On 12th October, 2017, in the case of Ms. Indira Jaising v.

Supreme Court of
India through Secretary General and Ors

INTRODUCTION
The  Petitioner in Writ Petition © No. 454 of 2015 is a Senior Advocate designed by the high
court of Bombay in the year 1986.She has been in practice in the Supreme court of India for
last two several decades and has also served  as  solicitor general of union of India. The
perception of the petitioner is that the present system of designation of senior advocates in
the supreme court of India is flawed and the system needs to be rectified and acceptable
parameters laid down has led to the institution of writ petition (C) No. 454 of 2015.

FACTS
The petitioner has prayed in writ petition of mandamus to issue  a writ  order declaring that
the system of designation of senior advocate by recently introduced method of vote which is
arbitary and violating article 14,15,21 and which is unconstitutional ,void and null.

Secondly to issue order or direction for appointment of a permanent selection committee

with secretariat headed by a lay person.

Thirdly to issue order or direction directing the Respondent no 1 representing the chief
justice and judges of supreme court to appoint a search committee to  identify the advocates
to conduct public interest litigation.

Fourthly to issue order or direction directing the Respondent no 1 to frame guidelines for
preparation of Assessment report.

Judgment
a three Judge Bench held that “the exercise of the power vested in the Supreme Court and
the High Courts to designate an Advocate as a Senior Advocate is circumscribed by the
requirement of due satisfaction that the concerned advocate fulfills the three conditions
stipulated under Section 16 of the Advocates Act, 1961, i.e., (1) ability; (2) standing at the
bar; and/or (3) special knowledge or experience in law that the person seeking designation
has acquired. It is not an uncontrolled, unguided, uncanalised power though in a given case
its exercise may partake such a character. However, the possibility of misuse cannot be a
ground for holding a provision of the Statute to be constitutionally fragile. The consequences
spelt out by the intervener, namely, (1) indulgence perceived to be shown by the Courts to
Senior Advocates; (2) the effect of designation on the litigant public on account of high fees
charged; (3) its baneful effect on the junior members of the bar; and (4) the element of anti-
competitiveness, etc. are untoward consequences occasioned by human failures. Possible
consequences arising from a wrong/improper exercise of power cannot be a ground to
invalidate the provisions of Section 16 of the Act.” 

It was held that “so long as the basis of the classification is founded on reasonable
parameters which can be introduced by way of uniform guidelines/norms to be laid down by
this Court”, the power of designation conferred by Section 16 of the Act cannot be said to be
constitutionally impermissible.

However, it was also held that “the credentials of every advocate who seeks to be
designated as a Senior Advocate or whom the Full Court suo motu decides to confer the
honour must be subject to an utmost strict process of scrutiny leaving no scope for any
doubt or dissatisfaction in the matter.” Accordingly, the Supreme Court laid down
norms/guidelines to henceforth “govern the exercise of designation of Senior Advocates by
the Supreme Court and all High Courts in the country.”
The Bench, however, also observed that it was “not oblivious of the fact that the guidelines
enumerated above may not be exhaustive of the matter and may require reconsideration by
suitable additions/deletions in the light of the experience to be gained over a period of time”
and this is a course of action that it has left open for consideration by the Supreme Court “at
such point of time that the same becomes necessary.” 

The case was  initiated when a writ petition was filed in the Madras High Court . This writ petition made
out as many as forty respondents in the petition, of which a little more than thirty respondents were
foreign law firms which were chalked up in this petition. The directions which were sought by the
petitioner from the Madras High Court were against the foreign law firms or the foreign lawyers, which
as the petitioner alleged, were practicing the legal profession in India, while the petitioner also alleged
that = not allowed to do the same.

Bar Council of India versus A K Balaji and Ors,

History

The case was initiated when a writ petition was filed in the Madras High Court .
This writ petition made out as many as forty respondents in the petition, of which a
little more than thirty respondents were foreign law firms which were chalked up in
this petition. The directions which were sought by the petitioner from the Madras
High Court were against the foreign law firms or the foreign lawyers, which as the
petitioner alleged, were practicing the legal profession in India, while the petitioner
also alleged that they were not allowed to do the same.

The Judgement of the Madras High Court was in the favour of the petitioner
wherein the Court held that the foreign law firms or the foreign lawyers can not
pursue the legal profession in India until and unless the requirements laid down in
the Advocate’s Act, 1961  are satisfied, alongside the requirements laid down in
the Bar Council of India Rules . This restriction was placed regardless of whether
the profession being pursued by the foreign lawyer was of a litigation nature or
not. The restriction was imposed uniformly. Additionally, the Court also held that
the foreign law firms or the foreign lawyers can only visit India for a temporary
period and may only enter the country to tender advice to the clients in India, and
may do so on a ‘fly-in and a fly-out basis’. The advice could either be on the
foreign law or the diverse international legal issues.

