Bar Councll of Maharashtra Vs. M. V.
Dabholkar [1975] INSC 165 (13 August 1975)
RAY, A.N. (CJ) RAY, A.N. (CJ) KHANNA, HANS
RAJ MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH KRISHNAIYER, V.R.
GUPTA, A.C.
FAZALALI, SYED MURTAZA
CITATION: 1975 AIR 2092 1976 SCR (1) 306
CITATOR INFO :
RF 1976 SC 578 (27) RF 1976 SC2602 (20) E
1980 SC 856 (14) RF 1981 SC 116 (17) R 1981 SC 344 (48) RF 1981 SC 477 (3,5) R
1982 SC 149 (606,963) RF 1985 SC 28 (30)
ACT:
Advocates Act, 1961-Sections 37 and 38 Scope
of-"Pelson aggrieved" if a State Bar Council could be a "person
aggrieved".
HEADNOTE:
The State Bar Councils created by the Advocates
Act, 1961 have been entrusted with the functions inter alia of entertaining and
determining cases of misconduct against advocates on their rolls and to
safeguard their rights, privileges and interests. The Bar Council of India
which is a national body created by the Act is entrusted with the work of
laying down standards of professional conduct and etiquette and overseeing the
functioning of the State Bar Councils. Under s. 35 of the Act, if a State Bar
Council, either on receipt of a complaint or otherwise has reason to believe
that any advocate on its roll has been guilty of professional or other
misconduct, it shall refer the case to its Disciplinary Committee which, after
due inquiry may impose certain penalties. An appeal from the decision of the State
Bar Council lies to the Bar Council of India. Any "person aggrieved"
by an order of the Disciplinary Committee of the Bar Council of India may,
under s. 38, appeal to the Supreme Court. In exercise of the Powers conferred
by the Act the Bar Council of India framed rules relating to professional
conduct and etiquette, r. 36 of which says that advocates shall not solicit
work or advertise themselves.
The State Bar Council, in the present case,
issued notices to the respondents suo motu alleging that they stood at the
entrance of the court house at the Presidency Magistrate's Court, Fort Bombay
and solicited work etc., and that the said act amounted to professional and/or
other misconduct. 'the Disciplinary Committee of the State Bar Council found
the respondents guilty of conduct which absolutely lowered the reputation of
the Bar in the eyes of the public and suspended them from practising as
advocates.
The respondents' appeal to the Bar Council of
India having been allowed, the State Bar Council has come up in appeal to this
Court under s. 38. Before the Bar Council of India the State Bar Council had
not appeared. F On the question whether the State Bar Council is a "person
aggrieved," Allowing the appeals, Held:
^ [By the full Court], The State Bar Council
is an "aggrieved person" to maintain an appeal under the Act.
per Ray, C.J., Khanna, Mathew, Gupta and
Murtaza Fazal Ali, JJ):
(1) The Bar Council is a "person
aggrieved" because (i) the words "person aggrieved" in the Act
are of wide import in the context of the purpose and provisions of the statute
and should not be subjected to a restricted interpretation of possession or
denial of legal rights or burdens or financial interests. In disciplinary
proceedings before the Disciplinary Committee there is no lis and there are no
parties. The word 'person' will embrace the Bar Council which represents the
Bar of the State; (ii) the Bar Council represents the collective conscience of
the standards of professional conduct and etiquette. The Bar Council acts as
the protector of the purity and dignity of the profession;
(iii) the function of the Bar Council in
entertaining complaints against advocates indicates that the Bar Council is
interested in the proceedings for the vindication of discipline. dignity and decorum
of the profession; (iv) when the Bar Council initiates proceedings by referring
eases of misconduct to the Disciplinary Committee, the Bar Council, in the
performance of its function under the Act, is interested in the task of seeing
that the advocates maintain proper standards and etiquette of the profession
and (v) the Bar Council is vitally concerned with the decision, in the context
of its functions. The Bar Council will have a grievance if the decision
prejudices the maintenance of standards of professional conduct and ethics.
[315G: 316D-G] (2) (a) The Bar Council acts as the sentinel of professional
code of conduct and is vitally interested in the rights and privileges of the
advocates as well as the purity and dignity of the profession. [316A-B] (b) The
grievance of the Bar Council is to be looked at purely from the point of view
of standards of professional conduct and etiquette. If any decision of the
Disciplinary Committee of the Bar Council of India is according to the State
Bar Council such as will lower the standards and imperil the high traditions
and values in the profession the State Bar Council is an "aggrieved
person" to safeguard the interests of the public, the interests of the
profession and the interests of the Bar. [316B-C] (3) The most significant
feature in the matter of initiation of proceedings before the Disciplinary
Committee is that no litigant and no member of the public can straightaway
commence disciplinary proceedings against an advocate It is the Bar Council of a
State which initiates the disciplinary proceedings. There is no lis in
proceedings before the Disciplinary Committee The Bar Council, in placing a
matteu. before the Disciplinary Committee, does not act as a prosecutor in a
criminal case. A complainant who prefers a complaint against an advocate is not
like a plaintiff in a civil suit. The Bar Council may act on its own initiative
on information which has come to its notice in the course of its duties. There
is no party to the disciplinary proceedings because the Bar Council, the
Attorney General, the Advocate General act in protecting the interests of
advocates and the interests of' the public. In so acting there is no conflict
between the advocate and any other person because it is professional conduct, professional
etiquette, professional ethics, professional morality, which are to be upheld.
transgression of which results in reprimanding the advocate or suspending him
from practice or removing his name from the roll. [314B-F] Adi Pherozshah
Gandhi v. H. M. Seervai, Advocate General of Maharashtra. Bombay [1971] I
S.C.R. 863, referred to Beg J. (concurring):
(1) There is no objection to a participation
of a State Bar Council in its executive capacity in a disciplinary proceeding
against an advocate on its roll either at the initial or at the appellate
stages. Before it can become a "person aggrieved" by an order against
which it could appeal, there must have been a lis or a dispute to be decided
which gives rise to the order complained of. To such a "lis" the
State Bar Council, in its executive capacity, must be deemed to be a party.
