1

Q.1. What are the objects of professional ethics?

Ans. The primary object of ethics in advocacy is to maintain the dignity and
integrity of the legal profession. Legal ethics ensure that the legal
fraternity serves the society honestly and present each case in the
most formal way possible so that the litigants have faith on not only
their legal representative or lawyer but also on the justice system. Not
only the lawyer but also the judge needs to have a sense and
understanding of legal ethics in order to maintain the functionality of
Indian Courts. One of the fundamental aims of legal ethics is to seek a
spirit of friendly cooperation amongst the bar, bench and the clients.
Standards of ethics exist between the lawyer and his client, opponent
and the witness being questioned and of course between the Judge
and the lawyer.
The legal profession has been created by the state to serve the litigatory
needs of the public. Thus, it is not a business it’s a profession.
Consequently, there is 3 fundamental basis of legal ethics that gives
an insight into the essence of the legal profession:
1. The organisation of its members in order for the performance of
their function;
2. Maintain certain standards at both the intellectual and ethical
level to preserve the dignity of the profession;
3. Pecuniary gains must be subordinate to the client’s interest.
 2
Q.2. What are the Advantage of having codified Professional Ethics?
Ans. Advantages of Having Codified Professional Ethics: There are 4
important advantages of having a code for professional ethics to be
followed in Indian Courts:
 Firstly, a Code of Professional ethics provides a sense of social control.
Every now and then each profession and industry (here the legal
profession) a newcomer enters it. Thus, codified professional ethics
makes the newcomer aware of the standards that need to be met with,
in the profession. A Codified form of ethics also keeps the old members
of a professional fraternity in line according to the standard of social
requirement and expectations.
 Secondly, without a code of professional ethics the government or by
society may try to control the standards through its agencies. Thus to
prevent such control and interference, a code is required. Therefore, it
is believed and practised that in order to standardise a certain set of
rules, protocols and ethics, it should be done by the profession itself
so that governmental interference is kept away.
 Thirdly, higher standards of conduct can only be developed by
codifying it. The codes bring about a sense of permanence and
crystallize the standard of best ethics about the profession.
 Fourthly, the existence of code will have great educative, corrective
and appreciable value for both the lawyers and the laymen.


 3

Q.1. What is the need of the Professional Ethics?

Or
What is the nature of Professional Ethics?
Ans. Nature of Professional Ethics:
Every profession has its own code of ethics. The legal profession in India
is highly competitive and dynamic. As it has been thoroughly discussed
above that the standard of ethics of the legal profession is codified under
Indian law.
The nature of professional ethics is such that it is the essence of the legal
profession. It encourages a Lawyer to act in a dignified manner that is befitting
of such a noble profession. Thus, in order to maintain its dignity and integrity,
professional ethics were codified. It brings upon accountability upon the
legal professionals for dishonest, irresponsible and unprofessional behaviour.
Furthermore, advocates can lose their license (to practice at court/firm) if they
resort to unethical practices that endanger and tarnish the dignity of the legal
profession.
Even in general not only the legal profession but also various other
professions like the medical profession in India have codified standards of
ethics. The Advocates Act, 1961 and Bar Councils Act, 1926 lay down the
professional ethics that need to be followed by lawyers. On the other hand
the Indian Medical Councils Act, 1956 and the Indian Medical Council
(Professional Conduct, Etiquett and Ethics) Regulations, 2002 governs the
standard of professional ethics that needs to be followed by medical
professionals.
The main intent behind these legislations is to prevent the exploitation of
clients and patients or anyone at the receiving end of their services and of
course to maintain the integrity of the profession. Just like every other
provision and statute these rules and codes are not absolute in nature and
can be amended or repealed as and when need be felt.
Need for Professional ethics in Indian Courts: The need for codified
legal ethics was well explained by the American Bar Association Committee.
Law is a keystone to the arch of Government. Thus, a proper code is needed
in order to prevent control of the judicial system by craft, greed or unworthy
motives. Ethics is a way by which an advocate owes a duty to the Bar, a judge
to the Bench of justice. It shall be noted that litigants or clients whom advocates
represent don’t exactly owe the same standard of ethics as an advocate or a
judge in a Court. The duty to prevent the client from resorting to unfair practices
is also shouldered by the Bar and the Bench.
 4
The committee also observed that a high standard of legal ethics must be
codified in order to further the administration of justice in a pure and unsullied
manner. Every lawyer must follow the prescribed legal ethics in order to retain
membership in a professional organisation.
In India for lawyer also a set of guidelines have been laid down so far as
professional ethics are concerned, which defines their conduct in the
profession that is highly competitive and dynamic. Indian law requires lawyers
to observe professional ethics to uphold the dignity of the profession. Lawyers
are expected to follow professional ethics and that they are accountable for
dishonest, irresponsible and unprofessional behaviour. Further, lawyers 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.
Sir Sivaswamy has rightly observed that, “it is of course true that men
are not necessarily made moral by courses of lectures on ethics but it must be
remembered that lapses from the traditional standard are often due to
ignorance and that the diffusion of knowledge of rules applicable to the
professions must contribute to the maintenance of a high standard of integrity.
The observation of the canons of legal profession will, no doubt, raise the
profession in the publication estimation”.
Many professions in India, such as legal and medical professions have
codes of practice that members of the profession must follow. For advocates
it is the Advocates Act and Bar Councils Act, whereas for doctors it’s the
Indian Medical Councils Act, 1956 and Indian Medical Council (Professional
conduct, Etiquette and Ethics) Regulations, 2002. These legislations aim at
preventing exploitation of clients and patients; and at the same maintaining
the integrity 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. 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 effect only
when they are approved by the Chief Justice of India. It has also 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.
On codification of ethics law, Justice P.B. Majmudar said, “I feel the
rules governing ethics of lawyers should never have had to be codified but
 5
there are black sheep in every profession”. Chapter II of part VI of the Rules
framed by the Bar Council of India deals with the standards of professional
Conduct and Etiquette. These rules specify the duties of an advocate to the
Court, client, opponent and colleagues, etc. It’s Preamble states that, “An
advocate shall, at all times, comport himself in a manner befitting his status as
an officer of the Court, a privileged member of the community, and a gentleman,
bearing in mind that what may be lawful and moral for a person who is not a
member of the Bar, or for a member of the Bar in his non-professional capacity
may still be improper for an advocate. Without prejudice to the generality of
the foregoing obligation, an advocate shall fearlessly uphold the interests of
his client and in his conduct conform to the rules hereinafter mentioned both
in letter and in spirit.
Importance of Professional Ethics in Legal Profession:
First, because lawyers and judges are integral to the working-out of the
law and the Rule of Law itself is founded on principles of justice, fairness and
equity. If they do not adhere and promote these ethical principles then the law
will fall into disrepute and people will resort to alternative means of resolving
conflict. The Rule of Law will fail with a rise of public discontent.
Second, lawyers are professionals. This concept conveys the notion that
issues of ethical responsibility and duty are an inherent part of the legal
profession. It has been said that a profession’s most valuable asset is its
collective reputation and the confidence which that inspires. The legal
profession especially must have the confidence of the community.
Justice Kirby of the Australian High Court once noted: The challenge
before the legal profession is to resolve the basic paradoxes which it faces to
reorganize itself in such a way as to provide more effective, real and affordable
access to legal advice and representation by ordinary citizens. To preserve
and where necessary, to defend the best of the old rules requiring honesty,
fidelity loyalty, diligence, competence and dispassion in the service of clients,
above mere self-interest and specifically above commercial self-advantage.
Third, because lawyers are admitted as officers of the court and therefore
have an obligation to serve the court and the administration of justice. Thus,
fundamental aim of legal ethics is to maintain the honour and dignity of the
law profession, to secure the spirit of friendly cooperation between the Bench
and the Bar in the promotion of higher standard of justice. The legal profession
is not a business but a profession created by state for public good.
Q.2. What is Professional Conduct and professional Ethics?
Or
Are Professional conduct and Professional Ethics are same terms?
Ans. Professional Conduct & Professional ethics: There lies a necessary
distinction between professional ethics and professional conduct. The primary
difference is between the obligation to be followed by a member of the
 6
profession. In professional conduct, refers to acts or steps taken under some
statutory obligation or contractual powers. Such an obligation could be a
legal obligation. On the other hand, in professional ethics, one is expected to
follow a moral obligation.
Bridging the Gap between Legal Ethics and the Legal Profession in
Indian Courts: The traditional approach to legal education is that of the
application of established legal rules and principles to a certain set of facts in
a case. However, with the commencement of law over time it was realised that
the mere existence of laws cannot bring justice due to a number of reasons.
Firstly, legal services are not as affordable as it should be for the whole
economic spectrum of citizens to be able to avail them. Especially in a poverty-
stricken country like India, the rights of the poor take a backseat due to lack of
affordability. Secondly, legal aid services are also limited. Thirdly, laws are not
completely comprehensive and coherent and judges are not consistent with
their reasoning. Lastly, one of the biggest concerns is the lack of ethics
portrayed not only by the police but also the lawyers.
Thus, to bridge the gap between ethics and the legal profession, the
codification of the standard of ethics was a way to prevent the above-stated
concern. However, the question raised is how far is it successful in protecting
the dignity of the profession?
It shall be noted that the institutions providing legal education often
neglect the concept of ethical lawyering. Therefore, it is argued that in order
to produce good ethical lawyers who would serve the interest of the country,
it can only be possible if institutions providing legal education educate the
young lawyers to be ethical. The legal curriculum must give importance to
socio-legal issues and contemporary problems of society that can be solved
through an ethical and realistic perspective of everything. Law schools are
somehow uncharacteristically silent on the subject of duties to court and
client and general responsibilities towards justice.
On the other hand, it is also argued that ethics cannot be taught and it is
up to every. Lawyer’s personal experience that will help them develop such
ethics. The problem with this statement is that it ignores the fact that before
one enters a profession, one can be misguided. Later on, the Bar is accused of
lowering standards of professional ethics and discipline for failing to provide
moral and legal leadership when an advocate or a judge misbehaves or uses
unfair means to get by their respective cases.
The traditional way of teaching professional ethics in Indian law schools
is not doing enough. Young lawyers need more insight into the fact as to why
legal ethics is more important than subject knowledge. Legal knowledge can
be gained (much more than the knowledge gained in law schools) through
practice and experience. However, a sense of ethics should be developed
earlier than that so that an intellectual legitimacy is created.
 7
Traditional legal education must take up a humanistic approach and shall
try to impart values into young budding lawyers as their contribution to the
future is going to become of great consequence. There must exist a more
holistic and humanising outlook towards the teaching and studying of law.
Even after legal ethics are codified in India, lawyers still practice unfair means
to seek favourable outcomes for their cases. The Code cannot bring about a
sense of ethics unless it is imparted to the law students at the very earliest.
There are a few positive examples, where some progressive law teachers have
recognised the need for law students to gain a deeper understanding of ethics
and its needs in the legal forefront.
The present stance is that with changing times the existing methods used
to impart legal knowledge need to change. As stated above there is a gap
between legal ethics and the legal profession. Thus, the ‘vectors’ need to
converge. The law schools need to understand that along with the different
disciplines in law, such as collaborative law, preventive law, problem-solving,
holistic justice, restorative justice etc. are all meaningless if the knowledge is
not implemented with morals, values, and ethics.
A sea change in the traditional methods of legal education can bring
about an integration of personal and professional values along with the
assimilation of analytical thinking/application of legal principles and emotional
intelligence. A mere codification of legal ethics will not make the young lawyers
realise the nobility of the legal profession or the dignity of the Bar.
Q.3. Explain the fiduciary relationship between Advocate and Client?
Or
What are the duties of an Advocate towards its client?
Ans. The fiduciary relationship between Lawyer and Client: On a general
note, a fiduciary relationship is that of trust and confidence. Any client expects
their lawyer to maintain a high degree of fidelity and good faith as their
confidential information rests with the lawyer as they need to know the details
of the case in order to find out the best way to pull their clients out of the legal
trouble or query. In the case of V.C. Rangadurai v. D. Gopalan (1979) the
Court observed that the relation between the advocate and his client involves
the highest personal trust and confidence. Thus, their relationship cannot be
completely treated as purely professional owing to the confidential nature of
the information that the client gives to his lawyer. Thus, the lawyer-client
relationship is purely fiduciary in nature.
Advocates Duty towards Client: Rule 11 to 33 of Bar Council of India
Rules deal with the duties of an advocate to his client. These rules may be
explained as follow:
1. Bound to accept briefs: 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.
 8
In S.J. Chaudhary v. State, AIR 1884 SC 1755, the Supreme Court has
made it clear that if an advocate accepts the brief of a criminal case, he must
attend the case day to day and if he does not do so, he will be held liable for
breach of professional duty.
2. Not to withdraw from service: Rule 12 provides that an advocate shall
not ordinarily withdraw from engagements once accepted without sufficient
cause and unless reasonable and sufficient notice given to the client. In case
he withdraws himself from the case, he is bound to refund such part of the fee
as has not been earned.
3. Not to appear in matters where he himself is a witness: 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.
In Kokkanda B. Poondacha v. K.D. Ganpathi, AIR 2011 SC 1353, the
Court has held that one party to proceedings cannot cite advocate representing
the other side as witness without disclosing as to how testimony is relevant
as it will result in depriving the other side of services of the advocate.
4. Full and frank disclosure to client: 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.
5. Uphold interest of the client: 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.
It is the duty of an advocate to defend a person accused of crime
regardless of his personal opinion as to the guilty of the accused and in the
discharge of this duty he should always bear in mind that his loyalty is to the
law which requires that no man should be convicted without adequate
evidence.
6. Not to suppress material or evidence: 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. The rule makes it clear that
the suppression of material capable of establishing the innocence of the
accused must be scrupulously avoided.
7. Not to disclose the communications between client and himself: 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.
8. An advocate should not be a party to stir up or instigate litigation:
Rule 18 provides that an advocate shall not at any time be a party to the
fomenting litigation.
 9
9. 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.
10. Not charge depending on success of matters: Rule 20 provides that
the fee of an advocate depending upon the success of the suit is considered
as oppose to public policy. Contract for contingent fee is also hit by section
23 of the Indian Contract Act. Agreement to share the proceeds of the litigation
may amount to champerty. In such conditions the advocate has direct interest
in the subject-matter and cannot act with the sense of detachment or with the
attitude of objectivity. Such agreement degrades the honourable profession.
To prevent such an agreement rule 20. provides that an advocate shall not
stipulate for free contingent on the results of litigation or agrees to share the
proceeds thereof.
11. Not receive interest in actionable claim: 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. However, it has been made clear that
nothing in this rule shall apply to stocks, shares, and debentures or government
securities or any instruments which are, for the time being, by law or custom
negotiable or to any mercantile document of title to goods.
12. Not to bid or purchase property arising of legal proceeding: Rule 22
provides that an advocate shall not directly or indirectly bid for 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.
The rule makes it clear that this prohibition does not prevent an advocate
from bidding for or purchasing for his client any property which his client may
himself legally bid for or purchase, provided the advocate is expressly
authorised in writing in this behalf.
13. Not to adjust fees against personal liability: Rule 23 provides that an
advocate shall not adjust fee payable to him by his client against his own
personal liability to the client which liability does not arise in course of his
employment as an advocate.
14. 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.
15. Keep proper accounts: Rule 25 provides that an advocate should
keep accounts of the clients money entrusted to him and the accounts should
show the amounts received from the client or on his behalf, the expenses
incurred for him and the debits made on account of fees with respective dates
and all other necessary particulars.
16. Divert money from accounts: 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 amounts have been received for fees or expenses
and during the course of the proceeding, no advocate shall, accept with the
 10
consent in writing of the client concerned, be at liberty to divert any portion of
the expenses towards fees.
17. Intimate the client on amounts: 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 – In the matter of
P.J. Ratnam, AIR 1962 AP 201.
18. Adjust fees after termination of proceedings: Rule 28 provides that
after termination of the proceeding the advocate shall be at liberty to appropriate
towards the settled fee due to him any sum remaining unexpanded out of the
amount paid or sent to him for expenses or any amount that has come into his
hands in that proceeding.
19. Rule 29 provides that if the fee has been left unsettled the advocate
can deduct out of any moneys of the client remaining in his hand at the
termination of the proceeding for which he had been engaged, the fee payable
under the rules of the court in force for the time being or by then settled and
the balance shall be refunded to the client.
20. Provide copy of accounts: Rule 30 provides that the copy of clients
account shall be furnish to him on demand provided the necessary charges
are paid.
21. Rule 31 requires an advocate not to enter into arrangements whereby
funds in his hands are converted into loans.
22. Not lend money to his client: Rule 32 prohibits an advocate to lend
money to his client for the purpose of any action or legal proceeding in which
he is engaged by such client. It provides that an advocate shall not lend
money to his client for the purpose of any action or legal proceeding in which
he is engaged by such client.
23. Not appear for opposite parties: Rule 33 provides that an advocate
who has, at any time, advice in connection with the institution of the suit
appeal or matter has drawn pleading or acted for party, shall not act appear or
plead for the opposite party.
Q.4. Write a short note on various duties of an Advocate?
Or
Write a short note on the duty of an Advocate towards court?
Or
Write a short note on duty of an Advocate towards public?
Ans. The various duties of An Advocate:
1. Duty towards public: An advocate is a privileged member of the
community and a gentleman beside being a citizen. He has greater responsibility
to protect the country and lead the community.
 11
a. Duty towards country:
 An advocate shall endeavor to make the laws suitable to the well
being of the people.
 An Advocate shall guard the liberty and freedom of the people.
 An Advocate should protect the fundamental and human rights and
respect the constitution of the nation.
 An advocate should strive for social legislation’s to accelerate the
advent of socialistic pattern of society in India by dedicating to the
public service.
 An advocate shall uphold the integrity and Unity of the nation.
 An advocate shall educate the people to respect the law and respect
for the courts and the judges .
b. Duty towards community:
 An advocate shall establish Legal Aid Societies for the purpose of
rendering legal assistance to really poor and deserving persons free
of any charge.
 An advocate shall help the people local bodies such as panchayats
in villages to function on sound lines, so that the people may
discharge their functions in an enlightened and responsible manner.
 An advocate shall provide Legal education to the illiterate and working
people by informing them for the rights and legal provisions in simple
language.
 An advocate shall compose family differences and Settle petty
Disputes and controversies by amicable settlement.
 An advocate shall educate the masses on the right lines to come out
of many social ills from which people are suffering.
 An advocate shall work with social welfare committees to promote
social order in which justice ,political ,economic and social will be
assured to one.
2. Advocates Duty towards Court: The Bar Council of India prescribes
certain duties that an advocate must fulfill.
a. Act in a dignified manner: any advocate before the court (while presenting
his case) is required to have self-respect and conduct himself with dignity.
In re D.C. Saxena, AIR (1966) This rule actually empowers an advocate
to submit a complaint against a judicial officer. However, such a complaint
shall be submitted to the proper authority.
b. An advocate must maintain a respectful attitude while at court and shall
respect the dignity of the judicial office: In the case of U.P. Sales Tax
Service Association v Taxation Bar Association (1995) it was stated
that the survival of a free community is endangered if an advocate doesn’t
 12
show respect or recognises the dignity of the judicial officer. It potentially
lowers the spirit of the court.
c. Not to communicate in private: this rule was well explained in the case of
Rizwan-Ul-Hassan v. State of U.P. (1953) It was observed that an
advocate shall not try to seek favourable decisions by any illegal means
including bribing the court or communicating any favour in private. Thus,
this rule prohibits any private communication with the judge which would
be specifically regarding a pending case. It is considered as a gross form
of professional misconduct if at all an advocate tries to influence the
decision of the court by having private communication with the judge.
d. Refuse to act in an illegal manner towards the opposition: An advocate
is also required to prevent his client from resorting to unfair practices
relating to the court, opposing counsel or opposite parties or even co-
parties. The advocate must earnestly restrain and explain the implications
and the consequences of such unfair practices. This rule also empowers
an advocate to refuse to represent a client if he/she insists on such
improper conduct.
e. An advocate shall have his own sense of judgement and mustn’t use
strong language in the court of law: This is another important Rule laid
down that the advocate is expected to have his own sense of judgment
regarding the cause or the case he/she is representing. In the case of M.Y.
Shareef & Anothers. V. Hon’ble Judges of Nagpur High Court & Ors.
(1954), it was observed that an advocate is not a mere mouthpiece of the
client. Legal counsel must exercise his/her own judgement. An advocate
must also restrain oneself from the use of scurrilous remarks while in
pleadings. They shall use intemperate language during pleadings in court.
f. Appear in proper dress code: Legal profession is one of the few
professions that have a designated uniform. The court demands that an
advocate must necessarily show up inappropriate dress code. There have
been instances in court where cases have either been postponed or
dismissed for that matter due to the lack of proper dress code that should
have been followed by the representing legal counsel. Thus, if an advocate
is improperly or inadequately dressed, he is not only looked down upon
but also his appearance is a breach of the prescribed dress code.
g. Refuse to appear in front of relations: this rule is laid down in Section 30
of the Advocates Act, 1961. This rule was laid down in order to avoid
conflict of interest and bias in judgment. If there is a family tie existing
between the presiding judicial officer and an advocate, then the advocate
shall not appear in such cases and shall request for the change in bench.
h. Not to wear bands or gowns in public places: the advocate cannot utilise
his/her gown or band in other public places unless in any ceremonial
occasions that the Bar Council of India and the court may prescribe.
 13
i. Not to represent establishments of which he is a member: The rule simply
provides that an advocate is not allowed to represent, defend or even
stand against an organization, institution, society, corporation etc. if he
is a part of the executive committee of such institutions.
However, an advocate can appear as an ‘amicus curiae’ on behalf of a Bar
Council:
a. Not appear in matters of pecuniary interest: An advocate shall not act or
plead in any matter in which he himself has some pecuniary interest.
b. Not stand as surety for the client: sometimes parties at court or litigants
are required to give surety to the court. An advocate shall not stand as a
surety for his client in any legal proceedings.
3. Duty towards opponent:
a. An advocate shall not communicate or negotiate upon the subject matter
of controversy with any party represented by an advocate except through
that advocate.
b. An advocate shall not mislead an opponent, or put him on the wrong
scent regarding any point in the case.
c. An Advocate shall do his best to carry out all legitimate promises made to
the opposite party even though not reduced to writing.
4. Duty towards colleagues:
a. An advocate shall not solicit work or advice directly or indirectly through
Mass Communication.
b. An advocate shall not pursue his profession in spirit of competition or
rivalry, with his brethren.
c. An advocate should be courteous to opposing Counsel and should
accede io reasonable request regarding Court proceedings.
d. An advocate shall not enter appearance in any case in which there is
already a vakalatnama or Memo of appearance filed by an advocate
engaged for a party expect with his consent.
e. An advocate does not envy another advocate who attains to position
and rank and earns well.
f. An younger advocate must be cordial and relationship and pay respect
to senior advocates.
g. An advocates shall be ready to give help and advice to brother members.
h. An advocate shall strive at all the levels aid the legal profession in
advancing the standard of members of profession.


14

Q.1. What are the objectives of the Advocates Act, 1961?

Ans. The objective of the Act is to integrate and constitute one class of
legal practitioners called ‘Advocates’.
Secondly, it is aimed at prescribing a uniform qualification for the Bar.
It also aimed at creating an All India Bar Council and State Bar Councils
Q.2. Who is an advocate under the Advocates Act, 1961?
Ans. “An advocate entered in any roll under the provisions of this Act.”
Before this Act, there were different classes of legal practitioners under
the Legal Practitioners Act. They were Advocates, lawyers, vakils, etc.
the Advocates Act has abolished these classes and has recognized
only one class of Advocates.
They are classified as “Senior Advocates” and “other advocates” on
merit basis. The status of a Senior Advocate is granted by the High
Court or the Supreme Court with consent of the advocate.
Only an advocate who is enrolled in the “Common roll” is entitled to
practice in the Supreme Court or in any court, tribunal and in any other
body where an advocate can practice.
Q.3. Explain Scope and salient feature of the Advocate Act, 1961?
Ans. Scope of the Indian Advocates Act, 1961: The Bar Council of India,
under this act, can make rules on the matters like the election of other
Bar council members or the election of the president and vice president.
If there is any dispute regarding the election of any sought or the
validity of these elections, the decision of the Bar Council will be final.
Salient Features of the Act: The main features of this act are as follows-
1. This act enabled the establishment of the Bar council of India and
State Bar Councils.
2. Any advocate cannot enroll himself/ herself in more than one
State Council, though he can be transferred from one state council
to another.
3. The Bar council was given an autonomous stature.
4. It provided for the provisions for similar roll of Advocates
throughout the country.
 15
5. It also provided to combine all the laws of the legal system into
one.
6. There were various provisions set up for the Bar Council at state
and central level.
7. As stated earlier, the different titles like lawyer, vakil was scrapped
off and a single title of Advocate was applied.
Q.4. State the Objective and Function of BCI?
Ans. Bar Council of India objectives and functions are:
The primary objection of BCI is to control and administer the working
of all immediate subsidiary state-level bar councils other than setting
out the measures of professional conduct and etiquette.
The statutory functions of Bar Council of India are stated under Section
7 of the Advocate Act, 1961. Following are the functions of BCI
concerning the different bodies:
 Advocates – BCI lays down standards of professional conduct and
etiquette for advocates and BCI also safeguards the rights, privileges,
and interests of advocates.
 State Bar Council– BCI lays down the procedure to be followed b y
its disciplinary committee and the disciplinary committee of each State
Bar Council. BCI deals with and disposes of any matter arising under this
Act, which may be referred to it by a State Bar Council. BCI exercises
general supervision and control over State Bar Councils.
 Recognition- BCI recognizes Universities whose degree in law shall be a
qualification for enrolment as an advocate and for that purpose to visit
and inspect Universities. BCI also recognizes on a reciprocal basis foreign
qualification in law obtained outside India for admission as an advocate
under this Act
 BCI promotes and supports law reforms and also gives suggestions or
recommendations.
 Legal Education– BCI promotes legal education and lays down standards
of such education in consultation with the Universities in India imparting
such education. BCI conducts seminars and organizes talks on legal topics
by eminent jurists and publishes journals and papers of legal interest.
BCI also organizes legal aid to the poor in a prescribed manner.
 Funds– BCI manages and invests in the funds of the Bar Council. Through
this fund BCI gives financial assistance to organize welfare schemes for
poor, disabled, or other advocates. This fund is also used in giving legal
aid and establishing law libraries.
 BCI can receive grants, donations, and gifts for any of the above-
mentioned purposes.
 Elections– BCI conducts elections regularly to elect its members who
shall run the Bar Councils.

16

Q.1. Explain the main provisions of Advocate Act 1961?