Although in one part of the judgment, the Court held that the foreign lawyers
cannot be debarred from entering the country, the same was in the context of the
arbitration proceedings for the disputes which had arisen out of a contractual
obligation and the same had been for international commercial arbitration.

However, prior to the case appeared before the Hon’ble Supreme Court of India on
appeal, another judgment was delivered by the Bombay High Court in the same
matter, but in a different case. The major contention in the case before the
Bombay High Court was a little different. The Reserve Bank of India had already
granted permission to few of the foreign law firms to open their liaison offices in
Mumbai. This permission given by the Reserve Bank of India was challenged and
presented before the Bombay High Court to give its opinion on whether the foreign
lawyers practising in non-litigious matters amounted to practising the profession of
law under Section 29  of the Advocates Act, 1961.

Issues

The issues which the Hon’ble Supreme Court was presented with were:
 1. Whether ‘practising the profession of law’ included litigious as well as non-
litigious matters?
2. Whether foreign lawyers are allowed to practice law in Indian Courts?

Held

After a brief perusal of the judgment delivered by the Supreme Court it would seem that the
ratio laid down by the Court is more or less the same as the decision of the Madras HC in its
judgment over the matter. However, there are indeed some slight changes that the Supreme
Court has introduced to the judgement. The Supreme Could held that indeed, ‘practice the
profession of law‘ did include both the litigation as well as non-litigious practice. The
Supreme Court concluded that the right to practice was a broader genus, where the right to
appear before the Court and argue before the Court would fall within the scope of this right
and form the species in the same line. This observation of the Supreme Court falls right in
line with the principles which were followed by the High Courts of Madras and Bombay. The
Supreme Court did not take much effort to deviate from this holding of the lower courts in
this regard.

The Supreme Court further held after perusing   Chapter IV  of the Act the
Advocates Act, 1961  that it would be prudent that only the lawyers who are
registered with the Bar Council of India are allowed to practice in the Courts of
India. This implied that the foreign lawyers may indeed appear before the Indian
Courts, but with only the prior permission from the Court or Tribunal.

Further, the Court held that the foreign lawyers may not be debarred from
appearing in Indian Courts for arbitral proceedings provided that the general rules
are applied to the conduct of foreign lawyers.

E.M. SHANKARAN NAMBOODRIPAD v. T. NARAYANAN NAMBIAR

CITATION - (1970) 2 SCC 325
Facts: This is an appeal from the conviction for the contempt of court of Rs 1000 fine
or simple imprisonment for one month by the by the majority opinion (Mathew, J.,
dissenting) of the Kerala High Court, certified as fit for appeal under Article 134(1) C
of the Constitution. The conviction is based on certain utterances of the appellant,
when he was Chief Minister, at a Press Conference held by him at Trivandrum, on
November 9, 1967. The report of the Press Conference was published the following
day in some Indian newspapers. The offending passages of the news report of the
Press Conference stated inter alia “Marx and Engels considered the Judiciary as an
instrument of oppression and even today when the State set up his (sic), not
undergone any change it continues to be so. The Judges are guided and dominated
by class hatred, class interests and class prejudices and where the evidence is
balanced between a well-dressed pot-bellied rich man and a poor ill-dressed and
illiterate person; the judge instinctively favours the former. Election of Judges would
be a better arrangement, but unless the basic state set up is changed it cannot solve
the problem”. The Chief Minister added even where the judiciary is separated from
the executive it is still subject to the influence and pressure of the executive. The
Judiciary he argued was only an institution like the President or Parliament or the
Public Service Commission and even the President is subject to impeachment, after
all, sovereignty rested not with any one of them but with the people. He also said that
he did not subscribe to the view that it was an aspersion on integrity when he said
that Judges are guided and dominated by class hatred and class prejudices and
“The High Court and the Supreme Court can haul me up, if they want”. his affidavit
before the High Court the Chief Minister explaining his Press Conference stated that
it did not offend the majesty of law, it contained only a fair criticism of the system of
judicial administration and he considered that it was not only his right but also his
duty to educate public opinion and that it could not be construed as contempt of
court.

Issues: 1. Is the concept of scandalizing the judges and scandalizing whole judicial
system contempt? Has these concepts gone into desuetude?

2. Is the law of contempt encroaching upon the guaranteed freedom of speech and
expression in Article 19 (1) (a) of the Constitution?

3. What is the import of the teachings of Marx, Engels and Lenin — Is Appellant
guilty distortion of these teachings?

4. Whether imputing class bias and attack on good faith of the judges by the
appellant contempt?

Issue 1 – Held (i) Scandalising the judge is a chief form of contempt. Scandalising
the Judges or the courts occurs, when the conduct of a person tends to bring the
authority and administration of the law into disrespect or disregard and included all
acts which offend its dignity, affront its majesty or challenge its authority. Such
contempt may be committed in respect of a Single Judge or a single court but may,
in certain circumstances, be committed in respect of the whole of the judiciary or
judicial system.