There seems to be no legal obstacles in the way of its separate representation
even before its own Disciplinary Committee. Its right to appeal as a
"person aggrieved" is squarely covered by the provisions of ss. 37
and 38 of the Act. In the present case the respondents themselves treated the
Bar Council as a party interested in the lis when they impleaded the State Bar
Council as a respondent in their appeals to the Bar Council of India. Its
statutory right to appeal under s. 38 is not affected by the mere fact that it
did not put in appearance before the Bar Council of India. [319D-G] (2) The
State Bar Council operates through its committees. Each committee has distinct
and separable functions. Each could be said to have a "persona" and
an identity of its own, which is distinguishable from that of the Bar Council
as a whole [317G] 3 (a) If the Bar Council has a separable interest as a
guardian of the rights and privileges of the members of the Bar, specifically
mentioned by s. 6(1)(d) of the Act. there is no reason why a right to represent
this interest before its 308 own Disciplinary Committee as well as before the
Bar Council of India, on an A appeal under s. 37 of the Act, or., on further
appeal to this Court under s. 38 of the Act should be denied to it. [318C-D]
4(a) When the State Bar Council can have locus standi and rights of a
"person aggrieved" affected by the results of such proceedings there
is no reason why it should not be in the position of a party lo a lis or
dispute' between itself and the allegedly delinquent advocate. [318D-E] (b) The
term 'lis' is not confined to litigation by means of a suit in a court of law.
[318E] Butler v. Mountgarret 7 H.L. Ca. 641 and B. Johnson & Co. (Builders)
v. Minister of Health [1947] 2 All. E.R. 395 399, referred to.
5. The State Bar Council in its executive
capacity acts as the prosecutor through its Executive Committee. There is no
incongruity in its Disciplinary Committee representing its judicial wing,
functioning as an impartial judge whose decisions are binding upon the State
Bar Council. It is a "person aggrieved" within the meaning of that
expression used in ss. 37 and 38 of the Act. [318G-H] Krishna Iyer, J. (concurring):
(1) The Bar is not a private guild, like that
of 'barbers, butchers and candlestick-makers' but, a public institution
committed to public justice and pro bono publico service. The grant of a
monopoly licence to practice law is based on three assumptions; (i) there is a
socially useful function for the lawyer to perform; (ii ) the lawyer is a
professional person who will perform that function; and (iii) his performance
as a professional person is regulated by himself and more formally, by the
profession as a whole.
The central function that the legal
profession must perform is nothing less than the administration of justice.
[322G-H] (2) In a developing country the pattern of public oriented litigation
better fulfils the rule of law if it is to rule close to the rule of life. The
Bar Council clearly comes within this category of organisations when a lawyer
is involved.
(3) A case of professional misconduct is not
a lis in the British sense nor a case and controversy in the American meaning.
It is a public investigation about misconduct by one belonging to a public
profession where every member of the Bar with a reputation to lose has a stake
and everyone concerned with the justice administration is interested.
'the Bar has a share in being the sentinel on
the qui vive when the legal dykes of right and justice are breached by
authoritarianism or citizen wrongdoing. [323F-Gl (4) The possible apprehension
that widening legal standing with a public connotation may unloose a flood of
litigation which may overwhelm the judges is misplaced because public resort to
court to suppress public mischief is a tribute to the justice system. In this
case to grant an exclusionary windfall on the respondents is to cripple the Bar
Council in its search for justice and insistence on standards. [326B] G A. P.
Gandhi v. H. M. Seeravai, [1971] 1 S.C.R. refered to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1461 to 1468 of 1 974.
From the Judgment and order dated the 14th
April, 1974 of the Disciplinary Committee of the Bar Council of India, New
Delhi. in C. Appeals Nos. 15 to 19, 21, 22 and 25 of 1973 respectively. H V. S.
Desai, Vimal Dave and Kailash Mehta, for the appellant (in all the appeals).
309 M. V. Dabolkar, for the respondent (In C.
A. No. 1461/74).
Z. F. Bootwala and Urmila Sirur, for the
respondent (In C. A. Nos. 1462-64/74) . V. N. Ganpule and V. H. Dixit, for the
respondent (In C. A. No. 1465/74).
K. G. Mandalia, for the respondent (In C. A.
No. 1466/74).
E. Udayarathallam and A. K. Doshi, for the
respondent (In C.A. No. 1467/ 74).
D. K. Raisinghani, for the respondent (In
C.A. No. 1468/74).
K. K. Sinha and S. K. Sinha, for the Bihar
State Bar Council.
D. V. Patil and K. Hingorani, for the Bar
Council of India.
The Judgment of A. N. RAY, C.J., H. R. KHANNA,
K. K. MATHEW, A. C. GUPTA AND S. M. FAZAL ALl, was delivered by A.
N. RAY, C.J., M. BEG and V. R. KRISHNA IYER,
JJ. gave separate opinions.
RAY, C.J.-These appeals were placed before
this Bench for consideration of the question whether the Bar Council of a State
is "a person aggrieved" to maintain an appeal under section 38 of the
Advocates Act, 1961 hereinafter called the Act.
The Bar Council of Maharashtra on 8 August,
1964 considered a complaint received from the High Court against the
respondents and resolved that the complaint received from the High Court
against the respondents be referred to the disciplinary committee. Another
resolution was passed by the Bar Council of Maharashtra on the same day whereby
Messrs Hotchand Advani, R. W. Adik and S. C. Chagla were elected as members of
the disciplinary committee to enquire into the complaints.
The aforesaid disciplinary committee met on
19 March, 1965 and heard the advocates for the Bar Council of the State of
Maharashtra. After considering the papers placed before the committee, it
directed the Registrar to issue notices under section 35(2) of the Act to the
"parties concerned including the Advocate-General". The committee
also expressed the opinion that "there is a prima facie case of
professional misconduct".
The Bar Council of Maharashtra on 18 May,
1965 issued notices under section 35 of the Act to the respondents. The notice
was described as a suo motu inquiry against the respondents. The notice
proceeded with the recital that it came to the notice of the Bar Council of
Maharashtra that the respondents stood at the entrance of the Court House at
the Presidency Magistrate's Court, Esplanade, Fort Bombay and solicited work and
generally behaved at that place in an undignified manner and the said acts
amounted to professional and/or other misconduct and the Bar Council
constituted disciplinary committee and the inquiry was entrusted to the
committee consisting of Messrs H. G. Advani, R. W. Adik and S. C. Chagla.
310 The said disciplinary committee heard
evidence upto 31 August, 1968. On 14 June, 1969, the Bar Council of Maharashtra
passed a resolution requesting the aforesaid disciplinary committee to proceed
with the inquiry which was pending before them prior to 31 March, 1969.
The disciplinary committee of the Bar Council
of Maharashtra on 27 June, 1973 found the respondents guilty of conduct which
seriously lowered the reputation of the Bar in the eyes of the public. The disciplinary
committee directed that the respondents would stand suspended from practising
as advocates for a period of three years. The suspension orders were to be
operative from 1 August 1973.