Ans. This Act was enacted to amend and consolidate the laws that are
related to the legal practitioners and provide for the constitution of Bar Councils
and an All India Bar. It lays down the legal framework and guidelines for the
legal practitioners. It includes the process of registering with state-level bar
councils along with the credentials that are required by an individual to practice
law. The Advocates Act, 1961 has replaced the Indian Bar Councils Act. In
order to implement the recommendations of All India Bar Committee that was
endorsed by fourteenth Report of the Law Commission in 1955, this Advocates
Act of 1961 came into existence. The main objective of this Act is to integrate
and constitute one class of legal practitioners called ‘Advocates’. It also aims
at prescribing a uniform qualification for the Bar and creating an All India Bar
Council and State Bar Councils. It also gives the rights and duties of an
advocate.
The various important provisions mentioned under the Act:
 Section 2(1) (a): It states that an ‘Advocate’ is any person who has
entered under any roll under the provision of the Advocates Act, 1961. He
argues in favour of his clients in court of law. So any person, who fulfils the
conditions required for an admission as an advocate, may be enrolled as an
advocate by the State Bar Council. The conditions that need to be fulfilled for
being enrolled as an Advocate are mentioned under Section 24 of the
Advocates Act, 1961.
 Section 7: It lays down the various functions, regulatory and
mandates of the Bar Council. Mainly it focuses on providing standards of
professional conduct and etiquette for advocates. It lays down the procedure
to be followed by the disciplinary committees. It safeguards the rights,
privileges and interests of the advocates. Help in promoting and supporting
aw reforms. It encourages legal education and lay down guidelines for legal
education. It carries out seminar son legal topics by eminent jurists and
publishes the law journals and papers of legal interest. It provides legal aid to
the poor.
 Section 9: According to this Section, a Bar Council must consist of
one or more Disciplinary Committees. Each of them must have three people,
of whom two must be persons elected by the Council from amongst its
members, and the other shall be a person, who is co-opted by the Council
from amongst advocates, who possess the qualifications specified in the
proviso to Sub-section (2) of Section 3 and who are not members of the
Council, and the senior-most advocate, amongst the members of the
Disciplinary Committee would be made the Chairman.
 17
 Section 16: It states that there are two classes of advocates; Senior
Advocate and other Advocates. An advocate, with his consent would be
designated as a Senior Advocate if the Supreme Court or High Court feels that
he has the ability, standing at the Bar or special knowledge or experience in
field of law and is deserving for such distinctions. The Senior Advocate
would be subject to restrictions of Bar Council of India, which is prescribed in
the interest of legal profession. Chapter I of Part VI of the Rules of Bar Council
of India makes provisions in relation to the Senior Advocates.
 Section 24: This Section specifies the qualifications of a person
who is entitled to be enrolled into the Bar. It states the subject to the provisions
of this Act, and the rules made there under, state that a person would be
qualified to be admitted as an advocate on a State roll, if he fulfils the conditions
like: he must be a citizen of India, above the age of 21 years, has obtained a law
degree after the 12th day of March, 1967 and has cleared Bar Council of India
exam. If the person has such qualification he or she can enroll himself/ herself
under any State Bar Council.
 Section 24A: It states that a person, who is convicted of an offence
which involves moral turpitude, cannot be enrolled as an advocate. This
applies till two years of elapsing since the expiry of the sentence. While this is
a disqualification for enrolment, the Supreme Court has held that if the
disqualification is incurred after enrolment then the advocate must be disbarred
for two years.
 Section 29: This Section states that advocates are the only
recognised class of persons who are entitled to practise law. From the day
they are appointed, only the class of ‘advocates’ are allowed to practise the
profession of law. Section 30: This Section defines the right of advocate to
practise. This Act allows an advocate, the right to practise throughout the
territory, before all the courts and tribunals.
 Section 35: This Section defines the punishment of advocates for
misconduct. It states that when a receipt of a complaint is submitted or a State
Bar Council has reason to believe that any advocate on its roll has been guilty
of professional or other misconduct, then it shall refer the case for disposal to
its Disciplinary Committee. The Disciplinary Committee of a State Bar Council
would then fix a date for the hearing of the case and shall cause a notice
thereof to be given to the advocate concerned and to the Advocate-General
of the State.
Landmark Judgments:
1. Pratap Chandra Mehta vs. State Bar Council of Madhya Pradesh (2011)
9 SCC 573: In this judgement, it was observed that on failure to provide for
the election, the Bar Council of India must constitute a special committee for
that purpose. Under Section 15(2), it is stated that without prejudice to the
generality of foregoing powers, rules can be made to provide for the electoral
18
rolls and the manner of publishing the results. The rules formed by the State
Bar Council will become effective only after it gets approval by the Bar Council
of India, in terms of Section 15(3) of the Advocates Act. The conduct of the
State Bar Council must be maintained in consonance with the democratic
principles, keeping in mind the high professional standards of the advocates.
Therefore, this power does not fall beyond the preview and scope of Section
15, read in conjunction with other provisions. Further it was held that, the
language of Section 15(3) of the Advocates Act, is clear and the amended
rules had received the approval of the Bar Council of India.
2. T. N. Raghupathy vs High Court of Karnataka and others. (CIVIL
APPEAL NO. 11439 OF 2014): In this case, the appellant claimed a writ of
mandamus for forming new norms in consonance with the provisions mentioned
in Section 16(2) of the Advocates Act, relating to the designation of Senior
Advocates. The Court observed that the appellant did not have any locus
standi to file a writ petition in view of the public interest. Learned Senior
Counsel, Mr. K. K. Venugopal, Mr. Kapil Sibal, Mr. Gopal Subramaniam and
Mr. Aditya Sondhi submitted before the High Court that it is not right in
holding that view. Some of the issues that were raised in the writs did require
consideration. It was concerned with the High Court only, as it is the High
Court that deals with the formation of rules, guidelines, regulation regarding
the designation of the Senior Advocates. Hence the impugned order was set
aside and the High Court was requested to consider the matter on merits.
3. Mahipal Singh Rana vs State of UP [(2016) INSC 476]: Here the Bar
Council of India submitted that Section 24A of the Advocates Act gives a bar
against the admission of a person as an advocate if he is convicted of any
offence which involves moral turpitude. It also provides that the bar can be
lifted after two years of release. But the provisions did not explicitly mention
the removal of an advocate if the conviction is done after the person is
registered as an advocate. It was stated that, the term moral turpitude has to
be understood because even a minor offence could be termed as involving
moral turpitude. The only other related provision was to take action under
Section 35, and prove misconduct. It was further submitted that only the Bar
Council has the power to punish an advocate under professional misconduct
as per the provisions given under Section 35 of the Advocates Act. The
counsel also submitted that a general order must be communicated to all the
courts regarding the conviction of an advocate involving moral turpitude.
And after the judgement is delivered, the Bar Council of India and concerned
Bar Councils start proceedings against such advocates.
4. Noratanman Courasia vs M. R. Murali (2004 Insc 283): Here the
Supreme Court explored the term “professional misconduct” in Section 35 of
the Advocates Act. The facts of the case included, an advocate assaulting the
complainant, and asking him to refrain from proceeding with the case. The
question being put up was, whether the act of advocate would amount to
 19
misconduct? The Supreme Court held that a lawyer is obliged to observe the
norms of behaviour that are expected of him. In addition to the fact that he was
not acting in his capacity as an advocate, his behaviour as a whole was unfit
for an advocate. The Bar Council was justified in conducting disciplinary
actions against him. The Court had carried out an over view of the jurisprudence
of the Court regarding misconduct of advocates, and held that “misconduct”
is incapable of a precise decision. It includes improper behaviour, intentional
wrongdoing, deliberate violation of a rule etc. Therefore, “misconduct” though
incapable of an appropriate definition, it acquires its connotation from the
context, the delinquency in its performance and its effect on the discipline and
nature of duty.
5. Thyssen Krupp Industris vs Suresh Maruti Chougule, Union of India,
Bar Council of India and Others [Civil Appeal No. 6586/2019]: In this case,
the Bombay High Court dismissed a challenge questioning the constitutional
validity of Section 36(4) of the Industrial Dispute Act, 1947. It restricts the
appearance of lawyers in labour courts and tribunals stating that there must
be a legal distinction between the right of an advocate to practice law under
Section 29 and 30 of Advocates Act and the right to appear and address a
court of law or tribunal. The welder filed an application against the engagement
of Thyssen’s with a legal practitioner, which was allowed by the Court.
Thyssen’s counsel argued that the assistance of a trained advocate is essential
due to the complicacy related with the industrial adjudication. Due to this, the
companies are unable to represent their case before a labour court effectively.
The counsel on behalf of the welder argued that, right to practice law is not a
Fundamental Right, vested or a legal right, thus a party cannot claim such a
right to engage an advocate. The High Court held that there is a legal distinction
between the two Acts and the right to practice guaranteed under Advocates
Act do not confer on a litigant the right to get represented by any particular
advocate, but can only be represented by an advocate if necessary. And, the
right to practice is not an absolute right but only restricted in nature. It was
also observed that, as Fundamental Rights do not provide a litigant the right
to be represented by a lawyer in a court, it becomes difficult to accept the
arguments that Section 36(4) of ID Act is unconstitutional and ultra vires with
Article 14 and 21 of the Constitution of India.
Q.2. What are the provisions related to the enrollment and admission
for an Advocate under State Bar Council?
Or
Who is an Advocate and what are the qualification required to be enrolled
as an Advocate under State Bar Council?
Ans. Who is an advocate under the Advocates Act, 1961: “An advocate
entered in any roll under the provisions of this Act.” Before this Act, there
were different classes of legal practitioners under the Legal Practitioners Act.
20
They were Advocates, lawyers, vakils, etc. the Advocates Act has abolished
these classes and has recognized only one class of Advocates.
They are classified as “Senior Advocates” and “other advocates” on
merit basis. The status of a Senior Advocate is granted by the High Court or
the Supreme Court with consent of the advocate.
Only an advocate who is enrolled in the “Common roll” is entitled to
practice in the Supreme Court or in any court, tribunal and in any other body
where an advocate can practice.
Admission and Enrollment of Advocates- Advocate is the person who
argues in the Court of Justice professionally. for this an advocate has to
enroll in bar council. Every person cannot be enrolled as an advocate in bar
council. Section 16 to Section 28 of this Act deals with the admission and
enrollment of the advocates. Headlines under this Act which deals with
admission and enrolment of the advocate are as follows:
Section 16 Senior Advocates and Other advocates: This section talks
about the two classes of advocates which is senior advocate and other
advocates. With the consent of the person, the Supreme Court and High
Court designates him as a senior advocate by virtue of his ability or special
knowledge or experience in law. Senior Advocates are subjected to some
restrictions which are made by Bar Council of India in the interest of legal
profession prescribe. Senior Advocate does not accept from client directly to
present in front of any court or any tribunal or any authority in India.
Section 24- Person who may be admitted as advocate on the state roll:
This Section talks about the person who may be admitted as an advocate on
state roll. Section 24 of the Advocates Act, 1961 lays down in specificity the
parameters of qualification that needs to be met with in order to be enrolled in
the Bar council. The conditions that are laid down by the concerned provision
are:
1. The person must be a citizen of India. Any other nationals can be appointed
as an advocate on a State basis if the following grounds are fulfilled:
a. Has to be an Indian citizen.
b. Should be qualified as per requirement.
c. Has been granted permission to carry on legal practice in any other
country.
d. Should be subjected to necessary restrictions that are required and
as provided.
2. The person should be more or equal to the age of twenty-one years but
should not be less than that.
3. A degree in law has been obtained from any university recognised under
the Bar Council of India. If the national hails from some other country
 21
then a degree in law in the foreign university will suffice provided the
degree is recognised in India under the Act by the Bar Council of India.
4. Any other conditions or parameters laid down by the State councils
should be carried out by the person.
Procedure for enrolment:
1. Application: The person who desires to enroll must file an application to
the State Bar Council, in the prescribed form with the necessary fee (Rs.250/
-). He must have the qualifications as prescribed by the Advocates Act
(Sec.24).
2. Enrolment committee: The application is considered by the enrolment
committee which shall scrutinize the same and either accept or refuse
admission. If it accepts, the person shall sign the admission register, after
due public notice in the prescribed manner.
3. Procedure on refusal: If the “Enrolment Committee” refuses to accept the
admission:
 It shall with reasons refer the same for the opinion of Bar Council of
India and shall act according to its direction.
 It should notify to all State Bar Council in India about the details of
the application and the ground for its refusal.
4. Powers to remove: If a person has enrolled himself by fraud,
misrepresentation or undue influence, his name can be removed by the
Bar Council of India, after giving due opportunity to the concerned
person.
5. Appeal: If enrollment is refused by the Enrollment committee, an appeal
may be preferred under Act 226 of the Constitution to the High Court.
Notwithstanding anything contained in subsection 1 person who:-
 Has for at least three years being a leader, vakil or mukhtar or was
entitled at any time to be enrolled under any law as an advocate of
High Court or court of a judicial commissioner in any Union Territory.
 Before 1/12/1961 a person an advocate to practice the profession of
law or by virtue of the provision of any law or who would have been
so entitled had he not been in public service on the date or
 Before the 1st April 1937 has been an advocate of High Court or
advocate of any area in Burma as defined in the Government of India
Act, 1935
 A person is entitled to be enrolled as an advocate under any rule
made by Bar Council of India regarding this.
A vakil or pleader who is law graduate will be admitted as an advocate on
state roll if-
a. An application has to be made for enrollment and that application should
be in accordance with the provision of this Act.
22
b. And fulfil the conditions specified in clause a, b, d and e.
All India Bar Examination – Bar Council of India has inserted 9 to 11 in
part 4 of chapter 3 of Bar Council of India rules and as per these rules no
person can be admitted as an advocate under section 24 of The Advocate
Act, 1961 until and unless that person clears the All India Bar Examination.
And it has been made mandatory that all law students who are graduating
from academic year 2009-2010 and onwards have to give All India Bar
Examination to be an advocate. And this exam is conducting twice a year and
a person can give this exam n number of times.
Section 24 A – Provision in respect of disqualification for enrollment as
an advocate: It says that a person will be disqualified as an advocate from
state roll if:
1. A person convicted for an offence involving moral turpitude.
2. A person convicted for an offence under untouchability (offences)
Act, 1955.
3. A person dismissed or removed from government service on any
charge involving moral turpitude.
The disqualification ceases to have effect after the period of two years of
his release from jail or dismissal from service Section 26 A aRemoval of name
from the roll.
According to this section State Bar Council may remove the name of a
person from the state roll, remove the name of a person who is dead from
whom request has been received to that effect.
There is no disqualification for a person found guilty in the above said
cases and who has been given benefit under the provisions of the Probation
of Offenders Act, 1958.
If an application for the enrolment is refused on any one of the above
grounds of disqualification, the State Bar Council has intimate that fact stating
the name, address, reasons for refusal to all other State Bar Councils, thereby
he shall be prevented from applying to the other State Bar Councils for
Enrolment.
A person cannot be permitted to carry on other profession along with
legal profession. So, a person with a law degree is carrying on the other
profession is disqualified to enroll as an Advocate.
A full time salaried law officer is not entitled to enroll as an Advocate
(Sathish Kumar Sharma V. Bar Council of Himachal Pradesh (AIR 2001
SC 509).
Section 21: Dispute regarding seniority: Where there is dispute regarding
the seniority, means that where the date of seniority of two or more person is
same so such dispute is referred to the concerned State Bar Council for the
decision.
 23
Senior Advocate:
S.16 of the Advocates Act classifies the Advocates into two types namely,
Senior Advocates and other Advocates.
The Supreme Court or a High Court shall designate an Advocate with his
consent, as Senior Advocate, if the court is of the opinion that by virtue of his
ability, standing at the Bar or special knowledge or experience in the law, he
deserves such distinction. It is a honor and privilege conferred on an Advocate.
By virtue of the pre-eminence which a senior Advocate enjoys in the
profession, they carry the greatest responsibilities and they should act as a
model to the junior members of the profession. A senior Advocate more or less
occupies a position like a Queen ’s Counsel in England next after the Attorney
General, the Solicitor General and the State Advocate General.
Order-Iv Rule-2 regarding the 1966 deals with the rules regarding the
designating an Advocate as a Senior Advocate in the Supreme Court and their
conditions of practice. Each High court has framed their own rules of
procedures for designating an Advocate as Senior Advocate.
The Bar Council of India has prescribed the following restrictions in
the matter of practice of a Senior Advocate:
1. A senior Advocate shall not file a vakalatanama or a memo of
appearance or pleading or application in any court or tribunal or
before any person or authority mentioned in S.30 of the Act.
2. A Senior Advocate in the Supreme Court shall not appear without an
Advocate on record in the Supreme Court.
3. A Senior Advocate in the High Court shall not appear Without an
Advocate of the state roll.
4. He shall not accept instructions to draft pleading or affidavits, or to
do any drafting work of an analogous nature.
5. He shall not undertake conveyancing work of any kind what so ever.
6. He shall not directly accept a case from a client or instructions from
his client to appear in any court or tribunal.
7. He is free to make concessions or give undertakings in course of
arguments on behalf of his client on instructions from the junior
Advocate.
When an Advocate is designated as a Senior Advocate, the registrar of
the Supreme court or the High court, as the case may be, shall communicate it
to all the High courts and the secretary to the State Bar Council and the Bar
Council of India. In the communication, the Name of the Advocate and the
date on which he was designated as the Senior Advocate should be mentioned.
Section 22: Certificate for Enrollment: Section 22 of Advocates Act
says that State Bar Council will provide a certificate of enrollment to those
24
persons whose names are entered in the roll of advocate which is maintained
by State Bar Council. And if a person wants to make changes regarding place
of office or permanent address so they have to notify the change to the State
Bar Council within the ninety days of change.
Q.3. State Composition and Function of State Bar Council?
Ans. Establishment of State Bar Council: Under Section 3 of the Act
State Bar Council will be established. However, Under Section 4, a Bar Council
of India will be established.
State Bar Council: There shall be a Bar Council:
a. for each of States of Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir,
Jharkhand Madhya Pradesh, Chhattisgarh, Karnataka, Orissa, Rajasthan
Uttar Pradesh and Uttaranchal, to be known as the Bar Council of that
State;
b. for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura to be known as the Bar Council of Assam,
Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh.
c. for the State of Kerala and the Union territory of Lakshadweep, to be
known as the Bar Council of Kerala;
d. for the State of Tamil Nadu and the Union territory of Pondicherry to be
known as the Bar Council of Madras;
e. for the States of Maharashtra and Goa, and the Union territories of Dadra
and Nagar Haveli and Daman and Diu, to be known as the Bar Council of
Maharashtra and Goa;
f. for the States of Punjab and Haryana, and the Union territory of
Chandigarh, to be known as the Bar Council of Punjab and Haryana;
g. or the State of Himachal Pradesh, to be known as the Bar Council of
Himachal Pradesh
h. for the State of West Bengal and the Union territory of Andaman and
Nicobar Islands, to be known as the Bar Council of West Bengal; and
i. for the Union territory of Delhi, to be known as the Bar Council of Delhi.
Members of State Bar council: A State Bar Council shall consist of the
following members, namely:
a. In the case of the State Bar Council of Delhi, the Additional Solicitor
General of India ex officio in the case of the State Bar Council of Assam,
Nagaland, Meghalaya, Manipur and Tripura, the Advocate General of each of
the State of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio; in
the case of the State Bar Council of Punjab and Haryana, the Advocate-
General of each of the State of Punjab and Haryana, ex officio; and in the case
of any other State Bar Council, the Advocate-General of the State, ex officio;
b. In the case of a State Bar Council with an electorate not exceeding
five thousand, fifteen members, in the case of a State Bar Council with an
 25
electorate exceeding five thousand but not exceeding ten thousand, twenty
members, and in the case of the State Bar Council with an electorate exceeding
ten thousand, twenty-five members, elected in accordance with the system of
proportional representation by means of the single transferable vote from
amongst advocates on the electoral roll of the State Bar Council: Provided
that as nearly as possible one-half of such elected members shall subject to
any rules that may be made in this behalf by the Bar Council of India, be
persons who have for at least ten years been advocates on a State roll, and in
computing the said period of ten years in relation to any such person, there
shall be included any period during which the person has been an advocate
enrolled under the Indian Bar Councils Act, 1926 (38 of 1926)
Term of Office of the Members of State Bar Council: Section 8 Provides
term of the office of the Members of the State Bar Council:
 The term of office of an elected member of a State Bar Council (other
than an elected member thereof referred to in section 54) shall be five
years from the date of publication of the result of his election:
 Provided that where a State Bar Council fails to provide for the election
of its member before the expiry of the said term, the Bar Council of
India may, by order for reasons to be recorded in writing, extend the
said term, the Bar Council of India may, by order, extend the said term
for a period not exceeding six months.
Powers and functions of State Bar Council are as under:
Functions of State Bar Council:
a. General functions: Section 6(1) of the Advocate Act 1961 makes
provisions in respect of the functions of the State Bar Council.
Functions of State Bar Councils:
 to admit persons as advocates on its roll;
 to prepare and maintain such roll;
 to entertain and determine cases of misconduct against advocates
on its roll;
 to safeguard the rights, privileges and interests of advocates on its
roll;
 to promote the growth of Bar Associations for the purposes of
effective implementation of the welfare schemes referred to in clause
(a) of sub-section (2) of this section clause (a) of sub-section (2) of
section 7
 to promote and support law reform;
 to conduct seminars and organise talks on legal topics by eminent
jurists and publish journals and paper of legal interest;
 to organise legal aid to the poor in the prescribed manner;
26
 to manage and invest the funds of the Bar Council;
 to provide for the election of its members;
 to visit and inspect Universities in accordance with the directions
given under clause (i) of sub-section (1) of section 7;
 to perform all other functions conferred on it by or under this Act; (i)
to do all other things necessary for discharging the aforesaid
functions.
A State Bar Council may constitute one or more funds in the prescribed
manner for the purpose of:
 giving financial assistance to organise welfare schemes for the
indigent, disabled or other advocates;
 giving legal aid or advice in accordance with the rules made in this
behalf;
 establishing law libraries.
A State Bar Council may receive any grants, donations, gifts or
benefactions for all or any of the purposes specified in sub- section (2) which
shall be credited to the appropriate fund or funds constituted under that sub-
section.
b. To Issue Certificates of Enrollment: Section 22 of Advocate Act 1961
provides that, There shall be issued a certificate of enrollment in the prescribed
form by the State Bar Council to every person whose name is entered in the
roll of advocates maintained by it under this Act.
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.
c. To Maintain Roll of Advocates: Section 17. of Advocate Act, 1961
provides that every State Bar Council shall prepare and maintain a roll of
advocates in which shall be entered the names and addresses of all persons
who were entered as advocates on the roll of any High Court under the Indian
Bar Councils Act, 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 practice within the jurisdiction of the Bar Council also enroll 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 date.
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.
 27
Section 19 of the Advocate Act, 1961, requires the State Bar Council to
send copies of rolls of advocates to the Bar Council of India. It provides 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 thereafter communicate to the Bar Council of India all alterations in, the
additions to, any such roll, as soon as the same have been made.
Powers of State Bar Council:
a. Power to make rules: The State Bar Council has been empowered to
make rules to carry on the purposes of section 16 to Section 27 of the Advocate
Act, 196, dealing with the admission and enrollment of advocate, Section
28(1) provides that the State Bar Council may make rules to carry out the
purposes of chapter III (Section 16 to section 28) of the Act but this rules shall
not effective unless approved by Bar Council of India.
b. Power to punish Advocate: The State Bar Council has Power to punish
an advocate for professional misconduct and other misconduct. The
Disciplinary Committee of the State Bar Council may make any of the following
order:
 dismiss the complaint or, where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings be
filed;
 reprimand the advocate;
 suspend the advocate from practice for such period as it may deem
fit
 remove the name of the advocate from the State roll of advocates.
c. To appoint Committees and Staff Members: A bar Council establishes
several committees to its function under this Act including the disciplinary
committee, Executive Committee, Enrollment Committee, etc. Every such
committee is allotted a distinct function to carry.
d. To Maintain Accounts and Conduct Audit: Section 12. of Advocate
Act 1961 provides that every Bar Council shall cause to be maintained such
books of accounts and other books in such form and in such manner as may
be prescribed. The accounts of a Bar Council shall be audited by auditors
duly qualified to act as auditors of companies under the Companies Act, 1956
(1 of 1956), at such times and in such manner as may be prescribed. A State Bar
Council shall send a copy of its accounts together with a copy of the report of
the auditors thereon to the Central Government and shall cause the same to be
published in the Gazette of India.
Q.4. What are the Objectives, composition and function of Bar Council
of India?
Ans. Advocates Act, 1961 is the act that provides for the constitution of
the Bar Councils and an All-India Bar. Section 3 of the act talks about the State
 28
Bar Council whereas Section 4 the act talks about the existence of Bar Council
of India. Section 4 of the act also talks about the members who will consist of
structure BCI. The Attorney- General of India and the Solicitor- General of
India will be ex officio. It also talks about that there will be one representative
from each State Bar Council.
Section 5 of the act establishes that BCI will be a corporate body as there
will be perpetual succession and a common seal, and can it sue by the name
which it is known.
Section 7 of the act mentions all the functions to be performed by BCI.
An amendment was made by Act 60 of 1973 and more functions were inserted
in Section 7. Section 7 also gives power to BCI to become a member of
international legal bodies, for example, the International Bar Association. The
Act in Chapter II states all about the council through different sections. Under
Chapter II, the constitution of the different committees, the criteria of
disqualification of members, a staff of Bar Council, etc. are mentioned.
Bar Council of India Rules also laid our rules, which were made by BCI in
the exercise of its rulemaking power under the Advocates Act, 1961. Bar Council
of India Rules lays down the procedure for the election or the termination of
the members of the council. It also specifies the powers of the chairman and
vice-chairman of the council. Not only this it also talks about the procedure of
the meetings of the council or the meeting of the committees and their reports.
Chapter IV of the rules gives the qualification and conditions of service of the
secretary, accountant, and other members of the staff.
The objectives of BCI: The primary objection of BCI is to control and
administer the working of all immediate subsidiary state-level bar councils
other than setting out the measures of professional conduct and etiquette.
Constitution / organization / Composition of Bar Council of India: Section
4 (1) of the Advocate Act 1961 provides that there shall be a Bar Council for
the territories to which this Act extends to be known as the Bar Council of
India which shall consist of the following members, namely:
 the Attorney-General of India, ex officio;
 the Solicitor-General of India, ex officio;
 one member elected by each State Bar Council from amongst its
members
Section 4(1-A) No person shall be eligible for being elected as a member
of the Bar Council of India unless he possesses the qualifications specified in
the proviso to sub-section (2) of section 3 of the Advocates Act.
Section 4(2) of the said Act provides that there shall be a Chairman and
a Vice-Chairman of the Bar Council of India elected by the Council in such
manner as may be prescribed.
 29
Section 4 (2-A) makes it clear that a person holding office as Chairman or
as Vice-Chairman of the Bar Council of India immediately before the
commencement of the Advocates (Amendment) Act, 1977 , shall, on such
commencement, cease to hold office as Chairman or Vice- Chairman, as the
case may be:
Provided that such person shall continue to carry on the duties of his
office until the Chairman or the Vice-Chairman, as the case may be, of the
Council, elected after the commencement of the Advocates (Amendments)
Act, 1977, assumes charge of the office.
The term of office: The term of office of a member of the Bar Council of
India elected by the State Bar Council shall:
i. in the case of a member of a State Bar Council who holds office ex-
officio, be two years from the date of his election or till he ceases to
be a member of the State Bar Council, whichever is earlier, and
ii. in any other case, be for the period for which he holds office as a
member of the State Bar Council:
Provided that every such member shall continue to hold office as a
member of the Bar Council of India until his successor is elected.
Bar Council to be body corporate (Section 5) : Every Bar Council shall be
a body corporate having perpetual succession and a common seal, with power
to acquire and hold property, both moveable and immovable, and to contract,
and may by the name by which it is known sue and be sued.
Functions of Bar Council of India: Section 7 of the Advocates Act, 1961
provides that the functions of the Bar Council of India shall be:
1. to lay down standards of professional conduct and etiquette for
advocates;
2. to lay down the procedure to be followed by its disciplinary committee
and the disciplinary committee of each State Bar Council;
3. to safeguard the rights, privileges and interests of advocates;
4. to promote and support law reform;
5. to deal with and dispose of any matter arising under this Act, which
may be referred to it by a State Bar Council;
6. to exercise general supervision and control over State Bar Councils.
7. to promote legal education and to lay down standards of such
education in consultation with the Universities in India imparting
such education and the State Bar Councils;
8. to recognize Universities whose degree in law shall be a qualification
for enrollment as an advocate and for that purpose to visit and inspect
Universities or cause the State Bar Councils to visit and inspect
Universities in accordance with such directions as it may give in this
behal
 30
9. to conduct seminars and organize talks on legal topics by eminent
jurists and publish journals and papers of legal interest;
10. to organize legal aid to the poor in the prescribed manner;
11. to recognize on a reciprocal basis foreign qualifications in law obtained
outside India for the purpose of admission as an advocate under this
Act;
12. to manage and invest the funds of the Bar Council;
13. to provide for the election of its members;
14. to perform all other functions conferred on it by or under this Act.
15. to do all other things necessary for discharging the aforesaid
functions;
16. The Bar Council of India may constitute one or more funds in the
prescribed manner for the purpose of:
i. giving financial assistance to organize welfare schemes for
indigents, disabled or other advocates;
ii. giving legal aid or advice in accordance with the rules made in
this behalf;
iii. establishing law libraries
17. The Bar Council of India may receive any grants, donations, gifts or
benefactions for all or any of the purposes specified in sub-section
(2) which shall be credited to the appropriate fund or funds
constituted under that sub-section.
In RaveendranathNaik v. Bar Council of India, the resolution passed
by the Bar Council of India directing advocates not to participate in any
programme organized by the Legal Services Authorities in any LokAdalat or
any legal aid programme has been held illegal and void.
In Ex-Captain Harish Uppal v. Union of India, the court held that section
7 provides in respect of the functions of the Bar Council of India, but none of
its functions mentioned in section 7 authorizes it to paralyze the working of
the Courts. On the contrary it is enjoined with a duty to lay down standards of
professional conduct and etiquette for advocates. No Bar Council can ever
consider giving a call of strike or a call of boycott. In case any association
calls for a strike or boycott the concerned State Bar Council of India must
immediately take disciplinary action against the advocates who gives a call
for a strike. It is the duty of every advocate to ignore a call of strike or boycott.
Q.5. Explain the powers of Bar Council of India?
Ans. The Advocates Act, 1961 mentions various kinds of as under:
a. Power to make rules (Section 15 and 49).
b. Powers to Punish advocates for misconduct (Section 35 and 36).
c. Appellate Powers (Section 37).
 31
d. Other Powers (Section 46-A, 47. 48-A, 49-AA, 48-B.)
Power to make rules: Powers of Indian Bar Council to make rules have
been mentioned in section 15 and 49 of the Act. According to the provisions
made under section 15:
1. A Bar Council may make rules to carry out the purposes of this chapter.
2. In particular, and without prejudice to the generality of the foregoing
power, such rules may provide for-
a. The election of members of the Bar Council by secret ballot including
the conditions subject to which persons can exercise the right to
vote by postal ballot, the preparation and revision of electoral rolls
and the manner in which the results of elections shall be published.
b. (Note-Clause (b) omitted by ac\Act 60 of 1973, sec.)
c. The manner of election of the Chairman and the Vice- Chairman of the
Bar Council.
d. The manner in which and the authority by which doubts and disputes
as to the validity of an election to the Bar Council or to the office of
the Chairman or Vice-Chairman shall be finally decided. e. (Note-
Clause
e. omitted by Act 23 of 1966, sec. 3)
f. The filling of casual vacancies in the Bar Council.
g. The power and duties of the Chairman and the Vice-Chairam of the
Bar Council.
i. The constitution of one or more funds by a Bar Council for the
purpose of giving financial assistance of giving a legal aid or
advice referred to in sub-section (2) section 6 and sub-section
(2) of section 7.
ii. Organization of legal aid and advice to the poor, constitution
and functions of committees and sub committees for that purpose
and description of or proceedings in connection with which
legal aid advice may be given.
h. The summoning and holding of meetings of the Bra Council, the
conduct of business thereat and the number of members necessary
to constitute a quorum;
i. The constitution and functions of any committee of the Bar Council
and the term of office of members of any such committee.
j. The summoning and holding of meetings, the conduct of business
of any such committee and the number of members necessary to
constitute a quorum.
k. The qualifications and the conditions of service of the secretary, the
accountant and other employees of the Bar Council.
32
l. The maintenance of books of accounts and other books by the Bar
Council.
m. The appointment of auditors and the audit of the accounts of the Bar
Council.
n. The management and investment of the funds of the Bar Council. (2).
No rules made under this section by a State Bar Council shall have
effect unless they have been approved by the Bar Council of India.
Under these rules, if the name of the post for which fighting election has
not been indicated in the nomination-letter by the contestant, then such
nomination can be cancelled. (G.N.R. Omni Versus State of Kerala, AIR 1995
Kerala 276)
In reference to rules, it is to mention here that to begin a law University,
approval of Bar of Council is not necessary. Necessity is merely for approval
of L.L.B. course. (Prem Chand than Versus State of Kerala, AIR 2000 Kerala
189).
The powers to make rules to the Indian Bar Council under section 49 of
the Act are as under: The Bar Couricil of India may make rules for discharging
its functions under this Act and’ in particular such rules may prescribe.
a. The conditions subject to which an advocate may be entitled to vote at
an election to the State Bar Council, including the qualifications or
disqualification of voters, and the matter in which an electoral roll of
voters may be prepared and revised by a State Bar Council.
i. Qualifications for membership of Bar Council and the disqualification
for such membership.
ii. The time within which and the manner in which effect may be given
to the proviso to sub section (2) of section3.
iii. The manner in which the name of any advocate may be prevented
from being entered in more than one State roll.
iv. The manner in which the seniority among advocates may be
determined.
v. The minimum qualification required for admission to a course of
degree in law in any recognized University.
vi. The class or category of persons entitled to be enrolled as advocates.
vii. The conditions subject to which an advocate shall have the right to
practice and the circumstances under which a person shall be deemed
to practice as an advocate in a court.
b. The form in which an application shall be made for the transfer of the
name of an advocate from one Ste roll to another.
c. The standards of professional conduct and etiquettes to be observed by
advocates.
 33
d. The standards of legal education to be observed b university in India and
the inspection of Universities for that purpose.
e. The foreign qualifications in law obtained by person other than citizens
of India which shall be recognized for the purpose of admission as an
advocate under this Act.
f. The procedure to be followed by the disciplinary committee of a State Bar
Council and by its own disciplinary committee.
g. The restrictions in the matter of practice to which senior advocates shall
be subject.
i. The form of dresses or robes to be worn by advocates. having regard
to the climatic conditions, appearing before any court or tribunal.
ii. The fees which may be levied in respect of any mater under this Act.
iii. General principles for guidance of State Bar Councils and the manner
in which directions issued made by the Bar Council of India may be
enforced.
iv. Any other matter which may be prescribed.
Provided that no rules made with reference to clause or clause (gg) shall
have effect unless they have been approved by the Chief Justice of India.
Provided further that no rules made with reference to clause (e) shall have
effect unless they have been approved by the Central Government.
Notwithstanding anything contained in the first proviso lo sub section
(1). any rules made with reference to clause (c) or clause (gg) of the said sub-
section and in force immediately before the commencement of the Advocates
Act, 1973 (60 of 1973), shall continue in force until altered or repealed or
amended in acccordance with the provisions of this act.
Disciplinary Powers: Powers, to punish advocates for misconduct of the
Indian Bar Council have been mentioned under section 36 of the Act. These
powers are similar to that of the powers of State Bar Council under section 35.
The difference is only that the Advocate General is to hear lender section 35
whereas Attorney General of India under section 36. n
Appellate Powers: The provisions for appellate powers of Indian Bar
Council have been made under section 37 of the Act. According to it- ‘Any
person aggrieved by an order of the disciplinary committee of a State Bar
Council made under section 35 or an Advocate General of the State may,
within sixty days of the date of the communication of the order to him, proper
as appeal to the Bar Council of India.
Every such appeal shall be heard by the disciplinary committee of the Bar
Council of India which may pass such order including an order varying the
punishment awarded by the disciplinary committee of the State Bar Council
thereon as it deems fit.
34
But here it is to mention that no order of the disciplinary Committee of the
State Bar Council shall be varied by the disciplinary committee of the Bar
Council of India so as to prejudicially affect the person aggrieved without
giving hin reasonable opportunity of being heard.
Other Power: Certain other powers have been also been given the Bar
Council of India under Section 46 (A), 47. 49 (AA) and 48 (B) of the Advocates
Act. These powers are as under:
a. Bar Council of India have been powers to provide financial assistance
to State Bar Council by Grant otherwise. A provision has been made in section
45 (A) of the Act that. ‘The Bar Council of India may, if is satisfied that any
state Bar Council is in need of funds for the purpose of performing its functions
under this Act, give such financial assistance as it deems fit to that Bar Council
by way of grant or otherwise.
b. Under Section 47(2) the Bar Council of -India may prescribe the
conditions, if any subject to which foreign qualifications in law obtained by
persons other than citizens of India shall be recognised for the purpose of
admission as an advocate under this Act.
c. Under Section 48-A. The Bar Council of -India, may at any time, call for
the record of any proceeding under this Act which has been disposed of by a
State Bar Councilor a committee thereof, and from which no appeal lies. for the
purpose of satisfying itself as to the legality or propriety of such disposal and
may pass such orders, in relation thereto as it may think fit.
No order which prejudicially affects any person shall be passed under
this section without giving him a reasonable opportunity of being heard.
d. The power of review has been given to the Bar Council of India under
section 48 AA. The Bar Council of India or any of its committee other than
committee image of its own motion or otherwise review any order, within sixty
days of the date of that order passed by it under this Act.
e. Under Section 48-B-for the proper and efficient discharge of the
functions of a State Bar Council or any committee thereof, the Bar Council of
India, may, in the exercise of its powers of general supervision and control,
give such direction to the State Bat Council or any committee thereof as may
appear to it to be necessary and the State Bar Council or the committee shall
comply with such directions.
In this way, huge powers have been given to Bar Council of India under
Advocates Act.
Q.6. Elaborate the statement Legal Profession is a Noble Profession.
Ans. Legal Profession is a Noble Profession: Every young law aspirant
who has attended law school is ushered into the fraternity with the opening
lines in their orientation programme, “Welcome to this noble profession”. A
question thus arises as to why the legal profession is considered to be noble.
 35
KV Krishnaswamy Iyer’s classic Professional Conduct and Advocacy
contains a fine discussion on the place of the legal profession in the order of
society, and why it is said to be noble. Justice Iyer calls the legal profession as
“the most brilliant and attractive of peaceful professions, with responsibilities
both inside and outside it, which no person carrying on any other profession
has to shoulder”. While addressing the question of practice of legal profession,
he says an “advocate has to deal with the greatest possible variety of human
relations and has his mettle constantly tried from every direction. For the
same reason, an advocate earns great social distinction, which ought not to
be misused at any cost.” The underlying ethos of the legal profession is the
service to society, akin to that of a doctor. The aim is to protect citizens from
social diseases.
The common understanding of law, as per the Oxford Dictionary is that it
is the system of rules which a particular country or community recognizes as
regulating the actions of its members and which it may enforce by the imposition
of penalties. However, law is a more nuanced concept with different shades
and complexities. It is an integral part of society as it reflects the accepted
code of conduct that is prescribed or formally recognized by the community.
The evolution of mankind has been intertwined with conflict, either with
each other or against the community in general. Therefore, to preserve the
social balance, laws were conceived as mutually agreed upon rules which the
society would follow. Law has been deeply linked to the growth of civilization.
Historical records show ancient Egyptian law, dating as far back as 3000 BC,
containing a civil code that was probably broken into twelve books. It was
based on the concept of Ma’at, characterised by tradition, rhetorical speech,
social equality and impartiality. The Greek and Roman philosophy greatly
influenced the concept of modern law and democracy. The development of
jurisprudence as a separate discipline shows the importance of the philosophy
of law. The concept of law evolved from divine law given to man by God to
John Austin’s utilitarian stance that law is the command of the sovereign
backed by sanction. Law has also been studied from various lenses such as
economics, sociology, etc. One common binding point is that they all converge
on the fact that law is a reflection of society and its practices and beliefs.
The purpose of law in society is to preserve the moral sanctity that binds
the society. Therefore, the legal profession is considered a noble profession
as it is the upholder and protector of law. It is a service-oriented profession
which aims to serve society. Roscoe Pound captured the essence of this
sentiment when he wrote, “Historically, there are three ideas involved in a
profession: organisation, learning, and a spirit of public service. These are
essential. The remaining idea that of gaining a livelihood is incidental.” Lawyers
are considered to be social engineers, who bring about social change and
development. Legal cases are embodiments of social change.
36
India has always had a rich legal history. The journey began from the Rig
Vedic age to that of Manusmriti to Arthashartra to the law under the Mughal
which was transplanted by the British legal system. The legal cases during
the British era decided by the Privy Council are still quoted today, and the
legal principles are upheld and followed which are reflected in the Supreme
Court judgments.
The legal profession has always been considered a noble profession.
This was recognised in numerous Supreme Court judgments such as Indian
Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC
732] where the Apex Court enunciated that the duty of a lawyer is to assist the
court in the administration of justice, the practice of law has a public utility
flavour and, therefore, he must strictly and scrupulously abide by the Code of
Conduct behoving the noble profession. The legal profession is nothing
without its ideals and ethics. The client-attorney relationship is fiduciary in
nature, and hence the lawyers have the duty of care.
Every law school curriculum has an important paper on professional ethics,
where young minds are taught the importance of upholding the ideals and
ethics of this profession. This is very important because good ethical practices
need to be inculcated so that young professionals perform their duty in justice
dispensation. These good practices are reflected in the manner lawyers present
the arguments of the parties in front of the Court.
The judiciary is an indispensable wheel of justice and its contribution in
making the legal profession a noble one ought to be highlighted and admired.
The luminaries of the Indian judiciary have a common underlying golden
thread. It is their quest for fearless justice and desire for preserving equality
and respect for human dignity. Doyens such as Justice Krishnaswamy Iyer
have reshaped Indian law. Some landmark legal cases and Supreme Court
judgments have changed the course of law and the perception of society. The
impact of these Supreme Court judgments can be seen in our daily lives.
Legal research is an integral aspect of the profession. The better the
research, more cogent will be the arguments of the petitioner or respondent.
The Courts have reiterated in a number of legal cases the importance of proper
legal research done by the counsels of the parties. Justice dispensation
becomes easier when the judiciary and the counsels work in tandem. The
ultimate aim of the entire system of dispute resolution, be it through litigation
or alternate dispute resolution mechanisms such as mediation or arbitration,
is upholding and providing justice. The citizens of the country consider the
courts as their guardian, as a protector. It is the ultimate resort when they have
suffered any legal loss or injustice.
The preservation of human dignity is dependent upon various rights and
duties conferred. The Courts are the protectors of these rights. The Courts
play an integral role as defenders of the citizens, which are evident in the
 37
multifarious legal cases all across the country. The legal professionals make a
significant contribution to the preservation of these rights and duties, and
thereby act as social engineers. The primary allegiance of the lawyer is to the
Court, where his duty is to assist the Court in justice dispensation. The
arguments on behalf of the petitioner or the respondent are forwarded to help
the Court gauge the legality of the issues at hand, and decide accordingly, in
a just, fair, and reasonable manner.
The journey of legal professionals is a tough one. The cases are different
from each other, and therefore, the approach to tackle each is different. Lawyers
have to arm themselves to be able to accept the challenges of the varied legal
cases with the same zeal and tenacity. This skill is acquired over the years,
investing time, sweat and blood. Hard work and perseverance is the key to
succeed in this competitive profession. The hardships and toils of the
profession not only build a good lawyer but also build a strong and persistent
individual who can achieve his aims and goals. It makes an individual a better
human being who is sensitive to the needs of the society and strives to
contribute to social justice in every way possible.
Legal cases are a reflection of the society. Each story brings to light
different aspects, relationship dynamics between the parties, issues, practices
and customs. The question with regards to the ideals of society and morality
are important underlying issues in certain legal cases. The Courts address
these multifaceted problems along with the assistance of the counsels who
frame arguments of both the parties. The whole process, therefore, is to uphold
the ideals and morals of society, which are indispensable. A society without
morals and ideals would result in utmost chaos and anarchy.
The nobility of the legal profession lies in the selfless efforts of the legal
community to uphold the ideals of the society and the relentless exertions to
serve the society. The effect of this effort is visible in the myriad landmark
Supreme Court judgments, and various other legal cases which have shaped
the way law is perceived and has impacted the society. Lawyers, judges, and
the other stakeholders of the legal system work together, hand in glove. They
are inspired and strengthened, guided and enriched by concepts of justice,
equity and good conscience so that they can perform their duty to the society
with sincerity and integrity. The dispensation of justice is not solely dependent
on the judiciary but is a joint act of the Bar and Bench.
Q.7. Explain “Advocacy- Is It A Profession or A Business”?
Ans. Ultimately, as is so often the case, it is apt to heed the words of Sir
Owen Dixon in setting the ‘bar’: “Unless high standards of conduct are
maintained by those who pursue a profession requiring great skill begotten of
special knowledge, the trust and confidence of the very community that is to
be served is lost and thus the function itself of the profession is frustrated.”
It has been repeatedly stressed that the practice of law is not a business. It is
 38
a profession in which duty to public service, not money is the primary
consideration. Lawyering is not meant to be moneymaking venture, which
necessarily reaps profits. Making of livelihood should be secondary
consideration of lawyers who must subordinate their interests.
In Bar Council of Maharashtra v. M. V. Dabholkar , it was stated that:
“Members of bar are not a guild of candle makers or butcher’s association.
They are a class separate.” Then there is the theory of Professional Paradigm
Shift as given by Russell G. Pierce, which states that the profession should
also be treated as a trade as there is no harm to erase the line between profession
and trade. Soli J. Sorabjee states his views on this point in Lawyers as
Professionals. He states that at present the public image of lawyers is far from
flattering. They are seen as fortune seekers rather than seeking to serve, a
selfish class, who, on account of the special knowledge and expertise, provide
services on such terms as they please. In short, the profession of law is
regarded as a money making racket. Today people are apt to agree with Dean
Swift’s description of lawyers as, “a society of men bred up from their youth
in the art of proving by words multiplied for the purpose, that white is black
and black is white according as they are paid.” No longer is the profession of
law regarded as a noble one. He further goes on to say that what are the
reasons for this said decline? The main reason is that lawyers, as also other
professionals like doctors for example, have forgotten what is entailed in a
profession and their proper role in society. It is worthwhile turning to
dictionaries once in a while. Webster defines profession as “calling requiring
specialised knowledge and often long and intensive preparations including
instructions in skills and methods... and committing its members, to continue
studies and to a kind of a work which has for its prime purpose the rendering
of public service.” Roscoe Pound summed up the matter with admirable aptness
when he said; “historically, there are three ideas involved in a profession;
organisation, learning and a spirit of public service. These are essential. The
remaining idea, which of gaining of livelihood is incidental.” It is forgotten
that the essential difference between business and a profession is that while
the chief end of business is personal gain, the main goal of profession is
professional service. Of late lawyers seem to operate on the law of demand
and supply and the forces of commercialism have overtaken the profession
by and large.
The idea that professionals are for the people and the people are not for
the professionals sound like a strange and alien doctrine. Today the fees
charged by some lawyers are staggering. He later says that: “I was told that a
middle rank lawyer charged Rs. 60,000/- for an application for an adjournment
in the Bombay high Court. The fees charged by some seniors in the SLP’s in
the Supreme Court are enormous. Lawyers charge fee even when they have
not put in an appearance and it is a disgusting sight to see some lawyers plead
 39
with the judge to record their appearance to enable them to collect fees from
their absent clients.” Apparently lawyers have forgotten that they are the
guardians of noble ideals and traditions, and not mere traders in the market
place, whose sole aim is the amassing of vast fortunes. It is not suggested
that lawyers should not charge for their services and charge well in heavy
matters where there are corporate clients. A lawyer needs to make money like
any other person and it is not expected to live on love and fresh air. But his
main purpose and desire should be of rendering service to those who seek his
aid and also to the community of which he is a necessary part. To those
unable to pay adequately or not at all professional services should be freely
and cheerfully given. If doctors can free medical clinics why should lawyers
not run free legal clinics atleast once a week? Lawyers must devote some part
of their time and services free of charge for the benefit of the poor and
oppressed. The legal profession has a social dimension. And the lawyer has
the social role to play in society. The social dimension becomes a very relevant
issue when we look at the manner in which legal services remain by and large
inaccessible to the common man, particular in a poor country like us.


