act 1971 defines Civil Contempt. According to it, "Civil
contempt means wilful disobedience to any judgment, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given to a court." The level of seriousness
is quite less in comparison to criminal contempt. Mens rea forms an important component in
Civil Contempt. The plain reading of the definition suggests that civil contempt is a wrong
committed against those who were supposed to get benefit from proceedings. Willful
disobedience of a Court‘s order is considered Civil Contempt of a Court. 2 Supreme Court
in Ashok Paper Kamgar Union and Ors. v. Dharam Godha And Ors3 defined the word "wilful",
according to it, "‘Wilful‘ means an act or omission which is done voluntarily and intentionally
and with the specific intent to do something the law forbids or with the specific intent to fail to
do something the law requires to be done, that is to say with bad purpose either to disobey or
to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive
or purpose." The court further said, "to constitute contempt the order of the Court must be of
such a nature which is capable of execution by the person charged in normal circumstances.
It should not require any extraordinary effort nor should be dependent, either wholly or in part,
upon any act or omission of a third party for its compliance."

There are some defenses available for Civil contempt of Court. The most commonly used is a
Lack of knowledge as the person is not aware of the orders then he/she cannot be made liable
for not complying with those orders. As mentioned earlier, Mens Rea forms an important part
of Section 2(b). If the act did was done unintentionally then it too forms a good defense.
Similarly some other defenses too i.e. the order was vague, the order was impossible to be
performed by ordinary circumstances, etc.

Criminal Contempt

Section 2(c) of Contempt of Court Act 1971 describes Criminal Contempt. According to it,
"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; or (iii) interferes or tends to interfere with, or obstructs or tends to
obstruct, the administration of justice in any other manner;" To constitute an act as a Criminal
Contempt four essentials must be fulfilled i.e. Publication of any matter, Lowering or
Undermining the authority of a Court, interfering with the normal Judicial proceedings, and
interfering with the administration of Justice. Preventing Preceding Officers of the Court,
Litigating parties, Policemen, or anyone associated with proceedings of a Court from
approaching court amounts to Criminal Contempt as it is a clear interference in the
administration of Justice.4 The law of contempt is based on sound public policy by punishing
any conduct which shakes the public confidence in the administration of justice.5

Criminal Contempts are generally severe in comparison to civil contempt. There are very few
instances in which a mere apology was accepted and the punishment was set aside.

Contempt of Court and Constitution

Higher Courts also derive their power of contempt through Constitutional Provisions. Articles
129 and 142(b) of the Indian Constitution provide power related to contempt to the Apex Court.
Article 129 makes the ‘Apex Court‘ a ‘Court of Record‘ and empowers it to give punishment
for contempt of itself whereas Article 142(b) empowers the Supreme Court to punish anyone
for contempt, subject to any other law. Under Article 129 of the Constitution, this Court had
the power to punish for contempt of itself and under Article 143(2) it could investigate any
such contempt.6 It is important to note that the initial draft of Article 129 (Draft Article 108)
did not have provisions related to Contempt. It was Dr. Ambedkar who argued for it.7

Article 215 provides constitutional powers related to contempt to all the High Courts of India.
The article states, "High Courts to be courts of record Every High Court shall be a court of
record and shall have all the powers of such a court including the power to punish for contempt
of itself." Supreme Court in T. Sudhakar Prasad vs Govt. Of A.P. & Ors8 observed that "The
jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or
whittled down by any legislative enactment subordinate to the Constitution. The provisions of
the Contempt of Courts Act, 1971 are in addition to and not in derogation of Articles 129 and
215 of the Constitution. The provisions of Contempt of Courts Act, 1971 cannot be used for
limiting or regulating the exercise of jurisdiction contemplated by the said two Articles."

It can be easily concluded that the constitutional provisions related to contempt of court are
inherent and cannot be weakened by any other legislative act.

Contempt v. Freedom of Speech and Expression

The concept of contempt of court and freedom of speech and expression again came into the
picture last year when a Sr. Supreme Court Adv. Prashant Bhushan was charged with contempt.
In every democratic setup Freedom to express opinions and views forms a very integral part of
society. In India, Article 19(1)(a) of the Constitution provides, "All citizens have the right to
freedom of speech and Expression." However, it is important to note that this right is not
absolute. There are some legitimate limitations that the constitution itself provides in Article
19(2).

It is important to note that not every criticism of the court amounts to Contempt of Court.
Certain essentials need to be fulfilled. Conclusively, both the concept are not contradictory to
one another rather they together with act as a great tool to ensure Justice. Provided that the
provisions are not misused.

Concept of Contempt of Court in other Jurisdictions

Contempt of Court Act 1981, is the sole legislation dealing with Contempt cases in the United
Kingdom. It deals with both contempts i.e. Civil and Criminal. The maximum imprisonment
provided under the said Act is two years. In the year 2013, on the recommendation of the Law
Commission, the offense of ‘Scandalising of court‘ as a ground of Criminal Contempt was
abolished.

In the USA, the United States Code is primary legislation dealing with the Contempt. The code
also empowers the Courts to punish accordingly.

Conclusion
In every civil society, access to Justice forms an important part. Courts are primarily
responsible for administering Justice in a State. Interrupting Court‘s Proceedings or trying to
degrade its value not only affects the Court‘s reputation but also has a deep impact on access
to justice.

The concept of Contempt of Court plays a very important role in the proper mechanism of
Court. However, the provisions of contempt mustn‘t be misused. If misused it will act like an
illegitimate restriction on Various Fundamental Rights i.e. Freedom of Speech and Expression.

CASE LAW DELHI JUDICIAL SERVICE ASSN v STATE OF GUJARAT:

The power to punish for contempt is vested within the judges not for his or her personal
protection only, except for the protection of public justice, whose interest requires that
politeness and dignity are preserved in courts of justice. Those who need to discharge duty
during a Court of Justice are sheltered by the law, and shielded within the discharge of their
duties; any deliberate interference with the discharge of such duties either in court or outside
the court by attacking the presiding officers of the court would amount to contempt of court
and therefore the courts must take serious cognizance of such conduct.

The language engaged in Article 129 indicated that Supreme Court may be a Court of Record
and was entitled not only to punish for its contempt but to try to all which is within powers of
a Court of Record.

Introduction

This is a criminal, the disgraceful and repugnant example of Police notoriety happened before
September 25th, 1989. It’s unbelievable today, but Gujarat Police had cruelly trodden and
handcuffed an incumbent Magistrate, for creating consistent complaints against the ill-conduct
of the police officials. This issue had then caused an enormous national uproar forcing the
Supreme Court to intervene during this matter. Several Bar Associations had passed
Resolutions and went on strike.

The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar
Pradesh, Judicial Service of Gujarat, and lots of others had approached the Supreme Court
using telegrams also as petitions under Indian Constitution’s Article 32 to save lots of the
dignity and honor of the judiciary. Finally, the Supreme Court had taken cognizance of this
matter on the 29th of September, 1989, just four days after the incident. It issued a notice to
the Gujarat state as well as the concerned police officials.

Background of the Case

Inspector S.R Sharma having 25 years of experience in service posted at the Nadiad police
headquarters. In October 1988, N.L Patel was posted because of the Chief Judicial Magistrate
of Nadiad. The CJM very soon realized that the local police had not been cooperating with him
in producing service of summons, warrants, and notices on accused persons. This non-
cooperation was resulting in adjournment within the trial of cases. He complained against the
local police’s conduct to the superior cops, including D.G.P, but nothing substantial happened.

In April 1989 CJM Patel filed two complaints with the police against Sharma and other cops
from Nadiad for adjourning specific court-related processes. On 25 July 1989 Patel directed
the police to register a criminal case against 14 persons who had choked judicial proceedings.
Subsequently, the CJM directed the Police Inspector to leave the cases against those persons.
Sharma reacted strongly to CJM Patel’s direction. He moves toward the District Superintendent
of Police and filed a complaint against the CJM to the Administrator of the Supreme Court.

Facts

Inspector S.R Sharma was posted at the Nadiad (Kheda), Gujarat police headquarters.

In October 1988, N.L Patel was posted because the Chief Judicial Magistrate of Nadiad and he
realized that the local police had not been cooperating with him in producing service of
summons, warrants, and notices on accused persons. This non-cooperation was leading to
adjournment within the trial of cases.

He complained against the local police’s conduct to the superior cops, including D.G.P, but
nothing substantial happened. In April 1989 CJM Patel filed two complaints with the police
against Sharma and other cops from Nadiad for adjourning specific court-related processes.

On 25 July 1989 Patel directed the police to register a criminal case against 14 persons who
had choked judicial proceedings. Subsequently, the CJM directed the Police Inspector to go
away the cases against those persons.

Sharma reacted strongly to CJM Patel’s direction and moved towards the District
Superintendent of Police and filed a complaint against the CJM to the Administrator of the
Supreme Court. He moved towards the District Superintendent of Police and filed a complaint
against the CJM to the Administrator of the Supreme Court.

On the 25th of September 1989, Inspector Sharma met the CJM Patel in his chamber to debate
the case involving Jitu Sport as Police had not submitted a charge-sheet within the 90 days.
Inspector Sharma invited the CJM to go to the police headquarters to ascertain the papers and
said that his visit would calm the emotions of the police officials.

At 8.35 PM Sharma sent a police Jeep at Patel’s residence and Patel visited the police
headquarters. As the CJM arrived in Sharma’s chamber within the police headquarters, he was
forced to consume liquor which he tried to resist.

On the resistance, the CJM Patel was assaulted, handcuffed, and tied with a rope by Inspector
Sharma and other police personnel.
To establish the facts, the Supreme Court appointed Justice R. He submitted a 140-page
detailed report back to the Court that was again contended by these police officials, but the
Supreme Court didn’t find any merit in their objections.

