Common
Cause A Registered Society Vs. Union of India
& Ors [2005] Insc 512 (28 September 2005)
S.
N. Variava, Dr. Ar. Lakshmanan & S. H. Kapadia
O R D
E R CONTEMPT PETITION (C) NO. 81 OF 2000 IN W.P. (C) NO. 821 OF 1990 [With
Contempt Petition (C) No. 88 of 2000 in W.P. (C) No. 821 of 1990 and W.P. (C)
No. 320 of 1993 and I.A. No. 7 in W.P. (C) No. 821 of 1990 and W.P. (C) No. 320
of 1993]
The
two Contempt Petitions and the I.A. can be disposed off by this common Order.
All of them deal with the question whether the action of the Bar Associations,
i.e., the Delhi High Court Bar Association and the Supreme Court Bar
Association, in visiting the Advocates, who refused to participate in the
strike call, with punitive action of suspension and the action of the Bar
Council of Delhi passing a resolution which inter alia proposes to take against
lawyers who did not participate in the strike call, amounts to contempt of the
Judgment of this Court in the case of Common Cause 'A Registered Society vs.
Union of India reported in (1995) 1 Scale 6.
The
concerned events in these matters took place during 1999 and 2000 and since
then there has been no repetition of the acts of the type alleged. Thus, apart
from reiterating the well-settled legal position, we do not propose to take any
further action.
The
question of lawyers' going on strike has been a subject matter in a number of
decisions of this Court. All of them have been considered in the Judgment of a
Constitution Bench of this Court in the case of Ex. Capt. Harish Uppal vs.
Union of India reported in (2003) 2 SCC 45. In this case, the Court also noted
the directions, which were issued by this Court in the case of Common Cause 'A
Registered Society (supra). The said directions are to the following effect:
"(1)
In the rare instance where any association of lawyers including statutory Bar
Councils considers it imperative to call upon and/or advise members of the
legal profession to abstain from appearing in courts on any occasion, it must
be left open to any individual member/members of that association to be free to
appear without let, fear or hindrance or any other coercive steps.
(2) No
such member who appears in court or otherwise practices his legal profession,
shall be visited with any adverse or penal consequences whatever, by any
association of lawyers, and shall not suffer any expulsion or threat of
expulsion therefrom.
(3)
The above will not preclude other forms of protest by practicing lawyers in
court such as, for instance, wearing of armbands and other forms of protest
which in no way interrupt or disrupt the court proceedings or adversely affect
the interest of the litigant. Any such form of protest shall not however be
derogatory to the court or to the profession.
(4)
Office-bearers of a Bar Association (including Bar Council) responsible for
taking decisions mentioned in clause (1) above shall ensure that such decisions
are implemented in the spirit of what is stated in clauses (1), (2) and (3)
above."
Even
though these directions were passed as an interim measure they were made an
Order of the Court. In this case, it was hoped that the Bar Council of India
would incorporate the above clauses in the Bar Council of India (Conduct and
Disciplinary) Rules. Unfortunately, even after all these years, the Bar Council
of India has not deemed it fit to incorporate those directions into its Rules.
However, Mr. Krishnamani made a statement, on behalf of the Bar Council of
India, that a meeting has been called by the Bar Council of India on 18th October, 2005 in order to consider what is to be
done with regard to Lawyers' Strike. It is hoped that now at least better sense
will prevail and the Bar Council of India incorporates the above clauses in the
Bar Council of India (Conduct and Disciplinary) Rules.
The
Constitution Bench has, in Ex. Capt. Harish Uppal's case (Supra), culled out
the law in the following terms:
"20.