40

Q.1. What is the importance of Contempt of Court?

Ans. Importance of contempt of court: Contempt in law means being
disobedient to a court of law or towards it ruling. The recognition of
contempt of court and to punish for contempt is essential for a nation
such as India which is based on the concept of rule of law, which
requires supremacy of law, since the judiciary is considered, as the last
bastion of hope and justice for the citizens of any nation.
According to the Supreme court bar association v. Union of India
(1995) The object of punishment is both curative and corrective and
these coercions are meant to assist an individual complainant to enforce
his remedy and there is also an element of public policy for punishing
civil contempt since the administration of justice would be undermined
if the order of any court of law is to be disregarded with impunity.
Q.2. Explain the origin of Contempt of court?
Ans. Origin of Contempt of Court: The legal system that we see today is
the summit of the long journey which has started from the divine rule
that was in proclamation to the natural law and more further to the
positive law that we see today. Contempt of Court is a matter which
regards that justice should be administered fairly and it also punishes
anyone who aims to hurt the dignity or authority of the judicial tribunals.
This law has its origin from the medieval times when the royal powers
of the monarch were transferred to the court and at this time the monarch
was believed to be appointed by God and everyone was accountable
to him. This power of accountability clearly depicts the same
accountability the Supreme Court possesses nowadays under Article
129 and 142 of the Indian constitution against its contempt. In the
English medieval ages the Judiciary was an important tool of the
Monarch. At that time these judges and legislatures were
representatives of the divine rule monarchy and these judges and
legislatures played an important role in legitimizing the functions of
these monarchs. The king was the superior head of justice and this
power he has given to the judicial system and if anyone or the king
 41
himself disrespect or question the courts it became a challenge to the
superiority of the king and as well as to his wisdom. So, this can be
seen as although the source of the law has transformed in the society
the unquestionability quality that a king enjoyed was upheld by the
monarchy. There is a case of contempt against J. Almon in the year
1765; a statement was made by the Irish judge Sir Eardley Wilmot in
regard to this contempt attacks on the judges. In this case, Almon has
published a pamphlet libelling the decision of the bench of kings and
the judgment given by the judge had given rise to many questions of
several aspects of the judiciary which had not been questioned yet.
This matter gives a great push in the establishment of the contempt of
court. This judgement also recognised that the unbiasedness is also
one of the features of the judiciary in making the decision which makes
this institution different from its peer institutions.
Q.3. Write about the history of Law of Contempt in India?
Ans. History of Law of Contempt in India: Sanyal Committee report deals
with the historical aspect of the Law of Contempt in India. This
committee has been responsible for starting the amendment process in
this law. The law of contempt similar to many other laws has been
brought from the English laws and statutes but this law has not been
absolutely taken from the English laws it has other origins too. How
has the indigenous development of contempt law taken place? It can
be understood by the age-old system which our country was having
to protect court or assemblies (sabhas) in the past. We know about the
philosopher Kautilya, in his book Arthashastra has written about the
governance at that time. He has written that “Any person who exposes
the king or insults his council or make any type of bad attempt on the
kings then the tongue of that person should be cut off.” Adding to
this statement, he also said that “When a judge threatens, bully or
make silence to any of the disputants in the court then he should be
punished.”
Until the year 1952, there were no statutory provisions for the contempt
of court in India but after the enactment of Contempt of Court Act,
1952 statutory provisions for contempt of court in India has established.
This Act extends to the whole of India except Jammu and Kashmir.
This Act gives power to the High Court to punish contempt of the
subordinate court. This Act has repealed the existing law from the
Contempt of Court Act, 1926 that was prevailing in the state of Rajasthan
and the state of Saurashtra. Although this Act was extended to the
whole of Bangladesh. It can be surprising knowing that although these
Acts have been introduced earlier then also these Acts do not give the
definition of the term ‘Contempt’ and also there was still a lot of ambiguity
42
present around the law of contempt. This law has to be dealt with in
light of two fundamental rights given by our Indian Constitution and
these rights are (i) freedom of speech and expression and (ii) right to
personal liberty.
There was a bill introduced in the Lok Sabha to make any changes or to
make the existing law relating to contempt more strong. This law was
introduced by Shri B B Das Gupta on 1st of April 1960. The government
after examining the bill discern the need for reform in the existing Act.
So, they made a special committee to look into the matter or inspect the
existing Act. This committee was set up in 1961, under the chairmanship
of H.N. Sanyal which gives its report on 28th February, 1963. The
report of this committee took the form of Contempt of Court Act, 1971.
The procedure and application of enactment something that was done
earlier by the Contempt of Court Act of 1926 and 1952 was given
several changes through the Contempt of Court Act, 1971. This Act
segregates the ‘Contempt of Court’ into criminal and civil contempt
with their definition respectively. This thing was not mentioned in the
earlier existing courts. Now, let us know something about the Contempt
of Court Act, 1971.
Q.4. State the Power of High court to punish offence of Subordinate court?
Ans. Section 5 of Contempt of Court Act: No Court except the High Court
can take cognizance of “Contempts out of Court” such as for example
comments in news papers on pending cases, etc.
Under Section 3 of the Contempt of Courts Act, 1952the High Court
has and exercises the same jurisdiction, powers and authority in respect
of contempts of Courts subordinate to it as it has and exercises in
respect of contempts of itself.
The High Court cannot, however, take cognizance of contempts alleged
to have been committed in respect of a Court subordinate to it where
such contempt is an offence punishable under the Indian Penal Code.


 43

Q.1.What do you mean by Contempt of Court? State its various type?

