SUPREME COURT BAR ASSOCIATION v. UNION OF INDIA

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A fixed for the enquiry.

Rules 5. 6 and 7 deal with the manner of service of notice, summoning -r of witnesses and appearance of the parties before the disciplinary committee. At any stage of the proceedings, the disciplinary committee may appoint an advocate to appear as al/lieus curiae and in case either of the parties absent B themselves, the committee may; proceed ex parte against the absenting party and decide the case.

Sub-rule (1) of Rule 8 provides:

.. This Disciplinary Committee shall hear the Attorney General or the C Additional Solicitor General of India or the Advocate General, as the case may be or their Advocate, and parties or their Advocates, if they desire to be heard, and determine the matter on documents and affidavits unless it is of the opinion that it should be in the interest of justice to permit cross examination of the deponents or to take oral D evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed."

Rules 9 and 10 deal with the manner of recording evidence during the enquiry into a complaint of professional misconduct and the maintenance of record by the committee. E Rule 14(1) lays down as follows:

"The finding of the majority of the members of the Disciplinary Committee shall be the finding of the Committee. The reason given in support of the finding may be given in the form of a judgement, and F in the case of a difference of opinion, any member dissenting shall be )..

entitled to record his dissent giving his own reason. It shall be ,.. competent for the Disciplinary Committee to award such costs as it thinks fit.

"Rule 16 provides: G "16(1). The Secretary ofa State Bar Council shall send to tl1e Secretary of the Bar Council India quarterly statements of tl1e complaints received and the stage of the proceedings before the state Bar Council and .Disciplinary Committees in such manner as may be specified from time H to time.

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(2) The Secretary of the Bar Council of India may however call for A such farther statements and particulars as he considers necessary. ..

An appeal from the final order of the disciplinary committee of the Bar Council of a State is provided to the Bar Council of India under Section 37 of the Act and the procedure for filing such an appeal is detailed in Rules !9(2)to 31. B

The object of referring to the various provisions of the Advocates Act, 1961 and the Rules framed thereunder is to demonstrate that an elaborate and detailed procedure. almost akin to that of a regular trial of a case by a court. has been prescribed to deal with a complaint of professional misconduct C against an advocate before he can be punished by the Bar Council by revoking or suspending his licence or even for reprimanding him.

In Bar Council ofMaharashtra v. M. V Dabholkar & Ors., (1975] 2 SCC 702, a Seven Judge Bench of this Court analysed the scheme of the Advocates Act 1961 and inter alia observed: D ··The scheme and the provisions of the Act indicate that the constitution of State Bar Councils and Bar Council of India is for one of the principal purposes to see that the standards of professional conduct and etiquette laid down by the Bar Council of India are observed and presen-ed. The Bar Councils therefore entertain cases of misconduct against advocates. The Bar Councils are to safeguard the rights, privilege and interests of advocates. The Bar Council is a body corporate. The disciplinary committees are constituted by the Bar Council. The Bar Council is not the same body as its disciplinary committ.::c. One of the principal junctions of the Bar Council in regard to standards of professional conduct and etiquette of advocates is to receive complaints against advocates and if the Bar Council has reason to believe that any advocate has been guilty of professional or other misconduct it shall rr>fer the case for disposal to its disciplinary committee. The Bar Councils of a State may also of its own motion if it has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. It is apparent that a state Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any H

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A advocate has been guilty of professional or other misconduct. The Bar Council of a State acts on that reasoned belief. The Bar Council has a vei:v important part to play, first in the reception of complaints, -r second, in forming reasonable beliefofguilt ofprofessional or other misconduct and jinal~v in making reference of the case to its disciplinarv committee. The initiation of the proceeding before the B disciplinary committee is by the Bar Council of a State. A most signijica/11 feature is that no litigant and no member of the public can straightway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinm:v proceedings. c Thus, after the coming into force of the Advocates Act, 1961 with effect from 19th May 1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively in the Bar Councils of the concerned State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body. ...

The Letters Patent of the Chartered High Courts as well of the other High Courts earlier did vest power in those High Courts to admit an advocate to practice. The power of suspending from practice being incidental to that of admitting to practice being incidental to that of admitting to practice also vested in the High Courts. However. by virtue of Section 50 of the Advocates Act, with effect from the date when a State Bar Council is constituted under the Act, the provisions of the Letters patent of ar.y High Court and ·'of any other law" in so far as they related to the admission and enrolment of a legal practitioner or confer on the legal practitioner the right to practice in any court y or before any authority or a person as also the provisions relating to the "suspension or removal" of legal practitioners, whether under the letters patent of any High Court or of any other law, have been repealed. These G powers now vest exclusively, under the Advocates Act, in the Bar Council of the concerned State. Even in England the Courts of Justice 2re now relieved from disbarring advocates from practice after the power of calling to the Bar has been delegated to the Inns of Court. The power to disbar the advocate also now vests exclusively in the Inns of Court and a detailed procedure has been laid therefor.

S.C.B.A. v. U.0.1. [DR. ANAND, J.] 839

In Re. VC. lvfisra ~·, case the Bench relied upon its appellate jurisdiction under Section 38 (supra) also to support its order of suspending the licence of the contemner.

