I - CASE ANALYSIS

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 I. In Re: Arundhati Roy - (2002) 3 SCC 343
Supreme Court (G.B. Patnaik J. And R.P. Sethi J.)

A. FACTUAL BACKGROUND

 This case concerns a Suo-moto contempt petition (that is, a petition initiated by the Court
on its own motion) against the Respondent, Arundhati Roy.
 During the course of a writ petition by grassroots-movement Narmada Bachao Andolan,
the Court addressed issues of environmental damage and displacement of marginalized
communities due to the development of a reservoir dam on the river Narmada.
 Following a Supreme Court order that allowed for the height of the dam to be increased,
the Respondent wrote an article criticizing this decision. Subsequently, protests were
staged in front of the gates of the Supreme Court by Narmada Bachao Andolan and the
Respondent. This led to contempt proceedings based on a complaint lodged with the
police.
 During the proceedings, all Respondents denied the allegations concerning specific
slogans and banners and the proceedings were dropped. On the basis of the above
averments, Suo moto contempt proceedings were initiated against the Respondent for
imputing motives to the Court.
 In her reply affidavit to the contempt notice, the author reiterated her stance and stressed
her continuous dissent against the decision of the Supreme Court. She further noted that
she believed this to be a matter of her right to express her opinions as a citizen as well as
a writer.

B. ISSUES INVOLVED

1. Whether the given set of circumstances warrants for a condition wherein the respondent
is show caused and contempt proceedings be initiated against her?

C. RULES APPLICABLE

 Section 2, Section 3, Section 4, Section 5, Section 6, Section 7, Section 8, Section

12,Section 14, Section 14(2) and Section 15, Contempt of Courts Act, 1971;

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  Article 19(1)(a), Constitution of India, 1950.

D. ANALYSIS

The Apex Court firstly stated that freedom of speech and expression as enshrined in the
Constitution are subject to reasonable restrictions imposed by law, one of such reasonable
restriction being the Contempt of Courts Act 1971 which, amongst other objectives, is
directed at maintaining the dignity and the integrity of the courts and the judiciary. The Court
dismissed the Respondent’s argument that the issue of whether truth could be pleaded as a
defense to contempt proceedings had to be determined as irrelevant. The Court went on to say
that the affidavit as a whole was not being considered for contempt but that part which made
allegations questioning the integrity of the Court. It stated that the purpose of contempt
proceedings was not to preserve an individual judge’s reputation but to maintain public
confidence in the judicial system. The Court explained that Judicial criticism must not be
based on a gross misstatement and must not be directed at lowering the reputation of the
judiciary. The Court considered that the Respondent’s statement was not based on any
understanding of the law or the judicial system. It said that her statements alleging the
judiciary’s willingness to issue notice on “an absurd, despicable, entirely unsubstantiated
petition” whilst exhibiting a lack of willingness to entertain a case concerning “national
security and corruption in the highest places” and its intention to silence criticism along with
her lack of remorse, made it difficult “to shrug off or to hold the unsubstantiated accusations
made as comments of an outspoken ordinary man”. Accordingly, the Court found the
Respondent guilty of criminal contempt and sentenced her to “symbolic” imprisonment of
one day and imposed a fine of Rs. 2000 with the proviso that if she failed to pay the fine she
would be imprisoned for three months.

E. CRITICAL ANALYSIS AND CONCLUSION

The Supreme Court of India found the Respondent guilty of contempt of court for alleging in
an affidavit that the Supreme Court was muzzling dissent and criticism. The Court opined
thatby scandalizing its authority with malafide intentions the Respondent was held to be
guilty for the contempt of court punishable under Section 12 of the Contempt of Courts Act
The Court sentenced her to one day’s ‘symbolic’ imprisonment and a fine of Rs. 2000. The
Court reasoned that freedom of speech and expression was not absolute but subject to
restrictions prescribed by law, one such law being the Contempt of Courts Act which aims,
among other things, to maintain confidence in and uphold the integrity of the judiciary.

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Further, the Court found that the Respondent’s statements were not made in good faith and in
the public interest and therefore could not be considered fair judicial criticism.

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 II. A.S. Mohd. Rafi v. State of Tamil Nadu - AIR 2011 SC 308.
Supreme Court (Markandey Katju J. And GS Misra, J.)

A. FACTUAL BACKGROUND

 The accused and a female police constable dashed against each other at the Coimbatore
bus stand.
 The accused by abused and beaten up by four police constables, due to which he suffered
a lot of physical pain and deformity.
 A complain was filled against the accused alleging interalia that he was engaged in
outraging modesty of a women.
 The Bar Association of Coimbatore passed a resolution that no member of the bar will
defend the accused before the Madras High Court.