Ans. Contempt of Court definition: “The term ‘Contempt of Court’ is a
generic term descriptive of conduct in relation to particular proceedings in a
court of law which tends to undermine that system or to inhibit citizens from
availing themselves of it for the settlement of their disputes.”This definition is
given by Lord Diplock when he was giving the judgment in the case of
(Attorney-General v. Times Newspapers Ltd. [1973] 3 W.L.R. 298)
This term Contempt of Court can be easily understood as when we are
disrespectful or disobedience towards the court of law which means that we
wilfully fail to obey the court order or disrespect the legal authorities. Then
the judge has the right to impose sanctions such as fines or can send the
contemnor to jail for a certain period of time if he is found guilty of Contempt
of Court.
This term can also be understood in terms of the freedom of limits of the
judicial proceeding. As we know that all judges in courts can give judicial
proceedings which have a certain limit in which it has the freedom to make any
judicial proceeding and anything which curtails or stops it in making any
judicial proceeding which is of necessity can amount to contempt of court.
Halsbury, Oswald, and Black Odgers have also given the definition of
Contempt of Court and in addition to that, they have talked about its misuse
and its wrong interpretation and also its broad prospectus.
In India, the concept of Contempt of Court is defined in Section 2(a) of
the Contempt of Courts Act, 1971 which has broadly describe it as civil
contempt or criminal contempt.
There are two Articles in the Constitution of India which talk about the
Contempt of Court and these are Article 129 and Article 142(2).
Article 129: Article 129 says that the Supreme Court shall be the ‘Court
of Record’ and it has all the powers of such courts including the power to
punish for contempt of itself.
Now, we should know about the meaning of ‘Court of Record’ to
understand why anything commented wrongly against the decision of the
courts leads to Contempt of Court.
Here, is the answer to this question. The ‘Court of Record’ means a Court
having its acts and proceedings registered for everlasting memory or that
memory which has no end and as evidence or proof. The truth of these records
cannot be questioned and also these records are treated as a higher authority.
And anything stated against the truth of these records comprised Contempt
of Court.
 44
Article 142(2): This article also talks about Contempt of Court. This
Article says that when any law is made by the Parliament on the provisions
mentioned in clause 1 of this Article, the Supreme Court has all the power to
make an order for securing any person’s attendance, production of any
documents or has the power to give punishment to anyone for its contempt.
This also does not mean that the Supreme Court can do anything against
the right of personal liberty if it has the power to punish for Contempt of
Court. We know that it is the guardian of all the rights that we get from the
Indian Constitution so it has to safeguard these rights and cannot violate
these rights itself.
Essentials of Contempt of Court:
If a person named Akash has to prove that the other person named Sita is
guilty of committing an act which is an offence in a court of law. Then he has
to show the court that the offence which Sita has done is fulfilling the essential
required to commit that act or not. If the essentials of that will be fulfilled then
he will be liable for that act. Similarly, every offence has certain exceptions that
has to be fulfilled for making the person liable for doing that act. Contempt of
Court also has certain essentials and these are as follows:
1. Disobedience to any type of court proceedings, its orders, judgment,
decree, etc should be done ‘willfully’ in case of Civil Contempt.
2. In Criminal Contempt ‘publication’ is the most important thing and
this publication can be either spoken or written, or by words, or by
signs, or by visible representation.
3. The court should make a ‘valid order’ and this order should be in
‘knowledge’ of the respondent.
4. The action of contemnor should be deliberate and also it should be
clearly disregard of the court’s order.
These essentials should be fulfilled while making someone accused of
Contempt of Court.
Meaning and Nature: It is very difficult to define the concept of ‘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 within
the four walls of a definition. The Contempt of Court Act, 1971 defined contempt
of court for the first time. There is no statutory definition of contempt of court.
Whatever definition is provided under this act is not a definition but only
classification of the term contempt of court. Contempt of court in general
means, “To offend the dignity of the court and lower the prestige of the
court”.
Oswald defines, contempt 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 or their witnesses during litigation. In
 45
Halsbury laws of England, it is defined as follow “Any act done or writing
published which is calculated to bring a court or judge into contempt or
lower his authority or to interfere with the due course of justice or the lawful
process of the court is contempt of court”.
As per Corpus Juris Secondum, Contempt of court is disobedience to
court by acting in opposition to the authority, justice and dignity thereof. It
signifies a willful disregard or disobedience of courts order. It also signifies
such conduct as tends to bring the authority of the court and the administration
of law into disrespect.
Types of Contempt of Court in India: Depending on the nature of the case
in India, Contempt of Court is of two types.
1. Civil Contempt
2. Criminal Contempt
Civil Contempt: The purpose of the proceeding for the civil contempt is
not only to punish the contemner but also to exercise enforcement and
obedience to the order of the Court. In Vidya Sagar v. Third Aditional District
Judge, Dehradun, 1991 Cr LJ 2286, it was held that Civil Contempt, actually,
serves dual purpose:
i. Vindication of the public interest by punishment of contemptuous
conduct; and
ii. Coercion to compel the contemner to do what the Court requires of
him.
To constitute ‘Civil Contempt’ the followings are required to be proved:
i. There is disobedience of the order, decree, etc. of the Court or breach
of undertaking given to the Court; and
ii. The disobedience or breach is willful.
These requirements may be discussed as follows:
1. Disobedience of the order, decree, etc. of the Court or breach of
undertaking given to the Court: For civil contempt it is necessary that order
which has been disobeyed must have been passed by the Court having
jurisdiction to pass order. If the order has been passed without jurisdiction, it
is not binding on the party against which it has been passed and, therefore,
the disobedience of such order will not amount to contempt of Court. (Sultan
Ali Nanghiara v. Nur Hussain, AIR 1949 Lah 131). Further, the burden to
prove that the Court which has passed the order had no jurisdiction to pass it
or the proceeding in which the undertaking was given was without jurisdiction
lies on the person who alleges it.
In Courts on its Own Motion v. N.S. Kumar, 1995 Cr LJ 1261, it was
held that usually the order should be served on the person against whom it
has been passed. However, where it is proved to the satisfaction of the Court
that the person against whom the order was passed had actual knowledge of
 46
the order, he cannot escape liability for contempt on the ground that the copy
of the Order has not been formally served on him. Once an order is made by
the Court and a person is charged with the allegation of non-compliance of
that order, he cannot plead that he was waiting for instruction to comply with
the Court’s order can possibly contend that he is to seek instructions from his
superiors before he could carry out his obligation of complying with the
Court’s order.
The breach of undertaking given to the Court is also taken as contempt,
if it is willful. Where a person is committed for contempt for breach of
undertaking, the undertaking must be given to the Court. The undertaking
given by one party to another is not sufficient for this purpose. An undertaking
may be given by the party himself or by any other person on his behalf
provided in the later case the person giving the undertaking has authority to
give such undertaking. Thus, an undertaking may be given by an advocate on
behalf of his client provided he had authority on behalf of his client to give
such undertaking. (B.K. Rao v. Prithwish Kor, (1989) IT CHN 58 (DB))
The basis for taking the breach of undertaking as contempt of Court is
that the contemner by making a false representation to the Court obtains a
benefit for himself and if he fails to honour the undertaking, he plays a serious
fraud on the Court itself and thereby obstructs the course of justice and
brings into disrepute the judicial institution. (Babu Ram Gupta v. Sudhir
Bhasin, AIR 1979 se 1528 at 1532.)
In Babu Ram Gupta v. Sudhir Bhasin, Am 1979 se 1528 at 1532, the
Supreme Court has made it clear that the breach of undertaking recorded or
forming part of a compromise decree, would not amount to contempt of Court.
The Court has further observed that there is a clear cut distinction between a
compromise arrived at between the parties or a consent order passed by the
Court at the instance of the parties and a clear and categorical undertaking
given by any of the parties. In the former, if there is violation of the compromise
or the order no question of contempt of Court arises, but the party has a right
to enforce the order or the compromise by their executing the order or getting
an injunction from the Court.
Where a compromise is arrived at between the parties and a particular
property having been allotted to A, he has to be put in possession thereof by
B. B does not give possession of this property to A. B cannot be held liable for
contempt of court on the ground that the compromise decree has not been
implemented by him. The remedy of A would be not to pray for drawing up
proceedings for contempt of Court against B but to approach the executing
Court for directing a warrant of delivery of possession under the provisions
of the Code of Civil Procedure. If the non-compliance of a compromise decree
or consent decree is taken as contempt of Court, the provisions of the Code of
Civil Procedure relating to the execution of the decree may not be resorted to
 47
at all. The reason for treating the breach of undertaking as contempt of Court
is that contemner making a false representation to the Court obtains a benefit
for himself and if he fails to honour the undertaking, he plays a serious fraud
on the Court itself and thereby obstructs the course of justice and brings into
disrepute the judicial institution. In the case of consent, order or a compromise
decree the fraud, if any, is practiced by the person concerned not on the Court
but on one of the parties. The offence, thus, committed by the person concerned
is against the party and not against the Court. The very foundation for
proceeding for Contempt of Court, is completely absent in such cases.
In Bhatnagar and Co. Ltd. v. Union of India, Am 1957 se 478 at pp. 481-
482, the court held that the undertaking must be unconditional, unqualified
and express. Where, the party gives the undertaking to the Court on the basis
of certain implications or assumptions which are false to his knowledge, he
will be guilty of misconduct amounting to Contempt of Court. (Dr. (Mrs.)
Roshan Sam Joyce v. S.R. Cotton Mills Ltd., AIR 1990 SC 1881)
What is required to avoid the contempt proceeding is the substantial
compliance with the order of the Court. No court including the Court of
contempt is entitled to take frivolities and trivialities into account while finding
fault with the conduct of the person against whom contempt proceeding is
taken. If the order is substantially complied with, the contempt will not lie.
(Sukumar Mukhopadhayay v. T.D. Karamchandani, 1995 Cr LT 1610 at p.
1612.)
2. Willful disobedience or breach: For Civil Contempt the disobedience
of the order, decree, etc. of the Court or breach of undertaking given to the
Court must be willful. In India the Supreme Court (J. Vasudevan v. T.R.
Dhananjaya, AIR 1996 SC 137) has, often, pointed out that in order to
punish a person or authority for contempt of Court, the disobedience to any
judgment, etc. or breach of undertaking to the Court must be willful. Thus,
mere disobedience of the order of Court is not sufficient to constitute civil
contempt. The disobedience must be willful. The disobedience must be
deliberate and intentional. The contempt power cannot be used unless the
court is satisfied beyond doubt that the person has deliberately and
intentionally violated the order of the court (C. Elumalai v. A.G.L. Arudayaraj,
AIR 2009 SC 2214)
Whether the disobedience has been wilful, is an issue to be decided by
the Court, taking into account the facts and circumstances of the case. (Niaz
Mohammad v. State of Haryana, (1994) 6 see 332). In Ram Narang v.
Ramesh Narang, (AIR 2006 se 1883) the Court has held that the definition of
civil contempt given in section 2(b) creates two categories of cases:
a. Wilful disobedience to a process of Court; and
b. Wilful breach of undertaking given to a Court.
 48
As far as the first category is concerned the word “any” further indicates
the wide nature of the power. No distinction has been statutorily drawn between
an order passed after an adjudication and an order passed by consent. This
first category is separate from the second category. The legislative intention
has been to distinguish between the two and create distinct classes of
contumacious behaviour. For application of category second the undertaking
must have been given to the Court and not to the other party. The Court has
made it clear that wilful violation of terms of consent decree amounts to
contempt of Court. For the enforcement of decree or direction of the court for
payment of money, the contempt jurisdiction cannot be used. (Food
Corporation of India v. Sukh Deo Prasad, AIR 2009 se 2331). The Court
has made it clear that for the enforcement of such decree or direction the
contempt jurisdiction either under the Contempt of Court Act or under order
39 Rule 2A of the CPC cannot be used.
Criminal Contempt: In India the definition of contempt of court is found
in clause (c) of Section 2 of the Contempt of Courts Act, 1971. It 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
of the doing of any act whatsoever which scandalizes or tends to scandalize
or lower or tends to lower the authority of any court, or prejudices or interferes
or tends to interfere with the due course of any judicial proceedings or interferes
or tends to interfere with or obstructs or tends to obstruct the administration
of justice in any other manner.
In Delhi Judicial Services Association v. State of Gujarat & others,
(1991) 4 SCC 406, the court held that the definition of criminal contempt is
wide enough to include any act of a person which would tend to interfere with
the administration of justice or which would lower the authority of the Court.
The scope of the criminal contempt has been made very wide so as to empower
the Court to preserve the majesty of law which is an indispensable condition,
for the rule of law.
In Hira Lal Dixit v. State of U.P., AIR 1954 SC 743, the court held that to
constitute the ‘criminal contempt it is not necessary that the publication or
other act should have actually resulted in scandalizing or lowering the authority
of the Court or interference with the due course of judicial proceeding or
administration of justice. The essence of the offence is that the acts complained
of are likely to result in scandalizing or lowering the authority of the court or
interferes with due course of judicial proceeding or administration of justice.
The court further held that the law of contempt is deterrent in nature and it is
concerned, essentially, with the prevention of scandalization or prejudice or
interference with due course of judicial proceeding or administration of justice
rather than merely applying sanctions to comments or acts which have
scandalized or lowered the authority of the Court or prejudiced or interfered
 49
with the due course of judicial proceeding or administration of justice. Thus,
the offence of contempt is complete by mere attempt and does not depend on
actual deflection of justice.
In re P.C. Sen, Am 1970 SC 1821 the court held that the strict liability rule
is applied in the case of Criminal Contempt. The intention to interfere with the
administration of justice is not necessary to constitute the criminal contempt.
The essence of the offence of contempt lies in the tendency to interfere with
the due course of justice and motive, good faith, etc. of the alleged contemner
are immaterial. It is enough if the action complained of is inherently likely so to
interfere. Mens rea, in the sense of intending to lower the repute of a Judge or
Court, is not an essential ingredient of the criminal contempt. What is material
is the effect of the offending act and not the act per se.
Q.2. Explain the constitutional validity of the Contempt of Court Act?
Ans. Constitutional Validity of Contempt Law: Power to punish for
contempt is inherent in Court of Records. This was with a view to maintain the
due administration of justice. It is pertinent to mention that prior to the
enactment of the Constitution of India, 1950 the statutory recognition of this
position has been formulated as early as in 1935 in section 220(1) of the
Government of India Act, 1935. It declared that every High shall be a Court of
Record. Finally, we see the inclusion of this section in Article 215 of the
Constitution of India, 1950 which reads as under:-
Article 215, “High Courts to be Court of Record-Every High court shall be
a Court of Record and shall have all powers of such a court including the
power to punish for contempt of Court itself”.
The Supreme Court being an Apex Court recognised as a Court of Record
and has inherent power to punish for contempt in relation thereto, as provided
in Article 129 of the Constitution which reads as under:
“129 Supreme Court shall be a Court of Record and shall have all the
powers of such a court including the power to punish for contempt of itself.
Parliament and the State Legislature both have power to make laws with
respect to any of the subject enumerated in list III (concurrent list) of the
seventh schedule of the Constitution. The parliament has exclusive power to
make laws with respect to any of the matters are subjects enumerated in list -
I (Union list) of the 7th of the Constitution. The state legislature has exclusive
power to make laws with respect of any of the matter or subjects enumerated
in list II (State list) of the seventh scheduled of the Constitution. Entry 77 of
the list is as follows, “Constitution, organization, jurisdiction and powers of
the Supreme Court (including contempt for such a court) and the fees taken
therein; persons entitled to practise before the Supreme Court. Entry15 of list
II is as follows “contempt of court but not including contempt of Supreme
Court.”
 50
On the basis of these provisions, the Sanyal Committee has derived a
conclusion that the legislature is fully competent to legislate with respect to
competent of court subject only to the qualification that the legislature cannot
take away the power of the Supreme Court or the High Court to punish for
contempt or vest that power in some other court. Besides, the Sanyal Committee
has observed that Article 142 (2) of the Constitution of India provides that the
Supreme Court shall have all and every power to make any order for the
purpose of securing the attendance of any person, the discovery or production
of any document, or the investigation or punishment of any contempt of
itself. However, an important limitation on the legislative power is that it should
not be so exercised as to stultify the status and dignity of the superior Courts.
According to article 372 (1) of Constitution of India, all the laws in force
in the territory of India immediately before the commencement of this
Constitution shall continue in force therein until altered or repealed or amended
by a competent legislature or other competent authority. That is why section
22 of the competent of Courts Act 1971, it makes it clear that the provision of
this Act shall be in Addition to and not in derogation of the provision of any
other law relating to contempt of courts.
The Constitution (Jammu and Kashmir) Order, 1954, makes it clear that
entry 14 is not applicable to the State of Jammu and Kashmir. Consequently,
the provisions of contempt law enacted by the legislature are not applicable
to the State of Jammu and Kashmir except the provisions relating to the
contempt of the Supreme Court. With this object a proviso added to Section 1
of the Contempt of Courts Act, 1971, which provides that the Act shall not
apply to the State of Jammu and Kashmir except to the extent to which the
provisions of this Act relate to the contempt of the Supreme Court.
In Noordeen Mohmmad v. A.K. Gopalan, AIR 1886 Ker 301, the Kerala
High Court held that the law of contempt of court as understood in India is a
valid law. The contempt of Courts Act is not violation of guarantee of equality
and Article 14 as the classification is founded on the intelligible differentia
which distinguisher persons or things that are grouped together from other
left out of the group and the differentia has a rational relation to the object
thought to be achieved by the statute in question is reasonable. ON this test
the contempt law is reasonable and not violative of Article 14 - Harkchand v.
Union of India, AIR 1970 SC 1453.
The contempt law is not violative of the freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution of India. In several cases
M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395; In re Keshav Singh,
AIR 1965 SC 745; E.M.S. Namboodripad v. T.N. Nambiar, AIR 1970 se 2015,
the Supreme Court has observed that the freedom of speech and expression
including the press is not absolute and restriction thereon may be imposed by
the State-making law on any of the ground specified under Article 19(2).
 51
Contempt of Court is one of the grounds specified in Clause (2) of Article 19
and, therefore, the restriction on freedom of speech and expression may be
imposed, if it amounts to contempt of Court. Article 19(2) allows not only the
enactment of law imposing restriction on the freedom of speech and expression
so as to prevent the contempt of court but also protects the existing law in
relation to contempt. The Supreme Court in C.K. Daphtary v. O.P. Gupta, AIR
1971 SC 1132, has made it clear that the existing law relating to contempt of
Court imposes reasonable restriction within the meaning of Article 19(2) and,
therefore, it is not violative of the Fundamental Right to freedom of speech
and expression guaranteed by Article 19(1) (a).
The contempt of law is not violative of Article 21 which provides that no
person shall be deprived of his life or personal liberty except according to the
procedure established by law. It has been made clear by the court in State of
Bombay v. Mr. P., AIR 1959 Bom 182, that the existing procedure for contempt
proceedings have statutory sanction. Section 3 of the contempt of courts Act,
1952 or Section 10 of the contempt of Courts Act, 1971, makes it clear that the
procedure in contempt has statutory recognition. Consequently, it cannot be
said that the contempt law is violative of Article 21. The procedure established
by law in Article 21 includes the existing procedure recognised by the courts
and the Constitution. The summary procedure in Contempt cases had been in
vogue prior to the commencement of the Constitution of India. This procedure
has been recognised by the court. Beside this Article 225 of the Constitution
of India makes provision for its continuity.
Hence on the above grounds, it can be concluded that the contempt of
court at 1971 is not violative of any provision of the Constitution and it is
constitutionally valid.


52

Q.1. Explain the “Power of High Court to Try Offences Committed or

Offenders Found Outside Jurisdiction”?
Ans. Section 11 of the Contempt of Courts Act, 1971 talks about the power
of High Court to try offences committed or offenders found outside
jurisdiction. It says that a High Court shall have jurisdiction to inquire
into or try a contempt of itself or of any court subordinate to it, whether
the contempt is alleged to have been committed within or outside the
local limits of its jurisdiction, and whether the person alleged to be
guilty of contempt is within or outside such limits.
Q.2. Explain the procedure to be adopted in contempt proceedings?
Ans. Procedure To Be Adopted In Contempt Proceedings: Section 14 of the
contempt of court act deals with the procedure of contempt in the face
of the court of record whereas section 15 deals with the procedure in
cases other than in the face of court of record. This is also known as
constructive contempt. Article 129 provides that the Supreme Court
and article 215 provides that every High Court shall be a court of
record and shall have all the powers of such court including to punish
for its contempt. These court of records have inherent power to punish
for contempt and therefore these court of records can deal with such
matter summarily and can adopt their own procedure.
The only case to be observed by the courts of record while exercising
the contempt jurisdiction is that the procedure adopted must be fair
and reasonable in which full opportunity should be given to the alleged
contemner to defend himself. No person should be punished for the
contempt unless a specific charge against him is distinctly stated and
he is given a reasonable opportunity to answer it and to defend himself
against such charge.
The contempt proceedings are neither civil proceedings nor criminal.
They are sui generis. Consequently, contempt proceedings will neither
be governed by Civil Procedure Code nor by Code of Criminal Procedure.
Even the provisions of Indian Evidence Act will not be attracted in the
 53
contempt proceedings. The contempt of court including the criminal
contempt is not an offence within the meaning of Code of Criminal
Procedure and therefore a procedure prescribed by Code of Criminal
Procedure for investigation, enquiry and trial of the offence is not
required to be followed in contempt proceedings.
The contempt of court and the power of the Supreme Court and High
Courts to initiate proceedings for contempt and pass punishment
orders, is a special jurisdiction which is inherent in all the courts of
record. Section 5 of the Code of Criminal Procedure expressly excludes
special jurisdiction from the scope of Code of Criminal Procedure.
Procedure To Be Adopted In Cases of Contempt In The Face of The
Court: Section 14 deals with contempt in the face of the Supreme
Court and High Courts and it provides that whenever it appears to the
Supreme Court and the High Courts that a person appears to have
committed contempt in its presence or hearing the court may cause
such person to be detained in custody.
And shall at any time before the rising of the court on the same day or
as early as possible, thereafter:
1. Cause him to be informed in writing of the contempt with which
he is charged.
2. Afford him an opportunity to make his defense in respect of the
charge.
3. After taking such evidence as may be offered by such person
and after hearing him proceed either forthwith or after
adjournment to determine the matter of the charge.
4. Make such order for the punishment or discharge of such person
as may be necessary.
Where the person charged with contempt under this section applies
whether orally or in writing to have the charge against him, tried by
some judge other than the judge or judges in whose presence or hearing
the contempt is alleged to have been committed and the court is of the
opinion that it is necessary in the interest of justice that the application
should be allowed, it shall cause the matter to be placed before the
Chief Justice with the statement of facts of the case for transfer before
such judge as the Chief Justice may think fit and proper under the
circumstances of the case.
However, it shall not be necessary for the judge or Judges in whose
presence or hearing the contempt is alleged to have been committed to
appear as a witness before the Court where the matter has been referred.
The statement of facts of the case written by the judge or Judges while
referring the matter to the Chief Justice shall be treated as evidence in
the case.
 54
In Sukhdev Singh vs. Teja Singh 1954 AIR 186, the Supreme Court
observed that if the judge has been personally attacked, he should
not, as far as possible, hear the contempt matter and should refer the
matter to Chief Justice for nomination of some other Court, or, on the
application of the person aggrieved. This is necessary keeping in view
the principle of law that no one should be a judge in his own cause,
and, secondly justice should not only be done, but it must appear to
have been done.
In those cases, where the Contemnor has been detained in custody,
during the pendency of the Contempt case, he may be released on Bail
or on furnishing bond with or without sureties, that he shall continue
to attend the Court proceedings.
Q.3. Write a Short note on Contempt by judicial Officer?
Ans. Contempt by Judicial Officers: S.16 of the Act deals with contempt by
judges, Magistrates and other persons acting Judicially. According to
this section these persons are also liable for contempt of his own court
or any other court just like an ordinary individual. If they are not made
liable for contempt then people may lose faith on judiciary by the
contempt act of judges. Observation or remark made by a Judge
regarding a subordinate court in an appeal or revision pending before
him shall not be treated as contempt of court.
In State of Rajasthan v.Prakash Chand (AIR 1988 SC 1344) the
Supreme Court held that S.16 has no application against the judges of
the High Court and the Supreme Court. So they cannot be punished
for contempt of court.
In B.K.Mishra v.Bhemsen Dixit (1973, 1 SCC 446)the Supreme Court
held that refusal to follow the decision of the High Court or the Supreme
Court by a subordinate court amounts to contempt of court.
No Special Privilege for Advocates: In the contempt of court Act,
there is no special privilege for Advocates. A contempt of court Act, A
contempt of court committed by an Advocate will be dealt with just
like a contempt committed by any other person.
Q.4. Explain the Contempt Procedure in the Supreme Court or the High
Court?
Ans. The Contempt of the court Act confers the following two types of
powers to the supreme court and the High courts with regard to
contempt of court.
1. Power to punish a person who has committed contempt of court inside
the court(S.14).
 55
2. Power to punish a person who has committed contempt of court outside
the court(S.15).
1. Contempt of Court Inside the Court: When judicial proceedings are
going on, if it appears to the court that a person is guilty of contempt
of court in their presence then the court shall take the following actions:
i. Pass an order to arrest the person.
ii. Give a notice in writing immediately regarding the charges against
him.
iii. Offered him opportunity to make his defence to the charge.
iv. Take such evidence as may be necessary or as may be offered by
such person and hear him.
During the trial, if the person charged with contempt applies either
orally or in writing, for a trial by some other judge other than the judge
in whose presence the alleged contempt is committed then the request
along with the statement of facts of the alleged contempt shall be
placed before the Chief Justice shall be taken as evidence.
If the case is transferred to some other Judge then the judge in whose
presence the alleged contempt was committed need not appear as
witness. The facts submitted by him to the Chief Justice shall be taken
as evidence.
During the pendency of the proceedings, the person charged with
contempt shall be detained in such custody as the court may specify.
He may be released on bail with or without sureties or on a self bond as
the court thinks fit.
In Sugdev Singh v. Deeja Singh(AIR 1954 SC 186)the supreme court
has advised that to the extent possible, the judge in whose presence
the alleged contempt was committed, must avoid to conduct the trial
by himself.
2. Contempt of Court Outside the Court: The supreme court or the
High Court shall take action for contempt of court committed outside
the court in the following situations.
i. On its own motion.
ii. On a petition made by the Advocate General (in relation to the
High Court)( or the Attorney General or the solicitor General (in
relation to the Supreme Court).
iii. On a petition by any other person(if consent is given in writing to
file such petition by the Advocate General or Attorney General or
Solicitor General as the case may be).
A person cannot file a contempt of court petition without the consent
of the Advocate General or the Attorney General or the Solicitor General.
56
After Admitting a petition the court shall follow the following
procedure:
a. Notice shall be sent to the person charged with contempt.
b. Person charged with contempt shall be allowed to submit his
defence in an affidavit.
c. The trial shall be conducted by persuing the defences submitted
by him or taking such other evidences as may be necessary.
d. The trial shall be conducted by a bench consisting of two judges.
e. If the court feels that the person charged with contempt may
abscond then his properties shall be attached.
Limitation: The limitation period for filing a petition for contempt of
court is one year. After one year even the court cannot take action on
its own motion (s.20).


 57

Q.1. What are the Essential condition of Criminal contempt of Court?

