LEGAL%ETHICS% ACCOUNTABILITY%FOR% LAWYERS… 710 PROFESSIONAL ETHICS by Mr. Lokendra Sing… · janhit college of law ! 1! legal%ethics%! accountability%for% % lawyers%and% % bench4bar%

JANHIT COLLEGE OF LAW

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LEGAL ETHICS

ACCOUNTABILITY FOR

LAWYERS AND

BENCH-‐BAR

RELATIONS


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Legal Ethics & Significance

The word ethics is derived from the Greek word ethos (character), and from the Latin word mores (customs). Together they combine to define how individuals choose to interact with one another. In philosophy, ethics defines what is good for the individual and for society and establishes the nature of duties that people owe themselves and one another. The following items are characteristics of ethics: •Ethics involves learning what is right and wrong, and then doing the right thing. • Most ethical decisions have extended consequences.

• Most ethical decisions have multiple alternatives.

• Most ethical decisions have mixed outcomes.

• Most ethical decisions have uncertain consequences.

• Most ethical decisions have personal implications.

Legal profession is noble profession. The nobility of the legal profession is


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maintained by the adherence and observance of a set of professional norms by those

who adopt this profession. It is knows as legal ethics or the ethics of the legal

profession. The fundamental of the legal ethics is to maintain the owner and dignity of

the law profession, to secure a spirit of friendly cooperation between Bench and Bar

in the promotion of highest standard of justice, to establish honorable and fairdealings of the counsel with his client, opponent and witness, to establish a spirit of brotherhood with bar.

ETHICS OF LEGAL PROFESSION

Meaning, Nature and Need

Professional ethics are a set of norms or codes of conduct, set by people in a specific

profession. A code of ethics is developed for each profession. Suppose you write

articles in a newspaper. Professional ethics require that you verify facts before you

People are surprised when they hear that lawyers are expected to follow professional


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ethics and that they are accountable for dishonest, irresponsible and unprofessional

behavior. Further, most people do not know that lawyers in India can lose the license

to practice if they are found guilty of unethical practices that tarnish the dignity of

their profession. A lawyer must adhere to the professional norms, for fair dealing with

his client and to maintain the dignity of the profession

The Bar Council of India is a statutory body that regulates and represents the Indian

bar. It was created by Parliament under the Advocates Act, 1961. It prescribes

standards of professional conduct and etiquette and exercises disciplinary jurisdiction.

It sets standards for legal education and grants recognition to Universities whose

degree in will serve as a qualification for students to enroll themselves as advocates

upon graduation.


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PROFESSIONAL ETHICS

Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of India to

make rules so as to prescribe the standards of professional conduct and etiquette to be

observed by the advocates. It has been made clear that such rules shall have only

when they are approved by the Chief Justice of India. It has been made clear that any

rules made in relation to the standards of professional conduct and etiquette to be

observed by the advocates and in force before the commencement of the Advocates

(Amendment) Act, 1973, shall continue in force, until altered or repealed or amended

in accordance with the provisions of this act.


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Chapter II of part VI of the rules framed by the Bar Council of India deals with the

standards of professional conduct and etiquette. It contains several rules which lay

down the standards of professional conduct and etiquette. These rules specify the

duties of an advocate to the Court, client, opponent and colleagues, etc.

The rules mentioned in chapter II of part VI of the rules of Bar Council of India may

be discussed as follow-‐

Duty towards court


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The Bar Council of India has made certain rules so as to prescribe duties of an

advocate to the court. Such duties may be explained as follow

1) During the presentation the case and while acting otherwise as an advocate

before the court it is required to conduct himself with dignity and self

respect. It is his duty to submit his grievances to the proper authority. The

rule empowers the advocate to make complaint against judicial officer but

it should be submitted to proper authority.

2) An advocate is required to maintain towards the court respectful attitude

bearing in mind that the dignity of judicial office is essential for survival

of free community.

3) Rule has made it clear that no advocate shall influence the decision of the

court by any illegal means. It prohibits the private communication with the

judge relating to pending case. If any advocate attempt to influence the

decision of court by illegal means then it may amount to misconduct.

4) The rule requires the advocate to use his best effort to restrain and prevent


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his client from resorting to sharp or unfair practice opposite from council

or parties which the advocate himself ought not to do.

5) An advocate shall appear in court at all times only in the prescribe dress

and his appearance shall always be presentable.

6) An advocate shall not enter appearance act, plead, or practice in any way

before a court, tribunal, or authority mentioned in section 30 of the

Advocates Act, 1961 if the sole or any member thereof is related to the

advocate as father, nephew, grandfather, son, grandson, uncle, brother,

first cousin, husband, mother, wife, daughter, sister, niece, sister-‐in-‐law,

mother-‐in-‐law, and father-‐in-‐law.

7) The rule requires the advocate not to wear bands or gowns in public place other than in court except on such ceremonial occasions and at such places as the Bar Council of India and the court may prescribe.

8) The rule provides that an advocate shall not appear in or before any court

or tribunal or any other authority for or against an organization, institution,

society, or corporation if he is a member of executive committee of such

organization, institution, society, or corporation.


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9) An advocate shall not act or plead in any matter in which he himself has

some pecuniary interest.

Duty towards Client

Rule 11 to 33 deal with the duties of an advocate to his client. These rules may be

explained as follow

10) Rule 11 provides that an advocate is bound to accept any brief in the court

or tribunal or before any authority which he proposes to practice at fee consistent with his standing at bar and also nature of case.

11) Rule 12 provides that an advocate shall not withdraw from engagement

once accepted without sufficient cause and unless reasonable and

sufficient notice given to the client.

12) Rule 13 provides that an advocate should not accept the brief or appear in

a case in which he has reason to believe that he will be a witness.


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13) Rule 14 provides that an advocate shall at the commencement of his

engagement and during the continuance thereof make all such full and

frank disclosure to his client relating to his connection with the parties and

any interest in or about the controversy as are likely to affect his client’s

judgment in either engaging him or continuing the engagement.

14) Rule 15 provides that it is the duty of an advocate to uphold the interest of

his client fearlessly by all fair and honorable means without regard to any

unpleasant consequences to himself or to any other.

15) Rule 16 provides that an advocate appearing for the prosecution of

criminal trial shall so conduct the prosecution that it does not lead to

conviction of an innocent.

16) Rule 17 provides that an advocate shall not commit directly or indirectly any breach of the obligation imposed by section 126 of Indian Evidence Act.

17) Rule 18 provides that an advocate shall not at any time be a party to the

fomenting litigation.


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18) Rule 19 makes it clear that an advocate shall not act on the instruction of

any person other than his client or his authorized agent.

19) Rule 20 provides that the fee of an advocate depending upon the success

of the sue he is considered as oppose to public policy. Contract for

contingent fee is also hit by section 23 of the Indian Contract Act.

20) Rule 21 provides that an advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim.

21) Rule 22 provides that an advocate shall not directly or indirectly bid foe or

purchase either in his own name or any other name for his own benefit or

benefit of any other person, any property sold in execution of decree or

other proceeding in which he was professionally engaged.

22) Rule 23 provides that an advocate shall not adjust fee payable to him by

his client against his own personal property or liability to the client which

liability does not arise in course of his employment as an advocate.

23) Rule 24 provides that an advocate shall not do anything whereby he

abuses or take advantage of the confidence repose in him by his client.


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24) Rule 25 provides that an advocate should keep an account of clients

money entrusted to him and accounts should show amount received from

the client or on his behalf the expenses incurred for him and the debits

made on account of fees with the respective dates and all other necessary particulars.

25) Rule 26 provides that where money are received from or on account of

client, the entries in the account should contain a reference as to whether

the amount have been received for fees or expenses and during the course

of the proceeding no advocate shall accept with the consent in writing of

the client concerned be at liberty to divert any portion of the expenses

towards fee.

26) Rule 27 provides that where any amount is received or given to him on

behalf of his client, the fact of such receipt must be intimated to the client

as early as possible. If the client demands the payment of such money and

in spite of such demand the advocate does not pay him, he will be guilty of

professional misconduct.


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27) Rule 28 provides that after termination of the proceeding the advocate

shall be at liberty to appropriate towards the settle fee due to him any sum

remaining unexpanded out of the amount paid or send to him for expenses

or any amount that has come into his hands in that proceeding.

28) Rule 29 provides that if the fee has been left unsettled the advocate can deduct out of any money of the client remaining in his hand at the termination of the proceeding for which he had been engaged.

29) Rule 30 provides that the copy of clients account shall be furnish to him

on demand provided the necessary charges are paid.

30) Rule 31 requires an advocate not to enter into arrangements whereby

funds in his hands are converted into loans. It makes it clear that an

advocate shall not enter into arrangements whereby funds in his hands are

converted into loans.

31) Rule 32 prohibits an advocate to lend money to his client for the purpose

of any action for legal proceeding in which he is engaged by such client. It


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provides that an advocate shall not lend money to his client foe the

purpose of any action or legal proceeding in which he is engaged by such

client.

32) Rule 33 provides that an advocate who has at any time advice in

connection with the institution of the suit appeal or matter as drawn .

Duty towards opponent

Rule 34 and 35 framed by the Bar council of India contain provisions as to the duties

of an advocate to the opponent.

Rule 34 provides that an advocate shall not in any way communicate or negotiate

upon the subject matter of controversy with any party represented by an advocate

except through that advocate.

Rule 35 provides that an advocate shall do his best to carry out all legitimate promises


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made to the opposite party even though not reduced to writing or enforceable under

the rules of the court. It is the duty of the advocate not to engage in discussion or

argument about the subject of the dispute with the opposite party without notice of his

counsel. Resolution 43 of Hoffman provides“I will never enter into any conversation with my opponent’s client relative to his claim or defence, except with the consent and in the presence of his counsel.”

Other duties

1) Rule 40 requires every advocate on the rolls of the State Bar Council to pay a

certain sum to the state bar council. Rule 41 provides that all the sums so

collected by the state bar council shall be credited in a separate fund to be

known as “Bar Council of India Advocates welfare fund for the State” and

shall be deposited in the bank as provided there under. According to rule 41(2)

the Bar Council of India Advocates Welfare fund Committee for the State

shall remit 20% of the total amount collected and credited to its account, to the

bar council of India by the end of every month which shall be credited by the

Bar council of India and the Bar council of India shall deposit the said amount


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in a separate fund to be known as “Bar Council of India Advocates Welfare

fund.”

According to rule 41(3) the rest 80% of the total sum so collected by the Bar

Council of India Advocate Welfare Fund Committee for the state shall be

utilized for the welfare of the advocates in respect of welfare schemes

sponsored by the respective State Bar Council.

Rule 42 deals with the consequences of non payment of the said amount by the

advocate. It provides that if an advocate fails to pay the aforesaid sum within

the prescribed time, the secretary of the State Bar Council shall issue to him a

notice to show cause within a month why his right to practice be not

suspended. In case the advocate pays the amount together with late fee within

the period specified in notice, the proceeding shall be dropped. If the advocate

does not pay the amount or fails to show sufficient cause, a committee of three

members constituted by the state bar council in this behalf may pass an order

suspending the right of the advocate to practice.

Rule 43 provides that an advocate who has been convicted of an offence

mentioned under section 24-‐A of the Advocates Act or has been declared

insolvent or has taken full time service or part time service or engages in


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business or any avocation inconsistent with his practicing as an advocate or

has incurred any disqualification mentioned in the Advocates Act or the rules

made there under, shall send a declaration to the effect to the respective state

bar council in which the advocate is enrolled, within 90 days from the date of

such disqualification.

Rule 44 provides, an appeal shall lie to the bar council of India at the instance

of an aggrieved advocate within a period of 30 days from the date of the order

passed under rule 42 and 43.

Rule 44-‐A provides that there shall be a Bar council of India Advocates

Welfare Committee consisting of five members elected from amongst the

members of the council. The term of the members of the committee shall be

co-‐extensive with their term in the Bar Council of India. Rule 44-‐b makes it

clear that the Bar Council of India shall utilise the funds received under rule

41(2), stated above, in accordance with the scheme which may be framed from

time to time.

2) Duty in imparting training – rule 45 framed by the Bar Council of India

makes it clear that it is improper for an advocate to demand or accept fees or

any premium from any person as a consideration for imparting training in law

under the rules prescribed by the State Bar Council to enable such person to


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qualify for enrolment under the Advocates Act, 1961

3) Duty to render legal aid – rule 46 provides that every advocate shall in

practice of the profession of law bear in mind that any one genuinely in need

of a lawyer is entitled to legal assistance even though he cannot pay for it fully

or adequately and that within the limits of an advocates economic condition,

free legal assistance to the indigent and oppressed is one of the highest

obligation, as an advocate owes to the society.

4) Restriction on other employment – rules 47, 48, 49, 50, 51 and 52 deals with

the restrictions on other employment. Rule 47 provides that an advocate shall

not personally engage in any business but he may be a sleeping partner in a

firm doing business provided that in the opinion of the appropriate state bar

council the nature of the business is not inconsistent with the dignity of the

profession. Rule 48 makes it clear that an advocate may be director or

chairman of the board of directors of a company with or without any ordinary

sitting fees, provided none of his duties are of executive character. An

advocate shall not be a managing director or a secretary of any company. Rule

49 provides that an advocate shall not be a full time salaried employee of any

person, government, firm, corporation or concern, so long as he continues to


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practice and shall taking up any such employment intimate the fact to the bar

council on whose roll his name appears and shall thereupon cease to practice

as an advocate so long as he continues in such employment. Rule 50 provides

that an advocate who has inherited or succeeded by survivorship, to a family

business may continue it, but may not personally participate in the management thereof.

Legal Profession in India

The history of the legal profession in India can be traced back to the

establishment of the First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the

hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta,

there were no legal practitioners.


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The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right of appeal first to the Governor-in-

Council and a right of second appeal to the Privy Council. In 1791, Judges felt the need of experience, and thus the role of an attorney

to protect the rights of his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition from Council members

or the Governor. A second principle was also established during the period of the Mayor’s Courts. This was the right to dismiss an

attorney guilty of misconduct. The first example of dismissal was recorded by the Mayor’s Court at Madras which dismissed attorney

Jones.

The Supreme Court of Judicature was established by a Royal

Charter in 1774. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Court of the

Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The first barristers appeared in India after the

opening of the Supreme Court in Calcutta in 1774. As barristers began to come into the Courts on work as advocates, the attorneys

gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in

England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.

Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession. The charters of the

Court stipulated that the Chief Justice and three puisne Judges be English barristers of at least 5 years standing.

The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead and act on behalf of suitors. They

also gave the Court the authority to remove lawyers from the roll of the Court on reasonable cause and to prohibit practitioners not


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properly admitted and enrolled from practising in the Court. The Court maintained the right to admit, discipline and dismiss

attorneys and barristers. Attorneys were not admitted without recommendation from a high official in England or a Judge in

India. Permission to practice in Court could be refused even to a barrister.

In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was established, guided and

controlled by legislation. In the Diwani Courts, legal practice was neither recognized nor controlled, and practice was carried on by

vakils and agents. Vakils had even been appearing in the Courts of the Nawabs and there were no laws concerning their qualification,

relationship to the Court, mode of procedure of ethics or practice. There were two kinds of agents – a. untrained relatives or

servants of the parties in Court and b. professional pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of

1793 was enacted as it was felt that in order to administer justice, Courts, must have pleading of causes administered by a distinct

profession Only men of character and education, well versed in the Mohamedan or Hindu law and in the Regulations passed by the

British Government, would be admitted to plead in the Courts. They should be subjected to rules and restrictions in order to discharge

their work diligently and faithfully by upholding the client’s trust. Establishment of the High Courts

In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and Madras. The High Court Bench was designed

to combine Supreme Court and Sudder Court traditions. This was done to unite the legal learning and judicial experience of the

English barristers with the intimate experience of civil servants in matters of Indian customs, usages and laws possessed by the civil

servants. Each of the High Courts was given the power to make


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rules for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The admission of vakils to practice before the

High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts. It greatly extended the practice and prestige of

the Indian laws by giving them opportunities and privileges equal to those enjoyed for many years by the English lawyers. The learning

of the best British traditions of Indian vakils began in a guru-shishya tradition:

“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar were quick to learn and absorb the

traditions of the English Bar from their English friends and colleagues in the Madras Bar and they in turn as the originators of a

long line of disciples in the Bar passed on those traditions to the disciples who continued to do the good work.”

Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).

There were six grades of legal practice in India after the founding of the High Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of

High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the six grades of the

profession into one system under the jurisdiction of the High Courts. The Legal Practitioners Act and the Letters Patent of the

High Courts formed the chief legislative governance of legal practitioners in the subordinate Courts in the country until the

Advocates Act, 1961 was enacted. In order to be a vakil, the candidate had to study at a college or

university, master the use of English and pass a vakil’s examination. By 1940, a vakil was required to be a graduate with

an LL.B. from a university in India in addition to three other certified requirements. The certificate should be proof that a. he had passed

in the examination b. read in the chamber of a qualified lawyer and was of a good character. In fact, Sir Sunder Lal, Jogendra Nath


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Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an Advocate.

Original and appellate jurisdiction of the High Court.

The High Courts of the three presidency towns had an original

side. The original side included major civil and criminal matters which had been earlier heard by predecessor Supreme Courts. On

the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney and advocate. On the appellate side

every lawyer practiced as his own attorney.

However, in Madras the vakils started practice since 1866. In 1874,

the barristers challenged their right to do original side work. However, in 1916, this right was firmly established in favour of the

vakils. Similarly, vakils in Bombay and Calcutta could be promoted as advocates and become qualified to work on the original side. By

attending the appellate side and original side Courts each for one year, a vakil of 10 years service in the Court was permitted to sit for

the advocates’examination. Indian Bar Councils Act, 1926.

The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and to provide self-government to the Bars

attached to various Courts. The Act required that each High Court must constitute a Bar Council made up of the Advocate General,

four men nominated by the High Court of whom two should be Judges and ten elected from among the advocates of the Bar. The

duties of the Bar Council were to decide all matters concerning legal education, qualification for enrolment, discipline and control of

the profession. It was favourable to the advocates as it gave them authority previously held by the judiciary to regulate the

membership and discipline of their profession.


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The Advocates Act, 1961 was a step to further this very initiative. As a result of the Advocates Act, admission, practice,

ethics, privileges, regulations, discipline and improvement of the profession as well as law reform are now significantly in the hands

of the profession itself.

PROFESSIONAL ETHICS & BAR-‐BENCH RELATIONS

TOPIC – Admission, Enrolment & Rights of Advocates

Section 24 of Advocates Act, 1961 lays down the categories of persons who are eligible

being admitted as advocates on the State roll. The persons applying for such admission

has to fulfil certain conditions briefed below:

a) Citizen of India – Sec 24(1)(a) of the Act provides that the person concerned should

be a citizen of India. Even the nationals of other country are permitted to practice

law in our country and may be admitted as an advocate on a State roll; if citizens of

India, duly qualified, are permitted to practice law in that other country. The person

desiring to practice law in India as such has to fulfil the other conditions as well as

have been laid down in Advocates Act, 1961.

b) Age -‐ Sec 24(1)(b) of the Act provides that the person concerned should have

completed the age of 21 years.

c) Degree of Law -‐ Sec 24(1)(c) of the Act provides that the person should have

obtained the degree in law -‐(i) before the 12th day of March, 1967, from any University in the territory of India; or

(ii) before the 15th August, 1947, from any University in any area which was comprised

before that date within India as defined by the Government of India Act, 1935; or


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(iii) after the 12th day of March, 1967, save as provided in sub-‐clause (iiia), after

undergoing a three year course of study in law from any University in India which is

recognised for the purposes of this Act by the Bar Council of India; or

(iiia) after undergoing a course of study in law, the duration of which is not less than

two academic years commencing from the academic year 1967-‐68 or any earlier

academic year from any University in India which is recognised for the purposes of this

Act by the Bar Council of India; or

(iv) in any other case, from any University outside the territory of India, if the degree is

recognised for the purposes of this Act by the Bar Council of India or; he is barrister

and is called to the Bar on or before the 31st day of December, 1976 or has passed the

article clerks examination or any other examination specified by the High Court at

Bombay or Calcutta for enrolment as an attorney of that High Court; or has obtained

such other foreign qualification in law as is recognised by the Bar Council of India for

the purpose of admission as an advocate under this Act;

d) Fulfilment of Other Conditions -‐ Sec 24(1)(e) of the Act provides that the person

concerned should fulfil such other conditions as may be specified in the rules made

by the State Bar Council;

e) Payment of Stamp Duty -‐ Sec 24(1)(f) of the Act states that the person concerned

has to pay in respect of the enrolment, stamp duty, if any, chargeable under the

Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee of Rs. 600/-‐ (Rupees Six


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Hundred Only) payable to the State Bar Council and Rs. 150/-‐ (Rupees One

Hundred Fifty Only) to the Bar Council of India, by way of a bank draft drawn in

favour of that Council:

Provided that where such person is a member of the Schedule Castes or the

Schedule Tribes and produces a certificate to that effect from such authority as may

be prescribed, the enrolment fee payable by him to the State Bar Council shall be

Rs.100/-‐ (Rupees One Hundred Only) and Rs. 25/-‐ (Rupees Twenty Five Only) to

the Bar Council of India.

The Bar Council may prescribe the qualifications for the purpose of admission as an

advocate on a State roll in addition to qualifications provided under Section 24(1)(c) but it

would not mean that such qualification would go counter to the section as mentioned

above. The Advocates Act, 1961 expressly authorises the Bar Council of India to add such

other conditions by making appropriate rules.

The provisions of Section 24(1)(f) of the Act fixes enrolment fee which is not

unconstitutional. The Bar Council of India is entitled to charge enrolment fee within the

limits determined by the Parliament. There is no constitutional vice in fixing the enrolment

fee to the extent it has been fixed by Parliament under the Act. The Bar Council, in the

instant case, was not permitted to recover such renewal fee from Advocates. It could

recover renewal fee only when authorised by an Act of Parliament.

According to Sec 25 of the Advocates Act, 1961, the application for admission as an


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advocate shall be made to the State Bar Council within whose jurisdiction the applicant

wishes to practice.