(ii) It is not correct to say that the species of contempt called “scandalising the court
has gone into desuetude”.

Issue 2 – Held (i) The right to freedom of speech in Article 19(1)(a) is subject to the
restriction Article 19(2) which makes an exception in terms of contempt of court.
These provisions are to be read with Articles 129 and 215 which specially confer on
this Court and the High Courts the power to punish for contempt of themselves.
While the right of freedom speech and expression is essential to a free society, the
Constitution as itself imposed restrictions in relation to contempt of court 36 and it
cannot therefore be said that the right abolishes the law of contempt or that attacks
upon Judges and courts will be condoned.

(ii) Freedom of speech and expression will always prevail except where contempt is
manifest mischievous or substantial.

Issue 3 & 4– Held (i) The statement of the appellant is based on the teachings of
Marx, Engels and Lenin. The teachings of Marx, Engels and Lenin are different.
Marx, Engels and Lenin thought in terms of “withering away of the state”. In all their
writings there is no direct attack on the judiciary selected as the target of people’s
wrath, nor are the judges condemned personally. Engels regarded courts as are of
the means adopted by the law for effectuating itself. He only said that judicial
functionaries must be divested of “sham independence” which marked their
subservience to succeeding governments; he was not charging the judiciary with
taking sides but only as an evil adjunct of the administration of class legislation. He
said the fault was with the State and the laws, and not with the judiciary. Either the
appellant does not know the teachings of Marx, Lenin and Engels or has deliberately
distorted their writings for his own purpose.

(ii) The Courts in India are not sui generis. They function under the Constitution
which alone is supreme. The power of interpretation by courts has never been used
with bias in favour of government or the rich class. If the Constitution and the law are
defective the path of reform is open. The courts cannot be maligned if these is a
defect in law.

(iii) To charge the judiciary as an instrument of oppression, the Judges as guided

and dominated by class hatred, class interests and class prejudice, instinctively
favouring the rich against the poor is to draw a very distorted and poor picture of the
judiciary. It is clear that it is an attack upon Judges which is calculated to raise in the
minds of the people a general dissatisfaction with and distrust of all judicial
decisions. It weakens the authority of law and law courts.

(iv) Judged from the angle of courts and administration of justice there is not a
semblance of doubt that the appellant was guilty of contempt of court. Whether he
misunderstood the teachings of Marx, and Engels or deliberately distorted them is
not to much purpose. The likely effect of illwords must be seen and they have clearly
the effect of lowering the prestige of Judges and courts in the eyes of the people.
That he did not intend any such result may be a matter for consideration in the
sentence to be imposed on him but cannot serve as a justification.

(v) The ends of justice are amply served by (a) exposing the appellant’s error about
the true teachings of Marx and Engels (b) and sentencing him to a nominal fee. Fine
is reduced from Rs1000 to Rs 50. In default of payment simple imprisonment for one
week will follow. With this modification the appeal is dismissed.

Pravin C. Shah v. K.A.Mohd.Ali and Another, (2001) 8 SCC 650

Facts: The Respondent in this case (An advocate) was practising mostly in the courts
situated in Ernakulum district. He was hauled up for contempt of court on 2 successive
occasions. The High court of Kerala however found him guilty of criminal contempt in both
cases and convicted him under s. 12 of the contempt of courts Act, 1971 and sentenced him
in with fine- Rs. 10,000 (1st occasion) & Rs. 2000 (2nd Occasion). At this juncture he went
on for an appeal to the Supreme Court challenging the conviction and sentence imposed
upon him by the High Court, but he did not succeed in the Supreme Court except getting the
fine of Rs. 2000 in one case deleted and the apology tendered by him in the court was not
accepted by the court. But however this did not create any ripple in him and as a result, he
continued to appear and conduct cases in the courts. At this point the Appellants in this case
(Lalan Road Residents Association, Kochi) brought a notice to the Bar Council of Kerala that
this Advocate was continuing practise and conducted cases in courts in cochin in spite of his
conviction and sentence. The Bar council of Kerala thereupon initiated disciplinary
proceedings against the respondent 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 interdict was passed by the council by taking into
account Rule 11 of the “Rules Framed by the High Court of Kerala under s. 34 (1) of the
Advocates Act 1961 regarding conditions of practise of Advocates”

Rule 11 : “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 contempt.” Challenging
this order of the State bar council, the respondent filed an appeal before the BCI and the BCI
set aside the interdict imposed upon him. Against this order is the present appeal before the
Supreme Court by the same person at whose instance the State bar council initiated action
against the respondent Advocate.