Finally, this report and its findings were accepted by the Supreme Court as authentic, and
therefore the case against these police officials proceeded.

The Supreme Court also found that the District Superintendent of Police had been hand in glove
with Inspector Sharma by giving him a blank check and not taking any action against him on
the complaints of CJM.

The Supreme Court convicted Inspector S. R Sharma and sent him to simple imprisonment for
6 months alongside the DSP. In the end, the Supreme Court noted that it doesn’t approve the
CJM’s conduct in visiting the police headquarters on the invitation of Inspector Sharma.

The Supreme Court during this case also issued strict guidelines to be followed by the Police
for detaining and arresting a judicial officer

Issues

Why the judicial officers, judges, and magistrates everywhere in the country were insecure?

Several Bar Associations passed resolutions and went on strike. The Delhi Judicial Service
Association, the All India Judges Association, Bar Council of UP, Judicial Service of Gujarat,
etc. approached the Supreme Court through telegrams and petitions under Article 32 of the
constitution of India for saving the dignity and honor of the judiciary.

Related Provisions

Article 129 thereof recognizes the prevailing inherent power of a Court of Record in its full
plenitude including the power to punish for its contempt and contempt of its subordinate.

Contempt of Courts Act, 1971-Sections 2(c), 12 and 15

Criminal contempt:-Object of punishing contempt-To protect Administration of public justice-

Not to guard Judges personally.

Contempt of Court–Punishment of Power and Jurisdiction of the Supreme Court-Court has

inherent power and jurisdiction to need action for contempt of subordinate or inferior courts
also-Power to be exercised sparingly-only when contempt is perhaps getting to possess
repercussions throughout the country.

Contempt of Court–High Courts as Courts of Record have inherent power and jurisdiction to
need action for contempt of subordinate or inferior courts–Supreme Court having Judicial
superintendence over all courts within the country has the same jurisdiction.
Contempt of Court–Civil and criminal contempt—Criminal contempt–Wide enough to include
any act which could tend to interfere with the administration of justice or which could lower
the dignity and authority of the court.

Related Cases

E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, AIR 1970 SC 2015:- It was held
as the court observed contempt of court has various kinds – an insult to Judges; attacks upon
them; discuss pending proceedings with a fixed to prejudice fair trial; obstruction to officers of
Courts, witnesses or the parties; scandalizing the Judges or the courts; conduct of an individual
which tends to bring the power and administration of the law into contempt or disregard.
Disgraceful acts bring the court into disgrace or disrespect to offend its dignity, affront its
majesty or test its authority.

During this case, such conduct is committed in respect of the entire of the judiciary or judicial
system; The court rejected the argument that especially circumstances conduct of the alleged
contempt could also be protected by Article 19 (1) (a) of the Constitution i.e. the right to
freedom of speech and expression, observing that the words of the second clause, of an
equivalent provision, bring any existing law into operation, thus provisions of the Act 1971
would inherit play and every case is to be examined on its facts and therefore the decision must
be reached within the context of what was done or said.

he Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union & Ors., AIR 1970 SC
1767:– It is settled principles of law that it’s the seriousness of the irresponsible acts of the
contempt and degree of harm caused to the administration of justice, which might decisively
determine whether the matter should be tried as a contempt of court or not.

Vishram Singh Raghubanshi v. State of UP:- J Dr. B.S. Chauhan and J Swatanter Kumar of
the Supreme Court of India, have discussed the law concerning the contempt of court vis-a-vis
misbehavior / violent behavior against judicial officers. The judgment also discusses the
circumstances during which an apology is often accepted by the court for such
offenses/misdemeanors.

Judgement

The Court had issued notices for contempt to Police Inspector Sharma and other contemnors.
Mere issue of notice or pendency of contempt proceedings doesn’t attract Art. Contempt of
court is punishable by the superior courts by fine or imprisonment, but it has many
characteristics different from ordinary offenses.

Under English Law, a criminal offense is tried by criminal courts with the help of a Jury but
contempt of court is tried by courts summarily without the help and assistance of Jury. A
summary sort of trial is held within the case of contempt of court and also within the case of
contempt of court where the act is committed within the actual view of the court or by a
politician of justice. The summary procedure is applicable by old usage when contempt of court
was committed out of court by an outsider.

This Court’s Jurisdiction under Article 129 is confined to the contempt of itself only and it’s
no jurisdiction to indict an individual for contempt of a lower court subordinate to the Supreme
Court. The Parliament in the exercise of its legislative influence under Entry 77 of List 1 read
with Entry 14 of List III has endorsed the Contempt of Courts Act 1971 which don’t confer
any jurisdiction on this Court for compelling action for contempt of subordinate courts. Instead,
the first jurisdiction of High Courts in respect of contempt of subordinate courts is specifically
preserved by Sections 11 and 15 of the Act.

Conclusion

The power to punish for contempt vested during a Court of Record under Article 215 doesn’t,
however, reach punishing for contempt of a court. Such impact has never been acknowledged
as an aspect of a Court of record nor has the same been specifically conferred upon High Courts
under Article 215. Availability of power under Article 129 and its plenitude is yet one more
reason why Article 215 could never is intended to empower High Courts to punish for contempt
of the Supreme Court. The logic is straight forward. If Supreme Court doesn’t, despite the
availability of power vested in it, invoke an equivalent to punish for its contempt, there’s no
doubt of a Court subordinate to Supreme Court doing so. The order given by the Supreme Court
was without jurisdiction, hence, set aside.

The power to punish for contempt is vested within the judges not for his or her personal
protection only, except for the protection of public justice, whose interest requires that courtesy
and dignity is preserved in courts of justice. Those who need to discharge duty throughout a
Court of Justice are protected by the law and safeguarded within the discharge of their duties.
Any deliberate interference with the discharge of such duties either in court or outside the court
by attacking the presiding officers of the court would amount to contempt of court and therefore
the courts must take serious cognizance of such conduct

_________________________________________________________________________-

CASE LAW RE VINAY CHANDRA MISHRA CASE:

In this case an advocate was found guilty of criminal contempt of Court and he was sentenced
to undergo simple imprisonment for a period of six years and suspended from practising as an
advocate for a period of three years. The punishment of imprisonment was suspended for a
period of four years and was to be activated in case of his conviction for any other offence of
contempt of Court within the said period.

The Court held that the license of an advocate to practice legal profession may be suspended
or cancelled by the Supreme Court or High Court in the exercise of the contempt jurisdiction.
It was laid down that the Supreme Court can take cognizance of the contempt of High Court.
Being the Court of record the Supreme Court has the power to punish for the contempt of the
courts subordinate to it. Thus, the Supreme Court is fully competent to take cognizance of the
contempt of the High Courts or courts subordinate to it. It was also claimed that the Judge
before whom the contempt has been committed should be excluded. This claim was not
sustainable in the view of the Court. It observed further that its contempt jurisdiction under
Article 129 of the Constitution cannot be restricted or taken away by a statute, be it the
Advocates Act, 1961 or the Contempt of Courts Act, 1971. The Court has also observed that
the contempt jurisdiction of the superior Court's is not based on the statutory provisions but it
is inherent jurisdiction available to them on account of being a court of record. As regards the
procedure to be followed the Court has observed that the Courts of record can deal with
summarily with all types of contempt. With regards to Article 142 of the Constitution the Court
observed that the jurisdiction and powers of the Supreme Court which are supplementary in
nature and are provided to do complete justice in any manner, are independent of the
jurisdiction and powers of the Supreme Court under Article 129 which cannot be trammeled in
any manner by any statutory provision including any provisions of the Advocates Act, 1961 or
the Contempt of Courts Act, 1971.

The Advocates Act, 1961 has nothing to do with the contempt jurisdiction of the Court, and
the Contempt of Courts Act, 1971 being a statute cannot denude the, restrict or limit the powers
of this Court to take action for contempt under Article 129.

The Supreme Court also held that it being appellate authority under Section 38 of the Advocates
Act, 1961 can impose punishment mentioned in Section 35 of the said Act. Thus, the Supreme
Court may suspend or cancel the license of an advocate to practice his profession for contempt
of Court.
It finally said that the threat of immediate punishment is the most effective deterrent against
the misconduct. They emphasized that the time factor was crucial and dragging the contempt
proceedings means a lengthy interruption to the main proceedings which paralyzed the Court
for a long time.
This case was overruled by Supreme Court Bar Association v. Union of India and Another.
SECTION D:
1.EX CAPT HARISH UPPAL CASE:

FACTS OF THE CASE

The petitioner (Harish Uppal) was a retired army officer. He was posted in Bangladesh during
the 1971 Liberation war. In 1972, he was court-martialed and then arrested due to allegations
of embezzlement and certain other irregularities. He was sentenced to two years of
imprisonment and was dismissed from his post. He filed a review application in Court, but to
no avail. He then filed a post-affirmation application again for which there was no reply. He
finally received a reply after 11 years. Till then, the time period of the review had expired. It
was later discovered that the documents and all the review applications had got misplaced due
to a strike by a group of advocates as a result of which there was a delay. In response to this,
he filed a writ petition in the Supreme Court to declare that the strikes by law advocates are
unlawful.

ISSUES

• Whether advocates in India have the right to strike or boycott the Court?

CONTENTIONS MADE BY THE PETITIONER

The petitioner submitted that advocates are officers of the Court and should not be allowed to
use strikes as a means to blackmail or extort the Courts. He further contended that advocates
who commit contempt of Court by boycotting the Courts and going on strikes should be made
to face serious consequences like getting debarred from practicing in any Court. It was
submitted that those committees who give a call for strikes, should be punished with contempt
proceedings. Lastly, he argued that if an advocate has accepted a Vakalat on behalf of a client,
he must appear in Court. Strikes done by advocates are usually to break the agreement between
their clients and not appear in Court. So the Bar Council must frame strict rules regarding this.