Reference of application to Enrolment Committee: Sec 26(1) of the said Act contains

the provision that a State Bar Council shall refer every application for admission as an

advocate to its enrolment committee, and subject to the provisions of sub-‐sections (2) and

(3) and to any direction that may be given in writing by the State Bar Council in this behalf,

such committee shall dispose of the application in the prescribed manner:

Provided that the Bar Council of India may, if satisfied, either on a reference made to it in

this behalf or otherwise, that any person has got his name entered on the roll of advocates

by misrepresentation as to an essential fact or by fraud or undue influence, remove the

name of such person from the roll of advocates after giving him an opportunity of being

heard.

Refusal of Application: Sec 26(2) Where the enrolment committee of a State Bar Council

proposes to refuse any such application, it shall refer the application for opinion to the Bar

Council of India and every such reference shall be accompanied by a statement of the

grounds in support of the refusal of the application.

Disposal of Application in conformity with Opinion of Bar Council of India: Sec 26(3)

The enrolment committee of a State Bar Council shall dispose of any application referred

to the Bar Council of India under subsection (2) in conformity with the opinion of the Bar

Council of India.

Communication of Refusal: Sec 26(4) Where the enrolment committee of a State Bar


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Council has refused any application for admission as an advocate on its roll, the State Bar

Council shall, as soon as may be, send intimation to all other State Bar Councils about

such refusal stating the name, address and qualifications of the person whose application

was refused and the grounds for the refusal.

Disqualifications for Enrolment: (Sec 24A) of the Advocates Act, 1961 lays down

certain conditions, the existence of which may disqualify a person from being enrolled as

an advocate as below –

(a) The person concerned should not be convicted of an offence involving moral

turpitude;

(b) The person concerned should not be convicted of an offence under the

provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);

(c) The person concerned should not be dismissed or removed from employment or

office under the State on any charge involving moral turpitude.

Provided that the disqualification for enrolment as aforesaid shall cease to have effect after

a period of 2 years has elapsed since his release or dismissal or, as the case may be,

removal.

The legislature, even at that stage does not appear to have thought of introducing a

statutory amendment to impose any ceiling limit based on the introduction of an upper age

to operate as a disqualifying factor against a person from getting enrolled into the State

rolls.

In the case of Sampath Kumar J Versus Bar Council of India (1995) before Madras


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High Court,

Facts: The rule which was the effect of putting an axe on the right of a person, who

otherwise eligible to be enrolled as an advocate has the consequence of substance,

prescribing disqualification. The prescription of an upper age with ceiling limit of 45 years

per se operates, as a permanent disqualification for a person otherwise entitled to get

enrolled as an advocate.

Held that: It may not be permissible for the Bar Council of India to superimpose a further

qualification by putting an upper age limit so as to disqualify or render ineligible a person,

though otherwise qualified from being enrolled merely on grounds of having reached a

particular maximum age limit prescribed under rules.

As per (Sec 26A) of the Advocates Act, 1961, a State Bar Council may remove from the

State roll the name of any advocate who is dead or from whom a request has been

received to that effect.

Enrolment of an Advocate: As per the (Section 22) of the Advocates Act, 1961, the

State Bar Council issues a certificate of enrolment. It is to be issued in the prescribed form

to every person whose name is entered in the State roll of advocates.

If there is any change in the place of permanent address of the advocate the same is to be

intimated to the State Bar Council within 90 days of such change. The enrolment as an

advocate cannot be denied to a law graduate, merely because he/she had undertaken

some other course of instruction during the time when he/she was studying in law classes

for a law degree.


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It has been held by the Hon’ble Supreme Court of India in case reported in 1973, that Uttar

Pradesh State Legislature is competent to legislate and impose stamp duty on the

certificate of enrolment under (Sec 22) to be issued by the State Bar Council of Uttar

Pradesh.

Classes of Advocates: As per the Sec 16(1) of the Advocates Act, 1961, there are two

classes of advocates, namely Senior Advocates and Other Advocates. Sec 16(2) states

that, if the Supreme Court or a High Court is of the opinion that a particular advocate

possesses ability, standing at the Bar or special knowledge or experience in law, and if the

advocate concerned consents so, he/she may be designated as Senior Advocate.

Certain restrictions for Senior Advocates: According to Sec 16(3) of the Advocates Act,

1961 the Bar Council of India may prescribe certain restrictions in the matter of practice of

senior advocates. They are as below –

Ø An advocate who has been designated as senior advocate cannot file a

vakalatnama or act in any Court or Tribunal or before any person or authority as laid

down in Section 30 of the said Act.

Ø The senior advocate cannot directly appear before the Court or Tribunal or before

any person or authority mentioned in Section 30 of the said Act. He can appear only

through an advocate in Part-‐II of the State roll.

Ø The senior advocate can neither accept instructions to draft pleading or affidavits,

advice, on evidence, nor he can do any drafting work of an analogous kind in any

Court or Tribunal or before any person or authority as mentioned in Section 30, nor


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can he undertake conveyance work of any kind.

Ø A senior advocate is free to make concessions or give undertaking in the course of

argument on behalf of his clients provided there are instructions from junior

advocate.

Ø A senior advocate is not free to directly accept from any client any brief instructions

for the purpose of appearing before any Court or Tribunal or before any person or

other authority in India.

Ø The advocate who has acted as a junior advocate in a given case cannot after his

becoming a senior advocate advises on grounds of appeal in a Court of appeal or in

the Supreme Court or an advocate in Part-‐II of the State roll.

Ø A senior advocate may in recognition of the services rendered by an advocate in

Part-‐II of the State roll appearing in any matter pay him a fee which he considers

reasonable.

Maintaining Roll of Advocates: Section 17(1) of the Advocates Act, 1961 states that the

Bar Council of every State has to prepare and maintain a roll of advocates where in the

names and addresses of the following persons are entered –

(a) all persons who were entered as advocates on the roll of any High Court under the

Indian Bar Councils Act, 1926 (38 of 1926), immediately before the appointed day

including persons, being citizens of India, who before the 15th day of August, 1947, were

enrolled as advocates under the said Act in any area which before the said date was

comprised within India as defined in the Government of India Act, 1935, and who at any


32

time express an intention in the prescribed manner to practise within the jurisdiction of the

Bar Council;

(b) all other persons who are admitted to be advocates on the roll of the State Bar Council

under this Act on or after the appointed day.

According to Sec 17(2) of the said Act, this roll of advocates is divided into 2 parts. The

first part is meant for the names of senior advocates and the second part is meant for the

names of other advocates.

According to Sec 17(4) of the said Act specifically provides that no person shall be

enrolled as advocate on the roll of more than one State Bar Councils.

The rules as regards to preparation and maintenance of the State roll are mentioned in

Chapter I of Part V of the Bar Council of India Rules as below –

1 (a) The Council may, from time to time, give directions as to the manner in which

the State Council shall prepare and maintain the rolls under Section 17 of the Act.

(b) The copies of the State rolls to be sent under Section 19 of the Act shall be in

Forms ‘B-‐1’ & ‘B-‐2’ and shall contain such further details as the Council may

specify.

2 Particulars of transfers under Sec 18 of the Act, cancellations directed under the

proviso to Sec 26(1) of the Act, punishments imposed by an order under Chapter V,

particulars as to result of appeals and relevant decisions of the Courts, and such other

matters which the Council may specifically direct, shall be noted in the said rolls.

3 Save as otherwise directed by the Council; no other particulars shall be entered in


33

the said rolls.

4 Every page of the roll shall bear the signature or a facsimile thereof, of the Secretary

or other person authorised by the State Council.

5 Authenticated copies of any additions or alterations made in the roll shall be sent to

the Council without delay.

Transfer of Name from One State Roll to another State Roll: According to Sec 18(1) of

Advocates Act, 1961, where the name of any person whose name is entered as an

advocate on the roll of any State Bar Council may make an application in the prescribed

form to the Bar Council of India for the transfer of his name from the roll of that State Bar

Council to the roll of any other State Bar Council and, on receipt of any such application

the Bar Council of India shall direct that the name of such person shall without the

payment of any fee, be removed from the roll of the first mentioned State Bar Council and

entered in the roll of the other State Bar Council and the State Bar Councils concerned

shall comply with such direction.

Provided that where any such application for transfer is made by a person against whom

any disciplinary proceeding is pending or where the Bar Council of India is of the view that

the application for transfer has not been made bonafide, and that the transfer should not

be made, the Bar Council of India may, after giving the person making the application an

opportunity of making a representation in this behalf, reject the application.

According to Sec 18(2) of Advocates Act, 1961, the transfer of name in no way affects the

seniority of the advocate, as the concerned advocate shall retain the same seniority in the


34

latter roll to which he was entitled in the former roll. It is to be noted that the advocate

applying has not to pay the fee of any kind for transferring of his name from one State roll

to another State roll.

The language of Sec 19 of the Advocates Act, 1961 lays down that every State Bar

Council shall send to the Bar Council of India an authenticated copy of the roll of

advocates prepared by it for the first time under this Act and shall also thereafter

communicate to the Bar Council of India all alterations in and any additions to such roll, as

soon as the same have been made.

The provision of Sec 20(1) of the said Act lays down that every advocate who was entitled

as of right to practise in the Supreme Court immediately before the appointed day and

whose name is not entered in any State roll may, within the prescribed time, express his

intention in the prescribed form to the Bar Council of India for the entry of his name in the

roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that

the name of such advocate shall, without payment of any fee, be entered in the roll of that

State Bar Council, and the State Bar Council concerned shall comply with such direction.

According to Sec 20(2) of the said Act, any entry in the State roll made in compliance with

the direction of the Bar Council of India is to be made in order of seniority. If an advocate

as is referred to in Sec 20 of the Advocates Act, 1961, omits or fails to express his

intention within the prescribed time, his/her name shall be entered in the roll of the State

Bar Council of India.

Advocates only recognised class of person entitled to practice law: The provisions of


35

Sec 29 of the Advocates Act, 1961, lays down that “subject to the provisions of this Act

and any rules made there under, there shall, as from the appointed day, be only one class

of persons, entitled to practice the profession law, namely advocates.

Right of Advocates to Practise: As per Sec 30, an advocate whose name is entered in

the State roll becomes entitled as of right to practise throughout the territories to which this

Act extends –

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any authority or person before whom such advocate is by or under any

law for the time being in force entitled to practise.

Appearance of Non-‐Advocate: Under Sec 32 of the Advocates Act, 1961 a discretionary

power is given to the Court to permit appearance to any non-‐advocate for a party. Sec 32

restricts the power of the Court to permit any non-‐advocate only to appear on behalf of the

party in any particular case.

In the instant case, the petitioner had not filed the petition in public interest and did not

disclose the circumstances which prevented the affected persons from approaching the

Court. In discharge of his professional obligations, the petitioner-‐advocate is not obliged to

file the writ petition on behalf of the clients. No circumstances were mentioned in the

petition which allegedly incapacitated the affected person from filing the writ petition. Sec

30 of the Advocates Act, 196 only entitles an advocate to practise the profession of law

and not to substitute himself in his own name, being not a part of the professional


36

obligation of the Advocate; the High Court was justified in dismissing the writ petition

holding that the petitioner-‐advocate had no locus standi.

Right to advocacy is a Statutory Right: It appears from the provisions of Secs 29 & 30

that the advocates have been conferred right to practise not only in all Courts including the

Supreme Court but also before any Tribunal or person legally authorised to take evidence

and also before any other authority or person before whom such advocate is by or under

any law for the time being entitled to practice. Therefore, the right of an advocate to

practise profession of law is statutory right and not a fundamental right.

A private person who is not an advocate and not a pleader enrolled, cannot be permitted

to argue and plead the case for a third party/person on the basis of attorney unless

permitted under special circumstances by the Court.

Power of Court to permit appearance of an individual: As regards the entitlement of an

individual to appear before the Court in a given case, Sec 32 of the Advocates Act, 1961

lays down that it is within the power of the Court, authority or person to permit any person

to appear before it or him in a particular case. The provisions confer a monopoly right of

pleading and practising law only on the enrolled advocates. A private person who is not an

advocate cannot or has no right to argue for a party. He/she must get the prior permission

of the Court for which motion must come from the party itself. It is open to the Court to

grant or withhold or withdraw permission in its discretion.

Right to Practise is different from Right of Appearance: Right to practise is different

from the right of appearance in a particular case. The right to practise is a right given to the


37

advocate to practise the profession of law before all Courts, Tribunals, authorities etc. The

right of appearance in a particular case depends upon the permission granted by the Court

under Sec 32 of the Advocates Act, 1961 which is an exception to the right of practise by

the advocates.

Permission once granted to appear may be withdrawn:

In the case of Harishankar Rastogi Versus Giridhari Sharma (1978)

Hon’ble Supreme Court held that a private person, who is not an advocate, has no right to

barge into the Court and claim to argue for a party. He must get the prior permission of the

Court, for which the motion must come from the party himself. It is open to the Court to

grant or withhold the permission in its discretion. In fact, the court may even after grant of

permission, withdraw it halfway through if the representative proves himself reprehensible.

The antecedents, the relationship, the reason for requisitioning the services of the private

person and a variety of the other circumstances must be gathered before the grant or

refusal of permission.

Advocates alone entitled to Practise: As per Sec 33 of Advocates Act, 1961 it is clear in

language laying down that “except as otherwise provided in this Act or in any other law for

the time being in force, no person shall on or after the appointed day, be entitled to

practise in any Court or before any authority or person unless he/she is enrolled as an

advocate under the said Act”.

A recognised representative cannot claim to appear as of right. Previous permission of

Court is necessary. There is no warrant whatsoever to place a recognised agent holding a


38

general power of attorney to take proceedings in Courts in the same position as an

advocate to whom a vakalatnama has been given.

The legal capacity of an advocate to practise the profession of law in Court and his

competency to act in Court for his client are not derived from any contract but from his

legally recognised status as an advocate. On account of his status, his duties are threefold

– to the client, to the Court, and to the public.

The expression “practise” clearly contemplates practising as a profession for gain. That

neither precludes a party in person in Court to argue his own case or appoint an agent

who is acceptable to the Court to present his cases other than a lawyer. Prohibition is to

practise as a profession and not for mere appearance in an isolated case.

The right of the advocates to practise in all Courts including Supreme Court as of right is

always subject to the rule making power of the High Court laying down conditions subject

to which an advocate shall be permitted to practise in the High Courts and the Courts

subordinate thereto.


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An Advocate is regarded as an officer of the Court and is a part and parcel of a Court. He must always respect and co-‐operate with the proceedings of the Court.

An Advocate must always respect the Court and follow 'Professional Ethics'.

Abbort Pary, LJ has formulated seven essential features and characteristics for advocacy. These characteristics of an advocate are called the Seven Lamps of Advocacy.

A Judge is always considered Superior to an advocate because he represents the Justice.

Most Courts provide a Chamber for Advocates in the Court premises. An Allotment Committee will generally be formed for the purpose.

The Right to Practice is a Fundamental Right guaranteed under Article 19(1) (g) of the Constitution of India. However, Allotment of Chamber is neither a fundamental right nor a statutory right for Advocates but is a customary practice followed to foster the Bar-‐Bench Relations.

An Advocate can reject taking up a case citing it is not in the domain of his specialty. However a Judge cannot reject a case that comes to him citing lack of knowledge in the specialization of the case.

Advocates cannot wear bands or gowns in public places except in the Court premises and in such ceremonial occasions and at places as prescribed by the Court or Bar Council.

• Advocates in India have to follow the rules and regulations prescribed the Bar Council of India.


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• Advocate has to pay the prescribed fee with the State Bar Council

Being an Advocate is a full time profession. Hence, many countries prohibit Advocates from entering / running businesses or managing companies or being into a full-‐time salaried employment

Advocate's Office

• An Advocate's Office is considered a public office in the sense that any person can meet him and seek Legal help and advice.

• The Office should be adequately staffed. • The Office should have a Library with Books and latest Journals and Computer

facility, preferably with internet access facility. • Good Chamber is necessary so that he may have reasonable contact with the

Clients.

In some cases, Advocate goes unethical and does certain acts that cause delay for the Courts to clear the cases:

• Filing of frivolous petitions • Unnecessary litigation • Harassing the opposite parties • Squeezing abnormal fee from client • Shows large files and tells the client that they are still pending • Says he couldn't get time being busy with a large case • Different Courts are located at different places • Negligence and indifference • Ill-‐health of the advocate client/other party/witness etc

In India, the law relating to the Advocates is the Advocates Act, 1961 introduced and thought up by Ashoke Kumar Sen, the then Law Minister of India, which is a Law passed by the Parliament and is administered and enforced by the Bar Council of India. Under the Act, the Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country. For this purpose, the Bar Council of India is authorized to pass regulations and make orders in individual cases and also generally.


41

Each State has a Bar Council of its own whose function is to enroll the Advocates willing to practice predominately within the territorial confines of that State and to perform the functions of the Bar Council of India within the territory assigned to them. Therefore each law degree holder must be enrolled with a (single) State Bar Council to practice in India. However, enrollment with any State Bar Council does not restrict the Advocate from appearing before any court in India, even though it is beyond the territorial jurisdiction of the State Bar Council which he is enrolled in.

The advantage with having the State Bar Councils is that the work load of the Bar Council of India can be divided into these various State Bar Councils and also that matters can be dealt with locally and in an expedited manner. However for all practical and legal purposes, the Bar Council of India retains with it the final power to take decisions in any and all matters related to the legal profession on the whole or with respect to any Advocate individually, as so provided under the Advocates Act, 1961.

The process for being entitled to practice in India is twofold. First, the applicant must be a holder of a Law Degree from a recognized institution in India (or from one of the four recognized Universities in the United Kingdom) and second, must pass the enrollment qualifications of the Bar Council of the state where he/she seeks to be enrolled. For this purpose, the Bar Council of India has an internal Committee whose function is to supervise and examine the various institutions conferring law degrees and to grant recognition to these institutions once they meet the required standards. In this manner the Bar Council of India also ensures the standard of education required for practicing in India are met with. As regards the qualification for enrollment with the State Bar Council, while the actual formalities may vary from one State to another, yet predominately they ensure that the application has not been a bankrupt/criminal and is generally fit to practice before Courts of India.

Enrollment with a Bar Council also means that the Law Degree holder is recognized as an Advocate and is required to maintain standards of Conduct and Professional demeanor at all times, both on and off the profession. The Bar Council of India also prescribes "Rules of Conduct" to be observed the Advocates in the Courts, while interacting with Clients and even otherwise.

All Advocates in India are at the same level and are recognized as such. Any distinction, if any, is made only on the basis of Seniority, which implies the length of practice at the Bar. As recognition of Law Practice and specialization in an area of Law, there is a concept of conferral of Senior Advocate status. An Advocate may be recognized by the Judges of the


42

High Court (in case of an Advocate practicing before that High Court) or by the Supreme Court (in case of the Advocate practicing before the Supreme Court). While the conferral of Senior Advocate status not only implies distinction and fame of the Advocate, it also requires the Senior Advocate to follow higher standards of conduct and some distinct rules. Also, a Senior Advocate is not allowed to interact directly with the Clients. He can only take briefs from other Advocates and argue on the basis of the details given by them. From the year 2010 onwards a mandatory rule is made for Lawyers passing out from the year 2009-‐10 to sit for an evaluation test named AIBE (All India Bar Exam) for one to qualify as an Advocate and Practice in the Courts.

Further, under the Constitutional structure, there is a provision for elevation of Advocates as Judges of High Courts and Supreme Court. The only requirement is the Advocate must have a ten years standing before the High Court (/s) or before the Supreme Court to be eligible for such. (Article 217 and 124 of the Constitution of India for High Courts and Supreme Court respectively)

CHAPTER III (Advocates Act, 1961) ADMISSION AND ENROLMENT OF ADVOCATES

Section 16 Senior and other

16-‐1 There shall be two classes of advocates, namely, senior advocates and other advocates.

16-‐2 An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability 1[standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.

16-‐3 Senior advocates, shall in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.

16-‐4 An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:

2[Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly].


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1. Subs. By Act No. 60 of 1993, for the words “experience and standing at the Bar.”

2. Ins. By Act No. 21 of 1964.

Section 17 State Bar Councils to maintain roll of Advocates

17-‐1 Every State Bar Council, shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of-‐

(a) All persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926) immediately before the appointed day 1[including persons, being citizens of India, who before the 15th day of August, 1947, were enrolled as advocates under the said Act in any area which before the said date was comprised within India as defined in the Government of India Act, 1935, and who at any time] express an intention in the prescribed manner to practice within the jurisdiction of the Bar Council;

(b) All other persons who are admitted to be advocates on the roll of the

State Bar Council under this Act on or after the appointed day. 17-‐2 Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates. 17-‐3 Entries in each part of the roll of advocates prepared and maintained by a State Bar Council under this section shall be in the order of seniority, 2[and, subject to any rule that may be made by the Bar Council of India in this behalf, such seniority shall be determined) as follows: -‐

(a) The seniority of an advocate referred to in clause (a) sub-‐section (1) shall be determined in accordance with his date of enrollment under the Indian Bar Council Act, 1926 (38 of 1926);

(b) The seniority of any person who was a senior advocate of the Supreme Court immediately before, the appointed day shall, for the purposes of the first part of the State roll, be determined in accordance with such principles as the Bar Council of India may specify;


44

3[(c) ***]

(c) The seniority of any other person who, on or after the appointed day, is enrolled as a senior advocate or is admitted as an advocate shall be determined by the date of such enrolment or admission, as the case may be.

(d) 4[(e) Notwithstanding anything contained in clause (a), the seniority of an attorney enrolled [whether before or after the commencement of the Advocates (Amendment) Act, 1980] as an advocate shall be determined in accordance with the date of his enrolment as an attorney]

17-‐4 No person shall be enrolled as an advocate on the roll of more than one State Bar Council.

1. Subs. By Act No. 60 of 1993, for the words “experience and standing at the Bar.”

2. Subs. By Act 21 of 1964, for the words “and, such seniority shall be determined”.

3. Omitted by Act 60 of 1973

4. Ins. By Act 47 of 1980

Section 18 Transfer of name from one State roll to another

18-‐1 Notwithstanding anything contained in Section 17, any person whose name is entered as an advocate on the roll of any State Bar Council may make in application in the prescribed from to the Bar Council of India for the transfer of his name from the roll of that State Bar Council to the roll of any other State Bar Council and, on receipt of any such application the Bar Council of India shall direct that name of such person shall without the payment of any fee, be removed from the roll of the first mentioned State Bar Council and entered in the roll of the other State Bar Council and the State Bar Councils concerned shall comply with such direction:

1[Provided that where any application for transfer is made by a person against whom any disciplinary proceeding is pending or where for any other reason it appears to the Bar


45

Council of India that the application for transfer has not been. Made bona fide and that the transfer should not be made, the Bar Council of India may, after giving the person making the application an opportunity of making representation in this behalf, reject the application.]