How to Purge?

To purge means to get oneself cleared of the guilt. According to Disciplinary committee of
BCI, it can be done by apologising to the court. (Criminal cases) and in civil cases by
subsequent compliance with the orders or directions the contempt can be purged of. In the
case of Madan Gopal Gupta v. Agra University, it was held that “Purging process would be
complete only when the contemplator undergoes the penalty.” A mere statement made by
the contemnor before the court that he apologises is hardly enough to amount to purging
himself of teh contempt. The court should also be satisfied of teh genuiness of the apology.
If the court is satisfied, it has to pass an order stating that it is satisfied and hence the
contemnor has purged himself of the contempt. Till such an order is passed by the court, the
advocate shall be under the spell of the interdict under Rule 11 of the rules.

Decision: The respondent still have the option to purge himself in the ways mentioned
above to the court. But until then the advocate cannot plead or act in any court situated
within the domain of the Kerala High Court. And it shall be the duty of the Registrar of the
High Courts to inform all other courts coming within its purview against any such advocate
who has been convicted by the courts. And appeal is disposed.

R. Muthukrishnan vs. The Registrar General of the High Court of

Judicature at Madras AIR 2019 SC 849
Facts • The Petitioner (an Advocate) has filed the petition Under Article 32 of the
Constitution of India, questioning the vires of amended Rules 14-A, 14-B, 14-C and 14-D of
the Rules of High Court of Madras, 1970 made by the High Court of Madras Under Section
34(1) of the Advocates' Act, 1961 The High Court has inserted Rule 14A in the Rules of High
Court of Madras, 1970 empowering the High Court to debar an Advocate from practicing.
The High Court has been empowered to take action Under Rule 14B where any misconduct
referred to Under Rule 14-A is committed by an Advocate before the High Court then the
High Court can debar him from appearing before the High Court and all subordinate courts.
Under Rule 14-B(v) the Principal District Judge has been empowered to initiate action
against the Advocate concerned and debar him from appearing before any court within such
District.

In case misconduct is committed before any subordinate court, the concerned court shall
submit a report to the Principal District Judge and in that case, the Principal District Judge
shall have the power to take appropriate action. The procedure to be followed has been
provided in the newly inserted Rule 14-C and pending inquiry, there is power conferred by
way of Rule 14-D to pass an interim order prohibiting the Advocate concerned from
appearing before the High Court or the subordinate courts. • The amended Rule 14-A to 14-
D came into force with effect from the date of its publication in the Gazette on 25.5.2016
Issue • Petitioner has questioned the vires of amended Rules 14A to D on the ground of
being violative of Articles 14 and 19(1)(g) of the Constitution of India, as also Sections 30,
34(1), 35 and 49(1)(c) of the Advocates Act, as the power to debar for such misconduct has
been conferred upon the Bar Council of Tamil Nadu and Puducherry and the High Court
could not have framed such Rules within ken of Section 34(1) of the Advocates Act.

Rule 14A • Rule 14-A provides that an Advocate who is found to have accepted money in
the name of a Judge or on the pretext of influencing him; or who has tampered with the court
record or court order; or browbeats and/or abuses a Judge or judicial officer; or is
responsible for sending or spreading unfounded and unsubstantiated allegations/petitions
against a judicial officer or a Judge to the superior court; or actively participates in a
procession inside the court campus and/or involves in gherao inside the court hall, or holds
placard inside the court hall or appears in the court under the influence of liquor, the courts
have been empowered to pass an interim order of suspension pending enquiry, and
ultimately to debar him from appearing in the High Court and all other subordinate courts, as
the case may be.

Whether disciplinary power vested in the bar council can be taken away by the court •
After review international scenario in this regard-the ethical standard of the legal profession
and legal education has been assigned to the Bar Council. It has to maintain the dignity of
the legal profession and independence of the bar. The bar association must be self
governing is globally recognized

• The Provision and scheme of the Advocates Act has never intended to confer the
disciplinary powers upon the High Court or upon Supreme Court except to the extent dealing
with an appeal under Section 38

Whether debarment by way of disciplinary measure is outside the purview of Section

34(1) of the Advocates Act

• Section 34 of the Act does not confer such a power to frame Rules to debar lawyer for
professional misconduct. The amendment made by providing Rule 14(A)(vii) to (xii) is not
authorized under the Advocate Act. The High Court has no power to exercise the disciplinary
control. It would amount to usurpation of the power of Bar Council conferred under
Advocates Act

• However, the High Court may punish advocate for contempt and then debar him from
practicing for such specified period as may be permissible in accordance with law, but
without exercising contempt jurisdiction by way of disciplinary control no punishment can be
imposed. As such impugned Rules could not have been framed within the purview of Section
34.