CONTENTIONS MADE BY THE RESPONDENT

The learned Counsel appearing for the respondents submitted that the advocates have the right
to go on strikes, and it is up to the Bar Councils to decide whether a strike by advocates should
be done or not.

JUDGMENT BY THE COURT

The Court remarked that advocates have no right to call for strike or boycott any Court under
their jurisdiction. Protests if any should be made done in the form of publications, TV
statements, Holding banners, etc., and should be made outside the Court premises. They should
refuse any call for a strike or a boycott of the Court that comes their way. No association or
Council can authorize a call for a strike or boycott. Regarding the advocate’s right to appear,
the Court observed that those advocates who have accepted a Vakalat must appear in Court
irrespective of a call for strike or boycott. The Court concluded by observing that only in the
“rarest of rare cases” involving the dignity and integrity of the Indian Judiciary, can advocates
protest. But such a protest should not exceed one day.

ANALYSIS OF THE JUDGMENT

The Court while examining the facts and circumstances of the case, referred to certain
provisions of the Advocates Act 1961. Section 38 of the Act states that the Supreme Court is
the final appellate authority and if the disciplinary committee of the Bar Council fails to provide
any disciplinary action, the decision shall lie with the Supreme Court[7]. Hence if the Bar
Council does not take action against the non-appearance of an advocate in Court due to strike
or boycott, the Supreme Court will. The Court further referred to Article 145 of the Indian
Constitution[8], and Section 34 of the Advocates Act 1961, which talks about the powers of the
Supreme Court and High Courts respectively[9], to make rules relating to the advocates’ right
to practice. The Court opined that using this privilege, the Courts should now make rules
regarding misconduct and contempt of court done by the advocates. Such advocates must not
be allowed to appear before any Courts.

CONCLUSION

Hence the Supreme Court declared that advocates’ right to strike is illicit. This was indeed due
for a long time. Advocates usually tend to go on strikes due to some personal grievances which
are not addressed by the Judiciary. Hence as per my opinion, it is the duty of the Courts to first
hear the problems of advocates, and then move on with the Court proceedings. This will help
in maintaining a balance between advocates and the judicial system, and further avoid any
disruption due to strikes or protests.

______________________________________________________________________

2.P.D. GUPTA v RAM MURTHI

The case arises from another dispute in court wherein one Srikrishan Das died leaving behind his
property which was claimed by Adv. PD Gupta’s client Vidyawati on pretext of being the
deceased’s sister, the complainant Ram Murti and two others through Wills. The properties in
dispute of this case were bought through registered sale deed by the Advocate, the appellant, and
his son-in-law from Vidyawati, his client and then sold the property at a much higher price through
registered sale deed.

The claimant in the property dispute Ram Murti filed complaint against Adv, Gupta for misconduct
at Delhi, the advocates place of practice. The Advocate filed an appeal to the order of the
Disciplinary Committee (DC) of Bar Council of India holding him guilty of misconduct and
sentencing him to suspension of one year under Section 35 of the Act. The Bare Council of Delhi’s
DC was unable to dispose of the complaint within a year of it being filed under Section 38 of the
Act.
ISSUES

• Whether the act of buying the property in dispute of the client, misconduct on the part of
the Advocate?
• Whether the sentence of one year of suspension disproportionate to his guilt?

LEGAL PROVISIONS APPLIED

• Section 35, Advocate Act, 1961: Punishment of advocates for misconduct,

• Section 36B, Advocate Act, 1961: Disposal of disciplinary proceedings
• Section 38, Advocate Act, 1961: Appeal to the Supreme Court
• Section 276, Indian Succession Act, 1925: Petition to Probate

FACTS AND ANALYSIS

The case was initially transferred under Section 38 of the Advocates Act, 1961 from DC of Bare
Council of Delhi to that of BCI because of the inability of the former to dispose it of within one
year of the complaint being filed as per Section 36B. The Advocate was found liable of professional
misconduct under Section 35 of the Act and the Appeal preferred before Supreme Court.

The Advocate PD Gupta bought property from his client which was in dispute in an ongoing case
under Section 276 of the Indian Succession Act and in which he was representing his client. Thus,
the first point of misconduct is the fact that the Advocate bought property from a woman whose
right over the property was still in dispute and moreover, the properties where the subject matter of
the dispute. The Advocate bought one property in his name and other was bought by his son in law,
which incidentally was the property for which his father was a tenant. The Advocate did not bring
the sales on record in the suit for disputed properties. However, VidyaWati’s request for
construction on property was sanctioned by the Municipality even thought she was yet to be granted
declaration of title. Further, the Appellant and his son-in-law payed the consideration quite flexibly
through the year on the sale deed which made no mention civil suits on the property sold.

The Advocate filed an affidavit of Mr. Bansal, who was the father of the heir to VidyaWati’s
property, also her General Attorney wherein he stated that the sales were made to the Appellant
and his son-in-law without any pressure and through free will. The Appellant contended that the
complainant himself had no title and was motivated against him. Further, he contended that the
property bought by him were sold and has no concern with those property. The Advocate had also
contended that no clear charges were made in the original proceedings and an interested parties’
complainant can deter the lawyers to act freely for their clients.

The court took into observation the fact that the Advocate knew Vidya Wati even when Srikrishan
Dass was alive and further the contradicting statements of VidyaWati on her relationship with Dass
as being is sister and half sister have an inference to question her very existence and thus cast doubt
on Appellant who is her family lawyer. The point that the Appellant was aware of the property
being in dispute and even purchased it at a below par value. Further, the flexibility for payments
shows that the client and the Advocate knew each other very well. These facts lead to the decision
of BCI.

The BCI made observed that Advocates can exert pressure on their clients and have started to make
bargains on success or contracting with their clients. These activities are not barred but buying a
doubtful and disputed property after being aware of the law himself is quite out of the ordinary.
Thus, the decision to hold the Appellant liable for misconduct and subsequent suspension.

The Supreme Court observed that the contention of the Appellant had no basis. The contention of
charges not being clear and not being in possession of the property are not valid. The charges are
simple and the fact that he does not own the property does not alleviate the misconduct of buying
the disputed property in the first place. The Court stated “A lawyer owes duty to be fair not only to
his client but to the court as well as to the opposite party in the conduct of the case. Administration
of Justice is stream which has to be kept pure and clean. It has to be kept unpolluted. Administration
of Justice is not something which concern the Bench only. It concerns the Bar as well. Bar is the
principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of
a lawyer.[1]”

The act of buying the disputed property in the present case raises serious questions on his
professional conduct and bought disrepute to the administration of justice. Thus, the decision of the
BCI was accepted and reiterated.

REFERENCE OF OTHER RELEVANT PRECEDENT

• The Supreme Court in Noratanmal Chaurasia v. M.R. Murli [2], held that “misconduct is
not defined under the Advocates Act, 1966 but misconduct envisages breach of discipline,
although it would not be possible to lay down exhaustively as to what would constitute
misconduct and indiscipline which, however, is wide enough to include wrongful omission
or commission, whether done or omitted to be done intentionally or unintentionally”[3].
• The DC while adjudicating on Prof. Krishanraj v. Vishwanth D. Mukashikar[4], the fact
that the Advocate in disgrace had made delay in filing the suit and even the interim
application causing consequent loss to the client, held him guilty of misconduct.
• A landmark case in matters of advocate misconduct is the Suo Moto Enquiry v. Nand Lal
Balwani [5], wherein the Respondent Advocate hurled shoes and shouted slogans in the
Supreme Court of India, which lead to both contempt and misconduct proceedings against
him. The Supreme Court found him to be guilty of contempt and the BCI found him guilty
of misconduct and removed him from the roll.
• Sambhu Ram Yadav v. Hanuman Das Khatry [6], an Advocate of BCI of Rajasthan who
was appearing in a suit before a particular judge, stated that the judge asked for bribe and
attempted to influence the judge to give a favourable order. The DC declared him “unfit to
be a lawyer”. The SC observed that the legal profession is not a trade or business. The
advocates have a duty to sustain the integrity of the profession and to discourage corruption
in pursuance that justice is secured.
• Smt. Sudesh Rani v. Munish Chandra Goel [7], the respondent advocate filed suits for the
eviction of the tenants by suppressing the fact that an earlier compromise decree was passed
 wherein the tenants were declared as owners of the said property. The respondent advocate
suppressed the material facts since his wife and he were involved in the compromise of the
suits. The advocate was found guilty of misconduct and suspended for two years.

CONCLUSION

The case in analysis relates to at its core the duty of the advocate to not indulge in subject matters
of dispute for personal gain. A lawyer is a man with great knowledge of the law and should
understand which acts of his could be detrimental and increase complexity of the suits and disputes
at hand.

Thus, it is pertinent that a lawyer should always keep in mind the guidelines of the BCI and also
act in an honourable manner while carrying out his profession. The profession obliges the advocate
to uphold rule of law and support smooth functioning of public justice system. It is integral to have
integrity in abundance and nothing should be done that could erode his credibility.

In all professional roles, an advocate should be meticulous and should be in line with the
requirements of the law. Any violation of the principles of professional ethics is as unfortunate but
more importantly unacceptable.