18-‐2 For the removal of doubts it is hereby declared that where on an application made by an advocate under sub-‐section (1), his name is transferred from the roll of one State Bar Council to that of another, he shall retain the same seniority in the latter roll to which he was entitled in the former roll.

1. Ins. By Act 21 of 1964

Section 19 State Bar Councils to send copies of rolls of advocates to the Bar Council of India

Every State Bar Council shall send to the Bar Council of India an authenticated copy of the roll of advocates prepared by it for the first time under this Act and shall thereafter communicate to the Bar Council of India all alterations in, the addition to, any such roll, as soon as the same have been made.

Section 20 Special provision for enrolment of certain Supreme Court Advocates

20-‐1 Notwithstanding anything contained in this Chapter, every advocate who is entitled as of right to practice in the Supreme, Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State bar Council concerned shall comply with such direction.

20-‐2 Any entry in the State roll made in compliance with the direction of Bar Council of India under sub-‐section (1) shall be made in the order of seniority determined in accordance with the provisions of sub-‐section (3) of Section 17.

20-‐3 Where an advocate referred to in sub-‐section (1) omits or fails to express his intention within the prescribed time, his name shall be entered in the roll of the State Bar Council of Delhi.]


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1. Subs. By Act No. 60 of 1973

Section 21 Disputes regarding seniority

21-‐1 Where the date of seniority of two or more persons is the same, the one senior in age shall be reckoned as senior to the other.

121-‐2 Subject as aforesaid, if any dispute arises with respect to the seniority of any person, it shall be referred to the State Bar Council concerned for decision.]


Section 22 Certificate of enrolment

22-‐1 There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council of every person whose name is entered in the roll of advocates maintained by it under this Act.

22-‐2 Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence to the State Bar Council concerned within ninety days of such change.]


Section 23 Right of pre-‐audience

23-‐1 The Attorney General of India shall have pre-‐audience over all other advocates.

23-‐2 Subject to the provisions of sub-‐section (1), the Solicitor-‐General of India shall have pre-‐audience over all other advocates.

23-‐3 Subject to the provisions of sub-‐sections (1) and (2), the Additional Solicitor-‐General of India shall have pre-‐audience over all other advocates.

123-‐3A Subject to the provisions of sub-‐sections (1), (2) and (3), the second Additional Solicitor-‐General of India shall have pre-‐audience over all other advocates.]


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23-‐4 Subject to the provisions of sub-‐section (1), 1[(2), (3) and (3A)] the Advocate General of any State shall have pre-‐audience over all other advocates, and, the right of pre-‐audience among Advocates-‐General inter se shall be determined by their respective seniority.

23-‐5 Subject as aforesaid-‐

(i) Senior advocates shall have pre-‐audience over other advocates; and (ii) The right of pre-‐audience over senior advocates inter se and other advocates

inter se shall be determined by their respective seniority. 1. Ins. By Act No. 47 of 1980

Section 24 Persons who may be adopted as advocates on a State roll

24-‐1 Subject to the provisions of this Act, and the rules made there under, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills the following conditions, namely: -‐

24-‐1 (a) He is a citizen of India:

Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country;

24-‐1 (b) He has completed the age of twenty-‐one years;

24-‐1 (c) He has obtained a degree in law-‐

(i) Before the 1[12th day of March, 19671 from any University, in the territory of India; or

(ii) Before the 15th of August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or

2[(iii) After the 12th day of March, 1967, save as provided in sub-‐clause (iii) After undergoing a three years course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or


48

(iiia) After undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-‐68 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or]

2[He is a barrister and is called to the Bar on or before the 31st day of December, 1976 3[or has passed the articled clerks’ examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court;] or has obtained such other foreign qualification in law as is recognised by the Bar Council of India for the purpose of admission as an advocate under this Act]:

4 (iv) In any other case, from any University outside the territory of India, if the degree is recognised ‘for the purpose of this Act by the Bar Council of India] or;

5[(d) * * *]

(e) He fulfills such other conditions as may be specified in the rules made the State bar Council under this Chapter;

2[(f) He has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act 1899, and an enrolment fee payable to the State Bar Council of 6[six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council]:

If where such person is a member of the Scheduled Castes or the Scheduled Tribes and produces a certificate to the effect from such authority as may be –scribed, the enrolment fee payable by him to the State Bar Council shall be 6[one hundred rupees and to the Bar Council of India, twenty-‐five rupees].

7[Explanation –For the purposes of this sub-‐section, a person shall be deemed to have obtained a degree in law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice-‐board or otherwise declaring him to have passed that examination].

24-‐2 Notwithstanding anything contained in subsection (1) 8[a Vakil or a pleader who is a law graduate] may be admitted as an advocate on a State roll, if he


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(a) Makes an application for such enrolment in accordance with the revisions of this Act, not later than two years from the appointed, day, and

(b) Fulfills the conditions specified in clauses (a), (b) and (f) of subsection (1)

9[(3) Notwithstanding anything contained in subsection (1) a person who-‐

(a) 10[* * *] has, for at least three years, been a vakil or a pleader or a mukhtar or was entitled at any time to be enrolled under any law 7[* * *] as an advocate of a High Court (including a High Court of a former Part B State) or of a Court of Judicial Commissioner in any Union territory; or

11[(aa) Before the 1st day of December, 1961, was entitled otherwise than as an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law, or who would have been so entitled had he not been in public service on the said date; or]

12[(b) * * *]

(c) Before the 1st day of April, 1937, has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act, 1935-‐, or

(d) Is entitled to be enrolled as an advocate under any rule made by the Bar

(e) Council of India in this behalf, may be admitted as an advocate on a State roll if he-‐

(i) Makes an application for such enrolment in accordance with the provisions of this Act; and

(ii) Fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-‐section

13[(4) * * *]

1. Ins. By Act No. 47 of 1980

2. Subs. By Act No. 60 of 1973.


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3. Ins. By Act No. 107 of 1976.


5. Omitted by Act No. 60 of 1973.





10. Certain words omitted by Act No. 33 of 1968.


12. Omitted by Act No. 60 of 1973

13. Omitted by Act No. 107 of 1976

Section 24A Disqualification for enrolment

24-‐1A No person shall be admitted as an advocate on a State roll-‐

(a) If he is convicted of an offence involving moral turpitude;

(b) If he is convicted of an offence under the provisions of the Untouchables (Offences) Act, 1955;

2(c) If he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.

Explanation. –In this clause, the expression ‘State’ shall have the meaning assigned to it under article 12 of the Constitution:]

If the disqualification for enrolment as afore said shall cease to have effect after a period of two years has elapsed since his 3[release or dismissal or, as the case may be, removal.]


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24-‐2A Nothing contained in sub-‐section (1) shall apply to a person who having been found guilty is dealt with under the provision of the Probation of Offenders Act, 1958 (20 of 1958).

1. Certain words omitted by Act No. 33 of 1968.



Section 25 Authority to whom applications for enrolment may be made

An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.

Section 26 Disposal of an application for admission as an Advocate

26-‐1 State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-‐section (2) and (3), 1[and to any direction that may be given in writing by the State Bar Council in this behalf] such committee shall dispose of the application in the prescribed manner:

2[Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard.]

26-‐2 Where the enrolment committee of State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.

26-‐3 The enrolment committee of State Bar Council shall dispose of any application referred to the Bar Council of India under sub-‐section (2) in conformity with the opinion of the Bar Council of India.

226-‐4 Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall as soon as may be, send intimation to all other State Bar Councils about such refusal stating the name, address and qualifications of the person whose application was refused and the grounds for the refusal.]


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1. Ins. By Act 21 No. of 1964

2. AddedbyActNo.21of l964.

Section 26A Power to remove names from roll

A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.)

1. Subs. by Act No. 60 of 1973.

Section 27 Application once refused not to be entertained by another Bar Council except

in certain circumstances

Where a State Bar Council has refused the application of any person for admission as an advocate on its roll, no other State Bar Council shall entertain an application for admission of such person as an advocate on its roll, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India.

Section 28 Power to make rules

28-‐1 A State Bar Council may make rules to carry out the purposes of this Chapter.

28-‐2 In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-‐

1[(a) The time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State bar Council under Section 20;] 2[(b) * * *]

(c) The form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council;

(d) The conditions subject to which a person may be admitted as an advocate on any such roll:

(e) The instilments in which the enrolment fee may be paid.


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28-‐3 No rules made under this Chapter shall have effect unless the Bar Council of India has approved them.



CHAPTER IV RIGHTS TO PRACTISE (Advocates Act, 1961)

Section 29 Advocates to be the only recognised class of persons entitled to practice law

Subject to the provisions of this Act and any rules made there under, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

Section 30 Right of advocates to practise

30-‐1 Subject to provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, -‐

(i) In all Courts including the Supreme Court; (ii) Before any tribunal or person legally authorised to take evidence; and (iii) Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice. 1. Subs. By Act 60 No. Of 1973 for “common roll”.

Section [31. * * *]


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Section 32 Power of Court to permit appearances in particular cases

Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.

Section 33 Advocates alone entitle to practise

Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on of after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.

Section 34 Power of High Courts to make rules

34-‐1 The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.

134-‐1A The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all proceedings in the High Court or in any Court subordinate thereto.

234-‐2 Without prejudice to the provisions contained in sub-‐section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in Section 58 AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.]

3[34-‐3 * * *]





55

Related Cases / Recent Cases / Case Laws

R Vs Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1, UK Supreme Court, January 2013: Legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give. Central Bureau of Investigation, Hyderabad Vs K Narayana Rao: A lawyer does not tell his client that he shall win the case in all circumstances... a professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. ..it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer’s responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators.


56

Deepak Aggarwal Vs Keshav Kaushik and Others, Civil Appeal Jurisdiction, Civil Appeal No. 469 OF 2013, Supreme Court of India Judgement dated January 21, 2013: Vinay Balachandra Joshi Vs Registrar General, Supreme Court of India (1998) 7 SCC 461: .. It would be a matter of discretion of the Principal Judge of the Court to decide to whom and to what extent that facility should be extended when the same is available... It would be for him to decide when, to whom, to what extent and on what terms and conditions he should allot Chambers. C Ravichandran Iyer Vs Justice AM Bhattacharjee (1995) 5 SCC 457: The Supreme Court discussed at length and has laid down several principle and guidelines in regard to Bar-‐Bench relations. UP Sales Tax Service Association Vs Taxation Bar Association (1995) 5 SCC 716: The appearance of an Advocate before a tribunal carrying his licensed revolver is condemned by the Supreme Court. The act is considered inconsistent with dignity of the Court. The Supreme Court advised Advocates to be equipped with law and precedents but not with firearms. Satyendra Narain Singh and others Vs Ram Nath Singh and others, AIR 1984 SC 1755: When a case of a Advocate Son came before a Judge Father, the Advocate-‐Son withdrew from the case. The Supreme Court felt that the Advocate son, rather than the judge father, withdraws from the case. P G Gupta Vs Ram Murti (1997) 7 SCC 147 In the matter of Madhav Singh, AIR 1923 Pat 185: Advocates and pleaders are enrolled not only for the purpose of rendering assistance to the Courts in the administration of Justice but also for giving Professional Advice to their Clients for which they are paid by those members of the public who require their services. In the matter of Babu Diwakar Prasad Mithal, AIR 1924 All 253: Advocates are agents, not of their Client who pay them, but are acting in the administration of Justice. INTRODUCTION

Rule of Law is the basic principle of governance of any civilized and democratic society.

The principle asserts supremacy of law bringing under its purview everyone,

individuals and institutions at par without any subjective discretion. It connotes the

meaning that, “Whoever the person may be, however High he or she is, no one is above

the law notwithstanding how powerful and how rich he or she may be.” There can be no

Rule of Law unless the bulwark of that grand concept “the Court of Justice” are kept

alive at institutions breathing freedom, openness and justice. No society can exist

without laws and laws have no meaning, if they cannot be enforced. It is through the

Courts that the rule of law reveals its meaningful content. The Indian Constitution is


57

based upon the concept of Rule of Law and for achieving this cherished goal, the

framers of Indian Constitution has assigned the special task to the judiciary. The

judiciary is the guardian of the Rule of Law. Hence judiciary is not the third pillar but

the central pillar of the democratic state. An independent or impartial Judiciary is the

sine qua non of a healthy society. It is the last resort for the common people of a country,

as they repose their ultimate faith in it to get justice. Therefore, it is essential for the

Judiciary to be protected from all sorts of evil likely to affect the administration of

justice. For better protection and preservation of prestige and dignity of the courts, the

law on contempt of court has evolved. So, broadly speaking, this law helps the courts in

discharging justice keeping its stand supreme in the eye of society. Actually this law

aims at ensuring the administration of justice by courts in the society.

The essence of contempt is action or inaction amounting to an interference with or

obstruction to or having a tendency to interfere with or to obstruct the due

Administration of Justice. Lowering the dignity of the court or shaking confidence of the

public in it is undoubtedly reprehensible. But if general remarks impugning the

independence of a court are made, such remarks can tend to interfere with or obstruct

the administration only indirectly and remotely. In such cases there can be no warrant

for the exercise of the extraordinary powers which the courts possess to deal with

contempt. The power to punish for contempt any one who interferes with the

Administration of Justice is an inherent power vested in the judiciary.

The law of contempt is based on the sound public confidence in the administration of

justice. The purpose of contempt jurisdiction is to uphold the majesty and dignity of law

courts and their image in the minds of the public at large. The object of the discipline

enforced by the court in case of contempt of court is not to vindicate the dignity of the


58

court or of the judge but to prevent undue interference with the administration of

justice.

DEFINING CONTEMPT OF COURT

The Contempt of Courts Act, 1971 defines “contempt of court” for the first time. Before

it, there was no statutory definition of the concept, “Contempt of Court”. Even the

definition of contempt of court given in the Contempt of Courts Act, 1971, is not a

definition, but only the classification or categories of Contempt of Courts, Actually, it is

very difficult to define the concept, “Contempt of Court”. What would offend the dignity

of the Court and lower the Court’s prestige is a matter for the Court to determine and it

cannot be confined with the four walls of a definition (State of Bihar vs. Shree Kuber

Nand Kishore Singh, 1986 PLR 933; Ahmed Ali vs Supdt. Dist. Jail Tezpur, 1987 Cr LJ 1845).

In the opinion of Oswald contempt of Court may be said to be constituted by any

conduct that tends to bring the authority and administration of law into disrespect or

disregard or to interfere with or prejudice parties, litigation or their witnesses during

the litigation.

In Halsbury’s it has been defined as “Any act done or writing published which is

calculated to bring a Court or Judge into contempt or to lower his authority or to

interfere with the due course of justice or the lawful process of the Court is Contempt of

Court”

According to Section 2(a) of the Contempt of Courts Act, 1971 “contempt of Court”

means Civil Contempt or Criminal Contempt. Section 2(b) of the Act provides that “civil

contempt” means willful disobedience to any judgment, decree, direction, order, writ or

other process of a Court or willful breach of an undertaking given to a Court. Section


59

2(c) of the Act provides that “Criminal Contempt” means the publication (whether by

words, spoken or written or by signs or by visible representations or otherwise) of any

matter or the doing of any other act whatsoever which :-‐

(i) scandalizes or tends to scandalize or lowers or tends to lower, the authority of,

any Court, or

(ii) prejudices or interferes or tends to interfere with the due course of any judicial

proceeding or

(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the

administration of justice in any manner

The above definition contained in the Contempt of Courts Act, 1971 is not exhaustive. It

merely indicates that the contempt may be civil contempt or criminal contempt.

Actually the Contempt of Court cannot be defined exhaustively. It, is, thus better to leave

it to the court to deal with each case as it comes and a right of appeal in all cases of

contempt will cure whatever defect there may be in the application of law.

NATURE AND EXTENT OF PUNISHMENT

Section 12 of the Contempt of Courts Act, 1971 makes provision in respect of

punishment for contempt of court. The provisions of Section 12 are as follows:

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of

Court may be punished with simple imprisonment for a term which may extend to six

months, or with fine which may extend to two thousand rupees, or with both: Provided

that the accused may be discharged or the punishment awarded may be remitted on

apology being made to the satisfaction of the Court.

Explanation -‐


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An apology shall not be rejected merely on the ground that it is qualified or conditional

if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no Court

shall impose a sentence in excess of that specified in sub section for any contempt either

in respect of itself or of a Court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty

of a civil contempt, the Court, if it considers that a fine will not meet the ends of justice

and that a sentence of imprisonment is necessary shall, instead of sentencing him to

simple imprisonment, direct that the he be detained in a civil prison for such period not

exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of Court in respect of any undertaking

given to a Court is a company, every person who, at the time the contempt was

committed, was in charge of, and was responsible to, the company for the conduct of

business of the company, as well as the company, shall be deemed to be guilty of the

contempt and the punishment may be enforced, with the leave of the Court, by the

detention in civil prison of each such person : Provided that nothing contained in this

sub section shall render any such person liable to such punishment if he proves that the

contempt was committed without his knowledge or that he exercised all due diligence

to prevent its commission.

(5) Notwithstanding anything contained in sub section (4) where the contempt of Court

referred to therein has been committed by a company and it is provided that the

contempt has been committed with the consent or connivance of, or is attributable to

any neglect on the part of, any director, manger, secretary or other officer of the


61

company, such director, manager, secretary or other officer shall also be deemed to be

guilty of the be contempt and the punishment may be enforced, with the leave of the

Court, by the detention in civil prison of such director, manager, secretary or other

officer.

Explanation -‐ For the purpose of sub sections (4) and (5) -‐

(a) 'Company' means anybody corporate and includes a firm or other association of

individuals, and

(b) 'Director' in relation to a firm, means a partner in the firm.

Ordinarily the punishment prescribed under the Act is simple imprisonment for a term

which may extend to six months or with fine which may extend to two thousand rupees

or with both. There is a proviso appended to Section 12 which provides that the accused

may be discharged or the punishment awarded may be remitted on apology being made

to the satisfaction of the Court (Section 12(1) of the Contempt of Courts Act, 1971). The

apology shall not be rejected merely on the ground that it is qualified or conditional if

the accused makes it bona fide (Explanation to Section 12(1) of the Contempt of Courts

Act, 1971 ). Previously apology if conditional was not accepted. Now the law has been

amended by this provision which says that an apology shall not be rejected merely

because it is conditional. This was necessary because often it was felt that the alleged

contemnor was convinced that he had not committed any contempt of court, and yet he

did not want to contest the finding to the contrary given by the court. In such

circumstances, if the contemnor explained his point of view and then submitted that if

the court was of the opinion that contempt was committed, he apologized. Similarly,

many other situations could arise in which conditional apology was offered.


62

Now the position is made clear that apology will not be rejected for the simple reason of

being conditional. Facts have to be examined before the same can be rejected. Another

important feature of the section is that in civil contempt’s, sentence of imprisonment is

to be inflicted only when it is considered that sentence of fine will not meet ends of

justice. Corporations have also been declared as capable of being punished.

Sometimes personal considerations affect the award of punishment under contempt

matters. In Hoshiam Shavaksha Dolikuka v. Thrity Hoshie Dolkuka (1982, 2 SCC 577

at p. 582), the Court felt that imposition of any kind of punishment on the father for

whom daughter has a lot of affection is likely to upset her and cause her mental distress.

In the unfortunate and acrimonious dispute between the husband and the wife, the

main concern in the instant case has been the welfare of the child. Only taking into

consideration the fact that the welfare of the child is likely to be affected, the court was

of the opinion that under the present circumstances and in the situation now prevailing

one should let off the father with a reprimand and a warning, although he has been

rightly found guilty of having committed contempt of court by the Bombay High Court,

in the hope that the appellant in future will not do any such act as may constitute

contempt of court and will try to serve the cause of welfare of the minor daughter by

carrying out the directions given by the court.

The Supreme Court in R. K. Garg v. State of H.P. (1981, 3 SCC 166 at p. 167), held that

the contemner had suffered enough in mind and reputation and no greater purpose was

going to be served by subjecting the contemner to a long bodily suffering. The

punishment in this case was reduced to one month imprisonment from six months

whereas the fine was enhanced from Rs. 200/-‐ to Rs. 1000/-‐.


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In Zahira Habibullah Sheikh V. State of Gujarat (AIR 1998 SC 1895), the Supreme

Court has observed that the Parliament by virtue of Entry 77 of List I is competent to

enact a law relating to the powers of the Supreme Court with regard to contempt of

itself and such a law may prescribe the nature of punishment which may be imposed on

a contemner by virtue of Article 129 read with Article 142 (2) of the Constitution. Since

now law has been enacted by Parliament, the nature of punishment prescribed under

the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the

extent of punishment as prescribed under that Act can apply only to the High Court

because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the

Supreme Court except that Section 15 prescribes procedural mode for taking

cognizance of the criminal contempt by the Supreme Court also. Section 15 is not a

substantive provision conferring contempt jurisdiction.

(i) Meaning of Apology

According to the Oxford Pocket Dictionary of Current English the term apology means a

regretful acknowledgment of an offense or failure.

As stated earlier the accused or contemner may be discharged or the punishment

awarded may be remitted on apology being made to the satisfaction of the court. But in

serious matters the apology cannot be accepted. Where statements were an intentional

assault on the integrity and impartiality of a learned Judge of High Court and on the fair

name of the High Court, and irreparable damage had already been done; no apology

could undo it. The journalistic restraint, which should be inherent in a columnist of the

Illustrated Weekly, was thrown into the winds. He cannot take cover under an apology,

tendered later when proceedings in contempt are initiated under the Contempt of

Courts Act.


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The Apex Court in State v. Radhagobinda Das (AIR 1954 Orissa 7 ), held that if the law

finds one to be guilty of contempt and he bows down to the judgment of the court that is

not any adequate expression of apology.

Apology is an act of contrition and it must not be shorn of penitence. Tendering of

apology cannot be a panacea in every case of contempt. In State of Orissa v. R. N. Patra

(1975 41 Cut LT 329), the Court held that no apology could undo gross contempt and

serious cases of contempt. In Rupert J. Bamabas v. N Bharani (1990 LW (Crl) 27 Mad),

it was held that the court can, even when accepts the apology, commit an offender to

prison or otherwise punish him. In State of Punjab v. Raddha Krishan Khanna (AIR

1961 Punj 113) the Apex Court held that an unreserved apology, in less serious cases,

has the asset of taking the stringent of contempt.