The respondents preferred appeals before the
Bar Council of India. In these appeals, the respondents impleaded the Bar
Council of Maharashtra as respondents. The disciplinary committee of the Bar
Council of India on 14 April, 1974 allowed the appeals and set aside the orders
of the disciplinary committee of the Bar Council of Maharashtra. While setting
aside the orders of the disciplinary committee of the Bar Council of
Maharashtra, the disciplinary committee of the Bar Council of India stated as
follows:"The Bar Council of Maharashtra has not appeared even though they
started the proceedings suo motu and we do not pass any orders as to costs and
we direct each party will bear their costs. However, we have gone through the
evidence ourselves and also the same has been placed in detail by the
appellants. All that we can say is that we expected the Bar Council of
Maharashtra to be represented in the appeal because proceedings were started
suo motu" These statements of the disciplinary committee of the Bar
Council of India indicate that the Bar Council of Maharashtra should have
appeared before the disciplinary committee of the Bar Council of India.
The scheme of the Advocates Act in short is
as follows:
There are State Bar Councils. There is Bar Council
of India Every Bar Council is a body corporate.
The functions of a State Bar Council are
inter alia to entertain and determine cases of misconduct against advocates on
its roll and to safeguard the rights, privileges and interests of advocates on
its roll.
The functions of the Bar Council of India are
inter alia to lay down standards of professional conduct and etiquette, to lay
down the procedure to be followed by its disciplinary committee and the
disciplinary committee of State Bar Councils, to safeguard the rights,
privileges and interests of advocates and to exercise general supervision and
control over State Bar Councils Disciplinary committees are constituted by each
Bar Council. A Bar Council is required to constitute one or more disciplinary
committees each of which shall consist of three persons of whom two shall 311
be persons elected by the Council from amongst its members and the other shall
be A person co-opted by the Council from amongst advocates who possesss the
qualifications specified in the proviso to section 3(2) of the Act and are not
members of the Council, and the senior most advocate amongst the members of a
disciplinary committee shall be its Chairman.
When the Executive Committees of a State Bar
Council and of the BarCouncil of India and an Enrolment Committee of a State
Bar Council and the legal education committee of the Bar Council of India are
to consist of members erected by the Council from amongst its members, it is
noticeable that the disciplinary committees of Bar Council of State as well as
of Bar Council of India shall consist of three persons of whom two shall be
elected by the Council from amongst its members and the other shall be a person
co-opted by the Council from advocates who are not otherwise members of the
Council.
Chapter V of the Act relates to the Conduct
of Advocates. Chapter V contains sections 35 to 44. Section 35 states that
where on receipt of a complaint or otherwise a State Bar Council has reason to
believe that any advocate on its roll has been guilty of professional other
misconduct, it shall refer the case for disposal to its disciplinary committee.
The State Bar Council may, either of its own motion or on application made to
it by any person interested, withdraw a proceeding pending before its
disciplinary committee and direct that inquiry to be made by another
disciplinary committee of the State Bar Council. The disciplinary committee of
a State Bar Council shall fix a date for the hearing of the case and shall
cause a notice to be given. to the advocate concerned and to the Advocate General
of the State. The disciplinary committee of the State Bar Council may make any
of the following orders namely, (a) dismiss the complaint, or where the
proceedings were initiated at the instance of the State Bar Council, direct
that the proceedings be filed, (b) reprimand the advocate, (c) suspend the
advocate for such period as it may deem fit, (d) remove the name of the
advocate from the state roll of advocates.
Section 36 speaks of disciplinary powers of
the Bar Council of India and provides that where on receipt of a complaint or
otherwise the Bar Council of India has reason to believe that any advocate
whose name is not entered on any State roll has been guilty of professional or
other misconduct, it shall refer the case for disposal to its disciplinary
committee. The disciplinary committee of the Bar Council of India may either of
its own motion or on a report by any State Bar Council or on an application
made to it by any person interested, withdraw for inquiry before itself any
proceeding for disciplinary action against any advocate pending before the
disciplinary committee of any State Bar Council and dispose of the same.
Section 37 speaks of appeal to the Bar
Council of India. This section states that any person aggrieved by an order of
the disciplinary 312 committee of a State Bar Council or the Advocate-General
of the state may, within sixty days of the date of communication of the order,
prefer an appeal to the Bar Council of India.
Section 38 provides for appeal to the Supreme
Court.
Section 38 states that any person aggrieved
by an order made by the disciplinary committee of the Bar Council of India
under section 36 or section 37 or the Attorney-General of India or the
Advocate-General of the State, as the case may be, may prefer an appeal to the
Supreme Court.
Section 49 of the Act provides that the Bar
Council of India may make rules for discharging its functions under the Act and
in particular such rules may prescribe inter alia the standards of professional
conduct and etiquette to be observed by advocates. The Bar Council of India in
exercise of the rule making power under section 49(c) of the Act on 10 and l l
July, 1954, approved the rules of standards of professional conduct and etiquette.
The standards of professional conduct and etiquette are described in five
sections. The first section deals with duty of advocates to the Court. The
second section speaks of duty of advocates to the clients. The third section
consists of rules regarding duty of advocates to opponent. The fourth section
prescribes duties of advocates to colleagues. The fifth section lays down
restrictions on advocates on other employments.
The present appeals touch on Rule 36 of the
Rules of the Bar Council of India. Rule 36 is in fourth section under the
heading "duty to colleagues Rule 36 speaks that "an advocate shall
not solicit work or advertise either directly or indirectly, whether by
circular, advertisements, touts, personal communications, interviews not warranted
by personal relations furnishing newspaper comments or procuring his photograph
to be published in connection with cases in which he has been engaged or
concerned.
The question for consideration is the meaning
of the words any person aggrieved by an order made by the disciplinary
committee of the Bar Council of India" occurring in section 38 of the Act.
It is noticeable that in section 37, the Advocate-General of the State and in
section 38, the Attorney-General or the Advocate-General of the State, as the
case may be, have been given specific rights of appeal. These rights were
introduced into the Act by amendments made in the year 1974 by Amending Act 60
of 1973.
In Adi Pherozshah Gandhi v. H. M. Seervai,
Advocate General of Maharashtra, Bombay(1), the question which fell for
consideration was whether the appeal filed by the Advocate-General of
Maharashtra before the Bar Council of India was competent. The majority view
was that the Advocate-General of the State was not competent to file an appeal
to the Bar Council of India. In the Maharashtra case (supra), the disciplinary
committee of the State Bar Council was satisfied that that there was no reason
to hold Adi Pherozshah Gandhi guilty of professional misconduct or other
misconduct. The Advocate-General (1) [1971] 1 S. C. R. 863.