Thus the law is already well settled. It is the duty of every Advocate who has
accepted a brief to attend trial, even though it may go on day to day for a
prolonged period. It is also settled law that a lawyer who has accepted a brief
cannot refuse to attend Court because a boycott call is given by the Bar
Association. It is settled law that it is unprofessional as well as unbecoming
for a lawyer who has accepted a brief to refuse to attend Court even in
pursuance of a call for strike or boycott by the Bar Association or the Bar
Council. It is settled law that Courts are under an obligation to hear and
decide cases brought before it and cannot adjourn matters merely because
lawyers are on strike. The law is that it is the duty and obligation of Courts
to go on with matters or otherwise it would tantamount to becoming a privy to
the strike. It is also settled law that if a resolution is passed by Bar Associations
expressing want of confidence in judicial officers it would amount to scandalising
the Courts to undermine its authority and thereby the Advocates will have
committed contempt of Court. Lawyers have known, at least since Mahabir Singh's
case (supra) that if they participate in a boycott or a strike, their action is
ex facie bad in view of the declaration of law by this Court. A lawyer's duty
is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also
known, at least since Roman Services' case, that the Advocates would be
answerable for the consequences suffered by their clients if the non-
appearance was solely on grounds of a strike call.
21. It
must also be remembered that an Advocate is an officer of the Court and enjoys
special status in society.
Advocates
have obligations and duties to ensure smooth functioning of the Court. They owe
a duty to their client.
Strikes
interfere with administration of justice. They cannot thus disrupt Court
proceedings and put interest of their clients in jeopardy.
xxx xxx
xxx
34.
One last thing which must be mentioned is that the right of appearance in
Courts is still within the control and jurisdiction of Courts. Section 30 of
the Advocates Act has not been brought into force and rightly so. Control of
conduct in Court can only be within the domain of Courts.
Thus
Article 145 of the Constitution of India gives to the Supreme Court and Section
34 of the Advocates Act gives to the High Court power to frame rules including
rules regarding condition on which a person (including an Advocate) can
practice in the Supreme Court and/or in the High Court and Courts subordinate
thereto. Many Courts have framed rules in this behalf. Such a rule would be
valid and binding on all. Let the Bar take note that unless self restraint is
exercised, Courts may now have to consider framing specific rules debarring
Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from
appearing before the Courts. Such a rule if framed would not have anything to
do with the disciplinary jurisdiction of Bar Councils. It would be concerning
the dignity and orderly functioning of the Courts. The right of the advocate to
practise envelopes a lot of acts to be performed by him in discharge of his
professional duties.
Apart
from appearing in the Courts he can be consulted by his clients, he can give
his legal opinion whenever sought for, he can draft instruments, pleadings,
affidavits or any other documents, he can participate in any conference
involving legal discussions, he can work in any office or firm as a legal
officer, he can appear for clients before an arbitrator or arbitrators etc.
Such a rule would have nothing to do with all the acts done by an advocate
during his practice. He may even file Vakalat on behalf of client even though
his appearance inside the Court is not permitted. Conduct in Court is a matter
concerning the Court and hence the Bar Council cannot claim that what should
happen inside the Court could also be regulated by them in exercise of their
disciplinary powers. The right to practice, no doubt, is the genus of which the
right to appear and conduct cases in the Court may be a specie.
But
the right to appear and conduct cases in the Court is a matter on which the
Court must and does have major supervisory and controlling power. Hence Courts
cannot be and are not divested of control of supervision of conduct in Court
merely because it may involve the right of an advocate. A rule can stipulate
that a person who has committed contempt of Court or has behaved
unprofessionally and in an unbecoming manner will not have the right to
continue to appear and plead and conduct cases in Courts. The Bar Councils
cannot overrule such a regulation concerning the orderly conduct of Court
proceedings. On the contrary it will be their duty to see that such a rule is
strictly abided by. Courts of law are structured in such a design as to evoke
respect and reverence to the majesty of law and justice. The machinery for
dispensation of justice according to law is operated by the Court. Proceedings
inside the Courts are always expected to be held in a dignified and orderly
manner. The very sight of an advocate, who is guilty of Contempt of Court or of
unbecoming or unprofessional conduct, standing in the Court would erode the
dignity of the Court and even corrode the majesty of it besides impairing the
confidence of the public in the efficacy of the institution of the Courts. The
power to frame such rules should not be confused with the right to practise
law.
While
the Bar Council can exercise control over the latter, the Courts are in control
of the former. This distinction is clearly brought out by the difference in
language in Section 49 of the Advocates Act on the one hand and Article 145 of
the Constitution of India and Section 34(1) of the Advocates Act on the other.