B. ISSUES INVOLVED

1. Whether it was not unprofessional to refuse to render legal assistance, went unanswered
by the representatives of the Bar?
2. Whether there is any moral or legal justification to involve their association when the
issue has nothing to do with the discharge of his professional duties?

C. RULES APPLICABLE

 Article 22(1) and Article 142, Constitution of India, 1950.

 Chapter II, Bar Council of India Rules.

D. ANALYSIS

The matter which came up in the case is of great legal and constitutional importance.
Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to
pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar
Association in passing such a resolution that none of its members will appear for a particular
accused, whether on the ground that he is a policeman or on the ground that he is a suspected
terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and

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professional ethics. It is against the great traditions of the Bar which has always stood up for
defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal
community.

Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable,
vicious or repulsive he may be regarded by society has a right to be defended in a court of
law and correspondingly it is the duty of the lawyer to defend him. Further Article 22(1) is
one such provision which makes it mandatory for the state to provide the guilty a
representative to defend him in against all charges against him.

As a matter of professional ethics Chapter II of the Rules of Bar Association of India

provides for `Standards of Professional Conduct and Etiquette', as follows: "An advocate is
bound to accept any brief in the Courts or Tribunals or before any other authorities in or
before which he proposes to practice at a fee consistent with his standing at the Bar and the
nature of the case. Special circumstances may justify his refusal to accept a particular brief.”

The court declared that all such resolutions of Bar Associations in India are null and void and
the right-minded lawyers should ignore and defy such resolutions if they want democracy and
rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the
consequences, and a lawyer who refuses to do so is not following the rules of Bar Council.

E. CRITICAL ANALYSIS AND CONCLUSION

In the earlier impugned judgement, it was stated that it is certainly open to the members of
the Bar to help and aid an advocate in distress in any manner. In this very case the helping
hand extended by the members of the Bar to Mr. Mohammed Rafi cannot be objected to. The
officer bearers can certainly take care of the situation and do all the needful. If the
expectations are not fulfilled, Bar can certainly take up the matter with higher authorities or
complain to the Committee which has been formed by the High Court to go into clashes
between police and advocates, even in cases where the clash relates to the performance of
professional duty by the advocates. But no right- thinking citizen will endorse the
involvement of the association vis-a-vis an advocate as an ordinary citizen and the issue has
nothing to do with performance of his professional duties, and the Association indulging in
road block and boycott of courts etc. Redressal for any grievance, must be only in accordance
with law and this is what any lawyer will advise his client, same applies when lawyers are
aggrieved too. The State Government is directed to pay to the second petitioner a
compensation of Rs. 50,000/- for violation of his human rights by the police officers and the

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State is at liberty to recover this amount from the erring officials. But there was an appeal to
this impugned order in 2011 in which stated that an advocate is bound to accept any brief in
the Courts or Tribunals or before any other authorities in or before which he proposes to
practice at a fee consistent with his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief. The appeal is disposed of
accordingly with no costs.

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 III. R.K. Anand v. Registrar, Delhi High Court – (2009) 8 SCC 106
Supreme Court (BN Agarwal, GS Singhvi and Aftab Alam JJ)

A. FACTUAL BACKGROUND
 On January 10, 1999 at about half past four in the morning a speeding vehicle crashed
through a police check-post on one of the Delhi roads and drove away leaving behind six
people dead or dying.
 The police investigation brought to light that the accident was caused by a black BMW
car which was being driven by Sanjeev Nanda. He was returning from a late-night party,
under the influence of liquor, along with some friend(s)
 In 2007, NDTV exposed the nexus between the witness, defence lawyer, and public
prosecutor I U Khan who were caught on hidden camera trying to fix the witness.
 Delhi HC took suo- moto cognizance of the expose and found both lawyers to be guilty.
They were barred from practicing in the Delhi Courts for four months and stripped off
their seniority.

B. ISSUES INVOLVED

1. Whether the conviction of the two appellants, i.e. RK Anand and I U Khan for committing
criminal contempt of court is justified and sustainable?

2. Whether it was open to the High Court to prohibit the appellants from appearing before
the High Court and the courts sub-ordinate to it for a specified period as one of the
punishments for criminal contempt of court?

C. RULES APPLICABLE

 The Contempt of Courts Act, 1971;

 Section 34, Advocates Act, 1961;
 Article 145 and 215, Constitution of India, 1950.

