Pravin
C. Shah Vs. K.A. Mohd. Ali & Anr [2001] Insc 536 (9 October 2001)
K.T.Thomas,
S.N.Variava Thomas, J.
We
thought that the question involved in this appeal would generate much interest
to the legal profession and hence we issued notices to the Bar Council of India
as well as the State Bar Council concerned. But the Bar Council of India did
not respond to the notice. We therefore requested Mr. Dushyant A. Dave, Senior
Advocate, to help us as amicus curiae. The learned senior counsel did a
commendable job to help us by projecting a wide screen focussing on the full
profiles of the subject with his usual felicity. We are beholden to him.
When
an advocate was punished for contempt of court can he appear thereafter as a
counsel in the courts, unless he purges himself of such contempt? If he cannot,
then what is the way he can purge himself of such contempt. That question has
now come to be determined by the Supreme Court.
This
matter concerns an advocate practising mostly in the courts situated within Ernakulam
District of Kerala State. He was hauled up for contempt of court on two
successive occasions. We wish to skip the facts in both the said cases which
resulted in his being hauled up for such contempt as those facts have no direct
bearing on the question sought to be decided now. (The detailed facts leading
to the said proceedings have been narrated in the two decisions of the High
Court of Kerala reported in C.N. Presannan vs. K.A. Mohammed Ali 1991 Criminal
Law Journal 2194 and 1991 Criminal Law Journal 2205). Nonetheless it is
necessary to state that the High Court of Kerala found the respondent-advocate
guilty of criminal contempt in both cases and convicted him under Section 12 of
the Contempt of Courts Act, 1971, and sentenced him in one case to a fine of
Rs.10,000/- (to be credited, if realised, to the funds of Kerala Legal Aid
Board). In the second case he was sentenced to pay a fine of Rs.2,000/-. Though
he challenged the conviction and sentence imposed on him by the High Court, he
did not succeed in the Supreme Court except getting the fine of Rs.2,000/- in
one case deleted. The apology tendered by him in this Court was not accepted,
for which a two Judge Bench made the following observation:
We
regretfully will not be able to accept his apology at this belated juncture,
but would rather admonish the appellant for his conduct under our plenary
powers under the constitution, which we do hereby.
The
above conviction and sentence and refusal to accept the apology tendered on his
behalf did not create any ripple in him, so far as his resolve to continue to
appear and conduct cases in the courts was concerned. The present appellant
(who represents an association Lalan Road Residents Association, Cochin) brought to the notice of the Bar
Council of Kerala that the delinquent advocate continued to conduct cases
before the courts in Ernakulam District in spite of the conviction and
sentence.
The
Bar Council of Kerala thereupon initiated disciplinary proceedings against the
respondent-advocate and finally imposed a punishment on him debarring him from
acting or pleading in any court till he gets himself purged of the contempt of
court by an order of the appropriate court. The respondent-advocate challenged
the order of the State Bar Council in an appeal filed before the Bar Council of
India. By the impugned order the Bar Council of India set aside the interdict
imposed on him.
This
appeal, in challenge of the aforesaid order of the Bar Council of India, is
preferred by the same person at whose instance the State Bar Council initiated
action against the respondent-advocate.
While
imposing the interdict on the advocate the Disciplinary Committee of the Bar
Council of the State took into account Rule 11 of the Rules framed by the High
Court of Kerala under Section 34(1) of the Advocates Act, 1961, regarding
conditions and practice of Advocates (hereinafter referred to as the Rules).
Rule 11 reads thus:
No
advocate who has been found guilty of contempt of Court shall be permitted to
appear, act or plead in any Court unless he has purged himself of the contempt.
The
above rule shows that it was not necessary for the Disciplinary Committee of
the Bar Council to impose the said interdict as a punishment for misconduct.
Even if the Bar Council had not passed proceedings (which the Disciplinary
Committee of the Bar Council of India has since set aside as per the impugned
order) the delinquent advocate would have been under the disability contained
in Rule 11 quoted above. It is a self-operating rule for which only one stipulation
need be satisfied i.e. the advocate concerned should have been found guilty of
contempt of court. The termini of the period of operation of the interdict is
indicated by the next stipulation i.e. the contemnor purges himself of the
contempt. The inhibition will therefore start operating when the first
stipulation is satisfied, and it would continue to function until the second
stipulation is fulfilled. The latter condition would remain eluded until the
delinquent advocate himself initiates steps towards that end.