(ii) Nature of Apology

Apology is an act of contrition. Unless apology is offered at the earliest opportunity and

in good grace, apology is shorn of penitence. Tendering of apology cannot be a panacea

in every case of contempt. If that were so, cases of gross contempt would go unpunished

and serious mischief would remain unchecked in spite of the fact that provision has

been made under the Contempt of Courts Act. Thus the purpose of the Statute would be

frustrated (State v. R.N. Patra, (1976) 1 Cr. L.J. at p. 445 Orissa)

Apology cannot be a weapon of defense forged always to purge the guilty. It is intended

to be evidence of real contribution, the manly consciousness of a wrong done, of an

injury inflicted and the earnest desire to make such reparation as lies in the wrong

doer's power. Only then it is of any avail in a court of Justice. But before it can have that

effect, it should be tendered at the earliest possible stage, not the latest. Even if wisdom

dawns only at a later stage, the apology should be tendered unreservedly and


65

unconditionally, before the Judge has indicated the trend of his mind. Unless that is

done, not only is the tendered apology robbed of all grace but it ceases to be an apology.

It ceases to be the full, frank and manly confession of a wrong done, which it is intended

to be (In the matter of Hiren Bose, 1969 Cr. L.J. 40 at p. 43 Cal). Apology must be

voluntary, unconditional and indicative of remorse and contrition and it should be

tendered at the earliest opportunity (Bhalchandra Gangadhar Ghate v. Pralhad Sadhuji

Raghute, 1976 Mah. 711 at p. 712)

(iii) Apology, when cannot be accepted

It is not necessary that every apology is to be accepted by the court. A court can refuse

to accept an apology which it does not believe to be genuine, it can, even when it accepts

the apology, commit an offender to prison or otherwise punish him.

The Court in Lal Behari v. State (A.I.R. 1953 All 153 at p. 158 ) held that what may

appear to a sophisticated mind as harsh, rough, rude and uncouth, may not be so to

unsophisticated and even to angry irritated, and brooding. There is nothing to hold that

the opponent was actuated by desire to disrepute not sure about his ability to express

what he feels just or unjust. Under these circumstances, there is no hesitation in

accepting his apology.

The Court may or may not accept an apology goes to sentence and cannot, therefore, be

accepted without a finding that contempt has been committed. However, apology,

though not a weapon of defence forged always to purge the guilty, should be tendered

out the earliest possible stage, unreservedly and unconditionally and it must be

indicative of remorse and contrition as well as free, full, frank and manly confession of a

wrong done (Re Hirenn Bose, AIR 1969 Cal 1). A hauling, hesitating and vacillating


66

apology deserves to be rejected (State of Uttar Pradesh v. Krishna Madho, AIR 1952 All

86).

(iv) Punishment Primarily a Matter of Discretion

To award punishment for contempt is a matter sole discretion of the court. It has been

seen in some cases where a contemnor has been sufficiently punished for disobeying a

court order he may not be punished further for continuing to do the same thing, even

though in a sense he is continuing to be contumacious. In doing so the court takes the

view that the contemner has been punished enough for the original contempt, and he is

not going to comply with the original order however long he stays in custody, therefore,

there is no justification for continuing to keep him in prison (Enfield London Borough

Council v. Mahoney, (1983) 2 All E.R. 901 at p. 907)

(v) Quantum of Punishment

Ignorance of law is no excuse. A person who inflicts an injury upon another in

contravention of law is not allowed to say that he did so with an innocent mind; he is

taken to know the law, and he must act within the law (Balkrishna Narayan Saoji v. Col.

N.S. Jatar, Inspector General of Prisons, C.P. & Berar, Nagpur, A.I.R. 1945 Nag. 33 at p. 47).

It is not open to accept the easy and ready solution of accepting the apology and

imposing a fine in the case of a contumacious disregard of all decencies, which can only

lead to a serious disturbance of the system of administration of justice unless duly

repaired at once by inflicting an appropriate punishment on the contemner which must

be to send him to jail to atone for his misconduct and therefore to come out of prison a

chastened and a better citizen (Ashram M. Jain v. A.T. Gupta, (1983) 2 Cr. L.J. 1499 at p.

1500)


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In Nawal Kishore Singh v. Rajendra Prasad Singh (A.I.R. 1976 Pat. 56 at p. 57), it was

held that the order of detention in the civil prison is intended to be passed in addition to

the attachment of the property of the guilty person.

(vi) Impact of conduct of contemnor on Quantum of Punishment

An important question relating to quantum of punishment arises that whether the

conduct of contemner affect the quantum of punishment i.e., good conduct help in

reducing the punishment of imprisonment and fine and vice versa. When the Court

reaches the conclusion that there is a punishable contempt, the conduct of the

respondents and the subsequent events, may have effect and impact upon the quantum

of punishment. Such matters may not have a direct relevance on the question whether a

particular passage which had been the subject-‐matter of a specific charge does or does

not amount to criminal contempt (Guruvayur Devaswom Managing Committee v. Pritish

Nandy, 1987 Cr.L.J. 192 Ker)

The Apex Court in Shyam Sundar v. Satchidananda Rakshit (A.I.R. 1955 Cal. 351 at p.

353), held that the punishment should be primarily for upholding the dignity of the

court and maintaining due respect for the administration of justice. There should be no

element of vindictiveness in it and it should not be allowed to be used for feeding a

private grudge or as an offensive weapon to satisfy private vendetta.

CONTEMPTS NOT PUNISHABLE IN CERTAIN CASES

Notwithstanding anything contained in any law for the time being in force, no

Court shall impose a sentence under this Act for a contempt of Court unless it is

satisfied that the contempt is of such a nature that it substantially interferes, or

tends substantially to interfere with the due course of justice (Section 13 of the

Contempt of Courts Act, 1971 has been amended and new provision have been discussed in


68

the later part of this Chapter under the heading of the Contempt of Courts (Amendment)

Act, 2006)

The law does not take into consideration the trivial matters even though such matters in

the technical sense may be covered under law. The contempt law is also developed on

this cardinal rule of law that minor matters must be ignored.

It is submitted that every infraction of court's order is not contempt of court (H.S.

Butalia v. Subhas Saksena, 1974 Cr LJ 828 Cal) Thus, this section in unambiguous and in

clear terms declares that only willful and deliberate disobedience of court's order or

substantial interference in courts order is to be punished. A party (or person) can be

committed for contempt only owing to any willful or deliberate or reckless

disobedience of the order of the court (Jiwani Kumari v. Satyabrata Chakraborty, AIR

1991 SC 326) Technical contempt’s are to be ignored (Baradakanta Mishra v. The

Registrar, Orissa High Court, AIR 1974 SC 710) But the contempt by a senior lawyer could

not be ignored. The vituperative language was the outcome of a defeated Advocate

which appeared to be a very serious matter to the High Court. The matter becomes

more serious when it has happened in a mofussil place where there are one or two

courts and a few lawyers, and the litigating public is mostly illiterate or poorly

educated, therefore under such circumstances contempt is not to be ignored or allowed

to pass by (Rama Dayal, Markarha v. The State of Madhya Pradesh, A.I.R. 1978 SC 921 at

p. 929)

CONCLUSION

“Judge not lest ye be judged” is a Biblical maxim that should apply to judges as much as it

applies to lay people. Just as judges have the right to judge litigants; litigants have the

right to judge judges. They have a public interest to know how judges have conducted


69

themselves in court, and in each case. In an open justice system, no judge and no court

can avoid criticism, fair or foul. Lord Atkin once said, “Justice is not a cloistered virtue;

she must be allowed to suffer the scrutiny and respectful, even though outspoken,

comments of ordinary men.” To speak one’s mind is a right that cannot be denied to any

citizen. To suppress this in the name of scandalizing the court is no guarantee that the

respect and dignity of the court will be enhanced. As Lord Denning remarked (in

Quintin Hogg’s Case), “Let me say at once that we will never use this [contempt]

jurisdiction as a means to uphold our own dignity. That must rest on surer foundations”.

The contempt power in a democracy is only to enable the court to function effectively,

and not to protect the self-‐esteem of an individual judge. The foundation of judiciary is

based on the trust and the confidence of the people in its ability to deliver fearless and

impartial justice. When the foundation itself is shaken by acts which tend to create

disaffection and disrespect for the authority of the court by disrupting its working, the

edifice of the judicial system gets eroded. Judiciary by punishing the guilty infuses faith

in the supremacy of law and omnipotence of justice. Every offender is to be punished for

contumacious acts under the relevant contempt laws, but it is extremely important to

make it sure by the judiciary that these provisions are not to be misused.

It can be adequately inferred that the Contempt of Courts Act, 1971 is of paramount

importance in the context of sustaining the concept of justice. It aides to make the

process of administering justice expeditious as well as upholds the dignity and faith the

people have bestowed in the judicial system of the country. In itself, it abstains from any

form of arbitrariness. It gives every organization or individual charged under the act

reasonable grounds to defend it or himself, as the case may be. The restrictions, it

imposes, is just and fair in them. Moreover, it recognizes the equal footing of all people

in the country by bringing the judiciary and its officials within its ambit.


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CONTEMPT

An act of deliberate disobedience or disregard for the laws , regulations, or decorum of a public authority such as a court or legislative body.

CONTEMPT OF COURT

It is a behaviour that opposes or defies the authority, justice and dignity of the court. Contempt charges may be brought against parties to proceedings; lawyer or other court officers; witness; or people who insert themselves in a case, such as protesters outside a court room. Courts have great leeway in making contempt charges , and thus confusion sometimes exist about the distinction between types of contempt . Generally , however, contempt proceedings are categorized as civil or criminal.


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SECTION 2 ON THE CONTEMPT OF COURTS ACT 1971

a) “Contempt of Court” means civil contempt or criminal contempt.

b) “Civil contempt” means wilful disobedience to any judgement , decree, direction , order , writ or other process of a court or wilful breach of an undertaking given to a court.

c) “Criminal contempt” means the publication (whether by words, spoken, or written ,or by signs , or by visible representation or otherwise) of any matter or the doing of any other act whatsoever which.


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i. Scandalizes or tends to scandalise , or lowers or tends to lower the authority of , any court;

ii. Prejudices , or interferes or tends to interfere with due course of any judicial proceeding.

iii. Interferes or tends to interfere with , or obstructs or tends to obstruct , the administration of justice in any other manner. CRIMINAL CONTEMPT CHARGES

Criminal contempt charges become separate charges from the underlying case . Unlike civil contempt sanctions, criminal contempt charges may live or after resolution of the underlying case.

One charged with criminal contempt generally gets the constitutional rights guaranteed to criminal defendants , including the right to counsel, right to put on a defence, and the right to a jury trial in certain cases. Charges of criminal contempt must be proven beyond a reasonable doubt.


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However incarceration of contempt may begin immediately, before the contempt charge is adjudicated and the sentence decided. Depending on the jurisdiction and the case, the same judge who decided to charge a person with contempt may end up residing over the contempt proceedings.

Criminal contempt can bring punishment including jail time and / or a fine.

DR. DC. SAXENA V/S HONBLE CHIEF JUSTICE OF INDIA

In a clash of competing interests in constitutional contours, this case calls to strike a balance between the freedom of speech and expression, a salutary right in a liberal


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democratic society and paramount countervailing duty to maintain public confidence in the administration of justice. The petitioner has initiated public interest litigation under Article 32 of the Constitution to direct Sri P.V. Narasimha Rao, the President of Indian National Congress and the former Prime Minister of the country to pay a sum of Rs.8.29 lakhs and odd said to be due to the union of Indian for use of Indian Air Force aircraft or helicopters from October 1, 1993 to November 30, 1993. When writ Petition No. 432/95 was posted for hearing on July 17,1995 before the learned Chief Justice of India and brother Justice S.C. Sen the solicitor General for India, Shri Dipankar P. Gupta was sent for and the Court directed him to have the averments verified to be correct and directed the petition to be listed after two weeks. On August 7,1995, the writ petition came before the Bench comprising the learned CJI, Justice S.C. Sen and Justice K.S. Paripoornan. It is not in dispute that the Solicitor General had placed the record before the Court and upon perusal thereof and after hearing the petitioner-in-person, the Bench summarily "dismissed"" the writ petition which had triggered the petitioner to file yet another writ petition, this time against the learned Chief Justice of India, Justice A.M. Ahmadi. The Registry raised objections for its maintainability but, at eh insistence of the petitioner, it was posted, with office objections, for hearing, as unregistered Writ petition (c) NO. -17209/95 on January 13,1996 before a Bench of three learned Judges, viz. Justice J.S. Bharuchal. The petitioner, again


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appearing in person, persisted to justify the averments made against the learned CJI, Justice A.M. Ahmadi in the writ petition. In spite of the Court having pointed out that the averments were scandalous, the proceeding of the Court did indicate that the petitioner reiterated that he "stood by the averments made therein" and sought for declaration [1] that Justice A.M. Ahmadi is unfit to hold the office as Chief Justice of India; [2] that he should be tripped of his citizenship; [3] to direct registration of an FIR against him under various provisions of Indian penal Code for committing forgery and fraud and under the prevention of Corruption Act; (4) to direct prosecution of him under the prevention of Corruption Act; (5) to direct him to defray from his personal pocket the expenses incurred by the petitioner in filing the two writ petitions, i.e., W.P. No. 432/95 and the second writ petition; (6) to direct justice A.M. Ahmadi to reimburse from his pocket to the public exchequer the entire loss caused to the State,. as a consequence of non-payment of the dues by Sri P.V. Narasimha Rao with interest at 18% per annum and (7) other consequential directions. After hearing the petitioner, the Bench dismissed the second writ petition with the order as under: "The several averments in the writ petition are scandalous and it is surprising that the petitioner, who is said to be a Professor in a University, has chosen to draft and file such a writ petition. His understanding of the meaning of Article 32 of the Constitution, is to say the least, preposterous. The allegations made are reckless and disclose irresponsibility


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on the part of the petitioner. This writ petition is wholly misconceived and is an abuse of the process of the Court. The writ petition has no merit. The writ petition is, therefore, dismissed. In view of the attitude of the petitioner even at the hearing, when the persisted in this stand and, on our asking him, reiterated that he stood by the scandalous averment made therein, we consider it our duty to issue to the petitioner a notice to show cause why proceedings to punish him for contempt of this Court should not be initiated against him. The Registry to take the necessary steps for registering the matter as a contempt petition. The petitioner who is present-in-person is given notice of the contempt petition. He is required to file his reply within four wheels to show cause why proceedings for contempt should not be initiated against him. We request the learned Solicitor General to assist the Court in this contempt matter.List the matter after notice of the date fixed by Registry is given to Dr. D.C. Saxena and the Solicitor

General."

While dismissing the petition, this Court observed in the later part of the order the petitioner's conduct in his persistence to stand by the scandalous averments made against the learned Chief Justice of India. This Court was constrained to initiate contempt proceedings and enlisted 14 instances which would prima facie constitute contumacious conduct of the petitioner


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to scandalise the Court. In the meanwhile, the petitioner wrote in a newspaper criticising Justice J.S. Verma. Resultantly, Justice J.S. Verma reclused himself from the Bench. Thus the matter was posted before this Bench.

On April 12,1996, the petitioner filed his reply to the show cause notice styling the same as "preliminary submissions" and reiterated his averments, which, as pointed by this Court, would constitute scandalisation of the Court and yet he had given his justification for accusing the chief Justice of India. However, at the end, as a foot-note, he has written in his own hand-writing as under: "N.B. If some passages seem strindent or pungent, the defendantis willing to suitably modify them."

On April 14,1996, this court passed the order as under; "Pursuant to the notice issued by this Court the Contemnor Dr. D.C.Saxena is present today in person. He has stated that he would modify the offending portions noted in the show cause notice in Item (ii),(iv) (vi), (vii), (viii), (x),(xii),(xiii) and wishes to withdraw unconditionally item (xiv), paras B and C. The learned Solicitor General has pointed out that even if the Contemnor withdraws or files statement in the modified form what the Court required to do is whether his statements made in the writ petition originally filed constitute contempt of the Court or not statements would not be of material relevance for consideration. Since the contemnor seeks time to submit the show contemnor seeks time to submit the show cause in the modified language which he wishes to place


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before the court, at his request the matter is adjourned to may 2,1996 at 2.00p.m. The Registry is directed to supply complete set of papers to learned solicitor General."

When the case came up for hearing on May 2, 1996, the petitioner filed amended portions to substitute the averments made, at proper places, in the second unnumbered writ petition. We have heard learned Solicitor General as amicus curiae and the petitioner-in-person. Before opening the case, the solicitor General, in view of the seriousness of the averments made by the petitioner in the petition filed against the chief Justice of India, and in view of his stand in both the preliminary submissions to the contempt notice and the revised averments made in the writ petition, suggested that it would be advantageous for the petitioner to have consultation and legal assistance of any counsel of his choice and to revise his stand, but the petitioner remained silent and got along with the case. The learned solicitor General stated that on July 17, 1995, the Court had sent for and called upon him to have the allegations made in the first writ petition, verified and to place the factual position before the Court. Pursuant thereto, on August 7,1995, he had placed the record before the Court which are confidential in nature. After their perusal and hearings the petitioner, the Court did not think it necessary to issue the directions as sought for. At this stage, we would point out that when Sri P.V. Narasimha Rao, as president of Indian National Congress or as the former prime Minister,


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was alleged to have used the defence aircrafts, this Court obviously was of the view that the relationship between the two wings of the Government or the political party, i.e., the Indian national Congress is of debtor and creditor and that, therefore, prerogative writ under Article 32 of the Constitution would not lie to enforce contractual dues adjustable as per their practice. The exercise of the power under Article 32 was, therefore, obviously thought to be uncalled for. Supreme Court being the highest Judicial forum, the need to record reasons is obviated since there is no further appeal against the order of this Court. Recording reasons is not, therefore, necessary nor is called for.

The learned solicitor General, therefore, contended that when the Court dismissed the writ petition, the petitioner, being a professor of English in Chandigarh University, should have exercised restraint and felt duty- bound not to proceed further in the matter. Instead, he filed the second writ petition with allegations which are ex-facie contumacious. The petitioner reiterated the same in his preliminary submissions to the notice of the contempt. His modified statement filed on April 24,1996 itself is not relevant. What would be material and relevant for consideration is whether the allegations made against the learned Chief Justice of India in the Second Writ petition do constitute contempt of the Court. The modified stand, therefore, is not relevant to adjudge whether the petitioner has committed contempt of this Court. The Court,


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therefore, has to consider the totality of the averments and their effect on the judicial process to adjudge the conduct of the petitioner to be contumacious. The petitioner contended that he did not seek any personal gain for himself. As a duty- bound citizen, he was actuated to see that the public dues are recovered from any person how-so-high he may be. To the best of his understanding, the petitioner made the averments for public good and he has no intention to scandalise the Court. He had approached this Court earlier more than 12 times to vindicate public justice. As a human being, he is fallible but he has no intention to denigrate the Court to which he has highest respect. His modified language in the statement filed on April 24,1996 does indicate his intention.

In the proceedings of the Court dated July, 17,1995, it was recorded that the Solicitor General had appeared for Sri P.V. Narasimha Rao who was impleaded in his personal capacity. It is the petitioner's contention that the solicitor General cannot appear for him. He was not assisting the Court as amicus. When the Chief justice called for the records from the Government through solicitor General, it is Court's duty to give him copies of those documents but the same were denied to him. It is his xiv) Page 9 prayer

(a) Declare the respondent unfit to hold office as chief Justice of

India;


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(b) Strip the respondent of his citizenship;

(c) Direct the registration of an F.I.R. against the respondent under the Indian penal Code for committing forgery and fraud;

(d) Direct the respondent's prosecution under the prevention of corruption Act.

The alleged contemnor filed written submissions in reply to the contempt notice. His first submission was that the Bench which had heard and dismissed the second writ petition had been constituted by the respondent, who had thereby become a judge in his own cause. The second writ petition was, accordingly, not listed before a court, competent to dispose it of, so that the order of its dismissal was non est, and it was still deemed to be pending. The contempt notice was, therefore, premature. The written submissions then dealt with the portions of the second writ petition which had been indicated in the contempt notice and reiterated the same, except only that it was submitted that the allegation about fabrication of the court proceedings of 7th August, 1995, was "somewhat unhappily would". It was submitted thereafter that the contempt of Courts Act was a legacy of British imperialism and, while appropriate to a "banana republic", was imcompatible with a democratic, people's polity; it was a law-less law because it fused the offices of the prosecutor and the judge and "belongs with the infamous Spanish inquisition". After his signature at the foot of the written


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submissions, the alleged contemnor added in hand, "N.B. If some passages seem strident or pungent, the defendant is willing to suitably modify them."