313 of Maharashtra filed an appeal before the
Bar Council of India. The appellant objected to the locus standi of
Advocate-General before the Bar Council of India. That objection was overruled
and the appeal filed by the Advocate-General was accepted by the disciplinary
committee of the Bar Council of India. The disciplinary committee of the Bar
Council of India held the advocate, Adi Pherozshah Gandhi guilty of misconduct
and suspended him from practice for one year. The advocate preferred an appeal
under section 38 of the Act to this Court. In view or majority decision, the
appeal filed by Adi Pherozshah Gandhi was accepted by this Court on the ground
that the Advocate-General of Maharashtra was incompetent to file an appeal. It
is in this background that amendments have been introduced into sections 37 and
38 of the Act conferring right of appeal on the Advocate-General of State and
the Attorney-General of India under sections 37 and 38 respectively.
The respondents contended on the ruling of
this Court in Adi Pherozshah Gandhi s case (supra) that the Bar Council of the
State is not a person aggrieved to maintain an appeal against a decision of its
disciplinary committee for these reasons. First, the Bar Council of a State is
not an aggrieved person because Bar Council has not suffered ally legal
grievance, and the decision of the Bar Council of India has not deprived the
Bar Council of a State of anything. Second, the allegation that order of the
disciplinary committee of the Bar Council of India is wrongfully made does not
by itself give any grievance to the Bar Council of a State. The person must be
aggrieved by the order and not by the consequences which ensue. Third, it is
not the duty of the State Bar Council to attempt to set right any alleged error
of the disciplinary committee of the Bar Council of India. The reason is that
no such duty has been imposed or cast by law on the Bar Council of a State.
Fourth, a person can be said to be aggrieved
by an order which is to his detriment, pecuniary or otherwise or causes him
some prejudice in some form or other. Fifth, the Bar Council of a State is
subordinate to Bar Council of India and is, therefore, not competent to appeal
against any orders of the superior body. Finally, an appeal could have been
filed by the Advocate-General or the Attorney-General of India who have the
right to appeal but they have chosen not to do so.
The scheme and the provisions of the Act
indicates that the constitution of State Bar Councils and Bar Council of India
is for one of the principal purposes to see that the standards of professional
conduct and etiquette laid down by the Bar Council of India are observed and
preserved. The Bar Councils therefore entertain cases of misconduct against advocates.
The Bar Councils are to safeguard the rights, privilege and interests of
advocates. The Bar Council is a body corporate. The disciplinary committees are
constituted by the Bar Council. The Bar Council is not the same body as its
disciplinary committee. One of the principal functions of the Bar Council in
regard to standards of professional conduct and etiquette of advocates is to
receive complaints against advocates and if the Bar Council has reason to
believe that any advocate has been guilty of professional or other misconduct
it shall refer the case for disposal to its disciplinary committee. The Bar
Coun314 cil of a State may also of its own motion if it has reason to believe
that any advocate has been guilty of professional or other misconduct it shall
refer the case for disposal to its disciplinary committee. It is apparent that
a State Bar Council not only receives a complaint but is required to apply its
mind to find out whether there is any reason to believe that any advocate has
ben guilty of professional or other misconduct. The Bar Council of a State acts
on that reasoned belief. The Bar Council has a very important part to play
first, in the reception complaints, second, in forming reasonable belief of
guilt of professional or other misconduct and finally in making reference of
the case to its disciplinary committee. The initiation of the proceedings
before the disciplinary committee is by the Bar Council of a State. A most
Significant feature is that no litigant and no member of the public can
straightaway commence disciplinary proceedings against an advocate. lt is the
Bar Council of a State which initiates the disciplinary proceedings.
In finding out the meaning of the words
"person aggrieved by an order made by the disciplinary committee of the
Bar Council of India", two features are to be kept in the fore-front.
First, there is no lis in proceedings before the disciplinary committee. When
the disciplinary committee exercises the power to reprimand the advocate, or
suspend the advocate from practice or remove the name of the advocate, the
committee does not decide a suit between the parties. The Bar Council in
placing a matter before the disciplinary committee does not act as prosecutor
in a criminal case. A complainant who prefers a complaint against an advocate
is not like a plaintiff in a civil suit. The complaint is examined by the Bar
Council in order to find out whether there is any reason to believe that any
advocate has been guilty of misconduct. 'The Bar Council may act on its own
initiative on information which has come to its notice in the course of its
duties. Second, there is no party to the disciplinary proceedings. It is
because the Bar Council, the Attorney-General, the Advocate-General, as the
case may be, all act in protecting the interests of advocates, the interests of
the public. In so acting there is no conflict between the advocate and another
person. The reason is that it is professional conduct, professional etiquette,
professional ethics, professional morality, which are to be upheld,
transgression of which results in reprimanding the advocate of suspending him
from practice or removing his name from the roll.
With regard to the conduct of the advocates,
the State Bar Council plays an important part, vis-a-vis the disciplinary
committee constituted by the State Bar Council.
First, under section 35(1A) of the Act the
State Bar Council may either of its own motion or on an application made to it
by any person interested, withdraw a proceeding pending before its disciplinary
committee and direct the inquiry to be made by ant other disciplinary committee
of the State Bar Council. This indicates the watch that the State Bar Council
has to keep. Its task does not cease on placing a matter before the
disciplinary committee. This provision shows on one hand the abiding interest
of the State Bar Council in the matter and on the other the duty of guarding
the professional ethics with which it is entrusted. Second, under section 36(2)
of the Act, a 'State Bar Council may make a report to the Bar Council of India
to 315 withdraw before the disciplinary committee of the Bar Council of India
any proceeding for disciplinary action against any advocate pending before the
disciplinary committee of a State Bar Council. These provisions indicate that
after the State Bar Council has placed the matter before its disciplinary
committee, the Bar Council continues its check on the proceedings. These
courses of action are procedural. These steps do not give the State Bar Council
any power to deal with the decisions of the disciplinary committee. The reason
why the State Bar Council is empowered under the Act to withdraw proceedings
from one disciplinary committee and give it to another or to have the
disciplinary proceedings withdrawn from the State for determination by the
disciplinary committee of the BalCouncil of India is that the State Bar Council
is all the time interested in the task of preserving the profession against
impurities in the standards of conduct. The Bar Council is the collective
representative of the lawyers, the public, in regard lo the observance of
professional ethics by persons belonging to the noble profession.
The words `person aggrieved" are found
in several statutes. The meaning of the words "person aggrieved" will
have to be ascertained with reference to the purpose and the provisions of the
statute. Sometimes, it is said that the words "person aggrieved"
correspond to the requirement of locus standi which arises in relation to
judicial remedies.