Ans. Essential Ingredients of Criminal Contempt: They are:
1. Publication or other act: In the case of Re S.K. Sundarami, AIR 2001
SC 2374, the telegraphic communication sent by the contemner contain the
following: “I call upon Shriman Dr. A.S. Anand Hon’ble Chief Justice of India
to step down from the constitutional office of the Chief Justice of India
forthwith, failing which I will be constrained to move the criminal court for
offences under sections 420, 406, 471, Indian Penal Code for falsification of
your age, without prejudice to the right to file a writ of quo-warranto against
you and for a direction to deposit a sum of Rs. 3 crores for usurping to the
office of Chief Justice of .India even after attaining the age of superannuation.”
The Court held it as gross criminal contempt of court. The contention
that sending such telegram would not amount to publication was not accepted
by the court. The Court has held that a telegraphic message can be transmitted
only after the sender gives the content of the message to the telegraphic
office which would invariably be manned by the staff of that office. The
message after transmission, reaches the destination office which also is manned
by the members of the staff. From these only the message would be dispatched
to the sender. At all those levels the message is open to be read by, at least,
those who are engaged in the process of transmission. A telegraph message is
not like a letter handwritten by the sender and enveloped in a sealed cover to
be opened only by the sender for reading.
2. Scandalizing or lowering the authority of the court or interfering
with judicial proceeding or administration of justice: It is as much a contempt
of Court to say that the judiciary has lost its independence by reason of
something it is alleged to have done out of Court, as to say that a result of a
case it has decided, it is clear that it has no independence or has lost what it
had. Where the article complained of stated: “It is so unfortunate and
regrettable that at the present day the Chief Justice and the Judges find a
peculiar delight in hobnobbing with the executive with the result that the
judiciary is robbed of its independence which at one time attracted the
admiration of the whole country. The old order of things has vanished away.”
The Court held that it was a clear case of contempt of Court - re Tushar Kanti
Ghosh, AIR 1935 Ca! 419.
In Rajendra Sail v. M.P. High Court Bar Association, 2005 AIR SCW
2443, the prosecution witness made statement in public that in murder trial
the judge had disposition to acquit the accused. The judge about to retire was
available for sale and that the judgment was rubbish and deserves to be
58
thrown in dustbin. This comment made by the witness was published in
newspaper. The Court held that it amounts to gross contempt of Court.
In State of Bihar v. Kripalu Shanker, AIR 1987 SC 1554, the Supreme
Court has made it clear that notings made by the officers in the files cannot be
made a basis for contempt action. Such notings are not meant for publication.
When the Court directs the production of the documents, there is implied
undertaking that they will not be used for any other purpose. The production
of these documents in ordinary cases is imposed with a limitation that the side
for whose purpose documents are summoned by the Court cannot use them
for any purpose other than the one relating to the case involved. If the ultimate
action does not constitute contempt, the intermediary suggestions and views
expressed in the notings will not amount to contempt of Court.
In Courts on its Own Motion v. K.K Jha, AIR 2007 Jh. 67, the Supreme
Court has made it clear that writings in pleading or petition the scurrilous
allegation or scandalization against a Judge or Court amount to criminal
contempt. Similarly the court in, M.Y Shareef v. Judges of Nagpur High Court,
AIR 1955 se 19, held that Not only writings in petition or pleadings the
scurrilous allegation or scandalization against a Judge or Court amounts to
contempt, but also the allegations made in the application for the transfer of
the case amounts to contempt of Court and the counsel, who has signed it,
may be punished for it.
In U.P. Resi. Emp. Coop. House B. Society v. New Okhala Industrial
Development Authority, 2003 AI.R. S.C.W. 3304, the Supreme Court has
held that filing of false affidavit in the Court is contempt of court.
In S.R. Ramraj v. Special Court, Bombay, AI.R. 2003 S.C. 3039, the
Supreme Court has held that where verification is specific and deliberately
false, there is nothing in law to prevent a person from being proceeded for
contempt.
In State v. Sajjan Kumar Sharma, 1986 PLIR (NOC) 34, the court held
that according to Section 6 of the Contempt of Courts Act, 1971 a person shall
not be guilty of contempt of Court in respect of any statement made by him in
good faith concerning the presiding officer of any subordinate Court to-
a. any other subordinate Court, or
b. the High Court, to which it is subordinate.
Section 6, thus, enables a person to make bona fide complaint concerning
a subordinate Judge to:
a. another subordinate Judge who is superior to him; or
b. the High Court to which he is subordinate.
The protection of section 6 is available only when the complaint is made
in good faith. To satisfy this condition it must be proved that the complainant
has acted with due care and attention.
 59
3. Prejudice to or Interference with, the due course of any judicial
proceeding (Media Trial): The publication which prejudices or interferes or
tends to interfere with, the due course of any judicial proceeding is taken as
contempt of Court. Actually, media trial or trial by newspaper is not considered
proper because it affects the fairness of trial and is likely to cause prejudice t
or likely to interfere with, due administration of justice in the particular case.
Even in England and America and trial by newspaper is considered wrong and
taken as contempt of Court. In A.G. v. Times Newspaper Ltd, Lord Reid has
made it clear that there has been and there still is in England a strong and
generally held feeling that trial by newspaper; is wrong and should be
prevented. Thus, whenever the publication or any other act unduly influences
the result of a litigation, it is treated criminal contempt of Court and is punished
there for. The power to punish the contempt of Court is the means by which
the legal system protects itself from the publication which may unduly
influence the result of litigation.
4. Interference or obstruction with administration of justice in any other
manner: This clause is a residuary clause and. it covers the cases of the
criminal contempt not expressly covered by sub-clauses (i) and (ii) of Section
2(c) of the Contempt of Courts Act, 1971. Thus, the publication or doing of
any other act which interferes or tends to interfere with or obstructs or tends
to obstruct the administration of justice in a manner otherwise than by
scandalizing the Court or lowering the authority of the Court or by causing
prejudice or by interfering with due course of any judicial proceeding would
fall within the ambit of this sub-clause and, thus, would amount criminal
contempt under this sub-clause.
In J.R. Parashar v. Prashant Bhushani, AIR 2001 se 3395, the Supreme
Court has held that holding a Dharna by itself may not amount to contempt of
court, but if by holding a dharma access to the courts is hindered and the
officers of the court and members of the police are not allowed free ingress
and egress or the proceedings in court are otherwise disrupted, disturbed or
hampered, the Dharma may amount to contempt because the administration
of justice would be obstructed.
An advocate is an officer of the Court and therefore undue interference
with the advocate in the discharge of his professional functions amounts to
contempt of Court. A counsel or legal practitioner is not merely agent of the
parties but he is an officer of the Court. His duty is to inform the Court as to
the law and facts of the case and to aid it do justice by arriving at correct
conclusion. Interference with counsel may amount to contempt of Court. The
Court’s jurisdiction in contempt is not exercised out of any mere notion of the
dignity of judicial office but is exercised for the purpose of preventing
interference with the due course of justice and it is quite possible to interfere
60
with the due course of justice by making comments upon an advocate in the
way of his profession. The acts or words complained of may amount to
contempt of Court, if it interferes or tends to interfere with the course of
justice. Thus, casting aspersions on counsel which tends to deter him from
discharging his duties amounts to contempt of Court. Similarly, where a party
threatens the advocate of other party to prosecute him in Court or where a
solicitor assaults the opposing solicitor outside the Court or where a person
demands the counsel not to undertake defence of the accused, it will amount
to contempt of Court - Damayanti G. Chandiramani v. S. Vaney, AIR 1966
Born 19. Interference with parties was held contempt of court. The court in
Aligarh Municipal Board v. Ekka Tanga Mazdoor Union, AIR 1979 SC
1767, held that every person is entitled to the redress of his grievances through
the assistance of the Court. It is the main function of the Court to decide the
disputes between the parties. Consequently, any conduct which prevents or
tends to prevent a party to obtain the remedy through the Court amounts to
contempt of Court as it interferes with the course of justice. The parties are
protected from undue interference not only in the Court but also on his way to
or from, the Court. Thus, assaulting a party in the lobby of the Court or
sending threatening letter to the party during pendency of the suit amount to
contempt of Court.
In Re A.G.’s Application, AG. v. Butterworth, (1962) 3 All ER 326, the
court held that interference with witnesses is taken very seriously and in
certain circumstances, it may amount to criminal contempt of Court. Witnesses
are integral part of the judicial process and they must have freedom to perform
their duties. Interference with the performance’ of their duties is taken as
contempt of court.
In Advocate-General Bihar v. Madhya Pradesh Khair Industries, AIR/
980 SC 946, the court held that the abuse of the process of Court calculated
to hamper the due course of a judicial proceeding or the administration of
justice amounts to contempt of Court. The minor abuses of the process of
Court may be suitably dealt with between the parties by taking action under
the relevant statutory provisions but a conduct which abuses and makes a
mockery of the judicial process and, thus, extends its pernicious influence
beyond the parties to the action and affects the interest of the public, it must
be taken as contempt of Court.
Q.2. State the difference between Civil Contempt and Criminal Contempt
are given below?
Ans. Difference between Civil Contempt and Criminal Contempt are
given below: After careful consideration of the meaning of civil contempt and
criminal contempt it becomes clear that both are differ from each other in
different counts
 61
Civil Contempt Criminal Contempt
Civil Contempt is defined in Criminal Contempt is defined in
Section 2(b) of the Contempt of Section 2(c) of the Contempt of
Courts Act, 1971; Courts Act, 1971;
Willful disobedience to any The publication (whether by words,
judgment, decree, direction, spoken or written, or by signs, or by
order, writ or other process of a visible representation or otherwise)
Court or willful breach of an of any matter or the doing of any
undertaking given to a court, other act whatsoever is a criminal
are regarded as civil contempt’s; contempt;
Willfully disobeying the Court The following act is the criminal
orders or willfully breaching his contempt’s:
own undertaking are the civil (a) scandalises, or tends to
contempt; scandalise, or lowers or tends to
lower the authority of, any Court;
or
(b) prejudices, or interferes or tends
to interfere with, the due course of
any judicial proceeding; or
(c) interferes or tends to interfere
with, or obstructs or tends to
obstruct, the administration of
justice in any other manner.”
It contains less seriousness; It is more serious and aggravated
from of offence;
Apology is a good defense. In In majority of the Criminal
Contempt’s
Majority of the civil cases, the cases, the Courts accept the apology
Courts satisfy if the contemnor of the contempt’s, but may not
incline
gives an unconditional apology, to set aside the punishments. Only
and also an undertaking to fulfill in genuine, old aged contemnors, the
the obligation; Courts may show sympathy and may
reduce the period of imprisonment
or post pone the punishment or at
least give reprimand;
Mens rea is an essential Mens rea is need not be proved and
ingredient to be proved in civil is essential in criminal contempt’s;
contempt’s;
 62
The Calcutta High Court in Legal Remembrancer v. Motilal Ghose (ILR
41 Cal. 173.) has explained the difference between civil contempt and criminal
contempt. The distinction between civil and criminal contempt is of
fundamental character. While criminal contempt offends the public and consists
of conduct that offends the majesty of law and undermines the dignity of the
Court, civil contempt consists in failure to obey the order decree, direction,
judgment, writ or process issued by courts for the benefit of the opposing
party.
The Allahabad High Court in Vijay Pratap Singh v. Ajit Prasad (AIR
1966 All. 305), has held that a distinction between a civil contempt and
criminal contempt seems to be that in a civil contempt the purpose is to force
the contemner to do something for the benefits of the other party, while in
criminal contempt the proceeding is by way of punishment for a wrong not so
much to a party or individual but to the public at large by interfering with the
normal process of law diminishing the majesty of the court. However, if a civil
contempt is enforced by fine or imprisonment of the contemner for
nonperformance of his obligation imposed by a court, it merges into a criminal
contempt and becomes a criminal matter at the end. Such contempt, being
neither purely civil nor purely criminal in nature, is sometimes called suigeneris.
It is submitted that the dividing line between civil and criminal contempt
is sometimes very thin and may became indistinct. Where the contempt consists
in mere failure to comply with or carry on an order of a court made for the
benefit of a private party, it is plainly civil contempt. If, however, the contemner
adds defiance of the court to disobedience of the order and conducts himself
in a manner which amounts to abstraction or interference with the courts of
justice, the contempt committed by him is of a mixed character, partaking of
between him and his opponent the nature of a civil contempt.
Q.3. What are the Defences available in the contempt of Court?
Ans. Defences to Civil Contempt: A person who is accused of Civil
Contempt of case can take the following defences:
Lack of Knowledge of the order: A person cannot be held liable for
Contempt of Court if he does not know the order given by the court or he
claims to be unaware of the order. There is a duty binding on the successful
party by the courts that the order that has passed should be served to the
Individual by the post or personally or through the certified copy. It can be
successfully pleaded by the condemner that the certified copy of the order
was not formally served to him.
 The disobedience or the breach done should not be: If someone is
pleading under this defence then he can say that the act done by him was not
done willfully, it was just a mere accident or he/she can say that it is beyond
their control. But this plead can only be successful if it found to be reasonable
otherwise your plead can be discarded.
 63
The order that has disobeyed should be vague or ambiguous: If the
order passed by the court is vague or ambiguous or this order is not specific
or complete in itself then a person can get the defence of contempt if he says
something against that order. In R.N. Ramaul v. State of Himachal Pradesh
AIR 1991 SC 1171 this defence has been taken by the respondent. In this
case, the Supreme Court has directed the corporation of the respondent to
restore the promotion of the petitioner from a particular date in the service.
But the respondent has not produced the monetary benefit for the given
period and a complaint was filed against him for Contempt of Court. He pleads
for the defence on the given evidence that it has not mentioned by the court
in order to pay the monetary benefit. Finally, he gets the defence.
Orders involve more than one reasonable interpretation: If the contempt
of any order declared by the court and the order seems to be given more than
one reasonable and rational interpretation and the respondent adopts one of
those interpretations and works in accordance with that then he will not be
liable for Contempt of Court.
Command of the order is impossible: If compliance of the order is
impossible or it cannot be done easily then it would be taken as a defence in
the case of Contempt of Court. However, one should differentiate the case of
impossibility with the case of mere difficulties. Because this defence can be
given only in the case of the impossibility of doing an order.
Defences against Criminal Contempt (Section 3 to 7 of the contempt of
Court Act 1971):
Innocent publication and distribution of matter: S.3 deals with this
defence. The contemnor may plead under Sections 3(1), 3(2) and 3(3), if on the
ground that he is responsible for the publication or for distribution of
publication which prejudices or interferes with the pending proceedings,
criminal contempt is initiated against a person.
Section 4: A person shall not be guilty of contempt of court on the
ground that he has published whether by words, spoken or written, or by
signs, or by visible representations, or otherwise any matter which interferes
or tends to interfere with, or obstructs or tends to obstruct, the course of
justice in connection with criminal proceeding pending at that time of
publication, if at that time he had no reasonable grounds for believing that the
proceeding was pending.
1. Notwithstanding anything to the contrary contained in this Act or any
other law for the time being in force, the publication of any such matter as is
mentioned in sub-section (1) in connection with criminal proceeding which is
not pending at the time of publication shall not be deemed to constitute
contempt of court.
2. A person shall not be guilty of contempt of court on the ground that he
has distributed a publication containing any such matter as is mentioned in
 64
sub-section (1), if at the time of distribution he had no reasonable grounds for
believing that it contained or was likely to contain any such matter as aforesaid:
Provided that this sub-section shall not apply in respect of the distribution
of:
a. any publication which is a book or paper printed or published
otherwise than in conformity with the rules contained in section 3 of
the Press and Registration of Books Act, 1867;
b. any publication which is a newspaper published otherwise than in
conformity with the rules contained in Section 5 of the said Act.
Explanation: For the purposes of this section, a judicial proceeding: is
said to be pending:
a. in the case of a civil proceeding, when it is instituted by the filing of
a plaint or otherwise
b. in the case of a criminal proceeding under the Code of Criminal
Procedure, 1898, or any other law:
i. where it relates to the commission of an offence, when the charge-
sheet or challan is filed, or when the court issues summons or
warrant, as the case may be, against the accused, and
ii. in any other case, when the court takes cognizance of the matter
to which the proceeding relates, and in the case of a civil or
criminal proceeding, shall be deemed to continue to be pending
until it is heard and finally decided, that is to say, in a case where
an appeal or revision is competent, until the appeal or revision is
heard and finally decided or, where no appeal or revision is
preferred, until the period of limitation prescribed for such appeal
or revision has expired;
which has been heard and finally decided shall not be deemed to be
pending merely by reason of the fact that proceedings for the execution of the
decree, order or sentence passed therein are pending.
A fair and accurate report of judicial proceedings: A person publishing
a fair and accurate report of any judicial proceedings should not be held guilty
of Contempt of Court under Section 4 of the Act.
A fair criticism of the judicial act: If a person publishes any fair comment
on the merits of any case which has been finally decided, (however, not in
case of pending proceedings) he shall not be guilty of criminal contempt
under Section 5 of the Act. In the famous case of Arundhati Roy, AIR 2002
SC 1375, the SC has held that judicial criticism cannot be petitioned under the
excuse of Freedom of Speech and Expression under Article 19(1)(a) of the
Constitution of India.
Bonafide complaint against the presiding officer of a subordinate court:
S.6 provides if a person has made a complaint in good faith against the presiding
 65
officer of any subordinate court to the High Court or to the Court to which he
is sub-ordinate then that person shall not be guilty of contempt of court in
respect of any statement made by him.
Subsections (1) & (2) of S. 7 of the Act provides that if a person has
published an accurate summary of the whole or any part of the order made by
the court in camera (in Chamber) unless the court has expressly prohibited,
that a person shall not be guilty of Contempt of Court.
Defences allowed in a Contempt proceeding: A new Section 13 has been
used to replace the old one, (No substantial interference with due course of
justice) by the Contempt of Courts (Amendment) Act, 2006. This new Section
13 provides that no Court should impose a sentence for Contempt of Court
unless the Contempt is of such a nature that it significantly interferes or tends
to interfere with the due course of justice.
Justification by the truth: The new Section 13(2) provides that the Court
may, in any proceeding for criminal contempt allows justification by truth as a
valid defence if it is satisfied that it is in the public interest and it is bonafide
(Dr. Subramanian Swamy vs. Arun Shourie 2014 (3) RCR (Criminal) 797)
However, under this Act, no court shall impose a sentence until it is satisfied
that the contempt is of a nature that it significantly interferes, or tends
significantly to interfere with the due course of justice.
In Kapildeo Prasad Sah and Others vs State of Bihar and others (1999)
7 SCC 569, the apex court held that it would be a violation of the principle of
Rule of Law if there is a disobedience of the court’s order.
Sections 14 and 15 of the Contempt of Court Act, 1971 deal with the
procedure of Contempt proceeding. Section 14 of the Contempt of Court
provides for the procedure of contempt proceeding in the face of the court of
record. On the other hand, Section 15 deals with the procedure of the contempt
proceeding outside the court of records. The power to punish for its contempt
inherently lies with these courts of record.
These courts of record can, therefore, deal with the matter of contempt by
making their own procedures. The courts of record, while exercising the
contempt jurisdiction must bear that the only case to be observed is that the
procedure adopted must be fair and reasonable in which the alleged contemnor
should be given full opportunity to defend himself.
Q.4. What are the punishment for the contempt of Court?
Or
Where the Appeal for the decision or order for the contempt of court
lies?
Ans. Punishment for Contempt of Court: According to Section 12 of the
Contempt of Courts Act, 1971, 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.
 66
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 - An apology shall not be rejected merely on the ground that it is
qualified or conditional if the accused makes it bona fide.
Sub-Section (2) provides that 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.
Sub-Section (3) provides that 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.
Sub-Section (4) provides that, 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.
Sub-Section (5) provides that, 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 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.
Limitation: The Limitation period for actions of contempt has been
discussed under Section 20 of the Contempt of Courts Act of 1971 and the
Limitation period for actions of contempt is a period of one year from the date
on which the contempt is alleged to have been committed.
 67
Appeals: Section 19 (1) of the Act provides that an appeal shall lie as of
right from any order to decision of High Court in the exercise of its jurisdiction
to punish for contempt:
a. Where the order or decision is that of a single judge, to a bench of
not less than two judges of the Court.
b. Where the order or decision is that of a bench, to the Supreme Court.
Provided that where the order or decision is that of the Court of the
judicial commissioner in any union territory, such appeal shall lie to the Supreme
Court.
Section 19 (2) of the Act provides for Pending of any appeal. The appellate
Court may order that:
a. The execution of the punishment or order appealed against be
suspended;
b. If the appellant is in confinement, he be released on bail; and
c. The appeal be heard notwithstanding that the appellant has not
purged his contempt.
Section 19 (3) of the Act provides that where any person aggrieved by
any order against which an appeal may be filed satisfied the High Court that
he intends to prefer an appeal, the High Court may also exercise all or any of
the powers conferred by sub section(2).
Section 19 (4) of the Act provides for limitation for Appeal. According to
this sub-section, an appeal under sub-section (1) shall be filed:
a. in the case of an appeal to a Bench of the High Court, within thirty
days ;
b. in the case of an appeal to the Supreme Court, within sixty days,
from the date of the order appealed against.
Section 19 of the Contempt of Courts Act, 1971, deals with appeals. Right
to appeal to higher court against the decision of lower court has been
specifically given in the present Act. Prior to this, the position was not clear.
Appeals were heard by the Privy Council on the ground that the action in the
contempt of court cases was made in the name and on behalf of the Sovereign
hence the Privy Council could hear the appeal (Court on its Own Motion v.
Kasturi Lal, AIR 1980 P&H 72, at p. 73).
The Apex Court in S. P. Wahi v. Surendra Singh, held that it is not each
and every order passed during the contempt proceedings that is appealable.
In Subhash Chandra v. B.R. Kakkar, it was held that when the High Court
acquits the contemner, no appeal lies.
If the order of committal for contempt of court is made:
a. By a single judge of the High Court, an appeal lies to a division
bench thereof; or
68
b. By a division bench of the High Court, an appeal lies to the Supreme
Court, as of a statutory right.
In Re: Shri Sanjiv Datta, Deputy Secretary, Ministry of Information &
Broadcasting [1995 Scc (3) 619], a Suo moto contempt notice issued to a
public servant and his advocates. Affidavit was filed in the Supreme Court
containing allegations against the Court. Allegations made with intention of
casting aspersions on the Court and attributing motives to it. Accusing the
Court of making mockery of established policy of Government of India by
permitting a foreign agency to undertake broadcasting from India, against
national interest thereby undermining sovereignty of the nation. Unconditional
apology of public servant not accepted. Allegations made by the contemnor
were intentional. Made with full knowledge of its grave implications and
therefore has potentiality of mischief. If not curbed firmly, may assume
proportion grave enough to sabotage the rule of law. Unconditional apology
of advocates, Accepted for want of knowledge of allegations. (Officers-let
your mind and not the heart speak).


 69

Q.1. Duties of Bar towards Bench?

Ans. Duties of the Bar: Advocates assist the court in the administration of
justice, they are the officers of the court. Advocates present the case
before the court after collecting material related to that case, and thus
helps the court in arriving at the judgment. In the process of
administration of justice, an advocate is a partner of the judiciary. An
advocate shall perform the following duties-
1. A respectful attitude shall be maintained by advocates towards
the courts, bringing in mind that for the survival of the society
the dignity of the judicial office is essential.
2. Efforts shall be made by advocates in order to prevent his/her
client from adopting unfair practices concerning the court.
3. By any illegal or improper means, an advocate shall not try to
influence the judgment of the court.
4. Dignity and self-respect shall be maintained by an advocate while
presenting his/her case in front of the judge.
5. An advocate shall help the court in the trial of the case by
presenting clearly the laws which are relevant to the particular
case.
6. An advocate shall not present any fact in front of the court which
he knows to be false.
7. An advocate shall not ask for an adjournment of the case without
any sufficient reason.
8. An advocate shall always appear in court in a presentable manner
and a prescribed dress. In public places, he should not wear a
gown or bands.
9. If an advocate knows a judge personally he should not practice
before him.
10. An advocate shall not interrupt in between when an opposite
council or judge is speaking.
70
11. If an advocate has a monetary interest in any case, he shall not
plead in such a case.
12. An advocate shall not represent any organization or institution if
he is a member of the executive committee of such an organization
or institution.
13. An advocate shall not apply any personal influence over the
decision of the court, nor he should give any kind of impression
that he possesses personal influence with the judge before whom
he practices
Q.2. Duties of Bench towards Bar?
Ans. Duties of the Bench: In the state, there is no office of such powers as
that of the judge, as the powers which are held by judges are greater
than any other functionary. The citizen’s life, liberty, personal domestic
happiness, reputation, and property all are subject to the wisdom of
the judges and all the citizens have to comply with the judge’s decision.
If judges become corrupt there will be no security left with citizens to
life and liberty, and also there will be no guarantee of personal domestic
happiness to them. Thus, the state needs a judiciary that is strong,
powerful, and impartial. The judges shall perform the following duties:
1. Patient Hearing: While hearing cases the judge shall not be
biased, and shall not form the opinion regarding the merit of the
case until he heard both the parties, he should act in the interest
of justice. Sufficient opportunity shall be given to the advocates
by judges in order to present their case.
2. Impartiality: Judges shall act impartial, and shall not do anything
in favor of his friend and relatives, he must do everything for
justice.
3. Avoidance of Interruptions: When advocates examine witnesses
in a case or argue in case, the judge shall make sure that there are
no interruptions. Unwanted interruption or bad comments by the
judges during the hearing of the case disturbs the advocates and
as a result, he may not be able to present his case properly. But
the judges can interfere in the following circumstances:
 To prevent waste of time.
 To check the relevancy of arguments put forward by the
advocates.
 To get clarifications on a point that is not clear to him.
 To express his opinion on a point.
 To promote speedy disposal of cases.
4. Interpretation of Statutes: In some cases, interpretations of acts,
codes, regulations, orders, etc has to be done by the court, during
 71
the process of administration of justice, in order to remove the
ambiguity or inconsistency or to know the actual meaning of the
provisions. So in such cases, proper interpretation of statutes
should be done by the court to render justice to the parties.
5. Avoidance of unreasonable adjournments: Without reasonable
and sufficient grounds cases shall not be adjourned. One of the
reasons for mounting arrears of cases is unreasonable
adjournment which causes hardship to the parties.
6. Speedy disposal: Cases that come before the court shall be
disposed of as soon as possible, as when justice is delayed it
means justice is denied.
7. Avoiding harsh comments: Harsh comments shall be avoided by
the judge in the court about the advocate’s lack of knowledge in
law, similarly, without any sufficient reason, they can not ask the
advocates to leave the court. Judges should possess a calm
temper.
8. Independence: The protection of the independence of the judiciary
should be the prime duty of the judge.
9. Meeting of judges and advocates: At regular intervals, meetings
shall be conducted between the judges and the Advocates, such
that they can put forward their difficulties in front of each other
and it can be sorted out, this will help in strengthening the Bar
and Bench relation.
10. Integrity: The character and the conduct of a judge shall be
praiseworthy, and he should have personal and intellectual
integrity.
11. Industriousness: A judge should regularly update his knowledge
and should know all the recent developments and changes made
in the law.
Q.3. Duties of judges towards the Advocate?
Ans. Judge is a public officer who hears and decides cases, settling the
dispute in the court of law. There is no office in the State of such power
as that of the Judge. Judges hold power which is immensely greater
than that of any other functionary.
Duties of Judges:
1. A person who is acting as a Judge in the Court of Law must
discharge his duties without fear or favor, ill will or affection.
2. A Judge must be impartial and must do everything for justice and
nothing for himself or his friends or relatives.
3. A Judge should have patience and gravity of heating. He should
allow the advocate or party fullest opportunity to present case.
72
4. A Judge should respect the Privilege of Bar.
5. A Judge should sit with a receptive mind. No Judge should form
the opinion regarding the merit of the case till he heard the parties.
6. No Judge Should desire that the Bar Should be servile
7. A Judge must not allow himself to be subjected to any influence
other than the influence of law and justice of the cause.
8. A Judge should avoid a controversial manner or tone in
addressing controversial manner or tone in addressing counsel
litigant or witness.
9. A Judge should avoid interruption in the Counsel in their argument
and in the examination of the witness.
10. An important duty which the judge owes to the Bar is of
consideration and courtesy. He should possess calm temper.
Q.4. What are the restrictions on Senior Advocate?
Ans. Restrictions on senior Advocates:
a. A senior advocate shall not file a vakalatnama or act in any court,
or tribunal , or before any person or other authority mentioned in
section 30 of the act .
b. A senior advocate shall not appear without an advocate on on
record in the supreme court without an advocate an advocate of
the state roll in any court or any tribunal or before any person or
other authorities mentioned in section 30 of the act
c. where a senior advocate has been engaged prior to the coming
into force of the rule in this chapter shall not continue thereafter
unless an advocate in Part II of the state roll is engaged along
with him c) He shall not accept instruction to draft pleading or
affidavit , advice on evidence or to do any drafting work of an
analogous kind in any court or tribunal , or before any person or
authority mentioned in the section .30 of the act or undertake
conveyancing work of any kind whatsoever. This restriction
however shall not extend to settling any such matter as aforesaid
in consultation with an advocate in Part-II of the state roll.
d. A Senior advocate shall, however, be free to make connections or
give undertaking in the course of arguments on behalf of his
clients on instructions from the junior advocates.
e. He shall not accept directly from a client any brief or instructions
to appear in any court or tribunal, or before any person or any
other authority in India.
f. Senior advocate who had acted as an advocate (junior) in a case,
shall not after he has been designated as a senior advocate advice
 73
on grounds of appeal in a court of appeal in a court of appeal or
in the supreme court, except with an advocate as aforesaid.
g. 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 consider reasonable.
Q.5. What are the remedies against the Punishment for the Professional
Misconduct?
Ans. Remedies against the Order of Punishment:
1. Appeal to the Bar council of India (s 37): Any person aggrieved
by the order of the disciplinary committee of the State Bar Council,
or the Advocate general of the State may within 60 days from the
date of the order may prefer an appeal to the Bar Council of India.
The appeal shall be filed in person or through by Advocate or by
registered post. He must submit 5 copies of appeal memorandum
along with the attested copy of the order of the State Bar Council.
Such appeal shall be heard by the disciplinary committee of the
Bar Council of India and after hearing it may pass any order it
deems fit ie., it can confirm. The order of the State Bar Council, or
increase or reduce the punishment, or totally remove the
punishment.
2. Appeal to the Supreme Court : Any person aggrieved by an
order made by the Disciplinary committee of the Bar Council of
India, or the Attorney General of India may within 60 days from
the date of order prefer an appeal to the Supreme court. The
Supreme Court after hearing the parties concerned shall pass any
order as it thinks fit.
Normally, the Supreme court will not interfere with the concurrent
findings of fact by the disciplinary committee of the Bar Council
of India and the State Bar Council. If the finding is based on no
evidence, then the court will examine it.
3. Stay of the order: For the convenience of filing an appeal against
the order of the State Bar Council or the Bar Council of India, the
aggrieved party can file an application before the concerned Bar
Council which has passed the order to stay the order still appeal
is filed. If genuine grounds are there then the concerned Bar
Council can stay the order.
Similarly, after filing the appeal before the Bar council of India or before
the Supreme Court the aggrieved party can ask for the stay of the
order still the disposal of the appeal. If the genuine grounds are there
then the Bar Council or Supreme Court shall stay the order still the
disposal of the appeal.
74
Q.6. Explain The Advocates Right to take up Law Teaching Rules, 1979
Ans. The Advocates Right to take up Law Teaching Rules, 1979: This
Rules made by the Bar Council of India under Section 49A of the
Advocates Act, 1961.
Section 3: Right of practicing advocates to take up law teaching.-
1. Notwithstanding anything to the contrary contained in any rule
under this Act, an advocate may, while practising, take up teaching
of law in any educational institution which is affiliated to a
University within the meaning of the University Grants Comission
Act, 1956 (3 of 1956), so long as the hours during which he is so
engaged in the teaching of law do not exceed three hours a day.”
2. When any Advocate is employed in any such educational
institution for the teaching of law, such employment shall, if the
hours during which he is so engaged in the teaching of law do
not exceed three hours, be deemed, for the purposes of the Act
and the rules made there under, to be a part-time employment
irrespective of the manner in which such employment is described
or the remuneration receivable (whether by way of a fixed amount
or on the basis of any time scale of pay or in any other manner) by
the Advocate for such employment.