The contempt notice came up before this Bench on 15th April, 1996. The following order was then passed; "Pursuant to the notice issued by

this court the Contemnor Dr. D.C.. Saxena is present today in person. He has stated that he would modify the offending portions noted in the show cause notice in Item (ii),(iv),(vi), (vii),(viii),(x),(xi),(xii),(xiii) and wishes to withdrew unconditionally item xiv, paras B and C. The learned Solicitor General has pointed out that even if the Contemnor withdraws or files statement in the modified form what the Court required to do is whether originally filed constitute contempt of the statements would not be of material reliance time to submit the show cause in the modified Court, at his request eh matter is adjourned to may 2,1996 at 2.00 P.M. The Registry is directed to supply complete set of papers to learned Solicitor

General."

extract the relevant portions supplied to him by show cause and his reply thereto and of preliminary submissions and his modified statement as a substitution to the averments made in the second writ petition and the effect thereof. In respect of


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the averments made in the offending portions of item 1,3, 5,9,13 and 14(a) and (d), the petitioner stood by them. He submitted his modified statement on April 24,1996 only for the rest of the statements. Let us first consider the unmodified averments before examining the original and the modified averments. The first averment made at page 4 in paragraph 9 is that "it was improper for justice Ahmadi to hear it". Item 3 at page 6 in paragraph 14 is: "To this Justice Ahmadi responded that he (the solicitor General) was there to assist the Court, contrary to the evidence of the court proceedings". Item 5 relating to the averments made in page 6 in paragraph 17 is; "the subsequent course of action by Justice Ahmadi, in dealing with the grouse of the petitioner and dismissing his petition is totally unjust, unfair, arbitrary and unlawful. It is in flagrant violation of the mandates of Article 14 of the constitution, which "runs like a golden thread" through it ad is the foundation of justice and fair play". Item 9 relating to the averments made at page 8 in paragraph 18(f) is: "what are the legal consequences of the violation of the sacred oath of office by justice Ahmadi?" Item 14(a) relating to the prayer portion is: "declare the respondent (justice A.M. Ahmadi) unfit to hold office as Chief Justice of India" and item 14(d) is: "Direct the respondent's (Justice A.M. Ahmadi's) prosecution under the prevention of Corruption Act." The petitioner in his affidavit filed in support of the second writ petition has stated in para 2 thereof thus: "I am actuated purely by national interests and no personal gains and have truthfully and


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carefully stated the facts (emphasis supplied), in pursuance of my fundamental duties, which can be effectively performed only through the fundamental rights enjoyed as a citizen of India." In his preliminary submissions, he has stated that the writ petition under Article 32 shall be heard by a Division Court of not less than 5 Judges. Emphasis was added by the petitioner himself. Since the writ petition was not listed before a Court components to dispose of the same, it made the order of dismissal non est and it should be deemed to be pending and is "not yet decided and disposed of constitutionally". No contempt proceedings can, therefore, be initiated. The notice is , therefore, pre-mature. Constitution of the Bench by the chief Justice is in violation of the principles of natural justice as no one can be a judge of his own cause. Justice "should not only be done but should manifestly and undoubtedly seem to be done. nothing is to be done which creates even a suspicion that there has been an improper interference of the course of justice.", he quoted the above statement of Lord Heward, C.J. Regarding Item 1 referred to hereinbefore; he justified the imputation stating that no person can be a Judge in his own cause directly or indirectly. In spite of his objection, the respondent (CJI) chose to constitute the bench himself as a presiding judge. According to the petitioner the word " improper", therefore was used in that perspective, with regard to the averments made in Item 3, his reply was that the Court proceedings dated July 17,1995 recording that the solicitor General, Shri Dipankar Gupta appeared in his official capacity


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to Sri P.V. Narasimha Rao, a private party. He had stated that even assuming, though not conceding, that he (Solicitor General was acting as amicus curiae also was not recorded in the Court proceedings. Therefore, his comment that CJI had Fabricated false record is fair and an accurate report of the court proceedings protected under section 4 of the Act. With regard to Item 5, he states thus: " This is a reaffirmation of an unimpeachable legal proposition in the most widely-prevalent legal phraseology, to which no umbrage can be taken, for by this logic all petitions containing this phrase would be deemed contemptuous. Even the part of the quotation is from a leading decision of this Hon'ble Court in Maneka Gandhi's case."

With regard to averments made in item 9, he justified it stating that "this again is an unresolved question of great legal significance and he cited as analogy of Mr. Fazlul Huq, then Chief Minister of Bengal and quoted a passage from a special Bench decision of the Calcutta High Court in R.C. Pollard v. Satya Gopal Majumdar [A.I.R. 1943 Cal. 594 (605)]. He added special emphasis to the words "the clear violation of it brands a man as unfit for public office" and stated that it is a legal question of substantial importance relating to the violation of oath of office, contained in the Third Scheduled of the Constitution and it cannot be disposed of by a three judge Bench. It cannot be considered as personal imputation against the judge. With regard to imputation and prayer (a) in item 14, he says that the analogy he had taken from the


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Calcutta High Court decision. It was natural corollary to the legal proposition considered by a constitution Bench. with regard to prayer (d) in Item 14, he states that this is only a prayer for relief sought. The defence taken in relation to (xiv)(b) and (c) would equally be applicable and so he has reaffirmed them to be correct. The allegations, therefore, are neither "reckless" nor do they "disclose irresponsibility" (put within inverted comma by the petitioner himself) and is not "an abuse of the process of the Court."

He reiterated that "several averments in the writ petition" being truthful, factual, and made without rancour or malice and for no personal, gain, should not be construed "scandalous" (inverted commas were put by the petitioner himself).

Let us now consider other imputations, in the language of petitioner himself with regard to the "truthfully and carefully" stated facts. At page 5 in para 10, the petitioner has stated that "Justice Ahmadi's utmost reluctance to perform his fundamental duties and constitutional obligations was apparent. when after failing to browbeat the petitioner, he stated that it would be taken up at the end of the cause list." in his preliminary submissions he has stated that "this is a fair and accurate submission of the Court proceedings on matter which had already been "heard and finally decided"."(inverted commas were put by the petitioner himself). He sought protection to it, as a fair comment, under Section 4 of the Act.


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He further justified it stating that even the use of the would "browbeat" by the petitioner is a "fair criticism of judicial act" (inverted comma was put by the petitioner himself) to imply that proper hearing was not being granted to the petitioner who had approached the highest Court of the land to 'Protect and safeguard public property". he justified them as a "statement of truthful facts", for public good should not be construed as disrespect to the Hon'ble Court. After offering justification in his modified statement, he reiterates thus: "The petitioner discerned reluctance on the part of the presiding judge to allow the relief claimed, which was in public interest, and actuated by the desire to "Preserve and protect public property," without any personal malice." It would, thus, indicate that the petitioner imputed motives to Justice A.M. Ahmadi, chief justice India, in the discharge of his constitutional duty and that by not admitting the writ petition or dismissing the petition, the CJI was reluctant to perform his constitutional duty. He knew that the word "browbeat" is a strident imputation to the Court and, therefore, in his modified reluctance". Even in the modified statement, he attributed motives to CJI in the performance of his constitutional duty while the Bench that dismissed the first writ petition consisted of three judges. By inference, he suggested the other brother Judges to be mere non-entity. With regard to item 4 at page 6 in para 15, he imputed to the CJI that "and without recording the reasons for dismissing the petition. So much for the vaunted adherence to the twin principles of transparency and


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accountability." In his preliminary submissions, he has given justification for his attributed motives to CJI stating that the Solicitor General handed over some documents to the bench, without supplying the copy thereof to the bench, without supplying the copy thereof to the petitioner. When he had objected to it in his own language, he avers that "justice Ahmadi asked him to argue on the supposition that nothing had been given to the bench. In view of this, reference has been made to the "twin principles of transparency and accountability which", according to the petitioner, "is a fair and accurate report of court proceedings, which is also for the "public good"." (inverted commas were put by the petitioner himself). In the modified statement he stated thus: "That justice Ahmadi ultimately dismissed the petition, observing that the Government of India was capable to realise the dues from Shri Rao (which it had no to done in two years) and without recording the reasons for dismissing the petition, for which lapse it has often berated High Courts, in pursuance of the twin principles of transparency and accountability". It would, thus be seen that as regards this imputation, the petitioner gives justification that there was omission to record reasons for dismissal of the writ petition; he imputed to CJI that the CJI facilitated Sri Narasimha Rao to avoid payment of public dues. The act of the Court was not transparent. According to the petitioner, it is a lapse on the part of the Court for which the Court conduct, by implication, was not transparent and the Court must be accountable.


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Item 6 at page 7 in paragraph 18(c) reads thus: "For causing fabrication of courts proceedings of 7th August, 1995, and not mentioning the fact of appearance of the solicitor General, would justice Ahmadi not be liable to prosecution under the relevant provisions of the Indian penal code in consonance with the time-honoured maxim, `Be you ever so high, the law is above you"?" (inverted commas were put by the petitioner himself). In his preliminary submissions he stated that "Although somewhat unhappily worded, it is one of the substantial questions of law, which needed to be determined by a constitution Bench of the apex court". According to him, above maxim is one to which this court has repeatedly stated to have avowed allegiance. In his modified version, he stated thus: "For inaccurate recording of the court proceedings of 7 August, 1995, and not mentioning even the fact of appearance of the solicitor General for the respondent, what responsibility would ensue on the presiding judge, who dictated them?" It would, therefore, in the language of the petitioner, be "discernible" difference of the imputation as originally made in the writ petition and reiterated in his preliminary submissions and its impact was understood by the petitioner. Therefore, he made the amended version imputing responsibility to justice Ahmadi personally for the so called inaccurate recording of the Court proceedings and stated that the CJI should be prosecuted for the record said to be falsely recorded by CJI after fabrication and it is a fraud and CJI is liable for prosecution for fraud etc. Item 7 at page 6 in


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paragraph 18(d) reads thus; "can justice Ahmadi be allowed to take shelter behind the cloak of the judicial immunity, in the facts and circumstances of the instance case, particularly when unlike the president of India, who cannot be impleaded in Civil or criminal proceedings "during his term of office," CJI enjoys no such constitutional protection?" In his preliminary submissions, he stated that this is yet another constitutional conundrum which needed to be resolved by a constitution Bench of the Hon'ble Court under Article 145(3) read with Supreme Court Rules. According to the petitioner "Crucial to it are "the facts and circumstances" (inverted commas were put by the petitioner himself) spelled out earlier". implicitly conferring immunity on the congress president, Sri P.V. Narasimha Rao, from laws of the land do not apply. Is this not a negation of all that the constitution holds sacred?" In the modified version, he stated thus "when under the Constitution Judges of superior courts do not, unlade the president of India, enjoy total immunity during their term of office, can the presiding judge, be allowed to make such a claim for wrong doing?" (Emphasis supplied). He, thus, imputed to the chief justice of India, Justice Ahmadi motives that CJI allowed Sri Narasimha Rao, Congress president, to avoid payment of dues causing loss to the national exchequer treating him as a class by himself and the CJI neglected to perform the constitutional duty which he holds sacred which is a wrong-doing. therefore, chief Justice of India should not be allowed to take judicial immunity and


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is liable to criminal prosecution even during his term of office as CJI.

Item 8 of the imputation at page 7 in para 18(e) reads thus; "for willfully and advertently violating (emphasis supplied) the fundamental rights of not only the petitioner as an individual, but that of the people of India, who are ultimately sovereign, as stated in the preamble to the Constitution, has not justice Ahmadi forfeited any legal protection, even if it were available to him?" In his preliminary submissions, he has stated that "The first part of the sentence is based on the implicit constitutional provisions and in fact shows that the petitioner/defendant looks upon the apex court as the guardian of his fundamental rights and those of the voiceless millions. The second part raises a constitutional question, which needed determination by an appropriate bench." In the amended version, he reiterated that "for violating the fundamental rights of not only the petitioner, as an individual, but also that of the people of India, who are the ultimate sovereign, as stated in the preamble to the Constitution, has not justice Ahmadi sent wrong signals tot he entire judiciary of which he is the head". In this paragraph, it is clear that the petitioner knew the distinction between the imputation as originally attributed to the Chief justice of India as Head of the Institution, i.e., Judiciary and reiterated in his preliminary submissions that CJI "willfully" and "advertently" violated the petitioner's and people's fundamental right to redressal by wrongful dismissal


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of the writ petition. He knew its indelible effect on the public confidence in the efficacy of judicial dispensation and propriety of the judicial process. When they read the imputation, he attributed to the Chief Justice that CJI willfully and advertently violated the fundamental rights of the petitioner and other people in dismissing the writ petition. Thereby, justice Ahmadi forfeited legal protection of law, if it were available to him and he stated in his modified version that the action of Chief Justice of India sent wrong signals to the entire judiciary of which he is the head. In other words, it would imply that CJI as judge and as head of the institution committed misconduct. Imputation 10 made at page 8 in paragraph 18(g) reads thus: "For deliberate and willful failure to perform his fundamental duties and stultifying their performance by the petitioner, should not justice Ahmadi be stripped of his citizenship, because duties alone can confer the corresponding legal and constitutional rights?. In his preliminary submissions, he has stated that this is also a constitutional question needed to be interpreted on the ambit and enforceability of fundamental duties in Article 51-A; it should not be considered by a Division bench. "Moreover, this is a logical corollary of the foregoing question of law. It is respectfully reiterated that a question of law is not a personal imputation or insinuation." In his modified version, he has stated thus: "For failure to perform his fundamental duties and impeding their performance by the petitioner, should not justice Ahmadi be regarded as accountable to the people of


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India, because duties alone can confer the corresponding legal and constitutional rights?" In this behalf, it is clear that the petitioner is well conversant with the effect of "a personal imputation and the negation". He attributed that Justice Ahmadi, Chief Justice of India deliberately and willfully failed to perform his fundamental duties by dismissing the first writ petition and stultified the performance of the duty by the petition and stultified the performance of the duty by the petitioner. Thereby Justice Ahmadi "be stripped of his citizenship". He also knew that for exercise of legal or constitutional rights one owes corresponding duties. The person who fails to perform the duty is accountable to the people. CJI willfully, in other words, deliberately with supine indifference dismissed the writ petition. CJI does not get legal protection but also forfeits his citizenship. Imputation 11 at page 8 in paragraph 18(h) reads thus: "For allowing his son who is a practising in the Supreme Court, to stay with him in his official residence, and presumably in the supreme Court, to stay with him in his official residence, and presumably misusing official facilities and prestige of office of chief Justice of India, is not Justice Ahmadi liable to be prosecuted under the prevention of corruption act, in view of the ratio decidendi of Veeraswami's case?" In his preliminary submissions, he reiterated that this is a question law based on information he had received from "public documents"(inverted commas were put by the petitioner himself) from an Article which was said to have appeared in


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"India Today", with Justice Ahmadi's photograph and yet another one said to have been published in "The Times of India", authored by a woman senior Advocate of this Court. He states that "It is widely talked in legal circles that apart from being favoured in appointment on local commissions (by the Delhi High Court) Justice Ahmadi's son (and daughter also) are very often assigned government briefs". In support of his imputation, he seeks justification from the observation made by this Court in C. Ravichandran Iyer V. Justice A.M. Bhattacjarkee & Ors. [(1995) 5 SCC 457] of transparency of the conduct of the Judge on and off the bench. He further added that "the criminal contempt application of one M.P. Shorewala against the petitioner/defendant was got filed and in gross violation of statutory provision (mentioned in the office report) was got listed next to the petitioner's civil writ petition on the same day. i.e., 30th January, 1996, for reasons which need no dilation'. The petitioner had not modified in his modified version, though he undertook to do so. He stood by the above imputation and reiteration with further justification in that behalf made in his preliminary submissions. we may observe here itself that personal imputation against the chief Justice of India, Justice Ahmadi of allowing his son to practise in the supreme court is false. His permitting his son to reside in his official residence said to be in abuse of his official position has no relevance to the first writ petition relating to the recovery of the alleged arrears said to be due from Sri P.V. Narasimha Rao. During the course of hearing,


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when it was pointed out to the petitioner that as a fact the son of justice Ahmadi is not practising in the Supreme Court and that the above imputation has no rational connection to the first writ petition and of the necessity to allege them in the second one, no answer was given by the petition and of the necessity to allege them in the second one, no answer was given by the petitioner. He sought to justify it on the basis of the reports said to have been published in the newspapers. When we further inquired from him whether he made any independent inquiry in the matter or on the accuracy of the newspaper publications, he stated that he relied upon the above statements as an accurate statement of fact reported therein. We may mention that this imputation has no relevance to the first proceedings. As a fact, the son of Justice Ahmadi is not practising in the Supreme Court. The alleged facility of permitting his son to stay in his official residence bears no relevance to the proceedings. The imputations were obviously off the cup. Imputation 12 made at page 8 in paragraph 18(i) reads thus: " Is Justice Ahmadi not liable to pay from his pocket not only the legitimate costs incurred by the petitioners in C.W.P. No. 432 of 1995 and the present petition, but also the loss caused to the public exchequer by non-payment of dues with 18% interest by Shri P.V.N. Rao?" In his preliminary submissions he reiterated it giving further justification thus: "This is the law laid down by this Hon'ble Court in relation to public servants. Whether it is also applicable to holders of constitutional office or not is a


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substantial question of law, which should have been answered by a constitution bench." In his modified version he has stated thus: "who would be liable to reimburse the legitimate costs incurred by the petitioner by filing C.W.P. No.432 of 1995, and the present petition and the huge loss caused to the public exchequer because of the persistent default in paying them by P.V. Narasimha Rao, with 18% interest?" it would, thus, be apparent that for dismissal of the writ petition filed by a party, by a judicial act, the presiding judge of the Court is liable to pay costs to the litigant and also the resultant loss to the public exchequer for non-payment of the dues by the defaulter with interest. He justified it stating that when a public servant causes loss to the State and the same is sought to be recovered from him, why not the constitutional functionary for judicial act is also liable to pay over the same. In other words, if the Court dismisses a petition filed by a litigant, the resultant costs must be born by the presiding officer of the Court. Equally, the loss caused to the State should also be recoverable from the presiding judge from his personal pocket .

Regarding imputation 13, though he stated that he wished to make modification to it, in his amended version, he did not touch upon the same.

Imputation 13 at page 8 reads thus: "since no person can be a judge in his own cause, the senior-most judge of the Hon'ble Court may be permitted to constitute a constitution bench, for


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expeditious hearing of the petition excluding any judge who owes his elevation to the apex court to justice Ahmadi. Further during its pendency, Justice Ahmadi may be advised to proceed on leave, so that he may not directly or indirectly influence any of the judges hearing the matter." In his preliminary submissions, he reiterates that " The prayer is in strict conformity with the maxim cited earlier in the words of lord Heward, C.J." He justified it on the basis of Justice P.N. Bhagwati (as he then was), the senior-most judge's presiding over P.S. Gupta's case, i.e., First judges case when justice Chandrachud was imputed with some allegations. He also justified his quoting the advice given to Justice V. Ramaswami to proceed on leave when enquiry was pending against him under the Judges [Inquiry] Act. It would be seen that in this imputation, he categorically asserts and relies that justice Ahmadi, Chief justice of India would bring about influence directly or indirectly upon his colleagues when the matter was to be heard. While he is in the office, he also should not function as Chief Justice pending his second writ petition. CJI also should not constitute any benches. That should be done by the senior-most puisne Judge. Any Judge appointed to this Court during his tenure as CJI should not hear ht e case as CJI directly or indirectly would influence them when the case relating to his was dealt with. In other words, his imputation is that Judges appointed to the Supreme Court during the tenure of Justice A.M. Ahmadi as CJI amenable to influence in deciding the cases at the behest of


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the CJI as they owe their appointments to him. In other words, as soon as a writ petition under Article 32 or petition under Article 136 was filed attributing motives or bias to the CJI [it would equally apply to any Judge he should desist to perform judicial and administrative work. He should proceed on leave till that case is decided. The senior-most puisne Judge should assume the work of the CJI.

Imputations in Prayer (b) and (c) read as under: "(b) strip the respondent (Justice

A.M. Ahmadi) of his citizenship";

and (c) Direct the registration of

an FIR against he respondent

(Justice A.M. Ahmadi) under the

Indian Penal Code for committing

forgery and fraud."

In his preliminary submissions, he has stated with regard to stripping of citizenship of CJI that "this may have been the consequence of the constitution bench affirming the view taken by the Calcutta High Court cited earlier. Moreover, this is only a prayer for relief sought, which does not fall within the mischief of the Contempt of Courts Act." With regard to


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prayer (c) he states thus: "the plea taken in relation to (xiv (b). Now, in the modified statement, he seeks to withdraw them and states "May kindly be treated as deleted". It would, thus, be clear that his asking for stripping of the citizenship of the Chief Justice of India is for dismissing his writ petition and prosecution is the consequence of a decision of this Court which had affirmed the judgment of the Calcutta High Court in Fazalul Haq's, Chief Minister, Bengal's case.

At this stage, it may be relevant to mention that the petitioner, either in his preliminary submissions or modified version filed on April 24, 1996, during the course of hearing, did not tender any unconditional apology for the imputations made against CJI. On the other hand, it is clear that being a professor of English. he knew the consequences of the language used, its purpose and effect and pressed for consideration. At the time of dismissing the second writ petition to a pointed reference of the allegations to be scandalous, it was recorded in the order and there was no demur from the petition to the contra, that the petitioner stood by them. In other words, he would bear the consequences that would flow therefrom. According to the petitioner, many an imputation bearing constitutional contour require interpretation by a bench of five Judges under Article 145(3). We need not refer the case to the constitution Bench merely because the petitioner has raised that contention in the petition; nor the same requires decision unless the Court finds


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that the petition cannot be disposed of without the questions being decided by the constitution Bench.

When imputations were made against the Chief Justice, the petitioner assumed, in our view, "wrongly" that CJI cannot constitute benches nor he should discharge the functions of Chief Justice until the matter is decided. On appointment by the president by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice's prerogative to constitute benches and assignment of judicial business would no hinge at the whim of a litigant.