Where a right of appeal to Courts against an
administrative or judicial decision is created by statute, the right is
invariably confined to a person aggrieved or a person who claims to be
aggrieved. The meaning of the words "a person aggrieved" may vary
according to the con text of the statute. One of the meanings is that a person
will be held to be aggrieved by a decision if that decision is materially
adverse to him. Normally, one is required to establish that one has been
'denied or deprieved of something to which one is legally entitled in order to
make one "a person aggrieved". Again a person is aggrieved if a legal
burden is imposed on him. The meaning of the words a "person
aggrieved" is sometimes given a restricted meaning in certain statutes
which provide remedies for the protection of private legal rights. The
restricted meaning requires denial or deprivation of legal rights. A more
liberal approach is required in the background of statutes which do not deal
with property rights but deal with professional conduct and morality. The role
of the Bar Council under the Advocates Act is comparable to the role of a
guardian in professional ethics. The words "persons aggrieved" in
sections 37 and 38 of the Act are of wide import add should not be subjected to
a restricted interpretation of possession or denial of legal rights or burdens
or financial interests. The test is whether the words "person
aggrieved" include "a person who has a genuine grievance because an
order has been made which prejudicially affects his interests". It has
therefore, to be found out whether the Bar Council has a grievance in respect
of an order or decision affecting the professional conduct and etiquette.
The pre-eminent question is: what are the
interests of the Bal. Council? The interests of the Bar Council are the
maintenance of standards of professional conduct and etiquette. The Bar Council
has 316 no personal or pecuniary interest. the Bar Council has the statutory A
duty and interest to see that the rules laid down by the Bar Council of India
in relation to professional conduct and etiquette are upheld and not violated.
The Bar Council acts as the sentinel of professional code of conduct and is
vitally interested in the rights and privileges of the advocates as well as the
purity and dignity of the profession.
The interest of the Bar Council is to uphold
standards of professional conduct and etiquette in the profession, which is
founded upon integrity and mutual trust. The Bar Council acts as the custodian
of the high traditions of the noble profession. The grievance of the Bar
Council is to be looked at purely from the point of view of standards of
professional conduct and etiquette. If any decision of the disciplinary committee
of the Bar Council of India is according to the State Bar Council such as will
lower the standards and imperil the high traditions and values in the
profession, the State Bar Council is an aggrieved person to safeguard the
interests of the public, the interests of the profession and the interests of
the Bar The Bar Council is "a person aggrieved" for these reasons
First, the words "person aggrieved" in the Act are of wide import in
the context of the purpose and provisions of the statute. In disciplinary
proceedings before the disciplinary committee there is no lis and there are no
parties. therefore, the word "person" will embrace the Bar Council
which represents the Bar of the State. Second, the Bar Council is "a
person aggrieved" because it represents the collective conscience of the
standards of professional conduct and etiquette. The Bar Council acts as the
protector of the purity and dignity of the profession. Third, the function of
the Bar Council in entertaining complaints against advocates is whn the Bar
Council has reasonable belief that there is a prima facie case of misconduct
that a disciplinary committee is entrusted with such inquiry. Once an inquiry
starts, the Bar Council has no control over its decision. The Bar Council may
entrust it to another disciplinary committee or the Bar Council may make a
report to the Bar Council of India. This indicates that the Bar Council is all
the time interested in the proceedings for the vindication of discipline,
dignity and decorum of the profession. Fourth, a decision of a disciplinary
committee can only be corrected by appeals as provided under the Act.
When the Bar Council initiates proceedings by
referring cases of misconduct to disciplinary committee, the Bar Council in the
performance of its functions under the Act is interested in the task of seeing
that the advocates maintain the proper standards an(l etiquette of the
profession.
Fifth, the Bar Council is vitally concerned
with the decision in the context of the functions of the Bar Council.
The Bar Council will have a grievance if the
decision prejudices the maintenance of standards of professional conduct and
ethics.
For these reasons we hold that the Bar
Council is an aggrieved person to maintain an appeal under the Act.
The appeals will now be heard on merits by a
Division Bench.
317 BEG, J.-I not only concur with the
conclusion reached by My Lord the Chief Justice and the reasons given to
support it. but I think that we can and should hold that there was actually a
"lis" between the Bar Council and the allegedly delinquent Advocates
who were hauled up before its Disciplinary Committee, on complaints sent by the
Executive Committee of the State Bar Council, for what were said to be acts of
professional misconduct, The learned Chief Justice has very clearly and
succinctly set out the reasons why a State Bar Council is a "person
aggrieved" entitled to appeal against orders in disciplinary proceedings
against members of the Bar of the State. It represents the Bar of the State. It
is the "keeper of the conscience" and the guardian of the interests
of members of the Bar. It acts "as the protector of the purity and dignity
of the (` profession." Its function in relation to disciplinary
proceedings, is to entertain complaints against Advocates, and, when there is a
prima facie case of misconduct, to initiate proceedings by sending the
complaint to its Disciplinary Committee. It has an interest in seeing that
correct decisions are given upon matters involving allegations of misconduct
against members of the Bar of the State. My learned brother Krishna Iyer has
indicated the wide range and the social significance and dimensions of this
interest.
A State Bar Council is composed primarily of
members elected from amongst Advocates of a State. Its statutory functions are
given in Section 6 of the Advocates Act, 1961 (hereinafter referred to as 'the
Act'). Amongst these, we are especially concerned here with clauses (c) and (d)
of Section 6(t) of the Act, which read as follows:
(c) to entertain and determine cases of
misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and
interests; of advocate on its roll;" Under Section 9 of the Act, the State
Bar Council constitutes its Disciplinary Committee consisting of "three
persons of whom two shall be persons elected by the. Council from amongst its
members and the other shall be a person elected by the Council from amongst
Advocates who possess the qualifications specified....". Under Section 10
it elects an Executive Committee of five members and an Enrolment Committee of
three members. Thus, the State Bar Council operates through its Committees.
Each Committee has distinct and separable functions. Each could, therefore, be
said to have a "persona" and an identity of its own which is
distinguishable from that of the Bar Council as a whole.
Each Committee, no doubt, acts for the Bar
Council, but its members are likely to be different although this is not
necessarily so. In any case, when the State Bar Council has sent a case to its
Disciplinary Committee, under Section 35 of the Act, that Committee proceeds as
an independent and impartial authority which tries a complaint and either
dismisses lt or directs proceedings to be filed, or, upon finding an advocate
guilty, punishes him by either reprimanding him, suspending him from practice
for a specified period, or orders removal of his name 7-L 839 Sup CI/75 318
from its roll of advocates. Indeed, Section 42(1) of the Act gives the
Disciplinary Committee the powers of a Civil Court under the Civil Procedure
Code; and, Section 42(2) enacts that its proceedings shall be
"deemed" to be judicial proceedings for the purposes mentioned there.