Regarding
the first condition there is no difficulty whatsoever in the present case
because it is an admitted fact that respondent-advocate has been found guilty
of contempt of court by the High Court of Kerala in two cases successively. For
the operation of the interdict contained in Rule 11 it is not even necessary
that the advocate should have been sentenced to any punishment after finding
him guilty. The difficulty arises in respect of the second condition mentioned
above.
The
Disciplinary Committee of the Bar Council of India seems to have approached the
question from a wrong angle by posing the following question:
The
fundamental question arising for consideration in this appeal is whether Rule
11 of the Rules framed by the Honourable High Court of Kerala under Section
34(1) of the Advocates Act, 1961, is binding on the Disciplinary Committee of
the State Bar Council and if not whether the Disciplinary Committee was
justified in ordering that on account of the disqualification under Rule 11 the
appellant could not be allowed to appear, act or plead till he gets himself
purged of the contempt by an order of the appropriate court.
There
is no question of Rule 11 being binding on the Disciplinary Committee or any
other organ of the Bar Council. There is nothing in the said rule which would
involve the Bar Council in any manner. But there is nothing wrong for the Bar
Council informing a delinquent advocate of the existence of a bar contained in
Rule 11 and remind him of his liability to abide by it. Hence the question
formulated by the Disciplinary Committee of the Bar Council of India, as aforequoted,
was unnecessary and fallacious.
In the
impugned order the Disciplinary Committee rightly stated that the exercise of
the disciplinary powers over the advocates is exclusively vested with the Bar
Council and this power cannot be taken away by the High Court either by a
judicial order or by making a rule.
This
is precisely the legal position adumbrated by the Constitution Bench of this
Court in Supreme Court Bar Association vs. Union of India and anr. {1998 (4)
SCC 409} In fact the relevant portions of the said decision have been quoted in
the impugned order in extenso. But having informed themselves of the correct
legal position regarding the powers of the Bar Council the members of the
Disciplinary Committee of the Bar Council of India embarked on a very erroneous
concept when it observed the following:
But to
say that an advocate who had been found guilty of contempt of court shall not
be permitted to appear, act or plead in a court unless he has purged himself of
the contempt would amount to usurpation of powers of Bar Council.
After
examining Rule 11 of the Rules the Disciplinary Committee of the Bar Council of
India held that there cannot be an automatic deprivation of the right of an
advocate to appear, act or plead in a court, since such a course would be
unfair and even violative of the fundamental rights guaranteed under Articles
14, 19(1)(g) and 21 of the Constitution of India. In the end the Disciplinary
Committee of the Bar Council of India made an unwarranted proposition on a
misplaced apprehension as follows:
The
independence and autonomy of the Bar Council cannot be surrendered to the
provisions contained in Rule 11 of the Rules made by High Court of Kerala under
S.34(1) of the Advocates Act.
By
giving expression to such a proposition the Bar Council of India has obviously
overlooked the legal position laid down by the Constitution Bench in Supreme
Court Bar Association vs. Union of India (supra). In paragraph 57 of the
decision the Bench said thus:
In a
given case, an advocate found guilty of committing contempt of court may also
be guilty of committing professional misconduct, depending upon the gravity or
nature of his contumacious conduct, but the two jurisdictions are separate and
distinct and exercisable by different forums by following separate and distinct
procedures.
The
power to punish an advocate by suspending his licence or by removal of his name
from the roll of the State Bar Council for proven professional misconduct vests
exclusively in the statutory authorities created under the Advocates Act, 1961,
while the jurisdiction to punish him for committing contempt of court vests
exclusively in the courts.