 75

Q.1. What do you mean by Bar and Bench relationship?

Or
How relationship between Bar and Bench administer justice?
Ans. Definition of Bar and Bench:
1. Bar: Advocates are registered by the State Bar Council as such after
receiving their degree of L.L.B from a university and receiving a specific
amount of training under the supervision of an advocate as stipulated by the
rules. The advocates are collectively referred to as the ‘Bar,’ and an advocate
is designated as the representative of the Bar. For the most part, the term
“Bar” refers to an association of attorneys who are licensed to practice in the
courts, or a specific court, of any state.
2. Bench: The term “bench” refers to all of the judges taken together, as
opposed to the term “Bar,” which refers to all members of the legal profession.
The term “bench” also refers to the key component of the court deemed in its
official capacity while the judges are sitting. The term ‘Bar’ was originally
used to refer to the part of the court that dealt with attorneys. However, the
term is now used to refer to the part of the court that deals with judicial
officers, which is known as the Bench.
Bench Bar Relation: Bar-Bench Relation in law refers to the cordial
relationship between the Advocates and the Judges. The Bar (Advocates)
and Bench (Judges) play an important role in the administration of justice.
The judges administer the law with the assistance of the lawyers. The lawyers
are the officers of the court. They are expected to assist the court in the
administration of justice. As the officers of the court the lawyers are required
to maintain respectful attitude toward the court bearing in mind that the dignity
of the judicial office is essential for the survival of the society. Mutual respect
is necessary for the maintenance of the cordial relations between the Bench
and Bar.
The opinion of our Supreme Court in the context of Bench- Bar Relation
has been clearly laid down in P.D. Gupta v. Ram Murti and Others, AIR 1998
SC 283, as follows: “A lawyer owes a duty to be fair not only to his client but
also to the court as well as to the opposite party in the conduct of the case.
Administration of justice is a stream which has to be kept pure and clean. It
has to be kept unpolluted. Administration of justice is not something which
concerns the Bench only. It concerns the Bar as well. The Bar is the principal
ground for recruiting judges. Nobody should be able to raise a finger about
the conduct of a lawyer. Actually judges and lawyers are complementary to
each other. The primary duty of the lawyer is to inform the court as to the law
 76
and facts of the case and to aid the court to do justice by arriving at the
correct conclusions. Good and strong advocacy by the counsel is necessary
for the good administration of justice. Consequently, the counsel must have
freedom to present his case fully and properly and should not be interrupted
by the judges unless the interruption is necessary.”
In Mahant Hakumat Rai v. Emperor AIR 1943 Lahore 14, the Lahore
High Court had held that “Without failing in respect to Bench, it is the duty of
the members of the Bar to assert their just rights to be heard by the tribunal
before which they are practising. They should be fearless and independent in
the discharge of their duties, and would be perfectly right in protesting against
irregular procedure on the part of any judge; and if the advocate is improperly
checked or found fault with, he should vindicate the independence of the Bar.
He would be perfectly justified in insisting on getting a proper hearing and he
would be perfectly right to object to any interruption with the course of his
argument such as to disturb him in doing his duty to his client. Plenary powers
vested in the Presiding Officer of the Court, apart from the fact that they have
rarely been used against members of the legal profession so far, should only
be used to vindicate the honour of the court or to satisfy the necessities of
public justice and not as a matter of course.” It may, however, be noted that
the presence of professional etiquette coupled with recognition by judiciary
of the importance of an independent Bar, will work together to minimise the
possibility of confrontation between the Bench and the Bar.
To conclude this part we can say that, a free and fearless Bar is not to be
preferred to an independent judiciary, nor an independent judiciary to a free
bar. Neither has a primacy over the other. Both are indispensable to a free
society. The freedom of the Bar presupposes an independent judiciary through
which that freedom may, if necessary, be vindicated. One of the potent means
for assuring judges of their independence is responsible, well- behaved,
cultured and, learned Bar. Finally, reciprocal adjustment of conduct by the
Bench and the Bar is the keystone to the smooth functioning of courts in
general interest of the society.
Role of bar-bench in the administration of justice:
The practice of law and the administration of justice is vitally important to
each other. There is no other office in the state that possesses the same level
of authority as that of the judge. Judges carry enormous power, far exceeding
that of any other official in the government or military. The common people’s
lives and liberty, individual domestic happiness, property, and public image
are subordinate to the judges’ wisdom, and citizens are held accountable for
their judgments. If judicial power is corrupted, there is no longer any assurance
of life, liberty is forfeited, and there is no longer any guarantee of personal or
domestic happiness. A strong judiciary that is active, unbiased, and competent
is the most important thing a state can have. Judges must carry out their
 77
responsibilities due to the importance of judges in the maintenance of civil
and orderly society.
The administration of justice is not limited to the courtroom. It also has
significance for the Bar. The preservation of cordial relations between the Bar
and the Bench necessitates respect and understanding on both sides of the
bar. The roles of attorneys and judges are supplementary to one another. The
primary source of judges’ recruitment is the legal profession. As a result, they
are both members of the same community. The Bar and bench need to sustain
cordial relations with one another. However, because of the nature of the
responsibilities that attorneys and judges must fulfill, they may engage in
dialogues that are sometimes amusing, sometimes heated, and sometimes
tough.
Role of the bar in strengthening the bar-bench relation:
Advocates are court officers, and they are required to aid the court in the
administration of justice on behalf of the court. Advocates gather resources
relevant to the case to aid the court in reaching an (outcome) in the case. An
advocate works in collaboration with the judiciary to ensure that justice is
administered properly. Advocates, like judges, play a significant role in the
administration of justice. An advocate has to practice the following steps to
preserve and strengthen the relation between Bar and Bench:
They should show reverence to the judges and refrain from disparaging
the judges or the judiciary in any way whatsoever.
 They should assist the judges in the court hearing of the cases by
conveying the relevant law accurately and understandably during the trial.
They should never behave in a way that would displease the judges.
 If the judges make a mistake in their decision, they should not be
criticized. They should attempt to correct the error in the order by filing an
appeal.
 They should not exert stress or control on the judges to obtain a
favorable order. An advocate should refrain from seeking to manipulate the
verdict of the court through the use of illegal or inappropriate means.
If the judge’s conduct is annoying and disrespectful to the advocates,
they should refrain from engaging in violent talks with the judge in question.
The issue should be addressed with the judge in his chambers, and the Bar
Association should make a formal request that such misbehavior not be
repeated.
It is the responsibility of an advocate to make every effort to constrain
and avert his or her client from engaging in unfair practices with the court.
Role of the bench in strengthening the bar-bench relation:
A judge is a public official who hears and decides cases in the court of
law, thereby resolving a legal dispute. Judges wield enormous power, far
78
exceeding that of any other official in the government or military. A judge has
to practice the following steps to preserve and strengthen the relation between
Bar and Bench:
 In the same way that the advocates respect the judges, the judges
should respect the advocates as well.
It is important for judges to approach the case with an open mind and to
do so without bias or prejudice, as appropriate. They will act in a manner that
is beneficial to the interests of justice. They will give the advocates sufficient
time to present their case in its entirety.
Judges are expected to act in a fair and unbiased manner. They are not
permitted to act in the interests of any prosecutor or party to the dispute.
When required, judges should refrain from interfering with the lawyer’s
interviews of witnesses and presentation of the argument. A lawyer’s
professional reputation may be harmed by undue intrusion and disparaging
messages from the judges, and he may be unable to effectively present the
case. In most cases, a judge’s intervention is confined to the following factors:
avoiding reiteration and time-wasting, checking for pertinence, providing
clarification, sharing an opinion of the courts on a particular point, and
promoting the expeditious disposition of the case.
In the course of administering justice, the courts are frequently called
upon to decipher the law’s rules, directives, regulations, codes, bylaws,
circulars, notices, and other documents to determine the true significance of
the statutes or to clear up confusion or incoherence in the legislation. In these
instances, a proper explanation should be provided to provide full justice to
the parties involved in the situation.
Adjournments are granted to allow the parties a reasonable amount of
time to present their arguments. Cases will not be adjourned where possible
unless there are reasonable and appropriate grounds to do so. Excessive
postponement of cases, which causes the parties to suffer financial difficulties
is the most common cause of mounting backlogs in the court system.
The case of ‘justice deferred is justice denied’ will also be resolved as
soon as possible as well. When older cases are given priority over new cases,
new cases should not fall behind in their disposition.
Judges should refrain from making unjustified public remarks about a
lawyer’s lack of legal insight in open court. They should not ask any lawyer to
leave the trial unless they have a compelling reason to do so. Likewise, they
should not request that any advocate not appear in his or her court in the
future.
Judges will have a thorough understanding of the law. They should be
able to apply the appropriate legislation to the evidence available and come to
the best possible conclusion on the matter.
 79
The foremost duty of ensuring and preserving judicial independence
relies upon the judges who preside over the courts.
A judge’s moral responsibility and honesty should be unquestionable.
He should be treated with respect, both personally and intellectually. There
should be something to commend about the character and the action.
This entails a lot of hard work and extensive research done on a regular
and comprehensive basis. A judge’s knowledge should be kept up to date
with the most recent advancements and transformations in legislation by
continuously reviewing it.
Briefings of judges and advocates are scheduled at regular intervals to
strengthen the relationship between the Bar and the Bench. During these
sessions, the problems of the opposing sides can be discussed, and the
differences can be resolved through discussion.
Suggestions on the relation between bar and bench:
In the administration of justice, the Bar and the Bench play a vital role in
being the two most important organs; they share a common duty in ensuring
that justice is administered properly and effectively. Given the fact that both
are national assets of our nation, they must therefore coordinate and work
cooperatively with one another, as well as stay cautious together, in order to
safeguard judicial independence.
A reputed and unbiased judiciary, as well as a powerful bar, are required
to maintain the system of democracy and independence under the rule of law
in the country. Furthermore, the lawyers must have the impression that they
were given a fair court hearing and that their issues would be addressed by an
unbiased and credible attorney, among other things.
It is critical for the productive discharge of the court’s duties that the
high level of optimism, prestige, and dignity that they have admired throughout
their careers be sustained and not weakened in any manner. Whether it is
judges or lawyers, they bear the main duty of administering and maintaining
the public’s trust in the courts.
Conclusion:
An ordinary citizen has faith and confidence in the country’s judicial
system. It is the responsibility of both the Bench and the Bar to uphold and
strengthen the rule of law through their dedication and behavior. To ensure
the independence of the bar, an independent judiciary must be in place, which
can be used to defend that independence if required. One of the most effective
methods of guaranteeing judges’ independence is to have a responsible, well-
behaved, sophisticated, and learned Bar. In the end, the mutual adjustment of
behavior by the Bench and the Bar is the cornerstone of the polished operation
of courts in the overall interest of society.
80
Q.2. Explain the power of State Bar Council?
Ans. Powers of State Bar Council:
1. Admission as advocates on a State roll: If a person fulfils the conditions
required for admission as advocates, he may be enrolled as an advocate by
the State Bar Council, The conditions to be fulfilled for being enrolled as an
advocate have been stated in Section 24 of the Advocates Act. An application
for admission of admission as an advocate shall be made in the prescribed
form to the State Bar Council within whose jurisdiction the applicant proposes
to practice (Section 25).
A State Bar Council is required to refer every application for admission as
an advocate to its enrolment committee which shall dispose of the application
in the prescribed manner. 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. The enrolment committee of the State Bar Council is required to
dispose of the application so referred to the Bar Council of India in conformity
with the opinion of the Bar Council of India. Where the enrolment committee
of the 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
grounds for the refusal. It is to be noted that the Bar Council of India may, if
satisfied, either on a reference made to it in this behalf or otherwise than 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 (Section 26).
Section 26-A of the Advocates Act empowers a State Bar Council to
remove from the State roll the name of any advocate who is dead or from
whom a request has been received to that effect.
Section 27 of the Act provides that 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.
The State Bar Council is required to issue a certificate of enrolment in the
prescribed form to every person. Whose name is entered in the roll of advocates
maintained by it under the Act (Section 22).
2. Maintenance of roll of advocates: Section 17 of the Advocates Act
provides that every State Bar Council shall prepare and maintain a roll of
advocates in which shall be entered the name and address of:
 81
a. all persons who were entered as advocates on the roll of any High Court
under the Indian Bar Councils Act, 1926, immediately before the appointed
day including persons being citizens of India who before 15-8-1947, 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 entertain 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 date.
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.
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 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:
i. the seniority of an advocate referred to in clause (a) (stated above)
shall be determined in accordance with his date of enrolment under
the Indian Bar Councils Act, 1926;
ii. the seniority of any person who was a senior advocate of the Supreme
Court immediately before the appointed day shall, for the first post
of the State roll, be determined in accordance with such principles as
the Bar Council of India may specify;
iii. 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;
iv. notwithstanding anything contained in clause (1), (stated above),
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 - Section 17(3).
This section makes’ it clear that no person shall be enrolled as an advocate
on the roll of more than one State Bar Council.
Section 19 of the Advocates Act requires the State Bar Council to send
copies of rolls of advocates to the Bar Council of India. It provides 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, thereafter communicate to the Bar Council of India all alterations in and
addition to, any such roll as soon as the same have been made.
 82
3. Rule-making power: The State Bar Council has been empowered to
make rules to carry out the purposes of Sections 16 to 27 of the Advocates Act
dealing with the admission and enrolment of the advocates. According to
sub-section (1) of Section 28 of the Act a State Bar Council may make rules to
carry out the purposes of Chapter III (Sections 16 to 28) of the Act. Section
28(2) provides that in particular and without prejudice to the generality of the
foregoing power, such rules may provide for:
i. 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;
ii. 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;
iii. the conditions subject to which a person may be admitted as an
advocate on any such roll; and
iv. the instalments in which the enrolment fee may be paid.
Sub-section (3) of Section 28 of the Act makes it clear that the rules so
made shall not have effect, unless they have been approved by the Bar Council
of India.
4. Power to punish for professional or other misconduct: The State Bar
Council has power to punish an advocate for professional or other misconduct.
Section 35 of the Advocates Act provides that where on receipt of a complaint
or otherwise a State Bar Council has reason to believe that any advocate on
its roll has been guilty of professional or other misconduct, it shall refer the
case for disposal to its disciplinary committee and thereafter the disciplinary
committee shall fix a date for the hearing of the case and shall cause a notice
thereof to be given to the advocate concerned an, the Advocate-General of
the State. The disciplinary committee after giving the advocate concerned
and the Advocate-General an opportunity of being heard, may make any of
the following order:
a. dismiss the complaint or where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings be
filed;
b. reprimand the advocates;
c. suspend the advocate from practice for such period as it may deem
fit;
d. remove the name of the advocates from the State roll of advocates.
Where an advocate is suspended from practice under clause (c), stated
above, he shall, during the period of suspension, be debarred from practising
in any Court, or before any authority or person in India.
 83
According to Section 36-B of the Advocates Act the disciplinary
committee of a State Bar Council shall dispose of the complaint received
expeditiously and in each case the proceedings shall be concluded within a
period of one year from the date of the receipt of the complaint or the date of
initiation of the proceedings at the instance of the State Bar Council, as the
case may be, failing which such proceedings shall stand transferred to the Bar
Council of India for disposal. However, where on the commencement of the
Advocates (Amendment) Act, 1973, any proceedings in respect of any
disciplinary matter against an advocate is pending before the disciplinary
committee of a State Bar Council, that disciplinary committee of a State Bar
Council shall dispose of the same within a period of 6 months from the date of
such commencement or within a period of one year from the date of the receipt
of the complaint as the case may be, the date of initiation of the proceedings
at the instance of the State Bar Council whichever is later, failing which such
proceeding shall stand transferred to the Bar Council of India for disposal.
Any person aggrieved by an order of the disciplinary committee of a
State Bar Council or the Advocate-General of the State may, within 60 days of
the date of the communication of the order to him, prefer an appeal to the Bar
Council of India(Section 37).
Every such appeal shall be heard by the disciplinary committee of the
State Bar Council of India which may pass such order including an order
varying the punishment awarded by the disciplinary committee of the State
Bar Council thereon as it deems fit:
Provided that no order of the disciplinary committee of the State Bar
Council shall be varied by the disciplinary committee of the Bar Council India
so as to prejudicially affect the person aggrieved without giving him reasonable
opportunity of being heard.
The person aggrieved by an order made by the disciplinary committee
the Bar Council of India under Section 36 or 37 or the Attorney general of India
or the Advocate-General of State concerned, as the case may be, may prefer
an appeal to the Supreme Court under section 38 of Advocates Act.
Section 44 of the Advocates Act makes provision in respect of the review
of orders passed by the disciplinary committee. It provides that disciplinary
committee of a Bar Council may, of its own motion or otherwise review .any
order within 60 days of the date of that order passed by it. However, no such
order of review of the disciplinary committee of a State Bar Council shall have
effect, unless it has been approved by the Bar Council of India.
5. Appointment of committees and Staff members: A Bar council
establishes several committees. According to section 9 of the Advocates Act
84
a Bar Council shall constitute one or more disciplinary committee, each of
which shall consist of three persons of whom two be persons elected by the
Coup.cil from amongst its members and the other shall be a person co-opted
by the Council from amongst who possess the qualifications specified in the
proviso to Section 3(2) of the Act and who are not members of the Council and
the senior most advocate amongst the members of a disciplinary committee
shall be the chairman thereof.
In addition to above, a Bar Council may constitute one or more legal aid
committed each of which shall consist of such number of member not exceeding
nine, ‘but not less than five, as may be prescribed. The qualifications, the
method of selection and the term of office of the members of a legal aid
committee shall be such as may be prescribed. Besides, a State Bar Council
shall constitute the following standing committees, namely-
a. an executive committee consisting of five members elected by the
Council from amongst its members of, and
b. an enrolment committee consisting of three members elected by the
Council from amongst its member.
Sub-section (3) of Section 10 of the Advocates Act makes it clear that a
State Bar Council, may constitute from· amongst its members such other
committees as it may deem necessary for the purpose of carrying out the
provisions of the Advocates Act.
Section 11 of the Advocates Act empowers the Bar Council to appoint
staff-members. It provides that every Bar Council shall appoint a secretary
and may appoint an accountant and such member of other persons on its staff
as it may deem necessary. The secretary and accountant shall possess such
qualifications as may be prescribed.
6. Maintenance of account, etc: Section 12 of the Advocates Act provides
that every Bar Council shall cause to be maintained such books of accounts
and other books in such form and in such manner as may be prescribed. The
account of the Bar Council is required to be audited by the -auditors duly
qualified to act as auditors of companies under the Companies Act, 1956 at
such times and in such manner as may be prescribed. As soon as may be
practicable at the end of each financial year but not later than the 31st day of
December of the year next following, a State Bar Council shall send a copy of
its account together with a copy of the report of the auditors thereon to the
Bar Council of India and shall cause the same to be published in the official
Gazette. As soon as may be practicable at the end of each financial year but
not later than the 31st December of the year next following, the Bar Council of
India shall send a copy of its accounts together with a copy of the report of
 85
the auditors there onto the Central Government and shall cause the same to be
published in the Gazette of India.
Q.3. What do you mean by Professional Misconduct?
Ans. Professional and Other Misconduct: Section 35 of the Advocates
Act provides in respect of punishment for professional or other misconduct.
It provides that where on receipt of the complaint or otherwise, a State Bar
Council has reason to believe that any advocate on its roll, has been guilty of
professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee. Section 35 empowers the disciplinary committee to
reprimand the advocate and suspend the advocate from practice for such
period as it may deem fit or remove the name of the advocate from the State roll
of advocates. However, an appeal against the order of the disciplinary committee
may be preferred, to the Bar council of India9 and thereafter to the Supreme
Court against the order of the Bar Council of India10. Section 35 of the
Advocates Act specifically mentions that an Advocate can be punished not
only for professional misconduct but also other misconduct.
In case of State of Punjab v. Ram Singh, AIR 1992 SC 2188, the Supreme
Court has explained the term “misconduct” in connection with the misconduct
of the personnel in the Police Department but may be applied in determining
whether or not conduct implies to misconduct. The Supreme Court has
observed that the term ‘misconduct’ may involve moral turpitude, it must be
improper or wrong behaviour, wilful in character forbidden act, a transgression
of established or definite rule of action or code of conduct, but not mere error
of judgment, carelessness or negligence in performance of duty.
According to Black’s Dictionary the term “misconduct” is defined as a
transgression of some established and definite rule of action, a forbidden act,
a dereliction of duty, unlawful behaviour.
In Nortanmal Chauaisia v. M. R. Murli, 12 2004 AIR SCW 2894, the
Supreme Court has held that misconduct has not been defined in the Advocates
Act, 1961. Misconduct, inter alia, envisages breach of discipline, although it
would not be possible to lay down exhaustively as to what would constitute
misconduct and indiscipline, which, however is wide enough to include
wrongful omission or commission, whether done or omitted to be done
intentionally or unintentionally. It means improper behaviour, intentional wrong
doing or deliberate violation of a rule of standard of behaviour’.
In the matter of P1, AIR 1963 SC 1313, the Court has held that an
advocate may be punished not only when he is guilty of professional
misconduct but also if he is guilty of other misconduct which may not be
directly concerned with the professional activity as such, may nevertheless
 86
be of such dishonourable or infamous character as to invite the punishment
due to professional misconduct.
Professional misconduct arises as a result of serious dereliction of duties
to the court, to the client, to the opponent, to the colleagues, to the profession,
to the public etc.
Following are some of the instances of professional misconduct:
1. Making false allegation against judicial officers.
2. Deliberately lodging groundless criminal complaint.
3. Making groundless and insulting charges against witness.
4. Refusing to accept a case without justification.
5. Attending court proceedings in drunken state.
6. Attempting to influence judicial officers for favour.
7. Carrying on other trade or business.
8. Committing crimes.
9. Financing litigation.
10. Obtaining client’s signature on blank papers.
11. Shouting slogans or holding demonstration in front of the court.
12. Approaching investigative officers for favour during investigation
of a case.
13. Writing letter to the presiding officer in connection with the pending
case.
14. Tampering with the witness
15. Suggesting the client to bribe the presiding officer.
16. Moving application before any court or authority before informing
that a similar application has been presented before any authority or
rejected by any authority.
17. An exclusively retained pleader accepting a case against the client
from the opposite party.
18. Failure to appear in the proceedings of a case without any sufficient
reason.
19. Retaining the judgement of the trial court with the intention of getting
himself getting himself engaged in appeal.
20. Presenting the plaint with in sufficient court fee stamp, when the
client has given money for the court fee.
21. Alleging partiality against presiding officer in open court.
22. Tampering with records and documents.
 87
23. Writing letters to persons for soliciting cases.
24. Reporting no instructions from his client and subsequently appearing
for the opposite party in the same suit.
25. Advertising about his profession.
26. Taking advantage of the ignorance and illiteracy of the clients,
demanding money from them on false representations that is required
for court purposes and misappropriating the same.
27. Misappropriation of decreed amount payable to the client.
28. Giving wrong advise to the client.
29. Taking money from the client for the purpose of giving bribe.
30. Suppression of truth.
31. Changing sides.
32. Indecent cross examination.
33. Committing contempt of court.
34. False identifications of deponents.
35. Gross negligence involving moral turpitude.
36. Appearing without authority ie. On forged vakalath.
37. Failure to attend the trial.
38. Attesting forged affidavit.
39. Abstaining from appearing in court on the ground of strike called by
the Bar association.
40. Misleading the court resulting in erroneous order.
Punishment for misconduct: The Disciplinary committee of the State Bar
Council after hearing the Advocate concerned and the Advocate general comes
to the conclusion that the misconduct is proved that it may pass any of the
following orders, namely:
i. Reprimand the Advocate.
ii. Suspend the Advocate from the practice for such period as it thinks
fit.
iii. Remove the name of the Advocate from the Advocates Roll.
Punishment may be awarded depending on the gravity of misconduct
established against him. The punishment to remove from the Advocates Roll
is awarded only in the cases where the misconduct is of such nature that the
Advocate is unworthy of remaining in the profession.
Where an Advocate is suspended from the practice he shall not practice
in any court or tribunal or any authority or person during the suspended
period.
 88
Where notice is issued to the Advocate general, he may appear before
the disciplinary committee in person or through any Advocate appearing on
his behalf. If the misconduct is not proved beyond reasonable doubt then the
disciplinary committee shall dismiss the petition.
Q.4. What are the Rights of an Advocate?
Ans. Right of Advocates:
1. Right to Practice: The most important of right conferred to a lawyer is
his/her right to practice but there are a plethora of conditions which has to be
fulfilled for allowing a lawyer to exercise his right to practice. This is the only
right of advocates that has been codified and placed in the Advocates Act,
1961 with the duties and code of conduct of lawyers. This is an exclusive right
and has been conferred to a set of people who are deemed to be qualified to
represent others. Earlier even friends and family could represent an accused
on facts but due to demand of unification of bar, Section 29 was incorporated
whereby there will be only one recognized class of persons entitled to practice
the profession of law i.e. the advocates. Advocates have been conferred
rights to practice not only in all courts including the Supreme Court but also
before any tribunal or person legally authorized 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 in force entitled to practice. Section 30 lays
down the right in clear words and Section 33 that is worded negatively to
exclude everyone other than an advocate from practicing.
As a rule, a person who is not an advocate on roll of a high court can not
represent accused but there are situations where the courts have used their
discretion to allow a power of attorney holder to plead on behalf of the parties.
However it is imperative to mention here that an advocate does not include a
person in whose favour a power of attorney has been executed to take
proceedings in court as he cannot be placed in the position of an advocate,
who has been given a vakalatnama (Amita Misri v. State of J & K, (1988)
Kash LJ 353).
However, the right of a lawyer to practice is not an absolute right as there
are a number of fetters placed upon the same. Section 348 of the Act empowers
high court to make rules prescribing conditions subject to which an advocate
will be permitted to practice in the High Court and the courts below. Hence, an
advocate’s right to practice in all courts is subject to the rules made by High
Court.
One thing to be noted in this regard is that Section 30 has not come into
operation as yet. Section 1(3) of the Act suggests that the provisions of the
Act will come into effect from the day notified by the Central Government and
 89
since no such date has been notified in the Official Gazette, the Act has not
come into full force. This position was substantiated by the Supreme Court in
the case of Altmeish Rein v. Union of India, AIR 1988 SC 1768 at 1771,
wherein the Apex Court held that a person enrolled as an advocate is not ipso
facto entitled to a right of audience unless this section is first brought into
force. This also means that Section 30, in its present form, does not confer an
absolute right to practice but is subject to other provisions of the Act.
There have been several instances where this right of advocates has
upheld by the Courts for instance in case of Jaswant Kaur v. State of Haryana,
AIR 1977 P&H 221, where a full Bench of Punjab and Haryana High Court
held that the provisions under Haryana Ceilings on Holdings Act prohibiting
an advocate from appearing before any authority except Financial
Commissioner, were unconstitutional in light of the Section 14 of the Bar
Council’s Act, even though Section 30 has not been brought into effect.
However, there have been enough instances wherein the right has been
restricted for other reasons. One of the most important cases in this regard is
that of Paradip Port Trust v. Their Workmen, AIR 1977 SC 36, where Section
36(4) of the Industrial Disputes Act that forbids parties to industrial dispute to
be represented by a lawyer except with the consent of other parties and
permission of the labour court, tribunal etc. The court held that Section 30 of
the Advocate’s Act would not be applicable in this case as Industrial Disputes
Act is legislation with avowed object of labour welfare and representation
before adjudicatory authorities has been specially provided. It was also held
that a special Act would override the provisions of Advocate’s Act which is a
general law.
There are a number of other restrictions placed upon the right to practice
of a lawyer as they do not have a right to represent others in departmental
enquiries. It is also to be noted that the Section does not confer any right on
the litigant to be represented by the lawyer but only on a lawyer to practice.
Once a lawyer has been engaged in a case, his right continues to be in
existence unless and until it is terminated by writing signed by him or his
client with the leave of the court; it will also come to an end with the termination
of the proceedings or with the death of the lawyer or that of the client.
It is however to be noted here that the right to practice the profession of
law is a statutory right and not a fundamental right (Basudeb Dutta v. State of
WB, (1981) II Cal HN 56). It is also to be noted that only advocates, who are
enrolled as per this Section can practice, while others not so entitled and
illegally practicing are punishable under Section 45 of the Act.
Section 32 of the Act provides for an exception to the application of
Section 30 and provides for situations where persons other than advocates
90
enrolled with the Bar can represent others with the permission of the court.
This provision acts as an antithesis to the provision under Section 30 as the
court has been given discretion to allow any person, not an enrolled advocate
to practice law. However, this might be a necessity in certain cases and we
need to reply upon the wisdom of the courts to take the right decision in this
regard. This position was substantiated by the case of T.K Kodandaram v. E.
Manohar, 1985 Mad LJ (Cr) 124, where no lawyer was ready to defend the
case, the court decided to allow the petitioner’s brother to represent him.
However, it is to be kept in mind that the powers under this Section have been
given to the courts and tribunals for special circumstances and they ought to
be exercised judiciously.
Another important aspect that is needed to be considered here is the
power of High Court to make rules regarding right to practice of the advocates.
However, it has been specified that the words ‘laying down the conditions
subject to which an advocate shall be permitted to practice’ under Section 34
must be given a restricted meaning of permitting physical appearance of the
advocate and not his general right to practice.
2. Right to Fee: One of the important rights of the advocate is right to
fee. An advocate has a right to his fee and this right is absolute as it does not
depend upon winning or losing of the case and in either case the client will
have to pay up the fee. A lawyer has no legal remedy if his/her fee is not paid,
but he accepts what the client is willing to pay in accordance with the bargain
but in such cases advocate can refuse to appear before the court. The advocate
has also a right to waive this right and take up a case without charging any fee
at all.
Another aspect to be taken into account here is that an advocate can be
denied agreed fees when he makes default or is found guilty of misconduct
but he cannot be deprived of agreed fees where the case has been withdrawn
for policy reasons and the advocate has done some work in that particular
case (Ram Babu Sharma v. State of MP, AIR 1989 MP 261).
3. Lawyers Right To Lien Over Client’s Papers: Before India attained
independence different High Courts in India had adopted different views
regarding the question whether an advocate has a lien over the litigation files
kept with him. In P. Krishnamachariar vs. The Official Assignee of Madras
AIR 1932 Madras 256. , a Division Bench held that an advocate could not
have such a lien unless there was an express agreement to the contrary. A Full
Bench of the Patna High Court in In re B.N. Advocate AIR 1933 Pat 571, held
the view that an advocate could not claim a right to retain the certified copy of
the judgment obtained by him on the premise that an appeal was to be filed
 91
against it. The Bench further said that if the client had specifically instructed
him to do so it is open to him to keep it.
After independence the position would have continued until the enactment
of the Advocates Act 1961 which has repealed a host of enactments including
Indian Bar Council Act. When the new Bar Council of India came into existence
it framed Rules called the Bar Council of India Rules as empowered by the
Advocates Act. Such Rules contain provision specifically prohibiting an
advocate from adjusting the fees payable to him by a client against his own
personal liability to the client. As a rule an Advocate shall not do anything
whereby he abuses or takes advantage of the confidence reposed in him by
his client, (vide Rule 24). In this context a reference can be made to Rules 28
and 29 which are extracted below:
Rule 28. After the termination of the proceeding, the Advocate shall be at
liberty to appropriate towards the settled fee due to him, any sum remaining
unexpended out of the amount paid or sent to him for expenses, or any amount
that has come into his hands in that proceeding.
Rule 29. Where the fee has been left unsettled, the Advocate shall be
entitled to deduct, out of any moneys of the client remaining in his hands, at
the termination of the proceeding for which he had been engaged, the fee
payable under the rules of the Court, in force for the time being, or by then
settled and the balance, if any, shall be refunded to the client.
The issue was settled by the decision of the Supreme Court in R.D.
Saxena v. Balram Prasad Sharma AIR 2000 SC 3039. wherein the Supreme
Court declared in the negative. In holding that giving the right of lien (unlike
what is allowed to a Solicitor in England) would lead to disastrous
consequences in as much as the flow of justice would be impeded. Court also
noted that given the socio-economic conditions prevailing in the country,
holding such a right of the legal practitioner may be susceptible to great
abuse and exploitation. The Court setting aside the technical objection that
such papers were under an agreement of bailment declared that it was upon
the ordinary process of law that the lawyer should recover his dues but not by
retaining the files of the client. The Supreme Court also went on to declare that
while it was a professional duty and moral obligation of the lawyer to return
the brief when the client required to change counsel but also declared that not
returning the files would be considered as professional misconduct on the
part of the erring lawyer.
4. Right to Access to Judge: One right of the lawyer is to have access
to the judge. Though the scope of this right has not been defined anywhere,
it is understood that it is the right of a lawyer to have access to the Judge in
 92
urgent judicial matters at any time during the day or night and the judge has to
look into it. Another right of a lawyer that has been considered quite odd is
that a lawyer has a right to refuse to recognize and appear before a presiding
judge, who is not in the prescribed robe of a judge in the court. The legal
profession seems to be more comfortable with the idea of allowing a judge to
disallow a lawyer in improper robe but not to this right of lawyers as a result of
which it is never exercised.
Q.5. What are the Privileges of being an Advocate?
Ans. Privileges of Advocates:
Though the rights and privileges of advocates are similarly worded and
similarly treated, objectively there are minor differences between the two
concepts. It can be said that privileges are granted to a person by a higher
authority for specific purpose or being on a certain post, while rights are
vested in a person by virtue of his being in a particular position. One simple
example is that of right to vote that is vested in all citizens of a country, while
the privileges attached to the post of an ambassador are by virtue of that post.
In context of lawyers, there is hardly any difference between the two as
the rights as well as privileges of the lawyers are derived from his duties and
have been granted to him for better conduct of his duties in the court of law
and hence, the words rights and privileges can be and have been used
interchangeably. Some of the privileges of the lawyers have been discussed
below.
One of the most important privileges of an advocate is to claim audience
from the court of law. In other words, any person who fulfils the prescribed
qualifications of the Bar and becomes member of the Bar; it is his/her privilege
to represent his clients in the court of law and to claim the audience in courts
and courts have to listen to him as long as he is acting in accordance with the
decorum of the court.
It is not be noted that the English law doctrine of absolute privilege for
acts and statements of lawyers in not applicable to the criminal law of defamation
in India, however a lawyer going to the court to attend a matter or while
returning from the court is exempt from arrest under civil process other than a
process issued by such court for contempt of that court.
One of the special things about this profession is that the lawyer is
privileged to defend his client till the last despite knowing that he is guilty of
the crime. However, this is still not a personal privilege of the lawyer.
A lawyer is also entitled to enter public and political life without any
restrictions or fear and hence has the privilege of a political life of his choice.
He can contest elections and become a member of Central or State legislature
as well.
 93
Another privilege that a lawyer has is that of being offered judgeship,
which means that he is made eligible for holding an office of a Judge, District
Government counsel, Advocate General of a State, Attorney General or Solicitor
General of India.
In addition to this the Governments ensures that:
a. Lawyers are able to perform all of their professional functions without
intimidation, hindrance, harassment or improper interference;
b. Lawyers are able to travel and to consult with their clients freely
both within their own country and abroad; and
c. Lawyers shall not suffer, or be threatened with, prosecution or
administrative, economic or other sanctions for any action taken in accordance
with recognized professional duties, standards and ethics, which is not the
case in India.
Last but not the least important privilege that an advocate has is that of
independence. This is to say that a lawyer has the privilege of being frank,
fearless and independent as he stands for justice and fights for justice along.
This privilege might not be absolute as there are certain reasonable restrictions
on the same but the reality is that the lawyers are more often than restricted on
one or the other ground from being honest and fearless, one such restriction
being the fear of contempt of court in addition to the others.
Q.6. Which body or authority are empowered to punish for the
Professional Misconduct?
Or
Write a short note on the Disciplinary committees of State Bar Council
and Bar Council of India?
Ans. The Body or Authority Empowered to Punish for Professional or
Other Misconduct:
1. State Bar Council And Its Disciplinary Committee:
Organization: Section 35 of the Advocates Act makes it clear that on
receipt of a complaint or otherwise a State Bar Council has reason to believe
that any advocate on its role has been guilty of professional or other
misconduct, it shall refer the case for its disposal to disciplinary committee -
Section 35. It is one of the functions of the State Bar Council to entertain and
determine the cases of misconduct against the advocate on its roll - Section
6(c). Section 9 of the Act requires the Bar Council to constitute one or more
disciplinary committees - Section 9(1). Each of such committee is required to
consist of three persons of whom two shall be persons elected by the council
from amongst its members and other shall be a person co-opted by the council
from amongst its member advocates who possess the qualifications specified
 94
in the provisions to sub-section (2) of section 3 and who are not members of
council and the senior most advocate amongst the members of the disciplinary
committee shall be the chairman thereof.
Procedure- Section 35 provides that after giving the advocate concerned
and the Advocate- General an opportunity of being heard, the disciplinary
committee of a State Bar Council may make any of the following orders:
a. dismiss the complaint or where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings be
filed;
b. reprimand the advocate;
c. suspend the advocate from practice for such period as it may deem
fit;
d. remove the name of the advocate from the State roll of advocates -
Section 35(3).
It is that when the advocate is suspended from the practice under the
aforesaid clause (3), he shall, during the period of suspension, be debarred
from practicing in any Court or before any authority or person in India -
Section 35(4).
2. Bar Council of India And Its Disciplinary Committee:
Organization: Section 36 of the Advocates Act empowers the Bar Council
of India to refer, in certain circumstances, the case for disposal to its disciplinary
committee. Section 9 provides that the a Bar Council shall constitute one or
more disciplinary committees, each of which shall consist of three persons of
whom two shall be person selected by the Council from amongst its members
and the other shall be a person elected by the council amongst advocates
who possess the qualifications specified in the provision to sub-section (2) of
Section 3 and who are not members of the council and the senior most advocate
amongst the members of disciplinary committee shall be the chairman thereof.
Powers: Section 42 deals with the powers of the disciplinary committee of
a Bar Council. The provisions of Section 42 have already been stated in
context of powers of the disciplinary committee of the State Bar Council.
Section 42-A makes it clear that the provisions of Section 42 shall, so far as
may be, apply in relation to the disciplinary committee of the Bar Council of
India. Section 43 makes it clear that the disciplinary committee of the Bar
Council of India may make such order as to the costs of any proceedings
before it as it may drew fit and any such order shall be executable as if it were
an order of the Supreme Court.
In Hikmat Ali Khan v. Ishwar Prasad Arya and Others, AIR 1997 SC
864, one Ishwar Prasad Arya who was an advocate practicing at Badaun in
 95
U.P. he assaulted his opponent, Radhey Shyam in the court-room of Munsif
as Badaun with a knife. After investigation he was prosecuted for offences
under section 307 IPC and section 25 of the Arms Act and he was sentenced
for three years imprisonment. But he remained free on a fraudulent letter said
to have come from the governor spending the conviction. The III Additional
District and Sessions Judge, Badaun sent a complaint containing these facts
to the Chairman, Bar Council of U.P. The disciplinary committee of U.P Bar
Council debarred him from practicing for a period of two years. The advocate
appealed to the Bar Council of India which set aside the order of the Bar
Council of U.P. The appellant Himat Ali Khan complained against the advocate
and prayed for fresh inquiry. In the said proceedings, the advocate appeared
and filed his return statement but thereafter he did not appear. Hence, the Bar
Council of U.P proceeded ex-parte against him and the disciplinary committee
of the state Bar Council of U.P debarred for a period of three years. The
advocate again appealed to the Bar Council of India and it had set aside the
punishment. Then Himat Ali filed appeal to the Supreme Court. The Supreme
Court held that his conduct was such that his name should be removed from
the state rule of advocates as he was found guilty of an offence attempting to
commit murder and convicted for it and as he was unworthy of remaining in
the profession.