Held • “the High Court has overstretched and exceeded its power even in the situation
which was so grim which appears to have compelled it to take such a measure. …..It can
take action, punish for Contempt of Courts Act in case it involves misconduct done in
Court/proceedings. Circumstances may be grim, but the autonomy of the Bar in the
disciplinary matters cannot be taken over by the Court"“……The misconduct as specified in
Rule 14-A may also in appropriate cases tantamount to contempt of court and can be taken
care of by the High Court in its contempt jurisdiction.” • Resultantly, we have no hesitation to
strike down impugned Rules 14-A to 14-D as framed in May, 2016 by the High Court of
Madras as they are ultra vires to Section 34 of the Advocates Act and are hereby quashed.
The writ petition is allowed. No costs”
Bal Thackery v. Harish Pimpalkhute and ors (2005) 1 SCC 254

Facts/Background • This is an appeal from the decision in Harish S/O Mahadeo

Pimpalkhute vs Bal Thackeray And Ors ((1997) 99 BOMLR 455) wherein two contempt
petitions were filed against the appellant (Bal Thackrey) under section 15 for having
committed contempt of court in terms of section 2(c ) by making a public speech(on 21-10-
1996 at a Dasera rally at Shivaji Park, Mumbai, that he was reported by someone that a judge
demanded `35 lakh for delivering a judgment in his favour’)

• The said petitions were filed without obtaining the consent of the Advocate General. The
petitioner in contempt petition no 12 had submitted an application dated 22.10.1996 to the
Advocate General seeking the requisite permission by 2.12.1996 and further stating that in
case of not receiving an answer he would presume that permission had been granted and
would proceed with the intended contempt proceedings

• The high court held the appellant guilty of contempt and inflicted simple imprisonment for
one week and a fine of Rs. 2000. The appellant then filed the present appeals.

• Before the Supreme Court the appellant contended that the direction in P.N. Dudas case
were not followed by the High court in as much as the informative papers styled as contempt
petitions were not placed before the Chief Justice of the High Court for suo motto action and
therefore the contempt proceedings were illegal

• In the P.N.Duda v. P. Shiv Shanker&Ors. [(1988) 3 SCC 167] SC approving the Delhi High
Court direction in Anil Kumar Gupta v. K.Suba Rao &Anr. [ILR (1974) 1 Del.1] : "The
office is to take note that in future if any information is lodged even in the form of a petition
inviting this Court to take action under the Contempt of Courts Act or Article 215 of the
Constitution, where the informant is not one of the persons named in Section 15 of the said
Act, it should not be styled as a petition and should not be placed for admission on the
judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers
and the Chief Justice may decide either by himself or in consultation with the other judges of
the Court whether to take any cognizance of the information.” The Supreme court stated that
the "...the direction given by the Delhi High Court sets out the proper procedure in such cases
and may be adopted, at least in future, as a practice direction or as a rule, by this Court and
other High Courts."

Issue • Whether contempt proceedings were initiated against the appellant suo motu by the
court or by Respondents.

Observations • The Court had not taken suo motu action against the appellant. (In contempt
petitions, there was no prayer for taking suo motu action for contempt against the appellant.
The specific objection taken that though suo motu action could be taken under Section 15 of
the Act on any information or newspaper but not on the basis of those contempt petitions
which were filed in regular manner by private parties, was rejected by the High Court
observing that being Court of Record it can evolve its own procedure)

• The charge against the appellant was not framed.

• The procedure of Section 15 is required to be followed even when petition is filed by a
party under Article 215 of the Constitution.

• In the present case, the proceedings before the High Court were initiated by the respondents
by filing contempt petitions under Section 15. The petitions were vigorously pursued and
strenuously argued as private petitions. The same were never treated as suo motu petitions. In
absence of compliance of mandatory requirement of Section 15, the petitions were not
maintainable. As a result of aforesaid view, it is unnecessary to examine in the present case,
the effect of non-compliance of the directions issued in Duda's case by placing the
informative papers before the Chief Justice of the High Court.

Held • “For the foregoing reasons we set aside the impugned judgment and allow the appeals.
Fine, if deposited by the appellant shall be refunded to him.”

• “Before parting, it is necessary to direct framing of necessary rule or practice direction by

the High Courts in terms of Duda's case. Accordingly, we direct Registrar-General to send a
copy of this judgment to the Registrar-Generals of the High Courts so that wherever rule
and/or practice direction on the line suggested in Duda's case has not been framed, the High
Courts may now frame the same at their earliest convenience."

An Advocate v. Bar Council of India 1989 Supp (2) SCC 25

Facts/Background • In this case the bona fide act of an advocate who in good faith acted
under the instructions of someone closely connected with his client and entertained a bona
fide belief that the instructions were given under the authority of his client.