Thereafter
in paragraph 80, the Constitution Bench said the following:
In a
given case it may be possible, for this Court or the High Court, to prevent the
contemnor advocate to appear before it till he purges himself of the contempt
but that is much different from suspending or revoking his licence or debarring
him to practise as an advocate. In a case of contemptuous, contumacious,
unbecoming or blameworthy conduct of an Advocate-on- Record, this Court
possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his
privilege to practice as an Advocate-on-Record because that privilege is
conferred by this Court and the power to grant the privilege includes the power
to revoke or suspend it. The withdrawal of that privilege, however, does not
amount to suspending or revoking his licence to practice as an advocate in
other courts or tribunals.
Rule
11 of the Rules is not a provision intended for the Disciplinary Committee of
the Bar Council of the State or the Bar Council of India. It is a matter
entirely concerning the dignity and the orderly functioning of the courts. The
right of the advocate to practise envelopes a lot of acts to be performed by
him in discharge of his professional duties. Apart from appearing in the courts
he can be consulted by his clients, he can give his legal opinion whenever
sought for, he can draft instruments, pleadings, affidavits or any other documents,
he can participate in any conference involving legal discussions etc. Rule 11
has nothing to do with all the acts done by an advocate during his practice
except his performance inside the court. Conduct in court is a matter
concerning the court and hence the Bar Council cannot claim that what should
happen inside the court could also be regulated by Bar Council in exercise of
its disciplinary powers. The right to practise, no doubt, is the genus of which
the right to appear and conduct cases in the court may be a specie. But the
right to appear and conduct cases in the court is a matter on which the court
must have the major supervisory power. Hence the court cannot be divested of
the control or supervision of the court merely because it may involve the right
of an advocate.
When
the rules stipulate that a person who committed contempt of court cannot have
the unreserved right to continue to appear and plead and conduct cases in the
courts without any qualm or remorse, the Bar Council cannot overrule such a
regulation concerning the orderly conduct of court proceedings. Courts of law
are structured in such a design as to evoke respect and reverence to the
majesty of law and justice. The machinery for dispensation of justice according
to law is operated by the court.
Proceedings
inside the courts are always expected to be held in a dignified and orderly
manner. The very sight of an advocate, who was found guilty of contempt of
court on the previous hour, standing in the court and arguing a case or
cross-examining a witness on the same day, unaffected by the contemptuous behaviour
he hurled at the court, would erode the dignity of the court and even corrode
the majesty of it besides impairing the confidence of the public in the
efficacy of the institution of the courts. This necessitates vesting of power
with the High Court to formulate rules for regulating the proceedings inside
the court including the conduct of advocates during such proceedings. That
power should not be confused with the right to practise law. While the Bar
Council can exercise control over the latter, the High Court should be in
control of the former.
In the
above context it is useful to quote the following observations made by a
Division Bench of the Allahabad High Court in Prayag Das vs. Civil Judge, Bulandshahr
and ors. (AIR 1974 Allahabad 133):
The
High Court has a power to regulate the appearance of advocates in courts. The
right to practise and the right to appear in courts are not synonymous. An
advocate may carry on chamber practice or even practise in courts in various
other ways, e.g. drafting and filing of pleadings and Vakalatnama for
performing those acts. For that purpose his physical appearance in courts may
not at all be necessary. For the purpose of regulating his appearance in courts
the High Court should be the appropriate authority to make rules and on a
proper construction of Section 34(1) of the Advocates Act it must be inferred
that the High Court has the power to make rules for regulating the appearance
of Advocates and proceedings inside the courts. Obviously the High Court is the
only appropriate authority to be entrusted with this responsibility.
In our
view, the legal position has been correctly delineated in the above statements
made by the Allahabad High Court. The context for making those statements was
that an advocate questioned the powers of the High Court in making dress
regulations for the advocates while appearing in courts.
Lord
Denning had observed as follows in Hadkinson vs. Hadkinson {1952 (2) All
England Law Reports 567}:
I am
of the opinion that the fact that a party to a cause has disobeyed an order of
the court is not of itself a bar to his being heard, but if his disobedience is
such that, so long as it continues, it impedes the course of justice in the
cause, by making it more difficult for the court to ascertain the truth or to
enforce the orders which it may make, then the court may in its discretion
refuse to hear him until the impediment is removed or good reason is shown why
it should not be removed.
The
observations can apply to the courts in India without any doubt and at the same time without impeding the
disciplinary powers vested in the Bar Councils under the Advocates Act.