The decisions of different benches are the decisions of the Court. For the convenient transaction of business, the senior judge among the members composing the Bench gets the privilege to preside over the Bench but the decision is that of the Court. The members composing the Bench collectively speak for the Court and would bear collective responsibility for the decision unless separate opinions are expressed by individual members composing the Bench. Majority opinion is the law as envisage under Article 145(5) of the constitution. Their opinion or order thus is the opinion or order of the


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Court. The minority opinion also would form part of the judgment or order but remains the minority view. The Chief justice is first among the colleagues. The question, therefore, arises: whether the afore- enumerated imputations constitute contempt of this court? Though the petitioner contended that the provisions of the Act are ultra vires Article 19 [1] (a) of the constitution, it is not necessary for the purpose of this case to twelve upon that contention. This court has taken suo motu cognizance of contempt of this Court under Article 129 of the Constitution of India which reiterates as a court of record, its power to punish for contempt of itself. As pointed out in the proceedings of this Court dated January 13, 1996, in spite of the fact that this Court brought to his attention the gravity of the imputations, the petitioner insisted and reiterated that he stood by the scandalous averments made therein. This Court being duty bound, was, therefore, constrained to issue notice of contempt. The question, therefore, is: whether the aforesaid imputations are scurrilous attack intended to scandalise the Court and do they not impede due administration of Justice? Words are the skin of the language. Language in which the words are couched is media to convey the thoughts of the author. Its effect would be discernible from the language couched proprio vigore. The petitioner, a professor of English language in clear and unequivocal language emphasised and reaffirmed that the averments were "truthfully and carefully" worded. The question is: to what extent the petitioner is entitled to the freedom of those expressions guaranteed under


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Article 19[1](a) of the Constitution? If they are found scandalous, whether he would get absolved by operation of Article 19[1] (a) ?. As this Court has taken suo motu action under article 129 of the Constitution and the word `contempt' has not been defined by making rules, it would be enought to been defined by making rules, it would be enought to fall back upon the definition of 'criminal contempt" defined under section 2(c) of the act which reads thus:

"Criminal Contempt" means the publication (whether by words, spoken or written, or by signs, or buy visible representations, or otherwise of any other act whatsoever which--

(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of any court:

or

(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings;

or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

(emphasis supplied)


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It is doubtless that freedom of speech and of expression guaranteed by Article 19[1] (a) is one of the most precious liberties in our secular, socialist republic. Freedom of expression is a prized privilege to speak one's open mind although not always in perfect good taste of all institutions. Since it opens up channels of open discussion, the opportunity of speech and expression should be afforded for vigorous advocacy, no less than abstract discussion. This liberty may be regarded as an autonomous and fundamental good and its value gets support from the need to develop our evolving society from unequal pas t to a vigorous homogeneous egalitarian order in which each gets equality of status and of opportunity; social, economic and political justice with dignity of person so as to build an integrated and united Bharat. Transformation for that strong social restructure would be secured when channels for free discussion are wide opinion and secular mores are not frozen. All truths are relative and they can be judged only in the competition of market. Liberty is not to be equated with certainty. Freedom of expression equally generates and disseminates ideas and opinions, information of political and social importance in a free market place for peaceful social transformation under rule of law. The doctrine of discovery of truth does require free exchange of ideas and use of appropriate language. words are the skin of the language which manifests the intention of its maker or the speaker. The right to free speech is, therefore, an integral aspect of right to self-development and fulfillment of


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person's duties some of which are proselytised in part IVA of the Constitution as Fundamental Duties. The end of the State is to secure to the citizens freedom to develop his faculties, freedom to think as he will, to speak as he thinks and read as indispensable tools to the discovery of truth and realisation of human knowledge and human rights. Public discussion is political liberty. The purpose of freedom of speech is to understand political issues so as to protect the citizens and to enable them to participate effectively in the working of the democracy in a representative form of Government. Freedom of expression would play crucial role in the formation of public opinion on social, political and economic questions. Therefore, political speeches are given greater degree of protection and special and higher status than other types of speeches and expressions. The importance of speaker's potential development on political and social questions is also relevant to encourage human development for effective functioning of democratic institutions.

Equally, debate on public issues would be uninhibited, robust and wide open. It may well include vehement, sarcastic and sometimes unpleasant sharp criticism of Government and public officials. Absence of restraint in this area encourages a well informed and politically sophisticated electoral debate to conform the Government in tune with the constitutional mandates to return a political party to power. Prohibition of freedom of speech and expression on public issues prevents


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and stifles the debate on social, political and economic questions which in long term endangers the stability of the community and maximises the source and breeds for more likely revolution. If maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and expression and also puts limits on the right of the majority. Interest of the people involved in the acts of expressions should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The state has legitimate interest, therefore, to regulate the freedom of speech and expression. The state has legitimate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libelous speech or expression. There is a co-relative duty not to interfere with the liberty of others. each is entitled to dignity of person and of reputation. No body has a right to denigrate other's right to person or reputation. Therefore, freedom of speech and expression is tolerated so long as it is not malicious or libelous so that all attempts to foster and ensue orderly and peaceful public discussion or public good should result from free speech in the market place. If such


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speech or expression was untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right.

Freedom of speech and expression, therefore, would be subject to Articles 19 [2],129 and 215 of the Constitution, in relation to contempt of court, defamation or incitement to an offence etc. Article 3 read with Article 19 of the Universal Declaration of Human Rights grants to everyone liberty and right to freedom of opinion and expression. Article 19 of the International Covenant on Civil and political Rights, 1966 to which India is a signatory and had ratified, provides that everyone shall have the right to freedom of expression, to receive and impart information and ideas of all kinds but clause [3] thereof imposes corresponding duty on the exercise of the right and responsibilities. It may therefore, be subject to certain restrictions but these shall only be such as are provided by law and are necessary for the respect of life and reputations of others for the protection of national security or public order or of public health or moral. it would thus be seen that liberty of speech and expression guaranteed by Article 19[1] (a) brings within its ambit, the corresponding duty and responsibility and puts limitations on the exercise of that liberty.

A citizen is entitled to bring to the notice of the public at large the infirmities from which any institution including judiciary suffers from. Indeed , the right to offer healthy and


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constructive criticism which is fair in spirit must be left unimpaired in the interest of the institution itself. Critics are instruments of reform but not those actuated by malice but those who are inspired by public weal. Bona fide criticism of any system or institution including judiciary is aimed at inducing the administration of the system or institution to look inward and improve its public image. Courts, the instrumentalities of the state are subject to the Constitution and the laws and are not above criticism. Healthy and constructive criticism are tools to augment its forensic tools for improving its functions. A harmonious blend and balanced existence of free speech and fearless justice counsel that law ought to be astute to criticism. Healthy and constructive criticism are tools to augment its forensic tools for improving its functions. A harmonious blend and balanced existence of free speech and fearless justice counsel that law ought to be astute to criticism. Constructive public criticism even if it slightly oversteps its limits thus has fruitful play in preserving democratic health of public institutions. Section 5 of the Act accords protection to such fair criticism and saves from contempt of court. The best way to sustain the dignity and respect for the office of judge is to deserve respect from the public at large by fearlessness and objectivity of the approach to the issues arising for decision, quality of the judgment, restraint, dignity and decorum a judge observes in judicial conduct off and on the bench and rectitude.


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In P.N. Duda vs. P. Shiv Shankar [AIR 1988 SC 1208] this court had held that administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e., to defend and uphold the Constitution and the laws without fear and favour. Thus the judges must do, in the light given to them to determine, what is right. Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains. In the free market place of ideas criticism about the judicial system or judges should be welcome so long as such criticism about the judicial system or judges should be welcome so long as such criticism does not impair or hamper the administration of justice. This is how the courts should exercise the powers vested in them and judges to punish a person for an alleged contempt by taking notice of the contempt suo motu or at the behest of the litigant or a lawyer. In that case the speech of the Law Minister in a Seminar organised by the Bar Council and the offending portions therein were held not contemptuous and punishable under the


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Act. In a democracy judges and courts alike are, therefore, subject to criticism and if reasonable argument or criticism in respectful language and tempered with moderation is offered against any judicial act as contrary to law or public good no court would treat criticism as a contempt of court.

Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech which holds so dear in a democracy of ability to express freely. Freedom of expression produces the benefit of the truth to emerge. It aids the revelation of the mistakes or bias or at times even corruption it assists stability by tempered articulation of grievances and by promoting peaceful resolution of conflicts. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity., equality and justice. It plays its part in helping to secure the protection of other fundamental human rights. Legal procedure illuminates how free speech of expression constitutes one of the most essential foundations of democratic society. Freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the Citizens. The advocate or the party appearing in person, therefore, is given


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liberty of expression. As stated hereinbefore, they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial process. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary.

In E.M.S. Namboodiripad v. T. Narayanan Nambiar [1971) 1 SCR 697] a Bench of three judges had held that the law of contempt stems from the right of a held that the law of contempt stems from the right of a court to punish, by imprisonment or fine, persons guilty of words or acts which obstruct or tend to obstruct the administration of justice. This right is exercised in India by all courts when contempt is committed in facie curiae by the superior courts on their own behalf or on behalf or courts subordinate to them, even if committed outside the Courts.

Scandalising the judges or courts tends to bring the authority and administration o flaw into disrespect and disregard and tantamounts to contempt. All acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority, constitute contempt committed in respect of single judge or single court or in certain circumstances committed in respect of the whole of the judiciary or judicial system. Therein the criticism by the chief Minister who described judiciary as an instrument of oppression an d the judges as guided and dominated by class


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hatred, class interest and class prejudices etc. was held to be an attack upon judges calculated to give rise to a sense of disrespect an distrust of all judicial decisions. It was held that such criticism of authority of the law and law courts constituted contempt court and the Chief Minister was found guilty thereof. The contempt of court evolved in common law jurisprudence was codified in the form of the Act. Section 2 [c] defines " criminal contempt" which has been extracted earlier. In A.M. Bhattacjarkee's case [supra] relied on by the petitioner himself, a Bench of the two judges considered the said definition and held that scandalising the court would mean any act done or writing published which is calculated to bring the court or judges into contempt or to lower its authority or to interfere with the due course of justice or the legal process of the court. In para 30, it was stated that scandalising the court is a convenient way of describing a publication which, although it does not relate to any specific case either past or pending or any specific judge, is a scurrilous attack on the judiciary as a whole, which although it does not relate to any specific case either past or pending or any specific judge, is a calculated to undermine the authority of the courts and public confidence in the administration of justice. Contempt of court is to keep the blaze of glory around the judiciary and to deter people from attempting to render justice contemptible in the eyes of the public. A liable upon a court is a reflection upon the sovereign people themselves. The contemnor conveys to the people that the administration


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of justice is weak or in corrupt hands. The fountain of justice is tainted. Secondly, the judgments that stream out of that foul fountain is impure and contaminated. In Halsbury's Laws of England [4th Edn.] Vol. 9 para 27 at page 21 on the topic "Scandalising the Court " it is stated that scurrilous abuse of a judge or court, or attacks on t he personal character of a judge, are punishable contempts. The punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual judge of the court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a judge or a court. On the other hand, criticism of a judge's conduct or of the conduct of a court, even if strongly worded, is not a contempt provided that the criticism is fair, temperate and made in good faith, and is not directed to the personal character of a judge or to the impartiality of a judge or court.

Therefore, it is of necessity to regulate the judicial process free from fouling the fountain of justice to ward off the people from undermining the confidence of the public in the purity of fountain of justice and due administration. Justice thereby remains pure, untainted and unimpeded. The punishment for contempt, therefore, is not for the purpose of protecting or


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vindicating either the dignity of the court as a whole or an individual judge of the court from attack on his personal reputation but it was intended to protect the public who are subject to the jurisdiction of the court and to prevent under interference with the administration of justice. If the authority of the court remains undermined or impeded the fountain of justice gets sullied creating distrust and disbelief in the mind of the litigant public or the right-thinking public at large for the benefit of the people. Independence of the judiciary for due course of administration of justice must be protected and remain unimpaired. Scandalising the court, therefore, is a convenient expression of scurrilous attack on the majesty of justice calculated to undermine its authority and public confidence in the administration of justice. The malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes in their mind to obey them. If the people's allegiance to the law is so fundamentally shaken it is the most vital and most dangerous obstruction of justice calling for urgent action. Action for contempt is not for the protection of the judge as private individual but because they are the channels by which justice is administered to the people without fear or favor. As per the Third Schedule to the Constitution oath or affirmation is taken by the judge that he will duly and faithfully perform the duties of the office to the best of his ability, knowledge and judgment without fear or favour, affection or ill-will and will so uphold the Constitution


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and the laws In accordance therewith, judges must always remain impartial and should be known by all people to be impartial. Should they be imputed with improper motives, bias, corruption or partiality, people will lose faith in them. The judge requires a degree of detachment and objectivity which cannot be obtained, if judges constantly are required to look over their shoulders for fear of harassment and abuse and irresponsible demands for prosecution or resignation. The whole administration of justice would suffer due to its rippling effect. It is for this reason that scandalising the judges was considered by the parliament to be contempt of a court punishable with imprisonment or fine.

Scandalising the court, therefore, would mean hostile criticism of judges as judges or judiciary. Any personal attack upon a judge in connection with office he holds is dealt with under law of libel or slender. Yet defamatory publication concerning the judge as a judge brings the court or judges into contempt, a serious impediment to justice and an inroad on majesty of justice. Any caricature of a judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or majesty of justice. It would therefore, be scandalising the judge as a judge, in other words, imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court and would be contempt of the court. Even imputation of lack of impartiality or fairness to a


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judge in the discharge of his official duties amounts to contempt. The gravamen of the offence is that of lowering his dignity or authority or an affront to majesty of justice. When the contemnor challenges the authority of the court, he interferes with the performance of duties of judge's office or judicial process or administration of justice or generation or production of tendency bringing the judge or judiciary into contempt. Section 2 (c) of the Act, therefore, defines criminal contempt the wider articulation that any publication, whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner, is a criminal contempt. Therefore, a tendency to scandalise the Court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.


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It is true that in an indictable offence generally mens rea is an essential ingredient and requires to be proved for convicting the offender but for a criminal contempt as defined in Section 2 (c] any enumerated or any other act apart, to create disaffection disbelief in the efficacy of judicial dispensation or tendency to obstruct administration of justice or tendency to lower the authority or majesty of law by any act of the parties, constitutes criminal contempt. Thereby it excludes the proof of mens rea. What is relevant is that the offending or affront act produces interference with or tendency to interfere with the courses of justice. At this stage, we would dispose of one of the serious contentions repeatedly emphasised by the petitioner that he had no personal gain to seek in the lies except said to have been fired by public duty and has professed respect for the Court. Those are neither relevant nor a defence for the offence of contempt. What is material is the effect of the offending act and not the act per se. In E.M.S. Namboodiripad's case this court had held in paragraph 33 that a law punishes not only acts which had in fact interfered with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result. It was held that the likely effect of the words must be seen and they clearly have effect of lowering the prestige of the judges and courts in the eyes of people. Same view was reiterated in Sambu Nath Jha vs. Kedar Prasad Sinha [(1992(1) SCC 573 at 577]. As stated earlier, imputation of corrupt or improper motives in judicial conduct would


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impair the efficacy of judicial dispensation and due protection of the liberties of the citizen or due administration of justice. This paramount public interest is protected by the definition in Section 2 [c] of the Act. It is, therefore, not necessary to establish actual intention on the part of the contemnor to interfere with the administration of justice. making reckless allegations or vilification of the conduct of the court or the judge would be contempt.

The question, therefore, to be considered is: whether the imputations referred to hereinbefore have necessary tendency to impinge or tendency to impede the public confidence in the administration of justice or would create disbelief in the efficacy of judicial administration or lower the authority or interferes with majesty of Court? The court, therefore, is required to consider whether the imputations made by a contemnor are calculated to bring or have the effect of bringing the court into contempt or casting aspersions on the administration of justice tends to impede justice etc. The court has to consider the nature of the imputations, the occasion of making the imputations and whether the contemnor foresees the possibility of his act and whether he was reckless as to either the result or had foresight like any other fact in issue to be inferred from the facts and circumstances emerging in the case. The reason is obviously that the court does not sit to try the conduct of a judge to whom the imputations are made. It would not be open to the contemnor to bring forward evidence


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or circumstances to justify or to show whether and how fairly imputations were justified because the judge is not before the Court. The defence justification to an imputation would not, therefore, be available to the contemnor. The imputation of improper motives or bias cannot be justified on the principle of fair contempt.

In Ambard v. Attorney-General for Trinidad and Tobago [1936 AC 322 at 335] Lord Atkin in his oft-quoted judgment held that justice is not a cloistered virtue and must be allowed to suffer the secutiny and respectfully, have been, though outspoken comments of ordinary man". But in the same judgment it was further pointed out that provided that members of the public should abstain from imputing improper motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice. That was a case of criticism of the Court proceedings as is saved by Section 5 of the Act. Law is not in any doubt that in a free democracy everybody is entitled to express his honest opinion about the correctness or legality of a judgment or sentence or an order of a court but he should not overstep the bounds. Though he is entitled to express that criticism objectively and with detachment in a language dignified and respectful tone with moderation, the liberty of expression should not be a licence to violently make personal attack on a judge. Subject to that, an honest criticism of the


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administration of justice is welcome since justice is not a cloistered virtue and is entitled to respectful scrutiny. Any citizen is entitled to express his honest opinion about the correctness of the judgment, order or sentence with dignified and moderate language pointing out the error or defect or illegality in the judgment, order or sentence. That is after the event as post-mortem.

In Shri Baradakanta Mishra etc. v. The Registrar of Orissa High Court & Anr. etc. [1974) 1 SCC 374], the appellant, a District judge was suspended and a spate of litigation in that behalf had ensued. When an order of suspension was set aside by the Government, in exercise of his power under Article 235, the High Court further ordered suspension of him pending enquiry of the allegations made against judges in a memorandum and letters sent to the Governor in a vilificatory criticism of the judges in their function on the administration side. When contempt action was initiated, he challenged the jurisdiction of the court and the competency to initiate action for contempt on the specious plea that the acts done by the High Court were on the administration side and were not judicial actions. A three-Judge Bench had negatived the plea and convicted the appellant under section 12 of the Act. When the matter had come up before this court, a constitution Bench considered the gravamen of the imputations and had held that the allegations made against the court in the memo submitted to the Governor constituted scurrilous allegations against the


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High Court. Again some of the allegations made in the memo of appeal and various communications to the Supreme Court were held to constitute contempt of the Court and the conviction was confirmed though sentence was reduced. This Court held that imputation of improper motives, bias and prejudice constitutes contempt under Section 2[c] of the Act.

In Special Reference No. 1 of 1964, popularly known as U.P. Legislature's Warrant of Arrest of the Judges of the Allahabad High Court and Keshav Singh Reference, a Bench of seven judges of this Court observed that the power to punish for contempt alleged must always be exercised cautiously, wisely and with circumspection. The best way to sustain the dignity and status of their [judges] office is to deserve respect from the public at large by the quality of their judgments, fearlessness and objectivity of their approach and buy the restraint, dignity and decorum which they observe in their judicial conduct. It would equally apply to the legislature. Keeping the above perspective in view, the question emerges; whether the imputations itemised hereinbefore constitute contempt of the Court. At the cost for petition, we any reiterate that in a democracy though every one is entitled to express his honest opinion about the correctness or legality of a judgment or an order or sentence, judges do require degree of detachment and objectivity in judicial dispensation, they being duty bound with the oath of office taken by them in adjudicating the disputes brought before the court. The


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objectivity or detachment cannot be obtained if the judges have constantly to look over their shoulders for fear of harassment and abuse and irresponsible demands for prosecution, resignation or to refrain from discharging their duties pending further action. Cognisant to this tendency;, the founding fathers of the Constitution engrafted Articles 121 and 211 of the constitution and prohibited the parliament and the legislatures to discuss on the floor of the House the conduct of any judge of the Supreme Court or the High Court in the discharge of his duties except upon a motion for presenting address to the president praying for the removal of a judge under Article 124[4] of the Constitution in accordance with the procedure prescribed under the judges [Inquiry] Act, 1968 and the Rules made thereunder. In A.M. Bhattacharjee's case on which great reliance was placed by the petitioner emphasising the rectitude on the part of a judge, this Court laid the rule for the advocates to adhere to a code of conduct in seeking redressal on the perceived aberration of the conduct of a judge otherwise than in accordance with the procedure prescribed in Article 124 [4] of the Constitution. The respect for and the dignity of the court thereby was protected from scurrilous attack on the judge or the court. if the forum of the judicial process is allowed to mount scurrilous attack on a judge, the question arises whether the forum of the judicial process of vilification of the judges or imputations to the judges in the pleadings presented to the court would give liberty of freedom of expression to an advocate or a light of


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the above discussion, we have little doubt to conclude that when an advocate or a party appearing before the court requires to conduct himself in a manner befitting to the dignity and decorum of the court, he cannot have a free licence to indulge in writing in the pleadings the scurrilous accusations or scandalisation against the judge or the court. If the reputation and dignity of the judge, who decides the case are allowed to be prescribed in the pleadings, the respect for the court would quickly disappear and independence of the of the judiciary would be a thing of the past.

In Re: Roshan Lal Ahuja [(1993) Supp. 4 SCC 446] when the contemnor-petitioner's countless unsuccessful attempts against his order of removal from service became abortive and in spite of this Court granting at one stage compensation of a sum of Rs.30,000/- he had indulged in the pleadings with scurrilous accusations on judges who granted compensation and not reinstatement. It was held by a three- judge Bench that the contemnor had permitted himself the liberty of using language in the documents and pleadings which not only had the effect of scandalising and lowering the authority of the court in relation to judicial matters but also had the effect of substantial interference with an obstructing the administration of justice. The unfounded and unwarranted aspersions on the judges of this Court had the tendency to undermine the authority of the court and would create distrust in the public mind as to the capacity of the judges of this Court to met out


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fearless justice. Accordingly, he was convicted and sentenced to under go imprisonment for a period of four months and to pay a fine of Rs.1,000/- and in default, to undergo sentence for a further period of 15 days.

In L.D. Jaikwal v. State of U.P. [1984) 3 SCC 405], the conduct of an advocate in using abusive language in pleadings and vilification of a judge was held to constitute contempt under Section 2 [c] (i) of the Act and his sentence under Section 12 of the Act was upheld. In Re: Shri S. Mulgaokar [(1978) 3 SCC 497] the conduct of a senior advocate in publishing a pamphlet imputing improper motives to the Magistrate who decided his case was held to constitute substantial interference with the due administration of justice. His conviction was accordingly upheld though sentence was reduced. In K.A. Mohammed Ali v. C.N. Prasannan [(1994) Supp. 3 SCC 509] while arguing the case, the counsel raised his voice unusually high to the annoyance of the Magistrate and used derogatory language against the Magistrate before whom he conducted the trial of an accused. His conviction and sentence for contempt was accordingly upheld.

In Gillers "Regulation of Lawyers - Problems of Law and Ethics" [Third Edition - 1992] at page 747 it was pointed out that in spite of first Amendment protection of free speech, lawyers who committed contempt of the court were punished by American court even if they were advocating their clients interest at that time. The lawyer's behavior threatens the


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dignity and authority of the Courts was held to constitute contempt of the court.