• The suit was a suit for recovery of Rs 30,098. The complainant (client) had entrusted the
brief to the appellant which he in his turn had entrusted to his junior colleague (Respondent
2) who was attached to his office and was practising along with him at his office at the
material time. At the point of time when the suit was withdrawn, Respondent 2 was practising
on his own having set up his separate office. On the docket of the brief pertaining to the suit,
the appellant made an endorsement giving instructions to withdraw the suit as settled.

• (Client version of facts) The petitioner had entrusted a matter to Appellant to file a case
against Shri Anantaraju for recovery of a sum of Rs 30,098 with court costs and current
interest .The said suit was filed by the R2. The matter in dispute in the suit was not settled at
all and the Appellant without the knowledge and without his instructions had filed a memo
stating that the matter is settled out of court and got the suit dismissed and he has also
received half of the institution court fee within 10 days since the date of the disposal of the
suit. The petitioner submits that he has not received either the suit amount or the refund of
court fee and he is not aware of the dismissal of the suit as settled out of court.

Key aspects/issues • Whether an advocate acting bona fide and in good faith on the basis
of oral instructions given by someone purporting to act on behalf of his client, would be guilty
of professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or
culpable negligence punishable as professional misconduct?

• Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed? • Whether in the absence of
an allegation or finding of dishonesty or mens rea a finding of guilt and a punishment of this
nature can be inflicted on him?

• Whether the allegations and the finding of guilt is required to be proved beyond reasonable
doubt?

• Whether the doctrine of benefit of doubt applies?

Decision/Observations of the Supreme court on the questions raised in this appeal •

“In our opinion the appellant was not apprised of the exact content of the professional
misconduct attributed to him and was not made aware of the precise charge he was required
to rebut.

• The conclusion reached by the Disciplinary Committee in the impugned order further
shows that in recording the finding of facts on the three questions, the applicability of the
doctrine of benefit of doubt and need for establishing the facts beyond reasonable doubt
were not realised. Nor did the Disciplinary Committee consider the question as to whether
the facts established that the appellant was acting with bona fides or with mala fides,
whether the appellant was acting with any oblique or dishonest motive, whether there was
any mens rea, whether the facts constituted negligence and if so whether it constituted
culpable negligence. Nor has the Disciplinary Committee considered the question as regards
the quantum of punishment in the light of the aforesaid considerations and the exact nature
of the professional misconduct established against the appellant.

• The impugned order passed by the Disciplinary Committee, therefore cannot be sustained"

• Since we do not consider it appropriate to examine the matter on merits on our own without
the benefit of the finding recorded by the Disciplinary Committee of the apex judicial body of
the legal profession, we consider it appropriate to remit the matter back to the Disciplinary
Committee. Ref: O.N. Mohindroo v. District Judge, Delhi [(1971) 2 SCR 11

• The Bar Council of India must have an opportunity to consider whether it would constitute
an imprudent act, an unwise act, a negligent act or whether it constituted negligence and if
so a culpable negligence, or whether it constituted a professional misconduct deserving
severe punishment, even when it was not established or at least not established beyond
reasonable doubt that the concerned advocate was acting with any oblique or dishonest
motive or with mala fides. This question will have to be determined in the light of the
evidence and the surrounding circumstances taking into account the doctrine of benefit of
doubt and the need to record a finding only upon being satisfied beyond reasonable doubt.

Held • “We have therefore no doubt that upon the matter being remitted to the Bar Council of
India it will be dealt with appropriately in the light of the aforesaid perspective. We
accordingly allow this appeal, set aside the order of the Bar Council insofar as the appellant
is concerned and remit the matter to the Bar Council of India"

• “We, however, wish to make it clear that it will not be open to the complainant to amend the
complaint or to add any further allegation. We also clarify that the evidence already recorded
will continue to form part of the record and it will be open to the Bar Council of India to hear
the matter afresh on the same evidence. …..It will be open to the Bar Council of India to
consider whether the hearing of the matter has to be deferred till the application for
restoration is disposed of. The Bar Council of India may give appropriate consideration to all
these questions.”

• “We further direct that in case the judgment rendered by this Court or any part thereof is
reported in law journals or published elsewhere, the name of the appellant shall not be
mentioned because the matter is still sub judice and fairness demands that the name should
not be specified. The matter can be referred to as An Advocate v. Bar Council or In re an
Advocate without naming the appellant. The appeal is disposed of accordingly.