__________________________________________________________________________

3.SHAMBHU RAM YADAV v HANUMAN DAS KHATRY

Fact :

This case under Advocate Act, 1961 is concerned with professional misconduct of an
advocate. In this case, a complaint was filed by the appellant against the respondents-Advocate
before the Bar council of Rajasthan, which was referred to the Disciplinary Committee by the
State Bar Council. The complaint against advocate was that he had written a letter to his client
Mahant Rajagiri stating that his another client had informed him that the concerned judge
accepts bribe to give favorable orders, and so he should send an amount of Rs. 10,000 /- to get
decision in his fever, and in case he can influence the judge himself, there is no need to send
Rs. 10,000 /- to be given to the judge. The content of the letter was admitted by the respondent
Advocate. However, in reply to the complaint letter, he pleaded that the services of the
presiding judge were terminated due to taking illegal gratification, and that he had followed by
norms of professional ethics and brought this fact to the knowledge of the client to protect the
interest of his client, and that the money was not sent by the client to him. Under such
circumstances, he had not committed in professional misconduct . The State Bar Council came
to the conclusion that the respondent Advocate was guilty of professional misconduct and
suspended him from practice for a period of 2 years.

The respondent advocate challenged this decision before the Bar Council of
 India. The disciplinary committee of Bar Council of India enhanced the punishment and
directed that the name of respondent be struck off from the roll of Advocate and thus he be
debarred permanently from the practice of advocacy. The respondent Advocate filed a review
petition before it against this decision under Section 44 of the Advocate Act, 1961. The Bar
Council of India accepted the review petition and held that the Advocate is a man of 80 years
old and is continuing practice since 1951. During such a long period of practice, he has never
committed any professional ethics with any ill motive. This is his first mistake. So, the review-
petition was allowed and the earlier order was modified by substituting the punishment of
permanently debarring him from practice with that of remanding him.

On appeal, the Supreme Court held that the earlier order of Bar Council of India
had taken into consideration all the relevant factors for arriving at the conclusion that the
Advocate was totally unfit to be a lawyer having the written such a letter and so the punishment
lesser then permanently debarring him cannot be imposed on guilty respondent. The Court
further the held that the power of review does not have empower the Disciplinary Committee
for taking a different view on 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 respondent, which has been modified in exercise of review power. It is the duty
of Bar Council 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 of the Bar Council of India and restored its
original order.

4.HARISH CHANDRA TIWARI v BAIJU

Brief Essence
In this case the Hon’ble Supreme Court of India addressed the issue of professional misconduct
of the Advocates and set out certain parameters on which the Bar Council can weigh upon
while deciding the quantum of punishment. The Court also opined that embezzlement of
client’s money by an advocate is regarded as the severest and there is no justification in
reducing the quantum of punishment as it is a clear breach of trust of the client and thereby
maligning the reputation of the noble profession of advocacy.
Parties
1. The Appellant, Harish Chandra Tiwari is a practicing Advocate and is enrolled with the Bar
Council of UP since May 1982 and has been practicing in the courts at Lakhimpur Kheri
District in U.P.
2. The Respondent, Baiju is the client of Adv. Harish Chandra Tiwari and has engaged Mr. Harish
in a land acquisition case in which the Respondent was the Claimant for compensation.
Facts
1. In this case Mr. Baiju hired Mr. Harish Chandra Tiwari for a land acquisition case who was an
enrolled as an Advocate with the Bar Council of UP since 1982 and has been practicing in the
District Courts of UP mainly in Lakimpur Keri District.
2. Mr. Baiju was the claimant for the compensation in the case for which after he won, the State
deposited a compensation of Rs. 8118/- in the Court. Mr. Baiju was an old, helpless, and poor
illiterate person.
3. Mr. Harish Chandra Tiwari on behalf of his client withdrew the said amount from the Court on
02.09.1987 and did not informed and did not retuned that amount to his client Mr. Baiju to
whom the amount was payable.
4. Mr. Baiju after a long time came to know about this and after failing to recover the amount
from his lawyer, he filed a complaint with the Bar Council of UP to look into this matter and
take suitable disciplinary action against the Appellant.
5. On 12.07.1988, the Appellant admitted that he was engaged as the counsel for the Respondent
in a land acquisition case and he withdrew the amount from the Court, but he returned it to the
Respondent after deducting the appropriate legal fees and expenses.
6. On 03.08.1988, the appellant filed an affidavit on behalf of the respondent without his
knowledge before the Bar Council of UP in which it was clearly stated that a compromise has
been entered between the Appellant and the Respondent and there is no need take any further
action on the complaint filed by the Respondent. Not being convinced, the State Bar Council
summoned the Respondent for the verification of the said Affidavit, where the Respondent
denied the contents of the affidavit and told that there was no such compromise between the
Appellant and the Respondent and disclaimed that he received any compensation amount.
7. After the said incident, the case was transferred to the Bar Council of India under Section 36B
(2) of the Advocates Act 1961 to start the disciplinary proceedings against the Appellant.
8. The Disciplinary Committee after having viewed the contents of the case concluded that
affidavit filed by the Appellant was a forged one and was fabricated. Therefore, the conduct of
Mr. Harish Chandra Tiwari and his elusive imprecise testimony duly makes out that after taking
the cheque from the Land Acquisition Officer in his own name, Mr. Harish failed to make the
compensation to Mr. Baiju who is uneducated, poor person and his money has been
misappropriated by the delinquent Advocate.
9. The Appellant was not able to prove that he has paid the amount to the Respondent and the
factual position remains against him. The Appellant withdrew the amount and failed to deliver
it to his client for more than 11 years and therefore is guilty of professional misconduct and
has smeared the reputation of the entire moral vocation and has committed a breach of trust.
10. After the decision of the Disciplinary Committee which held Mr. Harish guilty of breach of
trust for misappropriating the assets of the client and imposed a punishment of suspending him
from practice for a period of 3 years. Aggrieved by the decision of the Disciplinary Committee,
the Appellant hereby preferred appeal to the Supreme Court of India under Section 38 of the
Advocates Act 1961.
Issues
1. Whether the punishment shall be enhanced to the removal of the name of the Advocate from
the Roll of the Bar Council of UP or not?
2. What all factors needs to be determined while awarding a punishment by the Disciplinary
Committee on proved misconduct?
3. Does Supreme Court have the power to vary or alter the punishment awarded by the
Disciplinary Committee of the Bar Council of India?
Applicable Laws
1. Section 38 of the Advocates Act 1961– Appeal to the Supreme Court.
2. Section 36B (2) of the Advocates Act 1961– Disposal of Disciplinary Proceedings.
3. Section 35 of the Advocates Act 1961– Punishment of Advocates for Misconduct.
Arguments advanced by the Parties
• The Appellant contended that he is not liable to be punished at all and on the other hand pleaded
that he has returned the money to his client.
• The Appellant also contended that he withdrew the amount out of the court in order to return
it to the client after deducting his legal fees and expenses and also filed an affidavit stating that
there has been a compromise between him and his client.
• The Appellant also cited two citations in his favor in which the punishment awarded has not
been escalated to the removal of the Advocate from the Roll itself. The Appellant cited Prahlad
Saran Gupta vs Bar Council of India and Another, where the crook advocate retained a sun
of Rs 1500 without sufficient justification for a period of 4 years and then submitted the said
amount in the court without dispersing the amount to his client. Therefore, it was held that this
act of the Advocate was not in harmoniousness with the professional standards and the court
imposed a punishment of reprimanding the advocate concerned[1].
• Another case cited by the Appellant is BR Mahalkari vs YB Zurange, in which the advocate
retained the sum of Rs 1176/- which was returned by him to the client before the proceedings
by disciplinary committee were initiated. Therefore, the committee found the advocate guilty
of professional misconduct and disbarred him from practicing for a period of 3 years. [2]

Decision/Ratio Decidendi
In the following case the Supreme Court opined that the cases cited by the Appellant are of no
help as the facts of the case in different are totally different and speak for themselves.
Therefore, Supreme Court held that the misconduct of the Appellant is of a far pointrel breadth.
The Supreme Court imposed the punishment of removal of the name of the Appellant from the
roll of the Advocates and was held debarred from practicing in any court of law or before any
authority or person in India.
The Supreme Court said that the cases cited by the Appellant will not help in extenuating the
quantum of punishment.

_________________________________________________________________________-
5.BAR COUNCIL OF ANDHRA PRADESH v KURUPATI SATYANARAYAN:

FACTS OF THE CASE

1. The Bar Council of Andhra Pradesh has filed this appeal against the order of
the Disciplinary Committee of the Bar Council of India dated 28th March,
1999 by which the Bar Council of India has set aside the order passed by the
State Bar Council removing the name of the Kurapati Satyanarayana from the
roll of the State Bar Council as he was found guilty of grave professional
misconduct in discharge of his duties.
2. Initially, O.S. No 1624 of 1991 was filed by the Shri. Gutta Nagabhushanam
on the file of the Additional District Munsif Magistrate. The said suit was
decreed and the Execution Petition No. 112 of 1995 was instituted for
realization of the decretal amount. Mr. K. Satyanarayana was engaged as
counsel by Shri. G. Nagabhushanam in the execution proceedings[1].
3. K. Satyanarayana received a total sum of Rs. 14600/- on various dates in the
execution proceedings but he did not make the payment of same to Shri. G.
Nagabhushanam. Hence, on 18th October, 1996 Shri. G. Nagabhushanam filed
a complaint with the Additional District Munsif, who then transferred the
matter to the Bar Council of Andhra Pradesh.
4. The complaint filed and important documents were forwarded to the state
Bar Council and Mr. K. Satyanarayana chose not to file a counter. Hence the
matter went to its Disciplinary Committee which after examining the
witnesses produced came to the conclusion that Mr. K. Satyanarayana
received the total sum of Rs. 14600/- belonging to Shri. G. Nagabhushanam
and retained the same with him. Hence, the disciplinary committee of the
State Bar Council concluded that the advocate had retained the money
with him and was thus guilty of “professional misconduct.” He was
directed to return the money to the complainant[2].
5. K. Satyanarayana asserted that he had informed Shri. G. Nagabhushanam
through a post card about the receipt of the decretal amount and that on
24th April, 1996 he paid Rs. 11000/- to Shri. G. Nagabhushanam. However,
these were not accepted by the Disciplinary Committee as Mr. K.
Satyanarayana failed to produce any evidence proving the payment of the
sum of Rs. 11000/-[3].
6. K. Satyanarayana then filed an appeal before the Disciplinary
Committee of the Bar Council of India. The Disciplinary Committee of the
BCI agreed with the finding of fact recorded by the State Bar Council that Mr.
K. Satyanarayana failed to pay the amount of Rs. 14600/- received by him on
the behalf of Shri. G. Nagabhushanam in the execution proceedings but came
to the conclusion that Mr. K. Satyanarayana did not commit any professional
misconduct though there might have been some negligence on his part[4].
7. The Disciplinary Committee of BCI observed that the conduct of the appellant
shows that Mr. K. Satyanarayana never refused to return the money the same
and also he had made part payment of the total amount. Perusal of the file
shows that Mr. K. Satyanarayana could not make the payment of the
remaining amount because of his family circumstances as the remaining
amount was utilized by him in his treatment. The Committee concluded that
Mr. K. Satyanarayana never wanted to misappropriate the decretal amount
and hence, the BCI set aside the State Bar Council’s order holding that the
delinquent had not committed any professional misconduct though
there might have been some negligence on his part, which did not
involve any moral turpitude[5].
 8. The Bar Council of Andhra Pradesh has filed this appeal against the
aforesaid order of the Disciplinary Committee of the Bar Council of
India.
ISSUES INVOLVED
1. Whether or not retaining client’s money in this case amounts by an advocate
amounts to professional misconduct?
2. Whether or not in this case retaining client’s money is just negligence on the
part of K. Satyanarayana?
3. Whether or not K. Satyanarayana is guilty of professional misconduct?
DECISION BY THE SUPREME COURT
• The Supreme Court said that the pleading of the point raised by the
respondent that the appeal filed by the Bar Council of Andhra Pradesh
is not maintainable need not be dilated as seven Judge Constitution Bench
of this Court held in Bar Council of Maharashtra M. V. Dabholkar and
others[7], that the role of Bar Council is of dual capacity, one as the
prosecutor through its Executive Committee and the other quasi-judicial
performed through its Disciplinary Committee.
• The Supreme Court said that the finding of the BCI that there was no
intention on the part of the advocate to misappropriate the money of
his client was not only “unfounded and perverse” but also lacked the
serious thought which was required to be given to the disciplinary committee
of the BCI in the discharge of quasi-judicial functions while probing into such
grave instances.
• Further, it said that it was neither pleaded nor shown that Mr. K.
Satyanarayana was in dire financial difficulty which promoted him to
utilize the decretal amount for his treatment which was with him in
trust. This is an act of breach of trust. It said that “we are firmly of the view
that such types of excuses cannot be entertained being frivolous and
unsustainable”.
• Bench comprising Justice V. N. Khare and Justice Ashok Bhan said “adherence
to correct professional conduct in the discharge of one’s duties as an
advocate is the backbone of legal system. Any laxity while judging the
misconduct which is not bona fide and dishonest advocate would undermine
the confidence of the litigant public resulting in the collapse of legal
system[8].”
• The Supreme Court referred to the case of Harish Chandra Tiwari Baiju[9], in
which it was held that “Amongst the various types of misconduct envisaged
for a legal practitioner the misappropriation of the client’s money must be
regarded as one of the gravest.” It was observed that, “Among the different
types of misconduct envisaged for a legal practitioner
misappropriation of the client’s money must be regarded as one of the
gravest. In his professional capacity, the legal practitioner has to collect
money from the client towards expenses of the litigation or withdraw money
from the Court payable to the client or take money of the Client to be
deposited in Court. In all such cases, when the money of the client reaches his
hand it is a trust. If a public servant misappropriates money he is liable to be
punished under the present Prevention of Corruption Act, with
imprisonment which shall not be less than one year. He is certain to be
 dismissed from service. But if an advocate misappropriates money of the
client there is no justification in de-escalating the gravity of the
misdemeanor. Perhaps the gravity of such breach of trust would be mitigated
when the misappropriation remained only for temporary period. There may
be a justification to award a lesser punishment in a case where the delinquent
advocate the money before commencing the discplnnary proceedings.”
• Setting aside the BCI’s order, the Bench said that “the conduct of the
delinquent, who is an elderly gentleman, is reprehensible and is unbecoming
of an advocate. It deeply pains us that the delinquent who claimed to have
practised for three decades and has worked as Government advocate for four
years should have been guilty of such serious misconduct.”
• Hence, the Supreme Court has upheld an order of the Andhra Pradesh Bar
Council removing the name of a lawyer from its rolls after he was
found guilty of “grave professional misconduct” in the discharge of his
duties and also the appellant shall be entitled to the costs of this appeal,
which was assessed as Rs. 5000/-.

IN RE AJAY KUMAR PANDEY

In Re Ajay Kumar Pandey, A.I.R. 1998 S.C.3299 the Supreme Court has held that an advocate
using intemperate language and casting unwarranted aspersion (false report) on various judicial officers
is equality of gross contempt of court for not getting expected results. Court awarded punishment of
sentence to 4 months simple imprisonment and fine Rs.1000 /-

Supreme Court in this case warned that only because a lawyers appear as a party in Person,
he does not get a license to submit content of court , by intimidating the judges or scandalizing the
Court. An Advocate can use language either in pleading or during argument which is either intemperate
or unparliamentary and which has tendency to interfere in the administration of justice and undermine
the dignity of the Court.

---_________________________________________________________________________
SC BAR ASSOCIATION v UNION OF INDIA:

FACTS
In an earlier case the Supreme Court found Vinay Chandra Mishra, an Advocate, guilty of
committing criminal contempt of Court for having interfered with and obstructing the course
of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful
and threatening language. The Supreme Court invoked its power under article 129 read with
article 142 of the Constitution and awarded the contemner a suspended sentence of
imprisonment together with suspension of his practice as an advocate. The Court sentenced the
contemner Vinay Chandra Mishra for his conviction for the offence of the criminal contempt
as under:
(a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment
for a period of six weeks. However, in the circumstances of the case, the sentence will remain
suspended for a period of four years and may be activated in case the contemner is convicted
for any other offence of contempt of court within the said period; and
(b) The contemner shall stand suspended from practising as an advocate for a period of three
years from today with the consequence that all elective and nominated offices/posts at present
held by him in his capacity as an advocate, shall stand vacated by him forthwith.

Aggrieved by this direction suspending the contemner from practising as an Advocate for a
period of three years, the Supreme Court Bar Association, through its Honorary Secretary, has
filed a writ petition under article 32 of the Constitution of India, seeking:

(i) an appropriate writ, direction, or declaration, declaring that the disciplinary committees of
the Bar Councils set up under the Advocates Act, 1961, alone have exclusive jurisdiction to
inquire into and suspend or debar an advocate from practising law for professional or other
misconduct, arising out of punishment imposed for contempt of court or otherwise; and
(ii) declaration that the Supreme Court of India or any High Court in exercise of its inherent
jurisdiction has no original jurisdiction, power or authority in that regard.

ISSUE
Whether the punishment for established contempt of court committed by an Advocate can
include punishment to debar the concerned advocate from practice by suspending his licence
(Sanad) for a specified period by the Supreme Court in exercise of its powers under article 129
read with article 142 of the Constitution of India?
JUDGMENT
Section 12(1) of the Contempts of Courts Act, 1971, provides that in a case of established
contempt, the contemner may be punished: (a) with simple imprisonment by detention in a civil
prison; or (b) with fine, or (c) with both. A careful reading of sub-section (2) of section 12(2)
reveals that the Act places an embargo on the court not to impose a sentence in excess of the
sentence prescribed under sub-section (1). A close scrutiny of sub-section (3) of section 12
demonstrates that the legislature intended that in the case of civil contempt a sentence of fine
alone should be imposed except where the Court considers that the ends of justice make it
necessary to pass a sentence of imprisonment also.
In Smt. Pushpaben v. Narandas V. Badiani, AIR 1979 SC 1536: 1979 Cr LJ 960, it was held
that a close and careful

interpretation of the section 12(3) leaves no room for doubt that the Legislature intended that a
sentence of fine alone should be imposed in normal circumstances. The statute, however,
confers special power on the Court to pass a sentence of imprisonment if it thinks that ends of
justice so require. Thus, before a Court passes the extreme sentence of imprisonment, it must
give special reasons after a proper application of its mind that a sentence of imprisonment is
called for in a particular situation. Thus, the sentence of imprisonment is an exception while
sentence of fine is the rule.

Suspending the licence to practice of any professional like a lawyer, doctor, chartered
accountant etc. when such a professional is found guilty of committing contempt of court, for
any specified period, is not a recognised or accepted punishment which a court of record either
under the common law or under the statutory law can impose, on a contemner, in addition to
any of the other recognised punishments. The suspension of an Advocate from practice and his
removal from the State roll of advocates are both punishments specifically provided for under
the Advocates Act, 1961, for proven ‘professional misconduct’ of an advocate. While
exercising its contempt jurisdiction under article 129, the only cause or matter before the Court
is regarding commission of contempt of court. This Court, therefore, in exercise of its
jurisdiction under article 129 cannot take over the jurisdiction of the disciplinary committee of
the Bar Council of the State or the Bar Council of India to punish an advocate by suspending
his licence, which punishment can only be imposed after a finding of ‘professional misconduct’
is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder.