D. ANALYSIS

The Supreme Court on a careful consideration of evidence came to the conclusion that the
High Court had erred in its final decision though it concurred on the point that Khan’s
conduct was inappropriate for a lawyer in general and a prosecutor in particular. But it said

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that there was a wide gap between professional misconduct and criminal contempt of court.
The Supreme Court felt that Khan’s behaviour only amounted to criminal contempt of court.
A major factor that influenced the court was that the transcript of the conversation between
Khan and Kulkarni was incomplete and it was difficult to ascertain with certainty that “Bade
Sahab” was a reference to Anand. The Court stated that what needs to be given weightage
was what IU Khan understood by the reference and not what Kulkarni meant by it. Since it
was difficult to determine this, Supreme Court acquitted Khan but gave the final discretion to
The Full Court of the Delhi High Court on the question of whether or not to continue the
honour of Senior Advocate conferred on him in light of the findings recorded in the Supreme
Court judgment. The Apex Court gave directions to High Courts not having framed rules
under Section 34 of Advocates Act to frame rules within four months. The Rules should
indicate need for specific notice to be issued when punishment of debarring an Advocate
from practice be imposed. Telecast of sting operation exposing collusion between defence
counsel and prosecutor did not amount to contempt of court but the programme was
intended to prevent an attempt to interfere with or obstruct the due course of a pending
matter. It was in larger public interest and served an important public cause. Grave
concerns and dismay expressed on the decline of ethical and professional standards amongst
lawyers. Bar Council of India and the Bar Councils of different States cannot escape their
responsibility. High Court’s powers of superintendence over subordinate judiciary and power
of control should also be exercised to protect them from external interference that may
sometimes appear overpowering to them and to support them to discharge their duties
fearlessly. Criminal justice system should be insulated from external influences aimed to
subvert trials.

E. CRITICAL ANALYSIS AND CONCLUSION

In light of the discussions made above the Court observed that the appeal filed by IU Khan
should have been allowed and his conviction for criminal contempt is set aside. The period of
four month's prohibition from appearing in Delhi High Court and the courts sub-ordinate to it
is already over. The punishment of fine given to him by the High Court is liable to be set
aside. The Full Court of the Delhi High Court may still consider whether or not to continue
the honour of Senior Advocate conferred on him in light of the findings recorded in this
judgment. Further those of the High Courts which have so far not framed any rules under
Section 34 of the Advocates Act, shall frame appropriate rules without any further delay as
directed in paragraph 147 of the judgment.

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 IV. Ramon Services Ltd. V. Subhash Kapoor - AIR 2001 SC 207
Supreme Court (SP Sethi J.)

A. FACTUAL BACKGROUND
 The appellant-company was in occupation of a building as tenant at Barakhamba Road,
New Delhi. A suit was filed against the appellant for eviction from the building and other
consequential reliefs which was resisted by the appellant by raising various contentions.
 Issues in the suit were framed by the court and the case was posted for trial. None of the
advocates, belonging to the firm of lawyers which was engaged by the appellant appeared
in the court on the day due to the strike.
 As nobody for the appellant was present, the court set the defendant ex parte and
evidence of the plaintiff was recorded.
 Once the appellant came to know regarding the same, he applied under Order IX, Rule 7
of the Code of Civil Procedure, 1908 however the application was dismissed, and the suit
was decreed. The High Court then decreed on the same grounds of the trial court.
 This Civil Appeal is filed in the Supreme Court against the order of the High Court.

B. ISSUES INVOLVED

1. Whether suit decreed ex parte by the trial court in consequence of the non-appearance of
the counsel on the fixed day for hearing, on the premise of the strike is valid reason for
non- appearance.

C. RULES APPLICABLE

 Section 35, Advocates Act, 1961;

 Order IX Rule 7 and 16, Code of Civil Procedure, 1908.

D. ANALYSIS

The case deals with the rights of the litigants with respect to attorney client relationship with
respect to certain event such as a strike called by the Advocates Association. The Supreme
court placed reliance upon the case of Mahabir Prasad Singh v. Jacks Aviation (1998) RLR

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SC 644 that, “It is a settled law that strike or boycott by the advocates is no ground for
adjournment.” It is the solemn duty of every lawyer to attend court especially when there is
no bonafide, reasonable ground given for such a non – appearance in court. An advocate has
no right to stall the court proceedings on the ground that advocates have decided to strike or
to boycott the courts. Boycott of the court by the advocate is unquestionably illegal, the
lawyer has an option to boldly ignore any such boycott call. It was rightly held by the court
that in the event of such non-appearance, it’s the advocate that would be answerable for the
consequence suffered by the party, if the non-appearance was solely on the ground of a strike
call.