At the trial of a complaint, opportunities to
be heard must be given to the Advocate General and to the Advocate who is tried
by it. This has to be done because there are disputes and conflicting interests
and points of view on which the Disciplinary Committee has to give its
decisions.
Tho Advocate General can appear either
personally or through an Advocate representing him. He presumably represents
public interest as well as the interests of the legal profession of which he is
the formal head in the State. It is true that there is no provision in Section
35 of the Act for impleading the State Bar Council which, on its executive
side, initiates the proceedings by sending the case to its Disciplinary
Committee. But, if the Bar Council has a separable interest, as a guardian of
the rights and privileges of the members of the Bar specifically mentioned by Section
6(1)(d) of the Act, there is no reason why I right to represent this interest
before its on Disciplinary Committee well as before the Bar Council of India,
on an appeal under Section 37 of the Act, or, on the further appeal to this
Court under Section 38 of the Act, should be denied to it. Neither Section 37
nor Section 38 of the Act mention the State Bar Council as a separate entity.
Nevertheless if, as we are holding, it can
have the locus standi and rights of "person aggrieved", affected by
the results of such proceedings, I see no reason why we should not say that in
tho position of a party to a "lis" or a dispute between itself and
the allegedly delinquent Advocate towards the decision of which the proceedings
are directed.
The term "lis" is not confined to
litigation by means of a suit in a Court of law. In Butler v. Mountgarret it
was held that a "suit is not necessary to constitute lis". It was
pointed out there that "a family ..controversy capable of being litigated
is a lis mota'. In B. Johnson & Co.
(Builders) v. Minister of Health(2), Lord
Greene, M.R. said:
`"Lis implies the conception of an issue
joined between two parties, The decision of a lis.. is the decision of that
issue".
If the State Bar Council, acting through its
through it Executive Committee, has found a prima facie case to be send and
tried by its Disciplinary Committee, it performs the functions of a prosecuting
agency. lt does so i the discharge of its duty to safeguard '`the rights,
privileges and interests' of advocates as a whole on its roll which are
affected by the misconduct of an advocate. There arc, therefore, triable issues
between it and the; (, individual Advocate accused of misconduct. lt seems to
mc that we could and should, therefore, hold that the State Bar Council, in its
executive capacity, act as the prosecutor through its Executive Committee There
is no incongruity in its Disciplinary Committee, representing is judicial
want" functioning as an impartial Judge whose decisions ar..
binding upon the State Bar Council. If are
were holding that Bar Council, dissatisfied with a decision of its Disciplinary
Committee, can appeal against it, we her to, I think, as its logical corollary,
also hold that it is (1) 7 H. L. Ca. 641. (2) [1947] 2 All.E. R. 39; At 399.
319 a party to a "lis". Our`
opinion that it is a 'person aggrieved", within the meaning of that
expression as used in Sections 37 and 38 of the Act, necessarily implies that.
The point of view stated above rests upon the
distinction between the two different capacities of the State Bar Council; an
executive capacity, in which it acts as the prosecutor through its Executive
Committee, and a quasi-judicial function, which it performs through s
Disciplinary Committee. If we can make this distinction, as I think we can,
there is no merger between the prosecutor and the Judge here. If one may
illustrate from another sphere, when the State itself gets through it executive
agencies to prosecute and then though its judicial wing to decide a case there
is no breach of a rule of natural justice. The prosecutor and the Judge could
not be said to have the some personality or approach just because both of them
represents different aspects or functions of the same State.
For the reasons given above, I do not see any
objection to a participation of State Bar Council in its executive capacity, in
a disciplinary proceeding against an Advocate on its roll, either at the
initial or the appellate stages.
Before it can become a person aggrieved"
by an order against which it could appeal, there must have been a
"lis" or a dispute to be decided which gives rise to the order
complained of. To such a "lis" the State Bar Council, in its
executive capacity must be deemed to be a party. Apparently, its interests are
presumed to be sufficiently represented by the Advocate General. Hence, it was
not considered necessary to provide for its separate representation by a notice
to be given by its Disciplinary Committee; is provided for in the case of the
Advocate General But, their seems to me to be no legal obstacle in the way of
its separate representation, if. it so desires, even before its own
Disciplinary Committee. It certainly has notice of every complaint whenever it
send it to its Disciplinary Committee.
Its right to appeal in any event, as a
"person aggrieved", seems squarely covered by the provisions of
Sections 37 and 38 of the Act. It may be mentioned here that the respondents
themselves treated the Bar Council as a party interested in a "list",
so that it could become a "person" aggrieved" by the setting
aside of the orders against respondents, when they impleaded the State Bar
Council as a respondent in their appeals to the Bar Council India. Its
statutory right to appeal to this Court under Section 38 is not affected by the
mere fact that it did not put in appearance before the Bar Council of India.
KRISHNA IYER, J.My concurrence the opinion
which has been handed down by the learned Chief Justice is ordinarily
dissuasive of a separated long note, save when a fresh perspective is to be
presented or new frontiers are to be drawn by doing so. Partially, my
supplementary has this apology.
The tow-day long arguments in this case have
been devoted to a construction of two simple words in common use forming the
320 expression 'person aggrieved'. Precedential erudition and traditional
approaches notwithstanding, the key to tho meaning of the expression in
question lies in plain English plus the social fell of the Status and the
public commitment of the legal profession, the regulation on which has been
achieved by the Advocates Act, 1961 (for short, the Act) wherein the above
words occur. Legal scholarship, to be fruitful, must focus on the life-style of
the law without getting lost in mere logomachy.
The short question is as to whether the State
Bar Council is a person aggrieved' within the meaning of s. 38 so that it has
locus standi to appeal to this Court against a decision of the Disciplinary
Tribunal of the Bar Council of India which, it claims, is embarrassingly
erroneous and, if left unchallenged, may frustrate the high obligation of
maintaining standards of probity and purity and canons of correct professional
conduct among the members of the Bar on its rolls.
I skip the facts as they have been 5 out in
the judgment of the armed Chief Justice, except to state. that a number of
advocates, who are ranged as respondents, had been found guilty by the
Disciplinary Tribunal of the State Bar Council of unseemly soliciting but,. On
appeal. the disciplinary body of the National Bar Council, exonerated them on
certain view of 'professional conduct' which disturbed the State Bar Council
and even the All-India Bar Council, with the result that the former came upto
this Court in appeal and. the latter activity supported this stand.