In Charan Lal Sahu v. Union of India & Anr. [(1988) 3 SCC 255], in a petition under Article 32 of the Constitution the advocate indulged in mud-slinging against advocates and this Court. It was held that those allegations were likely to lower the prestige of this Court. This Court accordingly held that he committed contempt in drawing up the petition and directed to initiate proceedings against him for overstepping the limits in particular of self-restraint. It would, thus, be seen that when the first writ petition was dismissed by this Court, as a responsible citizen, the petitioner would have kept quite. When the result animated by the petitioner was not achieved, he embittered to foul at the process of this Court and emboldened to file the second writ petition with imputation made against this Court, in particular targeting the Chief justice of India, Justice A.M. Ahmadi. As stated hereinbefore and need not be reiterated once over that it is the duty of the Court to hear and decide any matter posted for admission. Therefore, there is nothing improper for the first Court presided over by the Chief Justice of India to hear and decide the matter. When it came up for admission, the Court appears to have been persuaded to ascertain the correctness of the allegations made in the writ petition. This Court obviously before issuing notice had sent for and directed the solicitor General to obtain the information from the Government as to


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the correctness of the allegations made before deciding whether the Court would exercise its prerogative power under Article 32 to issue directions as sought for. In furtherance thereof, the Solicitor General admittedly placed before the Court the record. On perusal thereof, the first Court the record. On perusal thereof, the first Court had declined to exercise the power as enumerated and obviously stated by the petitioner that the exercise of the power under Article 32 was not appropriate since the Government in the Defence Department could recover from the Prime Minister's Secretariat or from the Congress Party, as the case may be, all the arrears, if any, due and payable by the respective entities. It is not obligatory for this court to give reasons for dismissing the writ petition. Day in and day out in countless cases, while refusing to interfere with the orders this Court dismisses the petitions be it filed under Article 32 or 136 of the Constitution in limine. It is also seen that though the case was adjourned for two weeks, no doubt, it was not posted on that day but it was listed some time thereafter. In the proceedings of the Court recorded by the staff, it was recorded that the Solicitor General or in personal capacity obviously acted as amicus on behalf of the court. Being the Solicitor General for India, he was directed to have consultation with Government Departments and to obtain needed information. In appropriate cases this procedure is usually adopted by the Court. Recording of the proceedings by the court generally is not noted by the Court. Is it improper for the Chief justice to hear


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the case? Was the dismissal totally unjust and unfair for not recording the reasons? The petitioner obviously with half-baked knowledge in law mixed up the language as "improper for Chief justice of India to hear it". "Dismissal of the "grouse" of the petitioner was totally unjust, unfair, arbitrary and unlawful flagrant violation of mandate of Article 14" "Violation of the sacred oath of office " and to "declare justice A.M. Ahmadi unfit to hold the office as Chief Justice of India". When these imputations were pointed out to the petitioner by three-Judge Bench presided over by brother Verma, J. while dismissing the second writ petition, to be scandalous and reckless, he had stated that he "stood by" those allegations. He reiterated the same with justification in his preliminary submissions. He has stated that the accusations made were truthful and "carefully" worded. In this backdrop scenario, the effect of these imputations is obviously reckless apart from scandalising this Court, in particular the Chief Justice of India and was intended to foul the process of the Court or lower or at any rate tends to lower the authority of the Court in the estimate of the public and tends to undermine the efficacy of he judicial process. It would, therefore, be clear that the accusations are gross contempt. At the height of it, he stated that since the first writ petition was not disposed of by a bench of not less than five judges, the writ petition was not dismissed in the eye of law and the order of dismissal is non est and it is "not decided and disposed of constitutionally". This assertion of the petitioner


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flies in the face of the judicial finality of the order of this Court and the assertion tends to question the authority of the court. It creates tendency to obstruct the administration of justice and, therefore, it would be an outrageous criminal contempt.

Omission to record reasons, according to the petitioner, is violative of the principles of natural justice. The Chief justice of India has committed impropriety in deciding the matter. As stated earlier, the decision is that of the Bench on behalf of the Court and the Chief justice, being the senior-most among the members constituting the bench, had spoken on behalf of the Bench. Therefore, the attribution of improper motives scandalises the efficacy of judicial adjudication and per se contumaciously lowers or at any rate tends to lower the dignity or authority of the Court. The prayer for prosecution of the Chief justice, though sought in Item 14 (a) and (d) to be withdrawn, which would be of no consequence, is, therefore, unbelievably outrageous contempt.

These findings dispose of Items 1,3,5,9 and 14(a) which remain not even amended by the contemnor.

As regards other imputations, it may be stated at this stage, as rightly pointed out by the learned solicitor general, that what we are required to consider is the effect of the imputations made by the contemnor in the second writ petition and not what he sought to amend some of he averments attributing


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imputations to this Court and the effect thereof. By his own admission, they are "strindent" and "pungent". They are "truthful" and were "carefully" stated by him. Even the amended averments did not advance the contemnor's stand. On the other hand, they compound perpetration of contumacious conduct recklessly made by the contemnor in the second writ petition. It item 4, the contemnor attributed that "justice Ahmadi "ultimately" dismissed the petition observing that the Government of India was capable of realising the dues from Shri Rao (which it had not done in two years) and without recording reasons for dismissing the petition. So much for the vaunted adherence to the twin principles of the "transparency and accountability". It would be seen that insinuations that emerge from these words in writ petitions together with the phrase that CJI browbeated him ex facie scandalise the Court and tend to lower the authority of the Court. As seen, the insinuations tend to bring the court into contempt in the estimate of the general public and that the court lacked fairness, objectivity and dismissed the writ petition for known reasons. it also tends to interfere with the administration of justice and that the court should give reasons last the order be believed to be shrouded with suspicion. Therefore, it is ex facie contumacious. The contemnor seeks to justify his averments under Section 4 of the Act as fair and accurate report of the judicial proceedings and that, therefore, they are not contempt. Even in his modified statement, for his statement that the chief justice of


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India browbeated him in dismissing the writ petition, he stated the "discerned reluctance" on the part of the presiding judge. In other words, his revised imputation compounds the commission of flagrant contempt by substituting the word "discerned reluctance" on the part of the presiding judge. In other words, his revised imputation compounds the commission of flagrant contempt by substituting the word "browbeat" with the words "discerned reluctance". In other words, he attributed motives to the Court for dismissal of the first writ petition. It would, thus, be clear that the contemnor animated to impute motives to the chief Justice of India in the discharge of his constitutional duty of deciding a case. When his grouse stated by the petitioner emphasis supplied] against sri P.V. Narasimha Rao was not redressed exercising the power under Article 32 a result which he wanted, the petitioner contumaciously attributed motives to the Court, in particular to the presiding officer of the Court, the Chief Justice of India and thereby he scandalised the court in the estimate of the general public. We fail to appreciate the stand of the petitioner that Section 4 bails him out and purges from contempt. It would be applicable only to publication of the report of a judicial proceedings fairly and with accuracy to outside the world. There is a distinction between expression in pleading and publication of he report of the judicial proceedings or an order without malice as fair and constrictive criticism to the readers. As stated earlier, fair criticism of the judicial proceedings outside the pleadings of the Court is a


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democratic feature so as to enable the court to look inward into the correctness of the proceedings fn the legality of the orders of the orders of the Court by the Court itself for introspection. But a party has a duty and responsibility to plead as a part of the averments or the prayer in the relevant portion with language befitting with the dignity of the Court and the judicial process and not in self-abuse of the freedom of expression given under Article 19 [1] (a). abuse of the process of the court is a self-evidence. As such Article 19(2) creates an embargo on the freedom of the expression and excludes from its operation the power of contempt of Court under the Act. This Court being court of record, power of this Court under Article 129 is independent and is not subject to Article 19[1] (a), Ex abundanti cautela, Article 19[2] excludes the operation of Articles 19 [1] when speech or expression is trapped in contempt of court or tends to trench into it. When the contempt of court is committed by a litigant, the freedom of expression being contemptuous becomes punishable under Article 129 of eh Constitution de horse the power under Section 12 of the Act. Item 7 relates to the imputation that the Chief justice of India gets no judicial protection unlike the president of India for being prosecuted even while Chief justice A.M. Ahmadi holds office as Chief justice of India and is accordingly liable to prosecution. This bravado not only impinges upon the protection given by Article 124[4] of the Constitution and under relevant provisions of the protection of officials Act ex facie it is an outrageous tendency to lower the


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authority of the Court and interference with judicial administration. The assertion of the petitioner that this is a constitutional conundrum required to be decided by a constitution Bench of this Court highlights contumacious conduct of the contemnor.

In item 8 he attributes that this Court "willfully" and "advertently" [emphasis supplied] violated fundamental rights of the contemnor and of other people in not granting relief of direction to Sri P.V. Narasimha Rao to pay the alleged dues. The word "advertently" was carefully used by the petitioner and the word "willfully" was employed for refusal of the relief. They do emphasise the emphatic tone of he language and the motive of he contemnor and attribute motives to this court that the relief sought for in the first writ petition "advertently" was not granted and was "wilfully" declined and thereby the Chief Justice Ahmadi lost constitutional protection of not being prosecuted. This accusation is a culmination of the contumacious conduct of wanton scandalisation of the Court and reckless denigration. In his amended petition, her further aggravates the contempt stating that the dismissal of the petition by the first court sent wrong signals to the entire judiciary of which justice Ahmadi is the head as chief justice of India. The scurrilous attack, therefore, is not only on Justice Ahmadi as a judge but also as the Chief Justice of India and also as head of the institution of the whole


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country. Thereby he designedly and deliberately allowed himself being brought within ex facie criminal contempt.

Item 9 relates to the accusation "what are the legal consequences of the violation of oath of office by justice Ahmadi". He states in his preliminary submissions that it a constitutional question required to be decided by a constitution Bench. As stated earlier, every question raised need not necessarily be decided unless the case cannot be disposed of without deciding the question for granting or refusing to grant the relief. The oath of office taken by a judge of this Court is not that he should allow every case or dismiss every case but only to uphold the constitution and the laws and to administer justice in accordance therewith in tune with the oath of his office. The protection of Articles 124 [4], 121,211, the judicial officers protection act and the judges (protection) Act is to ensure independence to the judiciary. Threat to judicial process is a challenge to the authority of the court or majesty of justice. It would be ex-facie contumacious conduct.

In item 10 again, the petitioner attributes that justice Ahmadi as Chief justice of India and as a judge of this court deliberately and willfully failed to perform his duties and stultified the performance of fundamental duties by the petitioner. This imputation is the consequence of the dismissal of he first writ petition. Thereby, he seeks stripping of citizenship of justice Ahmadi. It is an unbelievable outrageous


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affront to the majesty of justice on the part of the contemnor and scandalisation of this Court. It tends to lower the dignity and authority of the Court and also sows seeds for persons with similar propensity to undermine the authority of the Court or the judiciary as a whole; he crossed all boundaries of recklessness and indulged in wild accusations. He sought justification in his preliminary submissions that it being a question of law, it does not amount to personal imputation or insinuation. In spite of this Court pointing it out to be scandalous, when the second writ petition was dismissed and his persistence that he stood by those allegations, it does not lie in his mouth to contend either in his preliminary submissions or his modified form that the dismissal of the first writ petition amounts to failure to perform fundamental duties by the CJI and, therefore, it would further compound the contempt.

In imputation 11, the petitioner attributed to the chief Justice of India that he had allowed his so to practise in the supreme Court and to stay with him in his official residence etc. The petitioner sought justification to the said imputation from reports said to have been published in the "India Today" and "The Times of India" by a lady senior advocate of this Court. But he petitioner has not placed on record the said material. Therefore, we do not have the advantage to verify their contents or correctness or otherwise of the statements said to have been published therein. When we pointed out to the


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petitioner whether he had made any independent enquiry, he had reiterated that he relied upon those statements. In other words, by implication, he admitted that he did not make any independent enquiry into the alleged misuse of official facility by the Chief Justice of India in permitting his son to practise in this Court or to reside in his official residence along with him. For the said imputation he said that Justice Ahmadi, the Chief justice of India is liable to be prosecuted under the prevention of Corruption Act and he seeks as a justification the ratio decidendi of Veeraswami's case. it is seen that Veeraswami's case has no application whatsoever. As stated earlier, Article 124 (4) of he constitution read with the Judges [Inquiry] Act prescribes the procedure to take action against a judge of the Supreme Court or of the High Court for proved misbehavior or incapacity. As laid down in Bhattacharjee's case, Bar Association of the concerned Court was given liberty to place any material of the aberration of the conduct of a judge before the CJI for redressal as per the "in-house" procedure laid down therein. For proved misbehavior, the address by each house of parliament to the president for removal of a Judge pursuant to a finding of proved misbehavior or incapacity under the judges (Inquiry) Act by a resolution of not less than two-third of the members of the House and voting by two-third of the House present and an order of removal therein by the president of India is culmination. In Bhattacharjee's case, this Court also laid down that no other authority or person has power to conduct any


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enquiry against the conduct of a judge. Articles 121 and 211 prohibit discussion, in the parliament or in the Legislature of a State, or the conduct of judge of the Supreme Court or High Court respectively. Therefore, when the constitution prohibits the discussion of the conduct of a Judge, by implication, no one has power to accuse a judge of his misbehavior or incapacity except and in accordance with the procedure prescribed in the Constitution and the Judges [Inquiry] act or as per the procedure laid down in Bhattacharjee's case. Irrelevancy of the accusations apart, the prayer for prosecution of the Chief Justice of India under the prevention of Corruption Act is an assault on majesty of justice, affront to authority of law, the gravest contumacious conduct and scurrilous scandalisation of the Court.

Item 12 of the accusation relates to the payment of litigation cost incurred by the contemnor in both The writ petitions and the loss said to have been caused to the public exchequer by non-payment by Sri P.V. Narasimha Rao, from personal pocket of Justice Ahmadi as a Chief Justice for dismissal of the Writ petition. He stated in his preliminary submission that when loss was caused by a public servant in his official capacity to the public exchequer due to his dereliction of duty and under the law it was recoverable from pay or pension of the public servant, on the same analogy Chief justice of India should be liable to make good the loss incurred by him and by the State due to non-payment by Sri P.V. Narasimha Rao. The


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implication is that by judicial act, if a presiding Judge dismisses a petition, he is liable to bear personally not only the costs incurred by the litigant but also the resultant loss to the state with interest payable thereon. This imputation is a deliberate interference with the judicial process and tends to lower the authority of the Court spreading the virus to repeat by drum beats of similar reckless imputations against the judiciary at every forum down to the lower rank of the judiciary spreading rippling effect on independence of the judiciary, authority of the Court and wanton interference with judicial process. It must be held to he a depraved contumacious conduct.

Item 13 relates to the interference with the judicial management of the Court and the duty of a Judge. When an accusation is made against the presiding judge, by implication, until the matter is decided, the presiding officer has to desist from discharging the judicial duties by his proceeding on leave and the senior-most puisne judge would assume the office of the Chief Justice. This is a deliberate interference in the judicial management tending to son disaffecting in the efficacy of dispensation of justice. The further accusation that the Chief Justice of India should not constitute a Bench of the Judges appointed during his tenure so that "he (CJI)" "may not directly or indirectly or indirectly influence any of the Judges hearing the matter". It would, thus, be in unequivocal loud expression that the contemnor


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attributed motives to the CJI that the judges appointed during his tenure as Chief Justice are amenable to his influence in judicial adjudication and would decide the causes by pressure or influence directly or indirectly brought by the Chief Justice of India. Equally, it is a corollary that these judges are amenable to influence and thereby they do not decide the cases posted before them legally and objectively. The Court is subject to pressures and decides cases under influence. These accusations are flagrantly outrageous to scandalise the Court. Though the contemnor has sought leave to modify this statement, ultimately, in his amended statement, he did not touch upon this aspect of the matter. In other words, as stated earlier, he stood by his averments calculatedly made. His justification that justification that justice P.N.Bhagwati (as he then was) decided first S.P. Gupta's case when allegations against CJI Chandrachud were made has no application. In a judicial proceedings taken by this Court, the office of the chief Justice of India was directly involved in appointment of additional judges or extension of their tenure as additional Judges or their transfer. The Chief Justice of India reclused himself from the Bench; resultantly, the senior-most puisne judge came to preside over that Bench. Thus, the contemnor has committed the contempt of this Court under Article 129 of the Constitution.

The question then is: what punishment is to be awarded to the contemnor? As pointed out earlier, the repeated assertions of


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the petitioner that he has no personal gain in the litigation and was actuated by the public duty and laid the petitions, bear no relevance or a defence. It is already held that in a contempt proceedings, the motive, in other words, the mens rea is not relevant. What would be the effect of the act or conduct or imputation is the relevant question for decision? It is true that in an indictable offence under penal law generally mens rea is an essential ingredient and the burden lies on the prosecution to prove it affirmatively. In a contempt proceedings of summary nature, the proof of mens rea is absolutely unnecessary. What is material is the effect or the tendency of the act, conduct or the publication of the words, written, spoken or by signs or by visible representation or otherwise and whether it scandalises or tends to scandalise or lowers or tends to lower the authority of the court or prejudices or tends to prejudice or interfere or tends to interfere with the due course of any judicial proceedings or interferes or tends to interfere with or obstruct the administration of justice in any other manner. The tendency due to the publication, whether by words written or spoken or by signs or by visible representation or otherwise, of any matter or the doing of any other act whatsoever is relevant and material.

It is already noted that while dismissing the second writ petition, this Court has pointed out the scandalous nature of accusations which found place in the second writ petition and when the petitioner persisted for consideration of scandalous


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accusations to lay proceedings against the Chief Justice of India for prosecution and other reliefs referred to hereinbefore, he reiterated that he would stand by those accusations. Resultantly this Court was constrained to be into merits and dismissed the petition and initiated suo motu contempt proceedings and got the notice issued to him pointing out specifically 14 items which constituted scandalous and reckless litigations pleaded with irresponsibility. He reiterated them in his preliminary submissions with further justifications. He admitted that many of them are strident and pungent. He modified some but, as has been pointed out, by compounding further contempt. In spite of the solicitor General pointing out the seriousness of the accusations and the need for the petitioner to have further consultation with a counsel of his choice the contemnor remained unmoved. On April 15, 1996, when the matter came up before this Bench for the first time after the service of notice of the contempt and his filing the preliminary submissions, the petitioner had orally stated that some legal counsels in the Bar suggested to him that he should modify the offending portions noted in the contempt notice. It would, thus, be seen that he appears to have had consultation with some advocates at the Bar and that he did not retract his steps. He did not tender any unconditional apology, though this Court is not bound to accept such an unconditional apology for consideration. Considered from the totality of the facts and circumstances, the gravest magnitude of the contumacious


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conduct of the contemnor, we are left with no opinion but to convict and sentence him to undergo simple imprisonment for a period of three moths with a fine or Rs. 2,000/- payable in a period of months and in case of defaulted, to undergo further imprisonment for a period of one month.

The contempt petition is accordingly disposed of


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CONTENTs Writ Jurisdiction 1. What is Writ? 2. Importance of Writ 3. Type of Writ 4. Writ context to Indian Constitution 2 | P a g e


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Q. What is Writ? Ans. The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The Right to Constitutional Remedies, as we know, is a guarantor of all other fundamental rights available to the people of India. In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose. Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 139 for enforcement of rights other than Fundamental Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. The Constitution broadly provides for five kinds of "prerogative" writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition. 3 | P a g e


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Importance of Writ Article 226 of the constitution, confers the High Courts’ wide powers to issue orders and writs to any person or authority. Before a writ or an order is passed, the party approaching the court has to establish that he has a right and that right is illegally invaded or threatened. High court can issue writ and directions, to any Government, authority or person even beyond its territorial jurisdiction, if the cause of action partly arises within its territorial jurisdiction. Wherever questions of facts are involved normally High Court does not exercise its power under article 226. Similarly, when an alternative remedy is available to the Petitioner, the Courts do not entertain petitions under Article 226. Also, when there is an inordinate delay in approaching the court, the court may not give relief acting under this article. There are various types of Writs: – Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Supreme Court under Article 32 of the Constitution can exercise similar powers. The basic idea in conferring powers under Article 226 upon High Court is to see that the rule of law is maintained in the society. The executive Authorities are to be corrected whenever they transgress the limits of their power and encroach upon the rights of the citizen. Violations of human rights, natural rights etc., are instances where the High Courts’ interfere using this powerful article of the constitution. 4 | P a g e


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Type of Writ There are five types of Writs - Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto. 1. Habeas Corpus "Habeas Corpus" is a Latin term which literally means "you may have the body." The writ is issued to produce a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal. The incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellant’s freedom”. The writ of Habeas Corpus is a process for securing liberty to the party for illegal and unjustifiable detention. It objects for providing a prompt and effective remedy against illegal restraints. The writ of Habeas Corpus can be filled by any person on behalf of person detained or by the detained person himself. It is a judicial order issued by Supreme Court or High Court through which a person confined may secure his release. The writ of Habeas Corpus can be filed by any person on behalf of the other person. In Icchu Devi v. Union of India, the Supreme Court held that in a case of writ of Habeas corpus there are no strict observances of the rules of burden of proof. Even a post card by any pro bono publico is satisfactory to galvanize the court into examining the legality of detention. In A.D.M. Jabalpur v. Shivakant Shukla, it was observed that “the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention whether in prison or private custody. By it the High Court and the judges of that court at the instance of a subject aggrieved command the production of that subject and inquire into the cause of his imprisonment. If there is no legal justification for that detention, then the party is ordered to be released.” 5 | P a g e


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It is an extraordinary remedy at law. Habeas corpus in Latin means “May you have the body” is a writ (legal action) which requires a person under arrest to be brought before a judge or into court. This ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner’s aid. This right originated in the English legal system, and is now available in many nations. These Writs are filed nearly everyday in nearly every jurisdiction. 6 | P a g e


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2. Mandamus Mandamus is a Latin word, which means "We Command". Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is Issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so. Mandamus is a judicial remedy which is in the form of an order from a superior court to any Government agency, court or public authority to do or forbear from doing any specific act which that body is obliged to do under the law. The writ of mandamus is issued whenever the public authorities fail to perform the statutory duties confirmed on them. Such writ is issued to perform the duties as provided by the state under the statute or forbear or restrain from doing any specific act. The first case reported on the writ of mandamus was the Middle tone case in 1573 wherein a citizen’s franchise was restored. The writ of mandamus can be issued if the public authority vested with power abuses the power or acts mala fide to it. In Halsbury’s Laws of England, it is mentioned that, “As a general rule the order will not be granted unless the party complained of has known what it was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.” A writ of mandamus is an order issued by a superior court to a lower court or other entity commanding the lower court, corporation or public authority to perform or not perform specific acts. Rules applying to a mandamus include: The requested act must be used as a judicial remedy. The act must conform to statutorily-authorized provisions. The write must be judicially


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enforceable and protect a legal right. Three types of mandamus are utilized, depending upon the legal circumstances. § The alternative mandamus demands a defendant to appear before court, perform an act or show cause for not having done so. § The peremptory mandamus is used when a defendant fails to comply with an alternative mandamus and which is an absolute command for performance. 7 | P a g e


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§ Third, the continuing mandamus requests an officer or authority to perform its activities expeditiously for an indefinite period of time in order to prevent a miscarriage of justice. (Practical example is the case of the Kanchi Shankaracharya who got entangled in a criminal case. Looks like the police froze the accounts of the trust he runs and subsequently, the writ mandamus was filed and upheld by the Chennai High Court.) 8 | P a g e