Though a matter of regret, yet it is a fact that the courts in the country have been contributory
to the continuance of the strikes on account of their action of sympathising with the Bar and
failing to discharge their legal obligations obviously under the threat of public frenzy and
harassment by the striking advocates. Some courts might have conducted the cases even
during the strike or boycott periods or adjourned due to helplessness for not being in a
position to decide the is in the absence of the counsel but majority of the courts in the country
have been impliedly sympathisers by not rising to the occasion by taking positive stand for
the preservation of the high traditions of law and for continued restoration of the confidence
of the common man in the institution of judiciary. It is not too late even now for the courts in
the country to rise from the slumber and perform their duties without fear or favour. Inaction
will surely contribute to the erosion of ethics and values in the legal profession. The
defaulting courts may also be contributory to the contempt of this Court.

E. CRITICAL ANALYSIS AND CONCLUSION

In the light of the consistent views of the judiciary regarding the strike by the advocates, no
leniency can be shown to the defaulting party and if the circumstances warrant to put such
party back in the position as it existed before the strike. In that event, the adversary is entitled
to be paid exemplary costs. The litigant suffering costs has a right to be compensated by his
defaulting counsel for the costs paid. In appropriate cases, the court itself can pass effective
orders for dispensation of justice with the object of inspiring confidence of the common man
in the effectiveness of judicial system. the appellant filed an application to set aside the ex
parte decree. The said application was dismissed by the trial court In the instant case, the

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respondent has to be held entitled to the payment of costs consequent upon the setting aside
of the ex parte order passed in his favour.

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 V. Sanjay Kumar v. State of Bihar – (2014) 9 SCC 203
Supreme Court (BS Chauhan, Chelameswar, MY Eqbal, JJ)

A. FACTUAL BACKGROUND
 The petitioner filed a special leave petition against judgment of the magistrate regarding
fraud and bouncing of post-dated salary cheques. Without giving them sufficient time to
file a reply, the Petitioner filed a complaint before the Magistrate at Danapur, Patna under
provisions of the Indian Penal Code, 1860 (hereinafter referred to as IPC) and Negotiable
Instrument Act, 1881 (hereinafter referred to as NI Act).
 The private respondent challenged the said order by filing the petition before the High
Court which concluded that there was nothing on record to show that the notice had ever
been served upon the private respondent and ultimately allowed the said petition on the
ground that it was a case of civil nature as it was a matter of recovery of salary.
 Aggrieved, the petitioner approached the Supreme Court making the averment in the
petition that accused persons had been running a fake institution and offered the
appointment to the petitioner on certain terms and in spite of working therein, he was not
paid the salary. Hence, this petition.

B. ISSUES INVOLVED

1. Whether an Advocate-on-Record can refuse to attend Court proceedings of his case and
send a proxy on his behalf?

2. Whether petitioner can ask court to ignore certain pleadings deemed irrelevant to the
case?

C. RULES APPLICABLE

 Section 3, Contempt of Courts Act, 1971;

 Section 165, Indian Evidence Act, 1872.

D. ANALYSIS

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In the instant case the counsel appearing in the Court for the Petitioner designated himself
merely as a proxy counsel without revealing his name. The Advocate-on-record (“AOR”)
had no courtesy to send a slip mentioning the name of the counsel who has to appear in the
Court. In Re: Rameshwar Prasad Goyal (2014) 1 SCC 572, this Court had categorically held
that in case the AOR does not appear in the Court, his conduct may tantamount to criminal
contempt of the Court.

The Court had issued a notice earlier to the Petitioner, to show cause that in case it was a fake
institution, what was the reason or rationale for the Petitioner to join and continue to serve
there for one year. In reply to the said show cause notice, the Petitioner submitted that such
pleadings be ignored and may not be taken into account for the purpose of disposal of the
instant petition. It is to be noted that the pleadings should be trite to the knowledge of parties
and in a case, person takes such misleading pleading, he can be refused not only any kind of
indulgence by the court but can also be tried for perjury. Whether such a pleading is relevant
or not is a matter to be decided by the Court and under Section 165 of the Indian Evidence
Act, 1872, Court has a right to ask the party even relevant or irrelevant questions and the
parties or their counsel cannot raise any objection to any such question.