The power of the Supreme Court to punish for contempt of court, though quite wide, is yet
limited and cannot be expanded to include the power to determine whether an advocate is also
guilty of “professional misconduct” in a summary manner, giving a go-by to the procedure
prescribed under the Advocates Act. The power to do complete justice under article 142 is in a
way, corrective power, which gives preference to equity over law but it cannot be used to
deprive a professional lawyer of the due process contained in the Advocates Act, 1961 by
suspending his licence to practice in a summary manner, while dealing with a case of contempt
of court.

The powers conferred on the Court by article 142 being curative in nature cannot be construed
as powers which authorise the Court to ignore the substantive rights of a litigant while dealing
with a cause pending before it. This power cannot be used to “supplant” substantive law
applicable to the case or cause under consideration of the court. Article 142, even with the
width of its amplitude, cannot be used to build a new edifice where none existed earlier, by
ignoring express statutory provisions dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing
with a contempt of court case by suspending his licence to practice, a power otherwise
statutorily available only to the Bar Council of India, on the ground that the contemner is also
an advocate, is, therefore, not permissible in exercise of the jurisdiction under article 142. The
construction of article 142 must be functionally informed by the salutary purpose of the article
viz., to do complete justice between the parties. It cannot be otherwise. In a case of contempt
of court, the contemner and the court cannot be said to be litigating parties.

A complaint of professional misconduct is to be tried by the disciplinary committee of the Bar

Council, like the trial of a criminal case by a court of law and an advocate may be punished on
the basis of evidence led before the Disciplinary Committee of the Bar Council after being
afforded an opportunity of hearing. The delinquent Advocate may be suspended from the rolls
of the advocates or imposed any other punishment as provided under the Act. It is therefore,
not permissible for the Supreme Court to punish an advocate for “professional misconduct” in
exercise of the appellate jurisdiction by converting itself as the statutory body exercising
“original jurisdiction”. Indeed, if in a given case the concerned Bar Council on being apprised
of the contumacious and blameworthy conduct of the advocate by the High Court or the
Supreme Court does not take any action against the said advocate, the Supreme Court may well
have the jurisdiction in exercise of its appellate powers under section 38 of the Advocates Act,
1961, read with article 142 of the Constitution to proceed suo motu and send for the records
from the Bar Council and pass appropriate orders against the concerned advocate. In an
appropriate case, the Supreme Court may consider the exercise of appellate jurisdiction even
suo motu provided there is some cause pending before the concerned Bar Council, and the Bar
Council does “not act” or fails to act, by sending for the record of that cause and pass
appropriate orders.

HELD
The Supreme Court cannot in exercise of its jurisdiction under article 142 read with article 129
of the Constitution, while punishing a contemner for committing contempt of court, also
impose a punishment of suspending his licence to practice, where the contemner happens to be
an Advocate.
___________________________________________________________________________
NIRMALJEET KAUR V STATE OF PUNJAB:

Nirmaljit Kaur got married to Surinder Singh Batra as per Sikh rites and out of the wedlock
a female baby Simran was born on 16.02.1992. Respondent No.2 - Gurubachan Singh Batra
is the brother of Surinder Singh Batra. Respondent No.4 - Harbans Kaur is his wife.
Respondent No.3 - Arminderjit Singh Batra is the nephew of Surinder Singh Batra whereas
Respondent No.5 - Ranjita Kaur is the wife of Respondent No.3 - Arminderjit Singh Batra.

According to the petitioner, Surinder Singh Batra died intestate leaving behind the
petitioner and baby Simran as his only legal heirs. On 23.02.1997, the respondent Nos. 2-
5 and 3 other sisters of Surinder Singh Batra and sisters of respondent No.3 forcibly took
away baby Simran from the petitioner with ill design. The petitioner was turned out of her
matrimonial house by them and since then she has been living with her relatives.

It is alleged that the respondents in order to divest the petitioner of her legitimate right to
succeed to the estate of her late husband fabricated a Will dated 19.10.1996 purported to
have been executed by her husband. The two witnesses to the Will are Joginder Singh and
one J.S. Batra (since died)
n order to frustrate the judicial process and to succeed in their design, respondent No.3 in
connivance with the other respondents took away baby Simran to U.S.A. in February, 2000
in clandestine manner without disclosing her whereabouts, date of departure, place of living
etc. When the petitioner appeared in the Court of Guardian Judge, Amritsar for the custody
of the child, respondent No.2 threatened the petitioner with dire consequences if she did
not stop pursuing the case and to forget about the child and the property
The whereabouts of the baby Simran is not known from February, 2000. The petitioner
being the natural mother and guardian of the baby is legally entitled to the production and
custody of the child and to meet her and respondents are bound to do the needful. According
to the petitioner, the identity of the baby presently with respondents as claimed to be Simran
can be got established through DNA test only and that there is no other means or mode in
establishing the identity and to handover the custody to the petitioner after the test.
Thus, the petitioner filed the above writ petition under Article 32 of the Constitution of
India for production of baby Simran, daughter of the petitioner in this Court.
DNA test performed on the petitioner-Nirmaljit Kaur and Ms. Simran Batra conclusively
proved that the source of exhibit A (Nirmaljit Kaur) is not the biological mother of the
source of exhibit B (Ms.Simran Batra).
respondent Nos. 2-5 are guilty of contempt of this Court and, therefore, they are liable for
punishment for their proved misconduct. They have committed the contempt knowingly
and that it is attributable to the neglect on their part. Respondents 3 & 5 have not so far
appeared before this Court under one pretext or the other. In our view, respondent Nos. 2-
5 are liable to punishment for their proved disobedience of the order. We, therefore, impose
a fine of Rs.2000/- each to be deposited within three days from this day in this Registry
failing which the respondents shall be punished with simple imprisonment for a period of
one month each.
Both the writ petition and the contempt petition are ordered accordingly. The Registrar
General is directed to keep the passports which have been surrendered before this court in
safe custody until further orders.

ZAHIRA HABIBULLAH CASE:

Introduction

On 6 June 2005[1] the Supreme Court of India extended until 30 Sept 2005 the term
of the Bombay Special Court conducting the retrial in the case of Zahira Habibulla
H. Sheikh and Another v State of Gujarat and Others, known as the “Best Bakery
Case”. The judge conducting the retrial, Special Judge A. M. Thipsay, had sought a
further extension to the trial following the expiry on 31 May 2005 of the original
five-month extension granted by the Supreme Court on 31 December 2004.[2]

The case was transferred to the Bombay High Court for retrial on the order of the
Supreme Court, according to its judgment of 12 April 2004.[3] It is one of over two
thousand and thirty cases[4] in which charges were originally brought in various
criminal courts in the State of Gujarat as a result of the communal violence that
erupted in the State in 2002.
This note is confined to consideration of the original trial court judgment of 27 June
2003, the Gujarat High Court judgment of 26 December 2003, the Supreme Court
judgment of 12 April 2004, and the interventions of the National Human Rights
Commission.

Background of the case

On February 27, 2002, around 8 o’clock, in Sabarmati express train Bogie No. 6 a Muslim
community mob set afire near Godhra railway station, in about 59 persons died and 48 injured
in the Bogie, the Bogie was reserved by ‘Kaar-sevaks’ who were returning from Ayodhya to
Gujrat. After that incident, the news was widely spread through media. Due to which the Vishva
Hindu Parishad on 28/02/2002 announced bandh. After the news throughout the Gujrat, there
was a spate of communal riots. The commissioner of police of the Vadodara city has
announced an indefinite curfew in the entire city order under section 144 of the code, the curfew
will be in the entire city except for the area under Jawahar Nagar police station.

On 28/02/2002, the incidence of communal riots started taking place in Vadodara city. Due to
incidence in panigate police station since 27/02/2002 the precautions were started taking place
by the police and police patrolling was also going. the police were receiving repeatedly reports
and messages from the Police control room regarding incidents of attack on persons and
Muslim property.

There is a neighborhood called ‘hanuman take locality’ within the jurisdiction of Panigate
Police Station. In that locality only there was a building referred to as ‘Best Bakery’ and
residential premises having ground plus ground floor and terrace above the primary floor. The
building was belonging to 1 Habibullah shaikh and getting used as their residence by the owner
of the bakery and his family. Habib has taken placeulla had died a couple of months before the
incident taken place on 01/03/2002 and 02/03/2002. His wife Saherunnisa, his two sons –
Nafitulla and Nasibulla, his three daughters- sahera, Zahira, Sabira, and nafitulla wife Yasmin
were also residing in that building only, the building was known as the best bakery building.
In that building there were many servants also living, they also accustomed reside within the
same building, and that they are accustomed to sleeping on the terrace of the building. After
the death of Habibulla, the brother of Saherunnisa, kausarali had come to reside within the best
bakery building to assist the family in running the bakery. [1] The attack was stated to be in
revenge for the deaths of the Sabarmati Express train victims. Fourteen people trapped by the
mob in the Best Bakery building (eleven Muslims and three Hindu bakery workers) were burnt
or beaten to death and six injured. Zahira H. Sheikh, daughter of the bakery owner and aged
eighteen years at the time, was the main eye-witness to the attack in which neighbors and
members of her family, including women and four children under the age of five years, were
killed.
Facts [2]

On 02.03.2002, Best bakery at Vadodara was burnt down by a mob of large number of people.
In this incident 14 people died. The attacks were stated to be a part of retaliatory action to
avenge killing of 56 persons burnt to death in the Sabarmati Express.

In this case Zaheera named women was the main eye witness who lost family members
including innocent children and helpless women in the incident. A day after the bakery was
burnt the owners daughter Zaheera Sheikh lodged a police complaint against the 21 persons
accused.