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3. Certiorari Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi judicial authority. It is a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court’s decision. Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court. A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court. However, unlike a writ of prohibition, superior courts issue writs of certiorari to review decisions which inferior courts have already made. The writ of prohibition is the counterpart of the writ to certiorari which too is issued against the action of an inferior court. The difference between the two was explained by Justice Venkatarama Ayyar of the Supreme Court in the following terms: “When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari and on that an order will be made quashing the decision on the ground of want of jurisdiction.” 9 | P a g e


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There are several conditions necessary for the issue of writ of certiorari. 1. There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially. 2. Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer. 3. The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case. 10 | P a g e


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4. Prohibition The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop. The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure .’ In East India Commercial Co. Ltd v. Collector of Customs , a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise. A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge from hearing a case in which he is personally interested. The term “inferior courts” comprehends special tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the property or rights of the citizen and act in a summary way or in a new course different from the common law. It is well established that the writ lies only against a body exercising public functions of a judicial or quasi- judicial character and cannot in the nature of things be utilised to restrain legislative powers. 11 | P a g e


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These Writs are issued as “alternative” or “peremptory.” An alternative Writ directs the recipient to immediately act, or desist, and “Show Cause” why the directive should not be made permanent. A peremptory Writ directs the recipient to immediately act, or desist, and “return” the Writ, with certification of its compliance, within a certain time. The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into decision, writ will not lie. Difference between Prohibition and Certiorari: 1. While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced. 2. Both the writs are issued against legal bodies. 12 | P a g e


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5. aThe Writ of Quo-Warranto The word Quo-Warranto literally means "by what warrants?" or "what is your authority"? It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age. Conditions for issue of Quo-Warranto 1. The office must be public and it must be created by a statue or by the constitution itself. 2. The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another. 3. There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office. 13 | P a g e


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Writ context to Indian Constitution The makers of the Constitution have adopted the English remedies in the Constitution under Articles 32 and 226. There has been specifically made provisions in the Constitution which empowers the Supreme Court and High Courts to issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. The fundamental rights which are inalienable sacrosanct in nature and character which were conceived in national and public interest could be illusory if there is no constitutional machinery provided for its enforcement. Unless such constitutional remedies for its enforcement is not provided the rights guaranteed by part III of the Constitution cannot be ever implemented by the citizens. Article 32 contained in Part III is itself a fundamental right given to the person under the Constitution. Similarly Article 226 of the Constitution is conferred on the High Courts to exercise its prerogative writs which can be issued against any person or body of person including the government. The distinction between the two remedies is very negligible. The remedy under Article 32 is confined to enforcement of fundamental rights whereas Article 226 is available not only against the enforcement of fundamental rights but also for any other purpose. Thus the constitution provides the discretionary remedies on the High Court and the Supreme Court. In the absence of the provisions of such remedies no one can enforce its rights given. Thus wherever there is a right there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi remedium.’ One of the principle makers of the constitution, Dr. Ambedkar has given the prime importance to Article 32 among all other articles from the Indian Constitution. He has referred that, “It is the very soul of the Constitution and the very heart of it .” In Devilal v. STO , it has been marked that, “There can be no doubt that the Fundamental Rights, guaranteed to the citizens are a significant feature of our Constitution and


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the High Courts under Article 226 are bound to protect these Fundamental Rights.” 14 | P a g e


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Justice Subbarao in the case of Basheshwar Nath v. Commissioner, Income Tax stated that, “A large majority of people are socially poor educationally backward and politically yet not conscious of their rights, cannot be pitted against the state or the institution or they cannot be put on equal status with the state or large organisations. The people are requires to be protected from themselves. It is therefore the duty of the court to protect their rights and interests. Fundamental rights are therefore transcendental in nature and created and enacted in national and public interest and therefore they cannot be waived.” In Daryao v. State of U.P., it was held that the right to obtain a writ must equally be a fundamental right when a petitioner presents the case. Thus, it cannot merely be considered as an individual’s right to move the Supreme Court but it is also the duty and responsibility of the Supreme Court to protect the fundamental rights.

PROFESSIONAL ETHICS & BAR-‐BENCH RELATIONS

TOPIC – Admission, Enrolment & Rights of Advocates

Section 24 of Advocates Act, 1961 lays down the categories of persons who are eligible

being admitted as advocates on the State roll. The persons applying for such admission

has to fulfil certain conditions briefed below:

a) Citizen of India – Sec 24(1)(a) of the Act provides that the person concerned should

be a citizen of India. Even the nationals of other country are permitted to practice

law in our country and may be admitted as an advocate on a State roll; if citizens of

India, duly qualified, are permitted to practice law in that other country. The person

desiring to practice law in India as such has to fulfil the other conditions as well as


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have been laid down in Advocates Act, 1961.

b) Age -‐ Sec 24(1)(b) of the Act provides that the person concerned should have

completed the age of 21 years.

c) Degree of Law -‐ Sec 24(1)(c) of the Act provides that the person should have

obtained the degree in law -‐(i) before the 12th day of March, 1967, from any University in the territory of India; or

(ii) before the 15th August, 1947, from any University in any area which was comprised

before that date within India as defined by the Government of India Act, 1935; or

(iii) after the 12th day of March, 1967, save as provided in sub-‐clause (iiia), after

undergoing a three year course of study in law from any University in India which is

recognised for the purposes of this Act by the Bar Council of India; or

(iiia) after undergoing a course of study in law, the duration of which is not less than

two academic years commencing from the academic year 1967-‐68 or any earlier

academic year from any University in India which is recognised for the purposes of this

Act by the Bar Council of India; or

(iv) in any other case, from any University outside the territory of India, if the degree is

recognised for the purposes of this Act by the Bar Council of India or; he is barrister

and is called to the Bar on or before the 31st day of December, 1976 or has passed the

article clerks examination or any other examination specified by the High Court at

Bombay or Calcutta for enrolment as an attorney of that High Court; or has obtained


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such other foreign qualification in law as is recognised by the Bar Council of India for

the purpose of admission as an advocate under this Act;

d) Fulfilment of Other Conditions -‐ Sec 24(1)(e) of the Act provides that the person

concerned should fulfil such other conditions as may be specified in the rules made

by the State Bar Council;

e) Payment of Stamp Duty -‐ Sec 24(1)(f) of the Act states that the person concerned

has to pay in respect of the enrolment, stamp duty, if any, chargeable under the

Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee of Rs. 600/-‐ (Rupees Six

Hundred Only) payable to the State Bar Council and Rs. 150/-‐ (Rupees One

Hundred Fifty Only) to the Bar Council of India, by way of a bank draft drawn in

favour of that Council:

Provided that where such person is a member of the Schedule Castes or the

Schedule Tribes and produces a certificate to that effect from such authority as may

be prescribed, the enrolment fee payable by him to the State Bar Council shall be

Rs.100/-‐ (Rupees One Hundred Only) and Rs. 25/-‐ (Rupees Twenty Five Only) to

the Bar Council of India.

The Bar Council may prescribe the qualifications for the purpose of admission as an

advocate on a State roll in addition to qualifications provided under Section 24(1)(c) but it

would not mean that such qualification would go counter to the section as mentioned

above. The Advocates Act, 1961 expressly authorises the Bar Council of India to add such


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other conditions by making appropriate rules.

The provisions of Section 24(1)(f) of the Act fixes enrolment fee which is not

unconstitutional. The Bar Council of India is entitled to charge enrolment fee within the

limits determined by the Parliament. There is no constitutional vice in fixing the enrolment

fee to the extent it has been fixed by Parliament under the Act. The Bar Council, in the

instant case, was not permitted to recover such renewal fee from Advocates. It could

recover renewal fee only when authorised by an Act of Parliament.

According to Sec 25 of the Advocates Act, 1961, the application for admission as an

advocate shall be made to the State Bar Council within whose jurisdiction the applicant

wishes to practice.

Reference of application to Enrolment Committee: Sec 26(1) of the said Act contains

the provision that a State Bar Council shall refer every application for admission as an

advocate to its enrolment committee, and subject to the provisions of sub-‐sections (2) and

(3) and to any direction that may be given in writing by the State Bar Council in this behalf,

such committee shall dispose of the application in the prescribed manner:

Provided that the Bar Council of India may, if satisfied, either on a reference made to it in

this behalf or otherwise, that any person has got his name entered on the roll of advocates

by misrepresentation as to an essential fact or by fraud or undue influence, remove the

name of such person from the roll of advocates after giving him an opportunity of being

heard.

Refusal of Application: Sec 26(2) Where the enrolment committee of a State Bar Council


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proposes to refuse any such application, it shall refer the application for opinion to the Bar

Council of India and every such reference shall be accompanied by a statement of the

grounds in support of the refusal of the application.

Disposal of Application in conformity with Opinion of Bar Council of India: Sec 26(3)

The enrolment committee of a State Bar Council shall dispose of any application referred

to the Bar Council of India under subsection (2) in conformity with the opinion of the Bar

Council of India.

Communication of Refusal: Sec 26(4) Where the enrolment committee of a State Bar

Council has refused any application for admission as an advocate on its roll, the State Bar

Council shall, as soon as may be, send intimation to all other State Bar Councils about

such refusal stating the name, address and qualifications of the person whose application

was refused and the grounds for the refusal.

Disqualifications for Enrolment: (Sec 24A) of the Advocates Act, 1961 lays down

certain conditions, the existence of which may disqualify a person from being enrolled as

an advocate as below –

(a) The person concerned should not be convicted of an offence involving moral

turpitude;

(b) The person concerned should not be convicted of an offence under the

provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);

(c) The person concerned should not be dismissed or removed from employment or

office under the State on any charge involving moral turpitude.


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Provided that the disqualification for enrolment as aforesaid shall cease to have effect after

a period of 2 years has elapsed since his release or dismissal or, as the case may be,

removal.

The legislature, even at that stage does not appear to have thought of introducing a

statutory amendment to impose any ceiling limit based on the introduction of an upper age

to operate as a disqualifying factor against a person from getting enrolled into the State

rolls.

In the case of Sampath Kumar J Versus Bar Council of India (1995) before Madras

High Court,

Facts: The rule which was the effect of putting an axe on the right of a person, who

otherwise eligible to be enrolled as an advocate has the consequence of substance,

prescribing disqualification. The prescription of an upper age with ceiling limit of 45 years

per se operates, as a permanent disqualification for a person otherwise entitled to get

enrolled as an advocate.

Held that: It may not be permissible for the Bar Council of India to superimpose a further

qualification by putting an upper age limit so as to disqualify or render ineligible a person,

though otherwise qualified from being enrolled merely on grounds of having reached a

particular maximum age limit prescribed under rules.

As per (Sec 26A) of the Advocates Act, 1961, a State Bar Council may remove from the

State roll the name of any advocate who is dead or from whom a request has been

received to that effect.


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Enrolment of an Advocate: As per the (Section 22) of the Advocates Act, 1961, the

State Bar Council issues a certificate of enrolment. It is to be issued in the prescribed form

to every person whose name is entered in the State roll of advocates.

If there is any change in the place of permanent address of the advocate the same is to be

intimated to the State Bar Council within 90 days of such change. The enrolment as an

advocate cannot be denied to a law graduate, merely because he/she had undertaken

some other course of instruction during the time when he/she was studying in law classes

for a law degree.

It has been held by the Hon’ble Supreme Court of India in case reported in 1973, that Uttar

Pradesh State Legislature is competent to legislate and impose stamp duty on the

certificate of enrolment under (Sec 22) to be issued by the State Bar Council of Uttar

Pradesh.

Classes of Advocates: As per the Sec 16(1) of the Advocates Act, 1961, there are two

classes of advocates, namely Senior Advocates and Other Advocates. Sec 16(2) states

that, if the Supreme Court or a High Court is of the opinion that a particular advocate

possesses ability, standing at the Bar or special knowledge or experience in law, and if the

advocate concerned consents so, he/she may be designated as Senior Advocate.

Certain restrictions for Senior Advocates: According to Sec 16(3) of the Advocates Act,

1961 the Bar Council of India may prescribe certain restrictions in the matter of practice of

senior advocates. They are as below –

Ø An advocate who has been designated as senior advocate cannot file a


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vakalatnama or act in any Court or Tribunal or before any person or authority as laid

down in Section 30 of the said Act.

Ø The senior advocate cannot directly appear before the Court or Tribunal or before

any person or authority mentioned in Section 30 of the said Act. He can appear only

through an advocate in Part-‐II of the State roll.

Ø The senior advocate can neither accept instructions to draft pleading or affidavits,

advice, on evidence, nor he can do any drafting work of an analogous kind in any

Court or Tribunal or before any person or authority as mentioned in Section 30, nor

can he undertake conveyance work of any kind.

Ø A senior advocate is free to make concessions or give undertaking in the course of

argument on behalf of his clients provided there are instructions from junior

advocate.

Ø A senior advocate is not free to directly accept from any client any brief instructions

for the purpose of appearing before any Court or Tribunal or before any person or

other authority in India.

Ø The advocate who has acted as a junior advocate in a given case cannot after his

becoming a senior advocate advises on grounds of appeal in a Court of appeal or in

the Supreme Court or an advocate in Part-‐II of the State roll.

Ø A senior advocate may in recognition of the services rendered by an advocate in

Part-‐II of the State roll appearing in any matter pay him a fee which he considers

reasonable.


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Maintaining Roll of Advocates: Section 17(1) of the Advocates Act, 1961 states that the

Bar Council of every State has to prepare and maintain a roll of advocates where in the

names and addresses of the following persons are entered –

(a) all persons who were entered as advocates on the roll of any High Court under the

Indian Bar Councils Act, 1926 (38 of 1926), immediately before the appointed day

including persons, being citizens of India, who before the 15th day of August, 1947, were

enrolled as advocates under the said Act in any area which before the said date was

comprised within India as defined in the Government of India Act, 1935, and who at any

time express an intention in the prescribed manner to practise within the jurisdiction of the

Bar Council;

(b) all other persons who are admitted to be advocates on the roll of the State Bar Council

under this Act on or after the appointed day.

According to Sec 17(2) of the said Act, this roll of advocates is divided into 2 parts. The

first part is meant for the names of senior advocates and the second part is meant for the

names of other advocates.

According to Sec 17(4) of the said Act specifically provides that no person shall be

enrolled as advocate on the roll of more than one State Bar Councils.

The rules as regards to preparation and maintenance of the State roll are mentioned in

Chapter I of Part V of the Bar Council of India Rules as below –

1 (a) The Council may, from time to time, give directions as to the manner in which

the State Council shall prepare and maintain the rolls under Section 17 of the Act.


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(b) The copies of the State rolls to be sent under Section 19 of the Act shall be in

Forms ‘B-‐1’ & ‘B-‐2’ and shall contain such further details as the Council may

specify.

2 Particulars of transfers under Sec 18 of the Act, cancellations directed under the

proviso to Sec 26(1) of the Act, punishments imposed by an order under Chapter V,

particulars as to result of appeals and relevant decisions of the Courts, and such other

matters which the Council may specifically direct, shall be noted in the said rolls.

3 Save as otherwise directed by the Council; no other particulars shall be entered in

the said rolls.

4 Every page of the roll shall bear the signature or a facsimile thereof, of the Secretary

or other person authorised by the State Council.

5 Authenticated copies of any additions or alterations made in the roll shall be sent to

the Council without delay.

Transfer of Name from One State Roll to another State Roll: According to Sec 18(1) of

Advocates Act, 1961, where the name of any person whose name is entered as an

advocate on the roll of any State Bar Council may make an application in the prescribed

form to the Bar Council of India for the transfer of his name from the roll of that State Bar

Council to the roll of any other State Bar Council and, on receipt of any such application

the Bar Council of India shall direct that the name of such person shall without the

payment of any fee, be removed from the roll of the first mentioned State Bar Council and

entered in the roll of the other State Bar Council and the State Bar Councils concerned


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shall comply with such direction.

Provided that where any such application for transfer is made by a person against whom

any disciplinary proceeding is pending or where the Bar Council of India is of the view that

the application for transfer has not been made bonafide, and that the transfer should not

be made, the Bar Council of India may, after giving the person making the application an

opportunity of making a representation in this behalf, reject the application.

According to Sec 18(2) of Advocates Act, 1961, the transfer of name in no way affects the

seniority of the advocate, as the concerned advocate shall retain the same seniority in the

latter roll to which he was entitled in the former roll. It is to be noted that the advocate

applying has not to pay the fee of any kind for transferring of his name from one State roll

to another State roll.

The language of Sec 19 of the Advocates Act, 1961 lays down that every State Bar

Council shall send to the Bar Council of India an authenticated copy of the roll of

advocates prepared by it for the first time under this Act and shall also thereafter

communicate to the Bar Council of India all alterations in and any additions to such roll, as

soon as the same have been made.

The provision of Sec 20(1) of the said Act lays down that every advocate who was entitled

as of right to practise in the Supreme Court immediately before the appointed day and

whose name is not entered in any State roll may, within the prescribed time, express his

intention in the prescribed form to the Bar Council of India for the entry of his name in the

roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that


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the name of such advocate shall, without payment of any fee, be entered in the roll of that

State Bar Council, and the State Bar Council concerned shall comply with such direction.

According to Sec 20(2) of the said Act, any entry in the State roll made in compliance with

the direction of the Bar Council of India is to be made in order of seniority. If an advocate

as is referred to in Sec 20 of the Advocates Act, 1961, omits or fails to express his

intention within the prescribed time, his/her name shall be entered in the roll of the State

Bar Council of India.

Advocates only recognised class of person entitled to practice law: The provisions of

Sec 29 of the Advocates Act, 1961, lays down that “subject to the provisions of this Act

and any rules made there under, there shall, as from the appointed day, be only one class

of persons, entitled to practice the profession law, namely advocates.

Right of Advocates to Practise: As per Sec 30, an advocate whose name is entered in

the State roll becomes entitled as of right to practise throughout the territories to which this

Act extends –

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any authority or person before whom such advocate is by or under any

law for the time being in force entitled to practise.

Appearance of Non-‐Advocate: Under Sec 32 of the Advocates Act, 1961 a discretionary

power is given to the Court to permit appearance to any non-‐advocate for a party. Sec 32

restricts the power of the Court to permit any non-‐advocate only to appear on behalf of the


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party in any particular case.

In the instant case, the petitioner had not filed the petition in public interest and did not

disclose the circumstances which prevented the affected persons from approaching the

Court. In discharge of his professional obligations, the petitioner-‐advocate is not obliged to

file the writ petition on behalf of the clients. No circumstances were mentioned in the

petition which allegedly incapacitated the affected person from filing the writ petition. Sec

30 of the Advocates Act, 196 only entitles an advocate to practise the profession of law

and not to substitute himself in his own name, being not a part of the professional

obligation of the Advocate; the High Court was justified in dismissing the writ petition

holding that the petitioner-‐advocate had no locus standi.

Right to advocacy is a Statutory Right: It appears from the provisions of Secs 29 & 30

that the advocates have been conferred right to practise not only in all Courts including the

Supreme Court but also before any Tribunal or person legally authorised to take evidence

and also before any other authority or person before whom such advocate is by or under

any law for the time being entitled to practice. Therefore, the right of an advocate to

practise profession of law is statutory right and not a fundamental right.

A private person who is not an advocate and not a pleader enrolled, cannot be permitted

to argue and plead the case for a third party/person on the basis of attorney unless

permitted under special circumstances by the Court.

Power of Court to permit appearance of an individual: As regards the entitlement of an

individual to appear before the Court in a given case, Sec 32 of the Advocates Act, 1961


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lays down that it is within the power of the Court, authority or person to permit any person

to appear before it or him in a particular case. The provisions confer a monopoly right of

pleading and practising law only on the enrolled advocates. A private person who is not an

advocate cannot or has no right to argue for a party. He/she must get the prior permission

of the Court for which motion must come from the party itself. It is open to the Court to

grant or withhold or withdraw permission in its discretion.

Right to Practise is different from Right of Appearance: Right to practise is different

from the right of appearance in a particular case. The right to practise is a right given to the

advocate to practise the profession of law before all Courts, Tribunals, authorities etc. The

right of appearance in a particular case depends upon the permission granted by the Court

under Sec 32 of the Advocates Act, 1961 which is an exception to the right of practise by

the advocates.

Permission once granted to appear may be withdrawn:

In the case of Harishankar Rastogi Versus Giridhari Sharma (1978)

Hon’ble Supreme Court held that a private person, who is not an advocate, has no right to

barge into the Court and claim to argue for a party. He must get the prior permission of the

Court, for which the motion must come from the party himself. It is open to the Court to

grant or withhold the permission in its discretion. In fact, the court may even after grant of

permission, withdraw it halfway through if the representative proves himself reprehensible.

The antecedents, the relationship, the reason for requisitioning the services of the private

person and a variety of the other circumstances must be gathered before the grant or


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refusal of permission.

Advocates alone entitled to Practise: As per Sec 33 of Advocates Act, 1961 it is clear in

language laying down that “except as otherwise provided in this Act or in any other law for

the time being in force, no person shall on or after the appointed day, be entitled to

practise in any Court or before any authority or person unless he/she is enrolled as an

advocate under the said Act”.

A recognised representative cannot claim to appear as of right. Previous permission of

Court is necessary. There is no warrant whatsoever to place a recognised agent holding a

general power of attorney to take proceedings in Courts in the same position as an

advocate to whom a vakalatnama has been given.

The legal capacity of an advocate to practise the profession of law in Court and his

competency to act in Court for his client are not derived from any contract but from his

legally recognised status as an advocate. On account of his status, his duties are threefold

– to the client, to the Court, and to the public.

The expression “practise” clearly contemplates practising as a profession for gain. That

neither precludes a party in person in Court to argue his own case or appoint an agent

who is acceptable to the Court to present his cases other than a lawyer. Prohibition is to

practise as a profession and not for mere appearance in an isolated case.

The right of the advocates to practise in all Courts including Supreme Court as of right is

always subject to the rule making power of the High Court laying down conditions subject

to which an advocate shall be permitted to practise in the High Courts and the Courts


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subordinate thereto.

LEGAL%ETHICS% ACCOUNTABILITY%FOR% LAWYERS… 710 PROFESSIONAL ETHICS by Mr. Lokendra Sing… · janhit college of law ! 1! legal%ethics%! accountability%for% % lawyers%and% % bench4bar%

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