The hackneyed phrase, 'person aggrieved is
not merely of frequent occurrence m statutes and in the writ jurisdiction but
has come up for judicial consideration in Anglo American and India courts in a
variety of situations and legislative settings. Notwithstanding the slippery
semantics of such legalese, the Indian legislative draftsmen have continued to
use them, out of linguistic allegiance to the British art, and Indian Judges
have frequently sought interpretative light from English authorities of ancient
vintage. These 'borrowed' drafting and interpretative exercises arc sometimes
inept when time and country change and the context and text of the statute
vary. I stress this aspect since much of the time of the Courts in India is
consumed by massive, and sometimes mechanical, reliance on exotic constructions
and default in evolving legislative simplicity and avoiding interpretative
complexity. At a time when our Courts are on trial for delayed disposals and
mystifying processes, this desideratum becomes all the more urgent. Otherwise,
why should decoding a single expression'person aggrieved' take two days of
learned length ? Even. in England, so well-known a Parliamentary draftsman as
Francis Bennion has recently pleaded in the Manchester Guardian against incomprensible
law forgetting 'that it is fundamentally important in a free society that the
law should be readily ascertainable and reasonably clear, and that otherwise it
is oppressive and deprives 321 the citizen of one of his basic rights'. It is
also needlessly expensive and wasteful. Reed Dickerson, the famous American
Draftsman. said: 'lt cost the Government and the public many millions of
dollars annually'. The Renton Committee, in England, has reported on drafting
reform but it is unfortunate that India is unaware of this problem and in a
post-Independence statute like the Advocates Act legislators should still get
entangled in these drafting mystiques and judges forced lo play a linguistic
game when the country has an illiterate laity as consumers of law and the rule
of law is basic to our constitutional order.
Back to the issue. Is the State Bar Council a
'person aggrieved'? No narrow. pedantic, technical or centenarian construction
can be blindly applied. On the other hand, a spacious construction,
functionally informed by the social conscience and the salutary purpose of the
enactment must illumine the judicial effort. So viewed, the ample. import and
breath of meaning of the words 'person aggrieved' will .
embrace the State Bar Council,for reasons
which 1 shall presently set out.
Each statute has a personality and a message.
Judicial interpretation is not bloodless and sterile exercise in spinning
subtle webs sometimes cobwebs, out of words and phrases otherwise simples. but
to unfold the scheme of the Legislation insightfully, sense its social setting
and read the plain intendment. This living approach can do justice to law, We are
here concerned with a legislative outfit for a national Bar, organising and
prescribing its statutory autonomy, elective structure, public functions,
internal regulation and ultimate appeal to the Supreme Court where canons of
good conduct have been allegedly breached by delinquent lawyers. This conspectus
will show what a vibrant and responsible role the Bar Council has to play at
the State and national levels and any interpretation which will detract from
this supervisory status of the Bar Council will be incongruous with the
founding creed of the institution.
The paramount concern of the Bar Councils is
the lawyer, the public and professional responsibility. Anything that hurts the
health of this system is a social trauma, a legal grievance, a special injury,
for them. After all, 'lawyer power' lasts not through peak incomes of a few and
security of statutory monopoly, but by the high comport and ethics of the many,
screening and weeding deviants and delinquents.
Let us get a glimpse of the great
expectations about The legal profession in society. Long ago, De Toqueville
trenchantly remarked that the profession of law.
"is the only aristrocratic element which
can be amalgamated without violence with natural elements of democracy.... I
cannot believe that a Republic could subsist if the influence of lawyers in
public business did not increase in proportion to the power of the people.
" He rightly stressed that 'lawyers
belong to the people by birth an. interest, to the aristocracy by habit and
taste'.
Thus the profession is 322 the connecting
link between the community and the Administration given an enlightened,
goal-oriented group outgrowing its elitist mores indeed today lawyers are
recruited also from the lower brackets. India has huge number of law men who
can be a force. What Prof. Brabanti observed about the Pakistan Bar has some,
only some though, relevance to India, and I quote:
"The sheer size of the legal community,
strongly organised into bar associations and closely allied with equally strong
courts has not only been a major source for the diffusion and regeneration of
norms generally, but by weight of numbers has enabled the courts to remain
strong and has prevented the rise of administrative lawlessness. There is s
curious anomaly here. The legal community, while often antagonistic to government
and constraining executive action, is nevertheless closely identified
normatively and culturally with the bureaucratic elite. This identification
curiously coupled with health antagonism actually enhances the strength of the
legal community.
It derives popular support from its
ostensible opposition to Government and at the same time elicits bureaucratic
support in the community at large. It has a net work of relationships in rural
areas and the cities.. In short, the legal community is a force to be, reckoned
with. It has challenged the executive during and after martial law, it has
defined efforts to restrict court jurisdiction, it has compelled justiciability
of fundamental rights, it has forced abrogation of several restrictive
enactments. Is this law as an impendiment to political development ? Is this
misallocation of scarce resources in the system? Is this unproductive use of
non productive man-power ? On the contrary, it seems to us that this is the
Very genius of political development." Michael Hager, after quoting Prof.
Brabanti, comments (in his article in the American Bar Association Journal,
January 1972, Vol. 58, on .The Role of Lawyers in Developing Countries')
"The legal profession has a unique opportunity to effect change from within
the political elite, to exert pressure from without and to win over the general
public to development policies. And as Mihaly and Nelson observed with respect
to legal education, 'law graduates usually fan out not only into legal practice
but also into responsible positions in business, government and
politics'." The Bar is not a private guild, like that of 'barbers butchers
and candlestick-makers' but, by bold contrast, a public institution committed
to public justice and pro bono publico service. The grant of monoply licence to
practice law is based on three assumptions There is a socially useful function
for The lawyer to perform. (2) The lawyer is a professional person who will
perform that function, and (3) His performance as a professional person is regulated
by himself and more normally, by the profession as a whole. The central
function 323 That the legal profession must perform is nothing less than the
administration of justice ('The Practice of Law is, a Public Utility' `The
Lawyer, The Public and Professional Responsibility' by F. Raymond Marks et
al-Chicago American Bar Foundation, 1972, p.288-289). A glance at The functions
of the Bar Council, and it will be apparent that a rainbow of public utility
duties, including legal aid to the pour, is cast on these bodies in the
national hope that the members of this monopoly will serve society and keep to
canons of ethics befitting an honourable order. If pathological cases of member
misbehaviour occur, the reputation and credibility of the Bar suffer a mayhem
and who, out the Bar Council, is more concerned with and sensitive to this
potential disrepute The few black sheep bring about? The official heads of the
Bar i.e., the Attorney General and the Advocates-General too are distressed if
a lawyer 'stoops to conquer' by resort to soliciting, touting and other corrupt
practices.