•In this , Zaheera turned hostile , her mother and her brothers retracted their statements in the
court. Zaheera said that she was on the terrace while the incident took place and couldn’t
identify the accused.

•Zaheera along with her mother told the Sunday express that she lied in the court because she
feared for her life.

•The NHRC filed a special leave petition in the supreme court and asked for a retrial in a court
outside Gujrat.

•In a sworn affidavit to the Supreme Court, Zaheera said she turned hostile because when she
reached the court premises she met Chandrakant Batthoo, who threatened her . He told her that
if she stuck to her earlier statements , the remaining four members of her family will be killed.

•Supreme court Division Bench ordered retrial of the Best Bakery case outside Gujrat in
Maharashtra.

•While transferring the case to Mumbai ,the supreme Court stated, “ The State of Gujrat shall
also ensure that the witnesses are produced before the concerned court , whenever they are
required to attend them, so that they can depose freely without any apprehension of threat or
coercion from any person. In the case if any witness asks for any protection , then the state of
Maharashtra shall also provide such protection as deemed necessary, in addition to the
protection to be provided for by the state of Gujrat”.

Issues [3]

whether this would amount to contempt of the court?

.
Judgment [5]

At the trial in Vadodara Session Court in June 2003, Court acquitted all the accused in lack of
evidence and lack of confidence in the statement of witnesses including the Main witness
Zaheera Sheikh. Session Court held that there is no sufficient evidence that a large number of
peoples have done such act and carnage with full of intention and there is no prima facia
evidence is available.

Gujrat High Court has given judgment on appeal of State of Gujrat on 26th December 2003 and
reasons were given on 12th January 2004. Gujrat High Court had denied Retrial of the case and
said that the following power was given in Cr.PC Court is satisfied that there is no further
requirement of a retrial. Court has also dismissed the plea of the National Human Rights
Commission on stay of proceeding that plea is pending with the supreme court.

On 12th April 2004 Supreme Court of India ordered for retrial, reinvestigation, and transfer of
the Bakery case to Bombay High Court, the supreme court explain the case as “without Parallel
and Comparison” and said that the fact of the case for retrial is inevitable.

In February 2006, Session Court in Mumbai sentenced 9 accused had given life
imprisonment. After an appeal in Bombay High Court by the accused, Bombay High Court
has given judgment that 4 were given life imprisonment and 5 had acquitted by the court.

Concepts Highlighted

This judgement is one of the landmark judgements of the Indian judiciary. Not only it had a
heinous crime of genocide with it but also it had many issues which are always present in a
case but rarely surface like the impact of media , hearsay evidence, witnesses turning away
from their statements etc. The judiciary has tackled all the issues in an intelligible way and
paved way for future legislations. But still many questions remain unanswered like what can
be done to stop witnesses from perjury, is there always influence of police in every case and
how can this influence be curbed, what is the role of media in this context do they have the
right to judge any person without the knowledge of law and system and do they always ride
high on the wave of public opinion and keep on giving their decisions , do the courts give their
independent judgement or do they buckle under the pressure of popular vote and sympathy ?

RAJENDRA SAIL v MP HIGH COURT BAR ASSOCIATION:

FACTS:- In the murder trial of Shankar Guha Niyogi, a trade union leader, the accused
werefound guilty and sentenced to imprisonment for life except one who was awarded
deathsentence. On appeal, the High Court reversed the trial court judgment and acquitted
theaccused. A news report was published in newspaper 'Hitavada' on 4th July, 1998 under
thecaption 'Sail terms High Court decision in Niyogi murder case as rubbish. That report
was based on the speech delivered by appellant Rajendra Sail in a rally organized
tocommemorate the death of Shankar Guha Niyogi and interview given by him soon after
thespeech to appellant Ravi Pandey, the correspondent of the newspaper.The news report stated
that a Judge who was on verge of retirement should not have beenentrusted with the
responsibility of dealing with such a crucial case. It went further statingRajendra Sail as saying
that he was a key witness in the murder trial and in spite of engaginga well-known advocate as
public prosecutor nobody could have made much difference whenthe judges were already
prejudiced and that he had substantial evidence to prove that one ofthe judges who decided the
matter was bribed. The aforesaid news item led to initiation ofcontempt action on an application
filed by Madhya Pradesh High Court Bar
.JUDGEMENT:-It was held that while the media can, in the public interest, resort toreasonable
criticism of a judicial act or the judgment of a Court for public good, it should notcast scurrilous
aspersions on, or impute improper motives or personal bias to the judge. Norshould they
scandalize the Court or the judiciary as a whole, or make personal allegations oflack of ability
or integrity against a judge. The judgments of Courts are public documents andcan be
commented upon, analysed and criticized, but it has to be in a dignified mannerwithout
attributing motives

___________________________________________________________________________

SMT. SIYA BAI v SITARAM SINGH

FACTS: - In this instant case the complaint was filed before the disciplinary committee ofthe
M.P. State Bar Council by Smt.Siya ram Bai against the respondent advocate, Sita RamSingh.
the complaint was that the advocate was engaged by the complainant for filing themoney suit
against the 13 persons and passing the decree in execution proceeding, the decrialamount was
deposited which was withdrawn by the C.C.D by the respondent advocate but itwas not paid to
the complainant and he did not furnish the account therefor. It was alsoalleged that the advocate
had concealed the real facts and avoided to give any information tothe complainant on some
pretext or the other.The respondent advocate said that he had not withdrawn the amount from
the C.C.D. Inaddition, the complainant alleged that the advocate had not paid the full court fee
in civil suitagainst the Dhani ram. In his reply the advocate contended that whenever the
amount waswithdrawn from the CC.D, it was in the presence of the applicant and had been
adjusted asper record the amount recoverable by the non-applicant from the applicant. He
further saidthat the amount desired by the applicant had been taken away in the presence of her
husband
and from his office. He said that after taking away the amount the applicant, she was requiredto
pay six hundred rupees to him but she did not pay. The contention of the advocate, that
theamount withdrawn by him from the C.C.D payable to the complaint had been
adjustedtowards the court fee and the other expenses with the consent of the complainant was
not findcorrect. In the opinion of the disciplinary committee the advocate was to show as to
howmuch amount was withdrawn by him and adjusted towards his fees. he failed to
dischargedhis burden. Held: - Theadvocate withdrew the decretal amounts paid and did not
make the payment tothe client, in violation of Rule 27 of the BCI Rules on Professional Ethics.
The DisciplinaryCommittee of the Bar Council of India ordered the advocate to refund the
money to thecomplainant along with the 10% interest per annum and also ordered suspension
of advocatefor a period of one year.

_________________________________________________________________________

SECRETARY KARNATAKA KHADI GRAM UDYOG v JS KULKARNI 1990

FACTS: - In this instant case the complaint was filed before the disciplinary committee ofthe
M.P. State Bar Council by Smt.Siya ram Bai against the respondent advocate, Sita RamSingh.
the complaint was that the advocate was engaged by the complainant for filing themoney suit
against the 13 persons and passing the decree in execution proceeding, the decrialamount was
deposited which was withdrawn by the C.C.D by the respondent advocate but itwas not paid to
the complainant and he did not furnish the account therefor. It was alsoalleged that the advocate
had concealed the real facts and avoided to give any information tothe complainant on some
pretext or the other.The respondent advocate said that he had not withdrawn the amount from
the C.C.D. Inaddition, the complainant alleged that the advocate had not paid the full court fee
in civil suitagainst the Dhani ram. In his reply the advocate contended that whenever the
amount waswithdrawn from the CC.D, it was in the presence of the applicant and had been
adjusted asper record the amount recoverable by the non-applicant from the applicant. He
further saidthat the amount desired by the applicant had been taken away in the presence of her
husband
and from his office. He said that after taking away the amount the applicant, she was requiredto
pay six hundred rupees to him but she did not pay. The contention of the advocate, that
theamount withdrawn by him from the C.C.D payable to the complaint had been
adjustedtowards the court fee and the other expenses with the consent of the complainant was
not findcorrect. In the opinion of the disciplinary committee the advocate was to show as to
howmuch amount was withdrawn by him and adjusted towards his fees. he failed to
dischargedhis burden. Held: - Theadvocate withdrew the decretal amounts paid and did not
make the payment tothe client, in violation of Rule 27 of the BCI Rules on Professional Ethics.
The DisciplinaryCommittee of the Bar Council of India ordered the advocate to refund the
money to thecomplainant along with the 10% interest per annum and also ordered suspension
of advocatefor a period of one year.
_______________________________________________________________________-

SURENDRANATH MITTAL v DAYANAND SWAROOP

This is a revision filed under Section 25 of the Provincial Small Cause Courts Act by
the tenant. The plaintiff-respondent had filed a suit No. 39 of 1979 for arrears of rent
and ejectment. This suit was decreed ex parte on 13th Nov., 1979. The revisionist
thereafter moved an application for restoration of the suit to its original number. He also
made certain deposits as required under the proviso to Section 17 of the Provincial
Small Cause Courts Act, hereinafter referred to as the Act. The deposit was short and
consequently the plaintiff-respondents filed an objection to that effect. Thereafter the
revisionist made further deposits and also filed an application for condonation of delay
in making the said deposits. The 1st Additional District Judge, Bulandshahr by order dt.
July 7, 1982 dismissed the restoration application for non-compliance of the provisions
of Section 17 of the Act within the time prescribed. The application moved by the
revisionist for condonation of delay in depositing the amount as required by proviso
to Section 17 of the Act was also dismissed. It is this order dt. 7th July, 1982 which is
the subject-matter of challenge in this revision.