Section 49 merely empowers the Bar Council to frame rules laying down
conditions subject to which an Advocate shall have a right to practice i.e. do
all the other acts set out above. However, Article 145 of the Constitution of
India empowers the Supreme Court to make rules for regulating this practice and
procedure of the Court including inter alia rules as to persons practising
before this Court. Similarly Section 34 of the Advocates Act empowers High
Courts to frame rules, inter alia to lay down conditions on which an Advocate
shall be permitted to practice in Courts. Article 145 of the Constitution of
India and Section 34 of the Advocates Act clearly show that there is no
absolute right to an Advocate to appear in a Court. An Advocate appears in a
Court subject to such conditions as are laid down by the Court. It must be
remembered that Section 30 has not been brought into force and this also shows
that there is no absolute right to appear in a Court. Even if Section 30 were
to be brought into force control of proceedings in Court will always remain
with the Court. Thus even then the right to appear in Court will be subject to
complying with conditions laid down by Courts just as practice outside Courts
would be subject to conditions laid down by Bar Council of India. There is thus
no conflict or clash between other provisions of the Advocates Act on the one
hand and Section 34 or Article 145 of the Constitution of India on the other.
35. In
conclusion it is held that lawyers have no right to go on strike or give a call
for boycott, not even on a token strike. The protest, if any is required, can
only be by giving press statements, TV interviews carrying out of Court
premises banners and/or placards, wearing black or white or any colour arm
bands, peaceful protect marches outside and away from Court premises, going on dharnas
or relay facts etc. It is held that lawyers holding Vakalats on behalf of their
clients cannot not attend Courts in pursuance to a call for strike or boycott.
All lawyers must bodily refuse to abide by any call for strike or boycott. No
lawyer can be visited with any adverse consequences by the Association or the
Council and no threat or coercion of any nature including that of expulsion can
be held out. It is held that no Bar Council or Bar Association can permit
calling of a meeting for purposes of considering a call for strike or boycott
and requisition, if any, for such meeting must be ignored. It is held that only
in the rarest of rare cases where the dignity, integrity and independence of
the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to
a protest abstention from work for not more than one day. It is being clarified
that it will be for the Court to decide whether or not the issue involves
dignity or integrity or independence of the Bar and/or the Bench.
Therefore
in such cases the President of the Bar must first consult the Chief Justice or
the District Judge before Advocate decide to absent themselves from Court. The
decision of the Chief Justice or the District Judge would be final and have to
be abided by the Bar. It is held that Courts are under no obligation to adjourn
matters because lawyers are on strike. On the contrary, it is the duty of all
Courts to go on with matters on their boards even in the absence of lawyers. In
other words, Courts must not be privy to strikes or calls for boycotts. It is
held that if a lawyer, holding a Vakalat of a client, abstains from attending
Court due to a strike call, he shall be personally liable to pay costs which
shall be addition to damages which he might have to pay his client for loss
suffered by him.
36. It
is now hoped that with the above clarifications, there will be no strikes
and/or calls for boycott. It is hoped that better sense will prevail and self
restraint will be exercised. The petitions stand disposed of accordingly."
The Court also dealt with the role of Bar Councils on the following terms:
"25.
In the case of Supreme Court Bar Association v. Union of India reported in
(1998) 4 SCC 409 (1998 AIR SCW 1706 : AIR 1998 SC 1995), it has been held that
professional misconduct may also amount to Contempt of Court (para 21). It has
further been held as follows:
"79.
An advocate who is found guilty of Contempt of Court may also, as already
noticed, be guilty of professional misconduct in a given case but it is for the
Bar Council of the State or Bar Council of India to punish that advocate by
either debarring him from practice or suspending his licence, as may be
warranted, in the facts and circumstances of each case. The learned Solicitor
General informed us that there have been cases where the Bar Council of India
taking note of the contumacious and objectionable conduct of an advocate, had
initiated disciplinary proceedings against him and even punished him for
"professional misconduct", on the basis of his having been found
guilty of committing Contempt of Court.