Kaushal Kishore Awasthi v. Balwant Singh Thakur and Ors AIR 2018 SC 199

Facts/Background • The complainant had lodged a complaint with the Bar Council of
Chhattisgarh on 19.12.2003 against the Appellant (an Advocate) alleging that he had acted
in a manner which amounts to professional misconduct. The Disciplinary Committee took
cognizance vide order dated 09.12.2006 found the Appellant guilty of professional
misconduct and, on that basis, imposed punishment by suspending his license of practice for
a period of two years. On appeal to the BCI they affirmed the State Bar council’s decision
but reduced the term of suspension of license from 2 years to one year along with cost of
Rs. 25,000/- to be paid to the complainant. Against this order of the BCI, the present appeal
is preferred by the Appellant.

• A plea taken by the learned Counsel for the Appellant is that even if the allegations
contained in the complaint are taken to be correct on its face value, these do not amount to
committing any misconduct as per the provisions of the Advocates Act and Rules framed
thereunder. This aspect is being examined in the present appeal. Complaint before the State
Bar Council

• In a family dispute between the complainant and his brothers, with respect to their father’s
property. On his death the said property was divided by the three brothers equally. However,
it transpired that before his death, one of the brothers of the complainant influenced his
father and got registered the said property in the name of the complainant's nephew, without
the consent of other brothers vide sale deed dated 25.07.1989 • The complainant had
approached the Appellant (Advocate), for filing the Suit for declaration to declare that the
sale deed was null and void as it was prepared fraudulently. The Appellant acted as his
Advocate and filed the Suit. In the said Suit, the parties settled the matter as they agreed for
declaring the sale deed as ineffective and requested the Court for division of the property.
This resulted in passing of decree dated 24.10.1994 by the Court in which the complainant
was declared owner of 0.03 acres along with kutcha house out of the disputed property

• However, the complainant suffered some financial crunch in April, 2003, and he decided to
sell his share of land to Mr. Narsinghmal, for a sum of Rs. 30,000/- and for the purpose of
registration of sale deed, he produced the earlier sale deed before the office of the Deputy
Registrar, Dantewada.

• The Appellant produced objection letter against the proposed sale deed and objected for
registration of the said sale deed on the ground that the complainant did not have full
ownership of the proposed land and the market value was also shown less in the said sale
deed. This act of the Appellant in appearing before the office of the Deputy Registrar and
objecting to the registration of sale deed was labelled as professional misconduct by alleging
that the Appellant had paid a sum of Rs. 20,000/- to the complainant in the year 1996 and
another sum of Rs. 20,000/- to the son of the complainant in the year 1999 and for
repayment of the said amount, the complainant had offered half share of the subject land as
security. His justification for raising objection, therefore, was that since the land was being
sold without clearing his debt, it could not be done.

Key aspects

• Rule 22 under Chapter II of the Standards of Professional Conduct and Etiquette framed by
the BCI in exercise of its power Under Section 49(1)(c) of the Advocates Act, 1961.

• “An advocate shall not, directly or indirectly, bid for or purchases, either in his own name or
in any other name, for his own benefit or for the benefit of any other person, any property
sold in the execution of a decree or order in any suit, appeal or other proceeding in which he
was in any way professionally engaged. This prohibition, however, does not prevent an
advocate from bidding for or purchasing for his client any property which his client may
himself legally bid for or purchase, provided the Advocate is expressly authorised in writing
in this behalf" Held “In the instant case, the complainant was selling the property to the
intending buyer which was an arrangement between them unconnected with any legal
proceedings. The said property was not being sold in execution of any decree, in which
proceedings the Appellant was engaged, as noted above. Insofar as the filing of the Suit by
the Appellant on behalf of the complainant is concerned, that had resulted into passing of
decree and the proceedings had concluded. Even as per the complainant's own admission,
it is much thereafter that the complainant intended to sell the property in question when he
found himself in need of money. It is this sale which the Appellant tried to interdict. He was
not doing so in the capacity of an Advocate. As per him, the complainant was not authorised
to sell the property without repaying his debt. Whether the Appellant was right in this
submission or not, is not relevant. What is relevant is that this act has nothing to do with the
professional conduct of the Appellant. Therefore, the very initiation of disciplinary
proceedings against the Appellant by the State Bar Council was improper and without
jurisdiction. We, accordingly, allow this appeal and set aside the impugned orders passed by
the Bar Council of India"

T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram (1999) 3 SCC 614
Facts: The appellant claims to be the power-of-attorney holder of a couple (husband and
wife) living in Kuwait. He sought permission of the Sessions Court, Trivandrum to appear
and plead on behalf of the said couple who are arrayed as respondents in a criminal revision
petition filed before the said Sessions. The Permission was declined by the Sessions Judge
and even by High Court and now the appeal before the Supreme Court to seek the same
permission.

Issue: Can the appellant become a pleader for the respondent couple on the basis of power
of attorney?