2. I have heard the learned counsel for the parties. Learned counsel for the revisionist
has contended that the Court below has acted illegally and with material irregularity in
the exercise of its jurisdiction in dismissing the application for condonation of delay
merely on the ground that each and every day's delay has not been explained in the
application. He has further contended that in fact the entire amount as required by
proviso to Section 17 of the Act has been deposited and consequently the Court below
should have condoned the delay in depositing the amount and permitted the revisionist
to be heard on merits of the suit.

3. So far as the second question is concerned, in my opinion, it is not necessary for me

to go into this question as this is the matter which is to be decided by the Court below
on merits. The first submission made by the learned counsel for the revisionist in regard
to the application for condonation of delay, in my opinion, has substance.

4. I have examined the judgment of the Court below dt. 7th July, 1982. The application
for condonation of delay in making the deposit as required by the proviso to Section
17 of the Act has merely been dismissed by the Court below on the ground that each
and every day's delay should have been explained by the revisionist. With this
observation the application for condonation of delay has been rejected. The Court below
has not considered the overall explanation given by the revisionist for condonation of
delay as also the circumstances leading to the subsequent deposit of the amount by the
revisionist in compliance of the proviso to Section 17 of the Act.

5. The proviso to Section 17 of the Provincial Small Cause Courts Act is as follows : -
-

"Provided that an applicant for an order to set aside a decree passed ex parte or for a
review of judgment shall, at the time of presenting his application, either deposit in the
Court the amount due from him under the decree or in pursuance of the judgment, or
give such security for the performance of the decree or compliance with the judgment
as the Court may, on a previous application made by him in this behalf, have directed."

6. The only object behind this proviso is that the unscrupulous tenants against whom
rent is due and who do not appear on the date fixed by the Court, may not take advantage
of not paying the rent and thereby causing harassment to the landlord. It is often found
that the defendants to a suit do not appear with a purpose that an ex parte decree would
be passed and then an application for setting aside the ex parte decree would be made,
thereby prolonging the litigation. This proviso, consequently, protects the landlord from
further harassment and secures the payment of rent.

7. It is well settled that this proviso has to be liberally construed. In the circumstances,
the delay in depositing the amount should also be liberally construed in order to enable
the person, who has bona fide deposited the amount gets an opportunity of being heard
by a Court of law on the merits of the case.

8. In Smt. Pari Bai v. Bhagat Ram, AIR 1977 All 549, the question came up for
consideration whether each and every day's delay should be satisfactorily explained in
order to entitle a person for condonation of delay. The Bench held that it was not
necessary that each and every day's delay be explained. It further observed as follows :
--

"It is true that a person coming to the Court after the prescribed period is required to
explain the delay and he can succeed in getting the delay condoned only when he
satisfactorily explains it. But a Court of law cannot require such a person to explain the
delay with mathematical precision."

9. In view of the principles laid down in the abovementioned case, the Court below has
to consider the application for condonation of delay on an overall consideration of the
facts on record and not as a matter of mathematical precision. The approach, in my
opinion, of the Court below is wholly erroneous. This approach is likely to lead to a
grave injustice and does not advance the cause of justice. It is, consequently, necessary
that the application for condonation of delay moved by the revisionist should be
considered by the Court below in the right perspective.

10. In the result, I allow the revision, set aside the order dt. Jul. 7, 1982 and remand the
case to the Court below for consideration of the application for restoration as well as
the application for condonation of delay in making deposit under the proviso to Section
17 of the Act in accordance with law in the light of the observations made above. The
parties are, however, directed to bear their own costs.

___________________________________________________________________

S.K.NAGAR v VP JAIN

___________________________________________________________________________
B. SUNITHA v STATE OF TELANGANA

Recently, in a judgment pronounced by the Hon’ble Supreme Court in the case of B Sunitha v.
State of Telangana, the Court advised the Government to check on the unethical practices
followed by lawyers. The case brought into light the financial abuse that the victims of injustice
have to go through by some members of the legal community.
Brief History

• In July, 1998, B. Sunitha’s (hereinafter referred to as the ‘Appellant’) husband died in

a motor accident. A claim before the Motor Accident Claims Tribunal (hereinafter
referred to as the ‘MACT’) was filed wherein one of the Respondents in the present
case was the advocate for the Appellant. Compensation was also given in the said case.

• The Respondent charged a fee of INR 10 Lakhs (USD 15590 approx.). Later on, the
Appellant was forced to sign another cheque worth INR 3 Lakhs (USD 4677 approx.)
on October 25, 2014, despite her informing that she has no funds in the account.

• On November 2, 2014, the Appellant received an e-mail from the Respondent wherein
it was claimed that the fees of the Respondent was 16% of the amount received by the
Appellant.

• On December 11, 2014, a complaint was filed before the Hyderabad High Court under
Section 138 of the Negotiable Instruments Act, 1881, stating inter alia that the cheque
which was issued in discharge of liability having been returned unpaid for want of
funds, the appellant committed the offence for which she was liable to be punished.

• The High Court summoned the Appellant to which she stated that there was no legally
enforceable debt and the fee was an unreasonable amount and against the law. It was
contended that the claim violated the Advocates Fee Rules and Ethics as fee could not
be demanded on percentage of amount awarded as compensation to the Appellant.

• The Respondent opposed this contention by stating that the professional fee was agreed
upon by the Appellant and now having availed his professional services, she could not
contest the claim for fee. It was further contended that Senior Advocates were engaged
in the case by the Respondent and paid huge amount for their services.

• It was further argued by the Appellant that the fee claimed was against Andhra Pradesh
Advocates’ Fee Rules, 2010 of Subordinate Courts, ethics and public policy and hit by
Section 23 of the Contract Act.

• The High Court dismissed the quashing petition. It was stated by the High Court that
Advocates’ Fee Rules are only for guidance and there was no bar to fee being claimed
beyond what is fixed under the Rules.

Issue Raised
 1. Whether fee can be determined with reference to percentage of the decretal amount?

2. Whether the determination of fee can be unilateral and if the client disputes the quantum
of fee whether the burden to prove the contract of fee will be on the advocate or the
client?

3. Whether the professional ethics require regulation of exploitation in the matter of fee?

Appellant’s Arguments

• It was contended that the charging percentage of decretal amount by an advocate is hit
by Section 23 of the Contract Act, being against professional ethics and public policy.
Thus, the cheque issued by the Appellant could not be treated as being in discharge of
any liability by the Appellant.

• It was also contended that it is a settled law that any fees claim made by the advocate
based on the percentage of the amount received as a result of litigation is illegal.

• The Appellant claimed that the signing of the cheque was an exploitation of the
fiduciary relationship of the Advocate and the client.

• Judgements such as In the matter of Mr. G., a Senior Advocate of the Supreme
Court ((1955) 1 SCR 490 at 494), R.D. Saxena versus Balram Prasad Sharma ((2000)
7 SCC 264), V.C. Rangadurai versus D. Gopalan ((1979) 1 SCC 308) were produced
to support the claim.

Respondent’s Argument

• The Respondent No. 2 supported the order of the High Court of Judicature at
Hyderabad. .

• It was contended that there was no legal bar to claim professional fee by the
Respondent. Further, it was stated that since the cheque was dishonored, the statutory
presumption was in the favor of Respondent.

• It was claimed that the Appellant made out no ground for quashing the petition.

Court’s Findings

• While discussing about Professional Misconduct and whether the fees could be charged
as a part of the decretal amount, the Court took into consideration certain judgements -

o Re: KL Gauba[1], wherein it was held that the fees conditional on the success
of a case and which gives the lawyer an interest in the subject matter tends to
undermine the status of the profession. The same has always been condemned
as unworthy of the legal profession. If an advocate has interest in the success of
the litigation, he may tend to depart from ethics.
 o In the matter of Mr. G.: A Senior Advocate of the Supreme Court[2], it was held
that the claim of an advocate based on a share in the subject matter is a
professional misconduct.

o In VC Rangadurai versus D. Gopalan[3], it was observed that relation between

a lawyer and his client is highly fiduciary in nature. The advocate is in the
position of trust.

o Thus, the Court was of the view that the application of the Respondent deserves
to be quashed as it was against the public policy and a grave professional
misconduct.

• Further, it was stated by the Court that Respondent no. 2 prayed to withdraw the
complaint to which it was replied that ‘Having committed a serious professional
misconduct, the Respondent No.2 could not be allowed to avoid the adverse
consequences which he may suffer for his professional misconduct’.

• Talking about the importance of the legal profession the Court stated that ‘Undoubtedly,
the legal profession is the major component of the justice delivery system and has a
significant role to play in upholding the rule of law. Significance of the profession is on
account of its role in providing access to justice and assisting the citizens in securing
their fundamental and other rights.’ The Court was of the view that it is the
fundamental right of the poor to get justice and the exorbitant amount charged as fees
by the Advocates is serious violation of this right.

• Further, the observations made in the 131st Report of the Law Commission, 1988, were
brought to light. These were:

o Role of the legal profession in strengthening the administration of justice must

be in consonance with the mandate of Article 39A to ensure equal opportunity
for access to justice.

o It was observed that like public hospitals for medical services, the public sector
should have a role in providing legal services for those who cannot afford fee.

o Referring to the lawyers’ fee as barrier to access to justice, it was observed that
it was the duty of the Parliament to prescribe fee for services rendered by
members of the legal profession. First step should be taken to prescribe floor
and ceiling in fees.

• Also, it was highlighted that ‘Mandate for the Bench and the Bar is to provide speedy
and inexpensive justice to the victim of justice and to protect their rights. The legal
system must continue to serve the victims of injustice.’

• Focusing on the sleeping nature of the system, the Court pointed out that though the
131st Law Commission Report was submitted in the year 1988, still no step is taken in
the last 29 years.