We
have already pointed out that Rule 11 of the Rules is a self-operating
provision. When the first postulate of it is completed (that the advocate has
been found guilty of contempt of court) his authority to act or plead in any
court stands snapped, though perhaps for the time being.
If he
does such things without the express permission of the court he would again be
guilty of contempt of court besides such act being a misconduct falling within
the purview of Section 34 of the Advocates Act. The interdict as against him
from appearing in court as a counsel would continue until such time as he
purges himself of the contempt.
Now we
have to consider the crucial question - How can a contemnor purge himself of
the contempt? According to the Disciplinary Committee of the Bar Council of
India, purging oneself of contempt can be done by apologising to the court. The
said opinion of the Bar Council of India can be seen from the following portion
of the impugned order:
Purging
oneself of contempt can be only by regretting or apologising in the case of a
completed action of criminal contempt. If it is a case of civil contempt, by
subsequent compliance with the orders or directions the contempt can be purged
off.
There
is no procedural provision in law to get purged of contempt by an order of an
appropriate court.
Purging
is a process by which an undesirable element is expelled either from ones own
self or from a society.
It is
a cleansing process. Purge is a word which acquired implications first in
theological connotations. In the case of a sin, purging of such sin is made
through the expression of sincere remorse coupled with doing the penance
required. In the case of a guilt, purging means to get himself cleared of the
guilt. The concept of purgatory was evolved from the word purge, which is a
state of suffering after this life in which those souls, who depart this life
with their deadly sins, are purified and render fit to enter into heaven where
nothing defiled enters.
(vide
Words and Phrases, Permanent Edn., Vol.35A, page 307). In Blacks Law Dictionary
the word purge is given the following meaning: To cleanse; to clear or
exonerate from some charge or imputation of guilt, or from a contempt. It is
preposterous to suggest that if the convicted person undergoes punishment or if
he tenders the fine amount imposed on him the purge would be completed.
We are
told that a learned single Judge of the Allahabad High Court has expressed a
view that purging process would be completed when the contemnor undergoes the
penalty (vide Dr. Madan Gopal Gupta vs. The Agra University and ors., AIR 1974 Allahabad
39). This is what the learned single Judge said about it:
In my
opinion a party in contempt purged its contempt by obeying the orders of the court
or by undergoing the penalty imposed by the court.
Obeying
the orders of the court would be a mode by which one can make the purging
process in a substantial manner when it is a civil contempt. Even for such a
civil contempt the purging process would not be treated as completed merely by
the contemnor undergoing the penalty imposed on him unless he has obeyed the
order of the court or he has undone the wrong. If that is the position in
regard to civil contempt the position regarding criminal contempt must be
stronger. Section 2 of the Contempt of Courts Act categorises contempt of court
into two categories. The first category is civil contempt which is the willful
disobedience of the order of the court including breach of an undertaking given
to the court. But criminal contempt includes doing any act whatsoever which
tends to scandalise or lowers the authority of any court, or tends to interfere
with the due course of a judicial proceeding or interferes with, or obstructs
the administration of justice in any other manner.
We
cannot therefore approve the view that merely undergoing the penalty imposed on
a contemnor is sufficient to complete the process of purging himself of the
contempt, particularly in a case where the contemnor is convicted of criminal contempt.
The danger in giving accord to the said view of the learned single Judge in the
afore-cited decision is that if a contemnor is sentenced to a fine he can
immediately pay it and continue to commit contempt in the same court, and then
again pay the fine and persist with his contemptuous conduct. There must be
something more to be done to get oneself purged of the contempt when it is a
case of criminal contempt.
The
Disciplinary Committee of the Bar Council of India highlighted the absence of
any mode of purging oneself of the guilt in any of the Rules as a reason for
not following the interdict contained in Rule 11. Merely because the Rules did
not prescribe the mode of purging oneself of the guilt it does not mean that
one cannot purge the guilt at all. The first thing to be done in that direction
when a contemnor is found guilty of a criminal contempt is to implant or infuse
in his own mind real remorse about his conduct which the court found to have
amounted to contempt of court. Next step is to seek pardon from the court
concerned for what he did on the ground that he really and genuinely repented
and that he has resolved not to commit any such act in future. It is not enough
that he tenders an apology. The apology tendered should impress the court to be
genuine and sincere. If the court, on being impressed of his genuineness,
accepts the apology then it could be said that the contemnor has purged himself
of the guilt.