Dealing with the right of appeal, conferred by Sections 37 and 38 of the Act, the Constitution Bench in M V Dabholkar :~, case (supra) observed. B "Where a right of appeal to courts against an administrative or judicial decision is created by statute, the right is invariab(v confined to a person aggrieved or a person who claims to he aggrieved. The meaning of the words .. a person aggrieved" may vary according to the I context of the statute. One of the meanings is that a person will be C held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to cstab}.ish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed on him, the meaning of the words "a D person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words "persons aggrieved in sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the word1' "person aggrieved" include "a person who has a genuine grievance because an order has been made which prejudicially affects his interests". It has, therefore, to be found out whether the Bar Council has a grievance in respect of an order or decision affecting the professional conduct and etiquette." G (Emphasis supplied)

In O.N. Mohindroo v. The District Judge, Delhi &Anr., [1971] 3 SCC 5, it has been held that an appeal to the Supreme Court under Section 38 of the Act is not a restricted appeal. It is not an appeal on a question of law H

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A alone but also on questions of fact and under that Section the Supreme court has the jurisdiction to pass any order it deems fit on such an appeal but 'no order of the Bar Council of India shall be varied by the Supreme Court so as .. to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard. B This Court is indeed the final appellate authority under Section 38 of the Act but we are not persuaded to agree with the view that this Court can in exercise of its appellate jurisdiction, under Section 38 of the Act, impose one of the punishments, prescribed under that Act. while punishing a C contemner advocate in a contempt case. ·Professional misconduct' of the advocate concerned is not a matter directly in issue in the contempt of court case. while dealing with the contempt of court case, this court is obliged to examine whether the conduct complained of amounts to contempt of court and if the answer is in the affirmative, then to sentence the contenmer for contempt of court by imposing any of the recognised and accepted punishments for committing contempt of court. Keeping in view the elaborate procedure prescribed under the Advocates Act 1961 and the Rules framed 'r thereunder it follows that a complaint of professional misconduct is required to be tried by the disciplinary committee of the Bar Council, like the trial of a criminal case by a court of law and an advocate may be punished on the basis of evidence led before the disciplinary committee of the Bar Council after being afforded an opportunity of hearing. The delinquent advocate may be suspended from the rolls of the advocates or imposed any other punishment as provided under the Act. The enquiry is a detailed and elaborate one and is not of a su11111ra1:v nature. It is therefore. not permissible for this court to punish an advocate for "professional misconduct" in exercise of the appellate jnrisdiction by converting itself as the statutory body exercising '·original jurisdiction''. Indeed, if in a given case the concerned Bar Council on being appri,ed of the contumacious and blameworthy conduct of the advocate by the High Court or this Court does not take any action against the said advocate, this court may well have the jurisdiction in exercise of its appellate powers under Section 38 of the Act read with Article 142 of the Constitution to proceed suo moto and send for the records from the Bar Council and pass appropriate orders against the concerned advocate. ln an appropriate case, this Court may consider the exercise of appellate jurisdiction even suo moto provided there is some cause pending before the concerned Bar Council, and the Bar Council does "not act" or fails to act, by sending for the record of

S.C.B.A. v. U.0.1. [DR. ANAND, J] 841 that cause and pass appropriate orders. A 4 ~ However, the exercise of powers under the contempt jurisdiction cannot be confused with the appellate jurisdiction under Section 38 of the Act. The two jurisdictions are separate and distinct. We are. therefore. unable to persuade ourselves to subscribe to the contrary view expressed by the Bench in !~C. Mishra:~ case because in that case the Bar Council had not declined to deal B with the matter and take appropriate action against the concerned advocate. ~ Since there was no cause pending before the Bar Council, this court could not exercise its appellate jurisdiction in respect of a matter which was never under consideration of the bar councils. c Thus, to conclude we are of the opinion that this Court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, \Yhile punishing a contemner for committing contempt of court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 3 8 of the D -<' Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in Re: Vinay Chandra Mishra, [1995] 2 S.C.C. 584 is not good law and we overrule it E 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 F 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, G 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 oflndia shall act in aid of the Supreme Court". The Bar Council which performs a public duty H

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A 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. wheneyer. 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 U11becoming 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 of 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 concerned Bar Council, appropriate action should be initiated by the concerned Bar Council 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 E is more destructive of public confidence in the administration of justice than incivility, rudeness or 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, fails to take action against the concerned advocate, 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.

In a given case it may be possible, for this Court or the High Court, the prevent the contemner 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 practice 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-an-Record because that

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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.

We are conscious of the fact that the conduct of the contemner in VC Misra'.,, case was highly contumacious and even atrocious. It was unpardonable. the contemner therein had abused his professional privileges while practising as an advocate. He was holding a very senior position in the Bar Council of India and was expected to act in a more reasonable way. He did not. These factors appear to have influenced the bench in that case to itself punish him by suspending his licence to practice also while imposing C a suspending sentence of imprisonment for committing contempt of court but while doing so this court vested itself with a jurisdiction where none exists. The position would, have been different had a reference been made to the Bar Council and the Bar Council did not take any action against the concerned advocate. In that event, as already observed, this court in exercise of its D appellate jurisdiction under Section 38 of the Act read with Article 142 of the Constitution oflndia, might have exercised suo moto powers and sent for the proceedings from the Bar Council and passed appropriate orders for punishing the contemner advocate for professional misconduct after putting him on notice as required by the proviso to Section 38 which reads thus:- E "Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard."

but it could not have done so in the first instance. F In V C. Mishra s case, the Bench, relied upon its inherent powers under Article 142, to punish him by suspending his licence, without the Bar Council hDving been given any opportunity to deal with his case under the Act. We cannot persuade ourselves to agree with that approach. It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of G care for this Court to see that the power is used with restraint without pushing back the limits of the constitution so as to function within the bounds of its own jurisdiction. To the extent, this Court makes the statuto.ry authorities and other organs of the State perform their duties in accordance with law, its role is unexceptionable but it is not permissible for the Court to H

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A .;take over" the role of the statutory bodies or other organs of the State and. ;·perform" their functions. -,.- Upon the basis of what we have said above. we answer the question posed in the earlier part of this order, in the negative. The Writ Petition succeeds and is ordered accordingly. B V.S.S. Petition allowed.