We do
not entertain any doubt that the Bar Council of the State or Bar Council of India,
as the case may be, when apprised of the established contumacious conduct of an
advocate by the High Court or by this Court, would rise to the occasion, and
take appropriate action against such an advocate. Under Article 144 of the
Constitution all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court". The Bar
Council which performs a public duty and is charged with the obligation to
protect the dignity of the profession and maintain professional standards and
etiquette is also obliged to act "in aid of the Supreme Court". It
must, whenever facts warrant, rise to the occasion and discharge its duties
uninfluenced by the position of the contemner advocate. It must act in
accordance with the prescribed procedure, whenever its attention is drawn by
this Court to the contumacious and unbecoming conduct of an advocate which has
the tendency to interfere with due administration of justice. It is possible
for the High Courts also to draw the attention of the Bar Council of the State
to a case of professional misconduct of a contemner advocate to enable the
State Bar Council to proceed in the manner prescribed by the Act and the Rules
framed thereunder. There is no justification to assume that the Bar Councils
would not rise to the occasion, as they are equally responsible to uphold the
dignity of the Courts and the majesty of law and prevent any interference in
the administration justice. Learned counsel for the parties present before us
do not dispute and rightly so that whenever a Court of record records its
findings about the conduct of an advocate while finding him guilty of
committing Contempt of Court and desires or refers the matter to be considered
by the Bar Council concerned, appropriate action should be initiated by the Bar
Council concerned in accordance with law with a view to maintain the dignity of
the Courts and to uphold the majesty of law and professional standards and
etiquette. Nothing is more destructive of public confidence in the
administration of justice than incivility, rudeness of disrespectful conduct on
the part of a counsel towards the Court or disregard by the Court of the
privileges of the Bar. In case the Bar Council, even after receiving
"reference" from the Court, falls to take action against the advocate
concerned, this Court might consider invoking its powers under Section 38 of
the Act by sending for the record of the proceedings from the Bar Council and
passing appropriate orders. Of course, the appellate powers under Section 38
would be available to this Court only and not to the High Courts. We, however,
hope that such a situation would not arise.
80. In
a given case it may be possible, for this Court of the High Court, to prevent
the contemner advocate 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 of
Tribunals." Thus a Constitution Bench of this Court has held that the Bar
Councils are expected to rise to the occasion as they are responsible to uphold
the dignity of Courts and majesty of law and to prevent interference in
administration of justice. In our view it is the duty of Bar Councils to ensure
that there is no unprofessional and/or unbecoming conduct. This being their
duty no Bar Council can even consider giving a call for strike or a call for
boycott. It follows that the Bar Councils and even Bar Associations can never
consider or take seriously any requisition calling for a meeting to consider a
call for a strike or a call for boycott. Such requisitions should be consigned
to the place where they belong viz. the waste paper basket. In case any
Association call for a strike or a call for boycott the concerned State Bar
Council and on their failure the Bar Council of India must immediately take
disciplinary action against the Advocates who give a call for strike and if the
Committee Members permit calling of a meeting for such purpose against the
Committee Members. Further it is the duty of every Advocate to bodily ignore a
call for strike or boycott.
26. It
must also be noted that Courts are not powerless or helpless. Section 38 of the
Advocates Act provides that even in disciplinary matters the final Appellate
Authority is the Supreme Court. Thus even if the Bar Councils do not rise to
the occasion and perform their duties by taking disciplinary action on a
complaint from a client against an advocate for non-appearance by reason of a
call for strike or boycott, on an Appeal the Supreme Court can and will. Apart
from this, as set out in Roman Services' case, every Court now should and must
mulct.
Advocates
who hold Vakalats but still refrain from attending Courts in pursuance of a
strike call with costs.
Such
costs would be in addition to the damages which the Advocate may have to pay
for the loss suffered by his client by reason of his non-appearance."
Apart from reiterating the above law, we do not propose to take any further
action. The Contempt Notices stand discharged.
The
Contempt Petitions and I. A. stand disposed off accordingly.
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