This
Court has held in M.Y. Shareef and anr. vs. Honble Judges of the Nagpur High Court
and ors. (AIR 1955 SC 19) that an apology is not a weapon of defence to purge
the guilty of their offence, nor is it intended to operate as a universal
panacea, but it is intended to be evidence of real contriteness. Ahmadi, J (as
the learned Chief Justice then was) in M.B. Sanghi, Advocate vs. High Court of
Punjab and Haryana and ors. {1991(3) SCC 600}, while considering an apology
tendered by an advocate in a contempt proceeding has stated thus:
And
here is a member of the profession who has repeated his performance presumably
because he was let off lightly on the first occasion. Soft justice is not the
answer not that the High Court has been harsh with him what I mean is he cannot
be let off on an apology which is far from sincere. His apology was hollow,
there was no remorse no regret it was only a device to escape the rigour of the
law. What he said in his affidavit was that he had not uttered the words
attributed to him by the learned Judge; in other words the learned judge was
lying adding insult to injury and yet if the court finds him guilty (he
contested the matter tooth and nail) his unqualified apology may be accepted.
This is no apology, it is merely a device to escape.
A four
Judge Bench of this Court in Mulk Raj vs. State of Punjab {1972 (3) SCC 839}
made the following observations which would throw considerable light on the
question before us:
Apology
is an act of contrition. Unless apology is offered at the earliest opportunity
and in good grace apology is aborn of penitence. If apology is offered at a
time when the contemnor finds that the court is going to impose punishment it
ceases to be an apology and it becomes an act of a cringing coward. The High
Court was right in not taking any notice of the appellants expression of
apology without any further word. The High Court correctly said that acceptance
of apology in the case would amount to allow the offender to go away with
impunity after having committed gross contempt.
Thus a
mere statement made by a contemnor before court that he apologises is hardly
enough to amount to purging himself of the contempt. The court must be
satisfied of the genuineness of the apology. If the court is so satisfied and
on its basis accepts the apology as genuine the court has to make an order
holding that the contemnor has purged himself of the contempt. Till such an
order is passed by the court the delinquent advocate would continue to be under
the spell of the interdict contained in Rule 11 of the Rules.
Shri Sadrul
Anam, learned counsel for the respondent- advocate submitted first, that the
respondent has in fact apologised before this Court through the counsel engaged
by him, and second is that when this Court observed that this course should set
everything at rest it should be treated as the acknowledgement made by this
Court that the contemnor has purged himself of the guilt.
We are
unable to accept either of the said contentions. The observation that this
course should set everything at rest in the judgment of this Court cannot be
treated as anything beyond the scope of the plea made by the respondent in that
case. That apart, this Court was certainly disinclined to accept the apology so
tendered in this Court which is clearly manifested from the outright
repudiation of that apology when this Court said thus:
We
regretfully will not be able to accept his apology at this belated juncture,
but would rather admonish the appellant for his conduct under our plenary
powers under the constitution, which we do hereby.
The
respondent-advocate continued to appear in all the courts where he was earlier
appearing even after he was convicted by the High Court for criminal contempt
without being objected by any court. This is obviously on account of the fact
that presiding officers of the court were not informed of what happened. We,
therefore, direct that in future, whenever an advocate is convicted by the High
Court for contempt of court, the Registrar of that High Court shall intimate
the fact to all the courts within the jurisdiction of that High Court so that
presiding officers of all courts would get the information that the particular
advocate is under the spell of the interdict contained in Rule 11 of the Rules
until he purges himself of the contempt.
It is
still open to the respondent-advocate to purge himself of the contempt in the
manner indicated above. But until that process is completed respondent-advocate
cannot act or plead in any court situated within the domain of the Kerala High
Court, including the subordinate courts thereunder. The Registrar of the High
Court of Kerala shall intimate all the courts about this interdict as against
the respondent-advocate.
This
appeal is disposed of accordingly.
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