Contentions of the appellant: The appellant submitted that he is the duly appointed
attorney of the respondent-couple by virtue of an instrument of power of attorney executed
by them and on its strength he contended that his right to represent the respondent-couple
in the court would be governed by the said authority in the instrument.
Observations of the Court: The Court interpreted Section 2(q) of Cr.P.C. “2.(q) ‘pleader’,
when used with reference to any proceeding in any court, means a person authorised by or
under any law for the time being in force, to practise in such court, and includes any other
person appointed with the permission of the court to act in such proceeding;”

As per above definition if the pleader is “any other person ”, it is essential requisite that
such person should have been appointed with the permission of the court to act in such
proceedings. It is not necessary that the “pleader” so appointed should be the power-
ofattorney holder of the party in the case. What seems to be a condition precedent is that his
appointment should have been preceded by grant of permission of the court. But if the
person proposed to be appointed by the party is not such a qualified person as an
advocate, the court has first to satisfy itself whether the expected assistance would be
rendered by that person. Section 2 of the Power of Attorney Act cannot override the
specific provision of a statute which requires that a particular act should be done by a
party-in-person. For that reason when the Code requires the appearance of an accused in a
court it is no compliance with it if a power-of-attorney holder appears for him. So the
contention of the appellant based on the instrument of power of attorney is of no avail in this
case

Decision: Court held that: An agent cannot become a “pleader” for the party in criminal
proceedings, unless the party secures permission from the court to appoint him to act in
such proceedings. The respondent-couple have not even moved for such a permission
and hence no occasion has arisen so far to consider that aspect.

MAHIPAL SINGH RANA, ADVOCATE V. STATE OF UTTAR

PRADESH (MANU/SC/0730/2016)
BRIEF FACTS OF THE CASE

• In the present case, a reference under Section 15(2) of Contempt of Courts Act, 1971 was
made by Civil Judge (Senior Division), Etah through District Judge, Etah regarding two
separate incidents in his courtroom by one Mahipal Singh Rana, a practicing Advocate. The
incidents related to the usage of foul/indecent language and inappropriate comments/
behavior in the courtroom.

• The matter was placed before the Administrative Judge who forwarded the matter to the
Registrar General. Subsequently, the matter was placed before the Hon’ble Chief Justice
who referred the matter to the appropriate bench. The Hon’ble Allahabad High Court took
into account the then prevalent conditions where advocates tried to persuade and threaten
the judges and the prior antecedents of the contemnor. The court sentenced the appellant to
simple imprisonment of two months and a fine of Rs. 2,000/- and to go for further
imprisonment of two weeks in case of failure of payment of the fine. Further, the Hon’ble
High Court had directed the Bar Council of Uttar Pradesh to consider the complaint of Civil
Judge (Senior Division), Etah to initiate proceedings for professional misconduct and director
the contemnor not to enter the judgeship at Etah until he purges the contempt.
• The contemnor preferred an appeal against the judgment of Hon’ble Allahabad High Court
whereby the appellant was found guilty of threatening the Civil Judge (Senior Division), Etah.

ISSUES INVOLVED IN THE CASE

I. Whether a case is made out to interfere with the order passed by Hon’ble
Allahabad High Court whereby the appellant has been convicted in the said
Criminal Contempt?
II. Whether the appellant can be allowed to practice pursuant to the conviction in
Criminal Contempt?

JUDGMENT IN BRIEF

The Court held that the Hon’ble Allahabad High Court had committed no error while
convicting the accused and further held that the accused had appeared before the court.
The court looked into the aspect of complaints of the present appellant against the said
judge and opined that it is not a valid defense and the act of the accused and the language
used were contemptuous.

It was held that the contention of the appellant regarding limitation had no merit as it is upon
the concerned judge to take requisite action as per the law which s/he finds appropriate. The
appellant was held liable for contempt and it was further held that the incidents as alleged
regarding malafides of the complainant judge were made with a motive to protect himself
from contempt proceedings and no apology was ever rendered. The court set aside the
imprisonment keeping in view the old age of appellant however, it held that Hon’ble
Allahabad High Court was correct in convicting the appellant under Criminal Contempt. The
court discussed the settled principle of law regarding merit imprisonment i.e. culpability of
offender and likelihood of interference with administration of justice.

The enrollment of the appellant in State Bar Roll was suspended for two years from the date
of order in light of Section 24A of the Act. Also, in light of jurisdiction under Section 38 of the
Act, the court directed the license of the petition to remain suspended for another five years
and further, the appellant was debarred from appearing before the court even after the said
period, unless he purges out of contempt.

It was held that in case of failure of Bar Council to take appropriate actions in case of
misconduct, the Supreme Court can take actions Under Section 38 of the Act whereas, the
same power can be availed by High Court under Article 226. Hon’ble Court expressed the
need of review/amendment in regulatory provisions of the Act and requested the law
commission to do the needful in this regard at the earliest.