I may now refer to A. P. Gandhi v. H. M.
Seervai (1) where diver gent opinions were delivered but all concurred in
treating the Bar Council as an 'aggrieved person'. The earlier decision in
Bhataraju (2) strikes a note in consonance with this view. No hesitancy
inhibits me from hazarding the opinion that the social canvas must be spread
wide when making out the profile of a statute like the Advocates Act for the
good reason that the Bar has a share in being the sentinel on the qui vive when
the legal dykes of Right and justice are breached by authoritarianism or
citizen-wrongdoing. Nor do I conceal my halfhorror at any professional tribunal
glossing over 'snatching briefs' and 'dragging clients'-provided they are
proved-as less than gross misconduct. If the salt lose their savour, wherewith
shall they be salted ? However, I hasten to make it plain, to avoid prejudice to
the parties. that I totally desist from pronouncing on the merits of the
evidence in this case.
One more point. A case of professional
misconduct is not a lis in the British sense nor a case and controversy in the
American meaning. It is a public investigation about misconduct by one
belonging to public profession where every member of the Bar with a reputation
to lose has a stake and every one concerned with the justice administration is
interested. Traditionally used to the adversary system, we search for
individual persons aggrieved. But a new class of litigation public interest
litigation-where a section or whole of the community is involved (such as
consumers' organisations or NAACP-National Association for Advancement of
Coloured People-in America), emerges. In a developing country like ours, this
pattern of public-oriented litigation better fulfils the rule of law if it is
to run close to the rule of life. The Bar Council clearly comes within this
category of organisations When a lawyer is involved.
I derive support for this philosophy of
approach from academic and judicial opinion in England and America. A question
arose whether a railroad company-BAR (Bangor and Aroostook Railroad)-could
bring an action against the stockholders for having drained BAR (1) [197] I S
C. R. 863. (2) [1955] 1 S. C. R.
1055,1064.
324 improperly. Although an academic critic
took the view that the District Court was incorrect in its view that BAR was
the 'sole beneficiary', he went on to state that the public's interest in the
financial health of BAR provided a separate interest in bringing the action.
The learned author wrote:
"It would seem to be incontestable that
the public has a very n real interest in rail roads. Railroads have been found
vital to a healthy national economy; any such factor must. a priori, be deemed
a potent component of the public welfare. As such, it is evident that a
financially healthy railroad is of concern not only to its stockholders, but to
the public as well Finding that the management of a railroad has obligations
running to the public as well as fiduciary duties owing to the corporation's
stockholders, the Court concluded that, of these two responsibilities, tho
public interest is paramount. "It must be remembered," the Court cautioned,
"that railways are public corporations organized for public
purposes....They all primarily owe duties to the public of a higher nature even
than that of earning large dividends for their shareholders." (Review by
James 1;. Simon of Bangor & Aroostook R. R v. Bangor Punta operations, Inc
(Bangor & Aroostook), 482 F.2d 865 (Ist Cir. 1973), cert. granted, 94 S.Ct.
863 (1974) Columbia Law Review Vol. 74 No. 3,
April 197 p. 528 at pp. 531-532).
Similarly, the American Supreme Court relaxed
from the restrictive attitude towards 'standing' in public action in Baker v.
Carr (369 U.S. 186 (1962), vide Maryland Law Review, Vol. XXXIII 1973 p.506:
"In Baker, voters challenged the failure
of the Tennessee legislature to reapportion itself since 1901;
the plaintiffs lived l. in countries which
had become under-represented under the old law. The Supreme Court held that
these voters had the requisite standing to challenge the inaction of the
legislature The Court expanded the notion of direct injury to include mere
'debasement' of a vote, rather than the total deprivation which had previously
been required." American jurisprudence has recognised, for instance, the
expanding importance of consumer protection in the economic system and
permitted consumer organisations to initiate or intervene in actions, although
by the narrow rule of 'locus standi', such a course could not have been
justified (see p. 807-New York University Law Review. Vol. 46. 1971). In fact,
citizen organisations have recently been Campaigning for using legal actions
for protection of community interest, broadening the scope of 'standing' in
legal proceedings (see p.403-Boston University Law Review, Vol. 51, 1971).
325 In the well-known case of
Attorney,General of the Gambia v. Pierr sarr N.'Jie(l), Lord Denning observed
about the Attorney-General's standing thus:
"...The words 'person aggrieved' is of
wide import and should not be subjected to a restrictive interpretation. They
do not include, of course, a mere busy body who is interfering. in things which
do not concern him; but they do include a person who has a genuine grievance
because an order has been made which prejudicially affects his interests. Has
the Attorney General a sufficient interest for this purpose ? Their Lordships
think that he has. The Attorney General in a colony represents the Crown as the
guardian of the public interest. It is his duty to bring before the judge any
mis conduct of a barrister or solicitor which is of sufficient gravity to
warrant disciplinary action." Ray, J (as he then was) crystallised this
ratio in A.P.
Gandhi (supra) thus:
"The Judicial Committee construed the
words 'person aggrieved' to include the Attorney General of Gambia as
representing the public interest." (p.927) "The profession touches
the public on the one hand and the courts on the other. On no other basis could
the presence of J., the Advocate General be explained." (p.928) Although
not strictly confined to 'standing' with reference to suits jurists have thrown
some light on this subject. Professor S.A de Smith has observed:
"All developed legal systems have had to
face the problem of adjusting conflicts between two aspects of the public
interest-the desirability of encouraging individual citizens to participate
actively in the enforcement of the law, and the undesirability of encouraging
the professional litigant and the meddlesome interloper to invoke the
jurisdiction of the courts in matters that do not concern him." (Quoted
ill 'Standing Justifiability' by V. S. Deshpande Journal of the Indian Law
Institute-April June 1971Vol. 13, No. 2, p. 174) Professor H.W.R. Wade has
observed:
"In other words, certiorari is not
confined by a narrow conception of locus standi. It contains an element of the action
popular is This is because it looks beyond the personal rights A of the
applicant; it is designed to keep the machinery of justice in proper working
order by presenting inferior tribunals and public authorities from abusing
their powers." (Standing and Justiciability bid, p. 175) The possible
apprehension that widening legal standing With a public connotation may unloose
a flood of litigation which may overwhelm the judges is misplaced because
public resort to court to suppress public mischief is a tribute to the justice
system. In this very case, to grant an exclusionary windfall on the respondents
is to cripple the Bar Council in its search for justice and insistence on
standards.
I have been long on a short point, but
brevity, where there is something to speak, is not the soul of wit but a sign
of something different.
P.B.R.
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