96

An Advocate v. Bar Council of India

(1989 Supp (2) SCC 25)
Facts/Background:
 In this case the bona fide act of an advocate who in good faith acted
under the instructions of someone closely connected with his client and
entertained a bona fide belief that the instructions were given under the
authority of his client.
 The suit was a suit for recovery of Rs 30,098. The complainant (client)
had entrusted the brief to the appellant which he in his turn had entrusted
to his junior colleague (Respondent 2) who was attached to his office and
was practising along with him at his office at the material time. At the
point of time when the suit was withdrawn, Respondent 2 was practising
on his own having set up his separate office. On the docket of the brief
pertaining to the suit, the appellant made an endorsement giving
instructions to withdraw the suit as settled.
 (Client version of facts) The petitioner had entrusted a matter to Appellant
to file a case against Shri Anantaraju for recovery of a sum of Rs 30,098
with court costs and current interest .The said suit was filed by the R2.
The matter in dispute in the suit was not settled at all and the Appellant
without the knowledge and without his instructions had filed a memo
stating that the matter is settled out of court and got the suit dismissed
and he has also received half of the institution court fee within 10 days
since the date of the disposal of the suit. The petitioner submits that he
has not received either the suit amount or the refund of court fee and he
is not aware of the dismissal of the suit as settled out of court.
Issues:
 Whether an advocate acting bona fide and in good faith on the basis of
oral instructions given by someone purporting to act on behalf of his
 97
client, would be guilty of professional misconduct or of an unwise or
imprudent act, or negligence simpliciter, or culpable negligence punishable
as professional misconduct?
 Whether a charge apprising him specifically of the precise nature and
character of the professional misconduct ascribed to him needs to be
framed?
 Whether in the absence of an allegation or finding of dishonesty or mens
rea a finding of guilt and a punishment of this nature can be inflicted on
him?
 Whether the allegations and the finding of guilt is required to be proved
beyond reasonable doubt?
 Whether the doctrine of benefit of doubt applies?
Decision/Observations of the Supreme court on the questions raised in
this appeal:
 “In our opinion the appellant was not apprised of the exact content of the
professional misconduct attributed to him and was not made aware of the
precise charge he was required to rebut.
 The conclusion reached by the Disciplinary Committee in the impugned
order further shows that in recording the finding of facts on the three
questions, the applicability of the doctrine of benefit of doubt and need
for establishing the facts beyond reasonable doubt were not realised.
Nor did the Disciplinary Committee consider the question as to whether
the facts established that the appellant was acting with bona fides or with
mala fides, whether the appellant was acting with any oblique or dishonest
motive, whether there was any mens rea, whether the facts constituted
negligence and if so whether it constituted culpable negligence.
 Nor has the Disciplinary Committee considered the question as regards
the quantum of punishment in the light of the aforesaid considerations
and the exact nature of the professional misconduct established against
the appellant.
 The impugned order passed by the Disciplinary Committee, therefore
cannot be sustained”
 Since we do not consider it appropriate to examine the matter on merits on
our own without the benefit of the finding recorded by the Disciplinary
Committee of the apex judicial body of the legal profession, we consider
it appropriate to remit the matter back to the Disciplinary Committee. Ref:
O.N. Mohindroo v. District Judge, Delhi [(1971) 2 SCR 11
 The Bar Council of India must have an opportunity to consider whether it
would constitute an imprudent act, an unwise act, a negligent act or
whether it constituted negligence and if so a culpable negligence, or
98
whether it constituted a professional misconduct deserving severe
punishment, even when it was not established or at least not established
beyond reasonable doubt that the concerned advocate was acting with
any oblique or dishonest motive or with mala fides.
 This question will have to be determined in the light of the evidence and
the surrounding circumstances taking into account the doctrine of benefit
of doubt and the need to record a finding only upon being satisfied
beyond reasonable doubt.
Held:
 “We have therefore no doubt that upon the matter being remitted to the
Bar Council of India it will be dealt with appropriately in the light of the
aforesaid perspective. We accordingly allow this appeal, set aside the
order of the Bar Council insofar as the appellant is concerned and remit
the matter to the Bar Council of India”
 “We, however, wish to make it clear that it will not be open to the
complainant to amend the complaint or to add any further allegation. We
also clarify that the evidence already recorded will continue to form part
of the record and it will be open to the Bar Council of India to hear the
matter afresh on the same evidence. It will be open to the Bar Council of
India to consider whether the hearing of the matter has to be deferred till
the application for restoration is disposed of. The Bar Council of India
may give appropriate consideration to all these questions.”
 “We further direct that in case the judgment rendered by this Court or
any part thereof is reported in law journals or published elsewhere, the
name of the appellant shall not be mentioned because the matter is still
sub judice and fairness demands that the name should not be specified.
The matter can be referred to as An Advocate v. Bar Council or In re an
Advocate without naming the appellant. The appeal is disposed of
accordingly.”

Bal Thackery v. Harish Pimpalkhute and ors

(2005) 1 SCC 254
Facts/Background:
 This is an appeal from the decision in Harish S/O Mahadeo Pimpalkhute
vs Bal Thackeray And Ors ((1997) 99 BOMLR 455) wherein two contempt
petitions were filed against the appellant (Bal Thackrey) under section 15
for having committed contempt of court in terms of section 2(c ) by making
 99
a public speech (on 21-10- 1996 at a Dasera rally at Shivaji Park, Mumbai,
that he was reported by someone that a judge demanded ‘35 lakh for
delivering a judgment in his favour’)
 The said petitions were filed without obtaining the consent of the
Advocate General. The petitioner in contempt petition no 12 had submitted
an application dated 22.10.1996 to the Advocate General seeking the
requisite permission by 2.12.1996 and further stating that in case of not
receiving an answer he would presume that permission had been granted
and would proceed with the intended contempt proceedings
 The high court held the appellant guilty of contempt and inflicted simple
imprisonment for one week and a fine of Rs. 2000. The appellant then filed
the present appeals.
 Before the Supreme Court the appellant contended that the direction in
P.N. Dudas case were not followed by the High court in as much as the
informative papers styled as contempt petitions were not placed before
the Chief Justice of the High Court for suo motto action and therefore the
contempt proceedings were illegal
 In the P.N.Duda v. P. Shiv Shanker&Ors. [(1988) 3 SCC 167] SC approving
the Delhi High Court direction in Anil Kumar Gupta v. K.Suba Rao
&Anr. [ILR (1974) 1 Del.1]: “The office is to take note that in future if
any information is lodged even in the form of a petition inviting this Court
to take action under the Contempt of Courts Act or Article 215 of the
Constitution, where the informant is not one of the persons named in
Section 15 of the said Act, it should not be styled as a petition and should
not be placed for admission on the judicial side. Such a petition should be
placed before the Chief Justice for orders in Chambers and the Chief
Justice may decide either by himself or in consultation with the other
judges of the Court whether to take any cognizance of the information.”
The Supreme court stated that the “...the direction given by the Delhi
High Court sets out the proper procedure in such cases and may be
adopted, at least in future, as a practice direction or as a rule, by this
Court and other High Courts.”
Issue:
 Whether contempt proceedings were initiated against the appellant suo
motu by the court or by Respondents?
Observations:
 The Court had not taken suo motu action against the appellant. (In
contempt petitions, there was no prayer for taking suo motu action for
contempt against the appellant. The specific objection taken that though
suo motu action could be taken under Section 15 of the Act on any
100
information or newspaper but not on the basis of those contempt petitions
which were filed in regular manner by private parties, was rejected by the
High Court observing that being Court of Record it can evolve its own
procedure).
 The charge against the appellant was not framed.
 The procedure of Section 15 is required to be followed even when petition
is filed by a party under Article 215 of the Constitution.
 In the present case, the proceedings before the High Court were initiated
by the respondents by filing contempt petitions under Section 15. The
petitions were vigorously pursued and strenuously argued as private
petitions. The same were never treated as suo motu petitions. In absence
of compliance of mandatory requirement of Section 15, the petitions were
not maintainable. As a result of aforesaid view, it is unnecessary to examine
in the present case, the effect of non-compliance of the directions issued
in Duda’s case by placing the informative papers before the Chief Justice
of the High Court.
Held:
 “For the foregoing reasons we set aside the impugned judgment and
allow the appeals. Fine, if deposited by the appellant shall be refunded to
him.”
 “Before parting, it is necessary to direct framing of necessary rule or
practice direction by the High Courts in terms of Duda’s case. Accordingly,
we direct Registrar-General to send a copy of this judgment to the Registrar-
Generals of the High Courts so that wherever rule and/or practice direction
on the line suggested in Duda’s case has not been framed, the High
Courts may now frame the same at their earliest convenience.”

Bhupinder Kumar Sharma v. Bar Association

Pathankot AIR 2002 SC 41
Brief Facts of the case:
 In this case, the appellant was enrolled with the State Bar Council as an
advocate on 16/09/1994 vide enrollment number P/771/94
 The respondent association made a written complaint to the State Bar
Council making allegations that the appellant was carrying on and
continued his business and business activities even after his enrollment
as an advocate.
 101
 The State Bar Council took recognition of the complaint and referred the
complaint to its disciplinary committee.
 That he was running a photocopies documentation centre in the court
compound Pathankot and the space for the same was allotted to the
appellant in his personal capacity on account of being handicapped. He
was also running a PCO/STD Booth.
 That he was the proprietor/ General Manager of the Punjab Coal Briquettes
Pathankot, a private concern and he was pursuing the business / his
interest in the said business even on the date when his statement was
recorded by the Disciplinary Committee on 12/05/1996.
 The Disciplinary Committee of the State Bar Council witnessing Senior
Telecommunication Office Assistant who deposed that STD/PCO has
been allotted to appellant in the handicapped quota and the same is
continuing in the name of the appellant even after his enrollment as an
advocate and a clerk in the office of SDO also stated in his evidence that
space for installment of photocopy machine was allotted on lease basis
to the appellant in the handicapped quota. Thus, the Disciplinary
Committee passed an order to remove the name of the Appellant from the
State‘s Roll of Advocates under Section 35(3)(d) of Advocates Act 1961
and debarred him from practicing as an advocate.
 The appellant filed an appeal to the Bar Council of India on re-appreciation
of the material on record. The Disciplinary Committee of Bar Council of
India confirmed the decision of the State Bar Council held the appellant
guilty of professional misconduct and dismissed the appeal.
 The appellant filed an appeal under Section 38 of the Advocate Act, 1961
before the Supreme Court against the judgment an order passed by the
Disciplinary Committee of the Bar Council of India, confirming the order
passed by the Disciplinary Committee of State Bar Council removing the
name of the appellant from the State Roll‘s of Advocates under Section
35(3)(d) of the Act.
Issues in Bhupinder Kumar Sharma v. Bar Association Pathankot
 Whether or not applicant was engaged or has ever being engaged in any
trade, business or profession?
 Whether there order of removal of applicant name from the State Roll‘s of
Advocates and debarring him from practicing as an advocate is valid?
Important Arguments (from both parties)
Appellant: The appellant contended that the allegations made were not
established or proved and the allegations were not judged by the standard of
proof required in such case, the appellant was not actually carrying on business
and the evidence on the point was not properly appreciated, the punishment
imposed on the appellant is grossly disproportionate.
102
Respondent: The respondent contended that the appellant was guilty of
professional misconduct as he was carrying his business even after his
enrollment as an advocate. So his interest in continuing the business before
and even after filing of the appeals before the Bar Council of India and this
court cannot be accepted or sanctioned, further in spite of giving and
undertaking before this court, he is still continuing his business supported by
the report of the sub judges made to the court. According to respondent the
punishment imposed on the appellant is proper in the absence of any good
ground to take any lenient view.
Judgment in Bhupinder Kumar Sharma v. Bar Association Pathankot:
The Supreme Court held that having persuaded both orders and evidence
place on record the appellant was guilty of professional misconduct supported
by and based on cogent and convincing evidence and the charge is proved
beyond reasonable doubt.
The Supreme Court further held that having regard to the nature of
misconduct and taking note of the handicap of the appellant debarring him
from practicing for all time is too harsh. So they debar the appellant from
practicing up to the end of December 2006. His licensed was cancelled for 5
years.
Present Status of the Judgment:
The judgment given by the Supreme Court of India in Bhupinder Kumar
Sharma v/s Bar Association Pathankot is still applicable. An advocate shall be
held liable for professional misconduct if he carries any business other than
his legal profession under the provisions of Advocate Act 1961.
Conclusion:
It can be concluded that an advocate cannot carries any other business
activities or profession. If he practiced any such activities, he shall be held
guilty. The rules of the Bar Council of India clearly specified that no advocate
can be a full time salaried employed person or a person carrying on any other
business. He should not be personally engaged in any business but as per
the rules of Bar Council of India he can be a share holder, partner, investor etc.
The nature of such business is inconsistent with the dignity or nobility of
profession. The nature of such business is a professional misconduct as per
Advocate Act 1961.

D.P.Chadha Vs. Triyugi Narayan Mishra

AIR 2001 SC 457.
Fact:
 While the preceding in a civil suit were going on in the civil suit at Jaipur,
the complainant Mr.Mishra was busy with the election in U.P. and was
 103
not available in Jaipur for a long period. Sri D.P.Chadha, appellant had a
blank vakalatnama and a paper both signed by the respondent given to
him as his advocate i 1st week of October 1993. The vakalatnama was
used for engaging Shri.Anil Sharma locate of on behalf of the respondent.
On 17 November, 1993 Shri Chadha was present in the court though the
appellant was not present when adjournment was taken from the court
stating that there was a possibility of an amicable settlement between the
parties, where upon the hearing was postponed to 14th December1994
for rewarding compromise or framing issue.
 On 20, November1993, Shri Rajesh Jain, and Anil Sharma appeared on
behalf of the plaintiff and defendant filed a compromise petition along
with a receipt by the complainant stating that he has received Rupees
5,000,00 as a compensation for the damages to the School building. The
trial Court directed the parties to remain personally present before the
court on 17 December 1993, to verify the compromise. Instead of
complying with the order, Sri Rajesh Jain advocate file a Misc. civil
application raising a plea that the trial court was not justified in directing
personal appearance of the parties. The Appeal was dismissed. The
preceding officer of the trial court was transferred and his successor
received an application by Shri Suresh Jain. advocate stating to record
the compromise and their bye pass a decree. On 23 August 1994, the
judge decreed the suit in terms of the compromise. Shri Mishra moved to
state bar council complaining of the professional misconduct of the three
advocates who had colluded to bring false compromise. The disciplinary
committee found that it was advocated D.P.Chadha who gave the
following papers to Anil Sharma, and asked him to obtain degree. The
committee held Chadha Guilty of professional misconduct and thus
suspended him for 5 years. Advocate Chadha Appealed to the bar council
of India which without giving the appeal appellant hearing enhanced the
punishment to a period of 10 years. from this order the appellant preferred
to appeal the supreme court .
Issue:
 Whether appellant has committed professional misconduct or not?
 Was the bar council of India justified in enhancing the punishment without
giving the appellant an opportunity of being Heard and to file a reply
thereby
Judgement:
The sentence awarded by the State Bar Council was upheld and restored
thereby sitting aside the award passed by the bar council of India.
104
Reasoning:
The appellant was guilty of professional misconduct but since the bar
council of India did not follow the principle of natural justice hence its order
was set aside and so the order of the State bar council was restored

In Re Arundhati Roy (A.I.R. 2002 SC 1375)

Prologue: This is a very important case in constitutional view, It was a
highlighted case. It is related with the Article 19 (1) (A), 120 and 215 of the
constitution and section 2 (9), 2 (c), 12, 14 and 15 of the Contempt of Courts
Act, 1971.
Many important issues were under consideration with the Supreme Court
in this case, as:
1. What is the contempt of Court?
2. Whether the judiciary can be criticized?
3. Whether the Court can take recourse of contempt of Court to maintain
dignity of Court?
4. Whether the Court can initiate the proceeding for contempt suo
motu? etc.
Facts: The facts of the case in brief are as given hereafter. Arundhati Roy
is a woman supporting and leading Narmada Bachao Andolan. Narmada Bachao
Andolan filed a petition under Article 32 of the constitution of India being writ
petition no. 319 of 1994 in the Supreme Court against the constitution of
Sardar Sarovar Reservoir Dam. During the pendency of the writ petition this
Court passed various orders, and by one of the orders, the Court permitted to
increase the height of the Dam, In repercussion of this order, Arundhati Roy
published an article entitled “The Greater Common Good’ in Outlook Magazine
which was like a criticism of Judiciary. The writ petition was disposed of on
15th October, 1999. By this decision, there was a great resentment amongst
Arundhati Roy & others, which led a huge crowd and held a Dharma in front
of the Supreme Court and shouted abusive slogans against the Court including
slogans ascribing lack of integrity and dishonesty to this institution. The
Supreme Court did not consider this conduct of Arundhati Roy as good. The
Supreme Court considered it the contempt of Court (Judiciary). The supreme
Court served a show cause notice to Arundhati Rov that why nor she be
declared guilty for the contempt of Court? But Smt. Arundhati Roy did not
give any cognizance to this notice and again reiterated her allegations. So, the
proceedings of contempt of Court were initiated against Arundhati Roy by
the Supreme Court.
 105
Decision:
The decision of the Supreme Court was given by the division bench of
Justice G.V. Patnayak and Justice R.P. Sethi. It is to be mentioned that these
proceedings of contempt of Court were initiated against Smt. Arundhati Roy
by the Court suo motu.
Under these proceedings, while convicting Smt. Arundhati Roy for
contempt of Court, the Suprème Court sentence her to simple imprisonment,
for one day and to pay a fine of Rs. 2000/-. In case of default in the payment of
fine, she shall undergo simple imprisonment for three months.
During the course of hearing, the Supreme Court taken in to consideration
various decisions and go through the relevant arrangements of law.
It was stated by the Supreme Court that for last some year’s allegation are
being made for integrity and independency of the Judiciary. Some persons
and trying to undermine or to put an end the dignity of Judiciary. They are
anxious to weaken the confidence of the public in judiciary. Under these
circumstances, to maintain the dignity to the judiciary, the proceedings of
contempt of Court is only the solution.
The Court also stated that maintaining of dignity of judiciary is the
fundamental principal of the rule of law. Nobody can be allowed to criticize the
judiciary without restrain or lower down its dignity under the umbrella of
freeness of speest and expressions. It is true that a correct and with good
feeling criticism of the Judiciary is not a contempt of Court. But it the dignity
or judiciary undermines by any criticism or which is not in publie interest, for
which the proceeding of contempt of court can be initiated by the Court itself.
Criticizing the decision of the Court, holding a Dharna outside the gates
of a Court, laying a huge crowd, Shouting slogans. allegation of corruption
upon the Court and judges and use of abusive/inseparable language a by
Smt. Arundhati Roy is such a contempt of Court which cannot be tolerate.
Under these circumstances, there is no other option except to penalize Smt.
Arundhati Roy for the contempt of Court.
Principles of Law: Following principles of law have been propounded by
the Supreme Court in this case:
a. Criticizing the decision of the Court, holding a Dharna outside the
gates of a Court, laying a huge crowd, shouting slogans, allegation
of corruption upon the Court and judges and use of abusive/
inseparable language as is the contempt of Court.
b. A correct and with good feeling criticism of the Judiciary is not a
contempt of Court.
c. Nobody can be allowed for contempt of Court under the umbrella of
freeness of speech and expression.
106
d. Proceeding of contempt of Court can be initiated by the Court itself.
e. To maintain independency, impartiality and dignity of the Court,
initiation of- proceedings of the contempt of Court is only the
solution.

Supreme Court Bar Association Vs. Union of India

& Anr. AIR 1998 SC 1895.
Facts:
Supreme Court in the case Re: Vinay Chandra Mishra, 1995CriLJ3994
found an advocate, guilty of committing criminal contempt of Court and awarded
him a suspended sentence of imprisonment together with suspension of his
practice as an advocate in the manner directed herein. Aggrieved by the
direction that the “Contemner shall stand suspended from practising as an
Advocate for a period of three years” issued by this Court by invoking powers
under Articles 129 and 142 of the Constitution, the Supreme Court Bar
Association, through its Honorary Secretary, had filed this petition under
Article 32 of the Constitution of India, which was directed by the Division
bench to be placed before the Constitutional Bench. Relief sought in the
petition was to “issue an appropriate writ, direction, or declaration, declaring
that the disciplinary committees of the Bar Councils set up under the
Advocates Act, 1961, alone have exclusive jurisdiction to inquire into and
suspend or debar an advocate from practising law for professional or other
misconduct, arising out of punishment imposed for contempt of court or
otherwise and further declare that the Supreme Court of India or any High
Court in exercise of its inherent jurisdiction has no such original jurisdiction,
power or authority in that regard notwithstanding the contrary view held
by this Hon’ble Court in Contempt Petition (Crl.) No. 3 of 1994 dated
10.3.1995".
Issue:
Whether punishment for established contempt of Court committed by
advocate can include punishment to debar concerned advocate from practicing
by suspending his licence for specified period in exercise of power under
Article 129 read with Article 142 of the Constitution of India?
Judgment:
The Article 129 of the Constitution of India on its plain language vests
this Court with all the powers of a court of record including the power to
 107
punish for contempt of itself. A court of record is a court, the records of which
are admitted to be of evidentiary value and are not to be questioned when
produced before any court. The power that courts of record enjoy to punish
for contempt is a part of their inherent jurisdiction and is essential to enable
the courts to administer justice according to law in a regular, orderly and
effective manner and to uphold the majesty of law and prevent interference in
the due administration of justice.
The language of entry 77 of List I and entry 14 of List III of the Seventh
Schedule demonstrate that the legislative power of the Parliament and of the
State Legislature extends to legislate with respect to matters connected with
contempt of court by the Supreme Court or the High Court, subject however,
to the qualification that such legislation cannot denude, abrogate or nullify,
the power of the Supreme Court to punish for contempt under Articles 129 or
vest that power in some other Court.
Besides, Article 129, the power to punish for contempt is also vested in
the Supreme Court by virtue of Article 142(2). It is, thus, seen that the power
of this court in respect of investigation or punishment of any contempt
including contempt of itself, is expressly made ‘subject to the provisions of
any law made in this behalf by the Parliament’ by Article 142(2). However, the
power to punish for contempt being inherent in a court of record, it follows
that no act of Parliament can take away that inherent jurisdiction of the Court
of Record to punish for contempt and the Parliament’s power of legislation on
the subject cannot, therefore, be so exercised as to stultify the status and
dignity of the Supreme Court and/or the High Courts, though such a legislation
may serve as a guide for the determination of the nature of punishment which
this court may impose in the case of established contempt. Parliament has not
enacted any law dealing with the powers of the Supreme Court with regard to
investigation and punishment of contempt of itself, and this Court, therefore,
exercises the power to investigate and punish for contempt of itself by virtue
of the powers vested in it under Articles 129 and 142(2) of the Constitution of
India.
Court analysed Section 12 of the Contempt of Courts Act, 1971 and
observed that a close scrutiny of sub-section (3) of Section 12 demonstrates
that the legislature intended that in the case of civil contempt a sentence of
fine alone should be imposed except where the court considers that the ends
of justice make it necessary to pass a sentence of imprisonment also. Further,
court referred to the decision in the case of Smt. Pushpaben and another v.
Narandas V. Badiani and another 1979CriLJ960, in which it was opined
that “before a Court passes the extreme sentence of imprisonment, it must
108
give special reasons after a proper application of its mind that a sentence of
imprisonment along is called for in a particular situation. Thus, the sentence
of imprisonment is an exception while sentence of fine is the rule.”
This is to be kept in mind that the contempt of court is a special jurisdiction
to be exercised sparingly and with caution, whenever an act adversely effects
the administration of justice or which tends to impede its course or tends to
shake public confidence in the judicial institutions. This jurisdiction may also
be exercised when the act complained of adversely effects the Majesty of Law
or dignity of the courts. The purpose of contempt jurisdiction is to uphold the
majesty and dignity of the Courts of law. It is an unusual type of jurisdiction
combining “the jury, the judge and the hangman” and it is so because the
court is not adjudicating upon any claim between litigating parties. This
jurisdiction is not exercised to protect the dignity of an individual judge but to
protect the administration of justice from being maligned. In the general interest
of the community it is imperative that the authority of courts should not be
imperilled and there should be no unjustifiable interference in the administration
of justice. It is a matter between the court and the contemnor and third parties
cannot intervene. It is exercised in a summary manner in aid of the
administration of justice, the majesty of law and the dignity of the courts. No
such act can be permitted which may have the tendency to shake the public
confidence in the fairness and impartiality of the administration of justice.
That apart, the power of the Supreme Court to punish for contempt of
court, though quite wide, is yet limited and cannot be expanded to include the
power to determine whether an advocate is also guilty of “Professional
misconduct” in a summary manner, giving a go bye to the procedure prescribed
under the Advocates Act. The power to do complete justice under Article 142
is in a way, corrective power, which gives preference to equity over law but it
cannot be used to deprive a professional lawyer of the due process contained
in the Advocates Act 1961 by suspending his licence to practice in a summary
manner, while dealing with a case of contempt of court.
The plenary powers of this court under Article 142 of the Constitution are
inherent in the court and are complementary to those powers which are
specifically conferred on the court by various statutes though are not limited
by those statutes. These powers also exist independent of the statutes with a
view to do complete justice between the parties. These powers are of very
wide amplitude and are in the nature of supplementary powers. This power,
exists as a separate and independent basis of jurisdiction, apart from the
statutes. It stands upon the foundation, and the basis for its exercise may be
put on a different and perhaps even wider footing, to prevent injustice in the
 109
process of litigation and to do complete justice between the parties. This
plenary jurisdiction is, thus, the residual source of power which this Court
may draw upon as necessary whenever it is just and equitable to do so and in
particular to ensure the observance of the due process of law, to do complete
justice between the parties, while administering justice according to law. There
is no doubt that it is an indispensable adjunct to all other powers and is free
from the restraint of jurisdiction and operates as a valuable weapon in the
hands of the court to prevent “clogging or obstruction of the stream of justice”.
It, however, needs to be remembered that the powers conferred on the court
by Article 142 being curative in nature cannot be construed as powers which
authorise the court to ignore the substantive rights of a litigant while dealing
with a cause pending before it. This power cannot be used to ‘“supplant”
substantive law applicable to the case or cause under consideration of the
court. Article 142, even with the width of its amplitude, cannot be used to
build a new edifice where none existed earlier, by ignoring express statutory
provisions dealing with a subject and thereby to achieve something indirectly
which cannot be achieved directly. Punishing a contemnor advocate, while
dealing with a contempt of court case by suspending his licence to practice, a
power otherwise statutorily available only to the Bar Council of India, on the
ground that the contemnor is also an advocate, is, therefore, not permissible
in exercise of the jurisdiction under Article 142. The construction of Article
142 must be functionally informed by the salutary purpose of the Article viz.
to do complete justice between the parties. It cannot be otherwise. As already
noticed in a case of contempt of court, the contemnor and the court cannot be
said to be litigating parties.
The Supreme Court in exercise of its jurisdiction under Article 142 has the
power to make such order as is necessary for doing complete justice between
the parties in any cause or matter pending before it. The very nature of the
power must lead the court to set limits for itself within which to exercise those
powers and ordinarily it cannot disregard a statutory provision governing a
subject, except perhaps to balance the equities between the conflicting claims
of the lit gating parties by “ironing out the creases” in a cause or matter before
it. Indeed this Court is not a court of restricted jurisdiction of only dispute
settling. It is well recognised and established that this court has always been
a law maker and its role travels beyond merely dispute settling. It is a “problem
solver in the nebulous areas”, but the substantive statutory provisions dealing
with the subject matter of a given case, cannot be altogether ignored by this
court, while making an order under Article 142. Indeed, these constitutional
powers cannot, in any way, be controlled by any statutory provisions but at
the same time these powers are not meant to be exercised when their exercise
110
may come directly in conflict with what has been expressly provided for in
statute dealing expressly with the subject.
In a given case, an advocate found guilty of committing contempt of
court may also be guilty of committing “professional misconduct” depending
upon the gravity or nature of his contumacious conduct, but the two
jurisdictions are separate and distinct and exercisable by different forums by
following separate and distinct procedures. The power to punish an Advocate,
by suspending his licence or by removal of his name from the roll of the State
Bar Council, for proven professional misconduct, vests exclusively in the
statutory authorities created under the Advocates Act, 1961, while the
jurisdiction to punish him for committing contempt of court vests exclusively
in the courts.
After the coming into force of the Advocates Act, 1961, exclusive power
for punishing an advocate for “professional misconduct” has been conferred
on the concerned state Bar Council and the Bar Council of India. That Act
contains a detailed and complete mechanism for suspending or revoking the
licence of an advocate for his “professional misconduct’. Since, the suspension
or revocation of licence of an advocate has not only civil consequences but
also penal consequences, the punishment being in the nature of penalty, the
provisions have to be strictly construed. Punishment by way of suspending
the licence of an advocate can only be imposed by the competent statutory
body after the charge is established against the Advocate in a manner prescribed
by the Act and the Rules framed thereunder.
Thus, after the coming into force of the Advocates Act, 1961 with effect
from 19th May 1961, matters connected with the enrolment of advocates as
also their punishment for professional misconduct is governed by the
provisions of that Act only. Since, the jurisdiction to grant licence to a law
graduate to practice as an advocate vests exclusively in the Bar Councils of
the concerned State, the jurisdiction to suspend his licence for a specified
term or to revoke it also vests in the same body.
Held:
This Court cannot in exercise of its jurisdiction under Article 142 read
with Article 129 of the Constitution, while punishing a contemnor for
committing contempt of court, also impose a punishment of suspending his
licence to practice, where the contemnor happens to be an Advocate. Such a
punishment cannot even be imposed by taking recourse to the appellate
powers under Section 38 of the Act while dealing with a case of contempt of
court (and not an appeal relating to professional misconduct as such). To that
extent, the law laid down in Re: Vinay Chandra Mishra, 1995 CriLJ 3994 is
not good law and court hereby overrule it.
 111

Contempt of Court against Prashant Bhushan

Background:
The Supreme Court, upon the complaint filed by the Mahek Maheshwari,
took Suo motu cognizance of the tweets posted by activist and advocate
Prashant Bhushan on his twitter handle and held him guilty of contempt of
court for lowering the authority of the court, through his tweets.
Facts of the case:
1. On 27th June, 2020 Advocate Prashant Bhushan tweeted, on his twitter
handle that “When historians in future look back at the last 6 years to see
how democracy has been destroyed in India even without a formal
Emergency, they will particularly mark the role of the Supreme Court in
this destruction & more particularly the role of the last 4 CJIs.”
2. On 29th June, 2020 he posted the photo of the CJI Justice S.A Bobde
riding a Harley Davidson motorcycle, on his twitter handle and tweeted,
“ CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan,
Nagpur, without a mask or helmet, at a time when he keeps the SC in
lockdown mode denying citizens their fundamental right to access Justice!”
3. On 21st July, 2020 Adv. Mahek Maheshwari filed a contempt petition in
the Supreme Court against Prashant Bhushan (Contemnor No.1) alleging
his tweets as “cheap publicity stunt” with an attempt to “spread hatred in
the form of anti-India campaign” and against Twitter (Contemnor No.2)
for not putting down the alleged tweets.
4. On 22nd July, 2020 Supreme Court upon observing that contempt petition
filed by Adv. Maheshwari lacks prior sanction of the Attorney General of
India, took Suo motu cognizance of the tweets posted by the Adv. Prashant
Bhushan. Thereafter, a bench comprising Hon’ble Justices Arun Mishra,
B. R Gavai and Krishna Murari prima facie observed that the statements
on Twitter have brought the administration of justice in disrepute and are
capable of undermining the dignity and authority of the Supreme Court.
Thus, the bench issued notice to the Contemnors to file their reply on 5th
August, 2020 and also issued notice to the Attorney General to assist the
court.
Reply of contemnors:
Prashant Bhushan (Contemnor No.1):
Regarding his tweet dated 27.06.2020 he states that tweet was posted to
express his bonafide intention that:
112
1. Democracy has been substantially destroyed in India during the last 6
years.
2. The Supreme Court has failed to play his role as the guardian of the
constitution and thus contributed to the destruction of democracy in
India.
3. Last four CJI’s, in particular, have contributed to the destruction of
democracy. Such outspoken expression of opinion cannot constitute
contempt of court because in a democracy every citizen has the right to
freely and fairly discuss the state of affairs of an institution. Further, to
assume that “The CJI is the SC, and the SC is the CJI” is itself a statement
that undermines the institution of the Supreme Court of India. The Supreme
Court cannot be equated with CJI or even a succession of 4 CJI’s.
Regarding his tweet dated 29.06.2020, he states that the tweet was made
to underline his anguish at the non-physical functioning of the Supreme
Court for the last more than 3 months, as a result of which fundamental rights
of the citizens such as those in detention and others having serious and
urgent grievances were not taken up for redressal. Secondly, his intention
behind posting the photo of the CJI riding the bike was to highlight the
incongruity of the situation where CJI keeps the court virtually, in lockdown
due to COVID-19 fear and on the other hand he was seen in a public place with
several people around him without a mask. Thus, he concluded that his
expression of anguish to highlight this incongruity doesn’t amount to contempt
of court. If it were so regarded, then it would be violative of his fundamental
right of freedom of speech and expression as it will be an unreasonable
restriction.
Twitter Inc. (Contemnor No.2):
Affidavit-in-reply filed by Contemnor No. 2 stated that:
1. It is a global website that provides a micro-blogging platform to its
user for expression of thoughts and to communicate among
themselves.
2. It is just an “intermediary” defined under section 2(w) of Information
Technology Act,2000 and thus it is not the author or originator of the
tweets in question.
3. It has no editorial control on the tweets and merely acts as a display
board.
4. After the order dated 22.07.2020 of this court, it has not only blocked
the access to the tweets in question but also disabled them.
Court’s Judgement The court held that the tweets posted by Contemnor
No.1 are based on distorted facts and thus amounts to committing criminal
 113
contempt. As far as Contemnor No.2 is concerned, we accept that it is only an
intermediary and doesn’t have any control on what user posts. Moreover, it
also acted bonafidely by blocking and disabling the tweets in question.
Therefore, we discharge the notice issued to the alleged Contemnor No.2 and
hold alleged Contemnor No.1 guilty of committing criminal contempt of this
court. Thus, the court sentenced Contemnor No.1 with a fine of Re 1/- (which
is to be deposited by 15.09.2020), failing which he shall undergo simple
imprisonment for a period of 3 months and shall also be debarred from practising
in this court for a period of 3 years.
Adv. Prashant Bhushan complied with the orders of Supreme Court by
submitting Re 1/- in the Registry of Supreme Court on 14th September, 2020.
Critical analysis of the case:
The main issue, in this case, was whether Contemnors scandalises or
lowers the authority of the Supreme Court as defined in section 2(c)(i) of the
Contempt of Court Act, 1971.
Arbitrariness in Contempt powers of Supreme Courts and High Courts
– In England, the offence of Scandalising the court was applicable through
the Crime and Courts Act. However, on the recommendation of the Law
Commission, it was abolished in 2013. The justification given by the Law
Commission behind abolition is that the said offence is an infringement of
Freedom of Expression that should not be retained without strong principled
or practical justification. Further, it was also a violation of the human rights
principle.
In India also the term “Scandalise” used in section 2(c)(i) of the Contempt
of Court Act is not defined and contempt powers of the Supreme Court and
High Courts are unlimited. This causes arbitrariness and increases the
probability of its misuse. Hence, its high time that the Supreme Court should
either abolish this offence or define the term “Scandalizing the court” and
issue certain guidelines regarding its aim to prevent its misuse by the courts.
Violation of Article 14: Section 19 of Contempt of Court Act, 1971 provides
the right to appeal against the orders or decisions given by the High Court in
the matters of its contempt. It provides provisions for both intra-court appeal
and inter-court appeal.
1. Intra-court appeal – In case the order is passed by a single judge of the
High Court, its appeal shall lie to a bench of not less than two judges of
that High Court.
2. Inter-court appeal – In case the order is passed by a bench of the High
Court, its appeal shall lie to the Supreme Court. Further, though contempt
proceedings are quasi-criminal in nature and their trial is conducted in a
114
similar manner as the trial for a criminal case is conducted, no procedural
safeguard is available to the alleged contemnor as it is available to the
alleged criminal. Since neither the right to appeal is available to the person
charged with criminal contempt of Supreme Court nor any procedural
safeguard is available to an alleged contemnor as it is available to an
alleged criminal during the trial, it is simply unreasonable and
discriminatory and hence it is the violation of Article 14 of Indian
Constitution.
 Freedom of Speech & Expression – Article 19(1)(a) which guarantees
freedom and speech and expression to its citizens is the ultimate
guardian of all the values that the constitution holds sacred: Rule of
Law, Separation of Powers, Free and Fair elections etc. On the other
hand, the constitution also provides eight grounds for restricting
freedom of speech and expression under Article 19(2), out of which
contempt of court is one of them. Since “reasonable restrictions” is
the operative word of Article 19(2), courts can utilize their powers of
contempt only to aid the administration of justice and not to shut the
voices of people that seek accountability from the court for its errors
or legal omissions.
 Right to Appeal – Every citizen has a right to appeal, which is a
substantive right enshrined under Article 21 of the Indian
Constitution, but in the present situation, where the Supreme Court
itself initiates a contempt proceeding against the contemnors, there
is no provision to appeal against its judgement. Though there is a
provision of review in such cases, the petition lies before the same
bench and thus, there is less probability of it being considered without
any prejudice.
Since Right to Appeal is an absolute right under the provisions of the
International Covenant on Civil and Political Rights (ICCPR), the fundamental
right of a citizen under Article 21 and it’s also the basis of the principle of
natural justice, at least one opportunity should be provided to the aggrieved
person to appeal against the conviction. Thus, on 12th September, 2020
Contemnor No.1 filed the writ petition before the Supreme Court and prayed
for giving directions to declare that when Supreme Court is hearing and deciding
the matter at the first instance and is not acting as an appellate court, then the
person convicted by the Supreme Court, has a right to an intra-Court appeal
to be heard by a larger and different bench. He supported his viewpoint by
quoting the maxim “Nemo potestesse simul actor et judex” which means- No
one can be a suitor and a judge at the same time. Thereby he meant that there
is a need for an intra-court appeal as it is provided by section 19 of the
 115
Contempt of Court Act, 1971 against the orders and decisions of the High
Court.
Conclusion:
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 the judiciary is based on the trust and the confidence of the
people in its ability to deliver fearless and impartial justice. The Constitutional
bench of Hon’ble Supreme Court in the case of contempt against former Madras
High Judge C.S.Karnan also said that “Law of contempt is not made for the
protection of judges who may be sensitive to the winds of public opinion.
Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”

In Re Vinay Chandra Mishra, (1995) 2 SCC 584

Facts:
Vinay Chandra is a Senior Advocate. He has been president of Bar Council
of India and Uttar Pradesh High Court Advocate Council. It was happened
that a company named M/s. Bansal Foregoing Ltd. took debt from Uttar Pradesh
Finance Corporation for his profession. The debt was to be paid in installments,
but when the payment was not done at time then the corporation started
proceeding under section 29 of Uttar Pradesh Finance Corporation Act. The
company filed a civil suit against corporation and an application was presented
for this intention that the corporation must be prevented to do proceedings.
In this case, the advocate of corporation was presented in the trial court and
demanded time for reply but trial court passed order on same day and directed
the corporation that it should not occupy the property of conipany.
The installments of loan shall be paid by the company and appropriate
guarantee will be given. Against this order, appeal was done in Allahabad
High Court and argued that the trial court did not have authority to give order.
During this justice S.K. Keshote of Bench questioned from advocate that the
trial court passed the order under which provision. It is noucable that Justice
Anshurnan Sitigh was also sitting in this bench. As justice Keshote asked
from the advocate this question, the advocate lost his tamper and forgot the
dignity of the court and started indecent behaviour to Justice Keshote. Mishra
said that he can impeach upon him or he can transfer him.
This incident created physical and mental tension to justice Keshote, but
he kept himself in dignity and maintained the dignity of the court. Justice
Keshote told the whole incident to the then chielf Justice of India and also
116
wrote a letter on 10.3.1994 in which there was description of the whole incident.
He said that the question is not of individual justice, but of dignity of whole
judiciary. If such contempt will be done continuously then the belief of common
people toward judiciary will be trembling. The Supreme court took the whole
incident seriously and told the whole incident very sorrowful.
Advocate Vinany Chandra Mishra presented mainly two:
a. Where more than one judge are sitting in bench, then only senior
judge can question from senior advocate, junior judge cannot question.
Advocate Mishra, that Justice Keshote is junior judge.
b. If the Supreme Court considers that his conduct has contempt of
court then his sanad (permission) may be cancelled by Supreme Court, but
under Advocate advocate cannot be punished for such act.
Decision:
The Supreme Court pondered over these two points, Supreme Court
answered the first question that no such law been made, which provides that
junior judge of High Court can ask question from advocate for achieving the
objects of justic and supreme court answered the second argument of Advocate
Mishra by saying that it is- not true that in case of contempt of court, the
sanad (Permission) of any advocate can suspended but he cannot be,
punished. In such cases. Supreme Court can punish the guilty person for the
contempt of Court.
The Supreme Court said that today, the respect of courts by common
people is done only because it has freedom and independent. The Supreme
Court said that if the advocate will contempt. Courts, then what will be the
image of courts. Any advocate can be talkative but it does not mean that he
can say anything in the court.
Article 129 of the constitution is Supreme Court considered record court.
Supreme Court can punish for contempt of it or any subordinate court.
The Supreme Court also described some sections of contempt of court
act and said that both civil and punitive comes in contempt of court. Doing
any act before the court speaking or sign is contempt of court, which disturbs
in the judicial proceedings and whatever Mr. Mishra said before the court,
which undoubtely ereates disturbance in judicial proceedings but also affects
the impartiality of the judges. Clearly, Mishra wanted to abuse the judge and
clearly this act of Mishra came under ambit of professional misconduct. Despite
it, the Supreme Court adopted liberal attitude. The advocate was the president
of B.C.I. and also U.P. Advocate Union, so he was punished by simple
imprisonment of six weeks and directed that this sentence will be suspended
till four years and it’d be seen that advocate Mishra repeats this contempt or
 117
not and the Supreme Court deprived advocate Mishra from practicising upto
three years, and declared all his posts as vacant.
Principles of Law laid Down:
In this case the Supreme Court propounded that doing any such act,
speaking, writing, is contempt of court, which creates disturbance in the
proceeding of the court and affect the impartiality of the judge. Civil & Criminal
both contempts are included in the contempt of court.


118

_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
__________________________________________________________________________________________________________
 119

_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
__________________________________________________________________________________________________________
120

_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
__________________________________________________________________________________________________________