E. CRITICAL ANALYSIS AND CONCLUSION

Being an Advocate-on-Record is an honourable task, and comes with allied duties and
conduct that befits the conduct of such a position. The practice of sending a proxy on behalf
of an advocate is pretty common, but doing so in the apex court with complete disregard of
court procedure and the essence of law itself is downright contemptuous. Refusing to appear
in Court and sending proxies without notifying the bench of any relevant particulars is
detrimental to the process of law as well as to the trust people have towards the judiciary. The
judiciary owes a duty to the people, and the AOR must also work in keeping that duty
pervasive. The Court did not file contempt charges against the AOR for his disregard of the
Court and court procedures, but merely took serious note of the conduct and warned him to
behave in an appropriate manner, declaring that his conduct will be under close watch. While
the case dealt with issues of fraud and/or civil money dispute, the Court delved into the
ethical practices of lawyers. Furthermore, the Courts observation on the petitioner’s action by
asking the highest court of the Country to ignore a pleading he had plead is in complete
disregard of the process of law and is close to making a mockery of the Apex court.

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 VI. In Re: Vinay Chandra Mishra – AIR 1995 SC 2348
Supreme Court (KS Verma, J, P Sawant J)

A. FACTUAL BACKGROUND
 Allegations of contempt committed in the face of a High Court were made against a
Senior Counsel. He was asked by the Bench regarding the provision under which the
impugned order had been passed.
 He started shouting at the bench. He said would get the Judge transferred or impeached
and threatened by saying that he had “turned up many judges”. He created a scene in the
Court. He lost his temper and, according to the Judge, “except to abuse him of mother and
sister” the contemnor had insulted him like anything.
 The contemnor was also President of the Bar and Chairman of the Bar Council of India.
The matter was referred by the Acting Chief Justice to the Supreme Court. The Supreme
Court took suo motu cognizance and issued a show cause notice to the contemnor.
 In his counter and additional counter, a different version of the incident was put up by the
contemnor. He alleged that in fact it was the judge who had committed contempt of his
own court. He filed application for initiating proceedings against the Judge.

B. ISSUES INVOLVED

1. Whether Supreme Court can take cognizance of contempt of a High Court and initiate suo
motu proceedings against a contemnor?
2. Whether a contemnor has a right to examine the Judge or Judges before whom contempt
was committed?
3. Whether it is necessary to summon the Judge for examination to verify the allegations
against the contemnor when the version of the contemnor is different?
4. Whether a junior member of the Bench is barred in any way by any convention or
otherwise, from putting questions to the Bar?

C. RULES APPLICABLE

 Section 35 and Section 38, Advocates Act, 1961;

 Contempt of Courts Act, 1971;

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  Article 129 and Article 142, Constitution of India, 1950.

D. ANALYSIS

The Hon’ble Court in In Re: Vinay Mishra misconstrued Article 129 read with 142 and
robbed the Bar to of all powers to try and punish those for professional misconduct. It even
assumed jurisdiction when Section 38 of the Advocates Act, 1961 explicitly provides only
appellate jurisdiction to the Apex Court. The Court punished Shri Mishra by suspending him
thus the petition arose in the 1998 case, Supreme Court Bar Association v. Union of India.
The Court overruled the Mishra case and recognized the Bar Council's power to try and
punish all those guilty of professional misconduct. The Supreme Court is vested with the right
to punish those guilty of contempt of Court under Article 129 read with Article 142 of the
Constitution of India. The power to punish contemnors is also vested with the High Court’s
under Article 215 of the Constitution and the Contempt of Courts Act, 1971 also governs the
punishments given by the High Court. This act in no way controls the jurisdiction of the
Apex Court. Contempt proceedings are not brought about to restore the pride of the Judge in
who's Court or against whose order there was contempt

E. CRITICAL ANALYSIS AND CONCLUSION

It is well settled that contempt proceedings are brought about to protect the majesty of law
and uphold the judiciary's position, the central pillar in Indian democracy, among the public
and give them reason to keep their faith in the administration of justice. In the Mishra case
the Court instead of protecting the image of the Judiciary, the upholder of the law, knowingly
or un-knowingly, tried to restore the pride of the Judge by suspending the advocate Mishra
who might have been influenced by his high position in the Bar, and felt that appropriate
punishment might not be meted out to him. Association case the court took a very objective
view and taking the help of law and construing it in the right way came to the conclusion that
the power to punish for any professional misconduct rests with the Bar, whereas to punish for
contempt only it has jurisdiction for itself and subordinate courts. No statute can take
contempt jurisdiction away from the Supreme as well as the High Court.

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 VII. In Re: Rameshwar Prasad Goyal – AIR 2014 SC 850
Supreme Court (BS Chauhan, SA Bobde)

A. FACTUAL BACKGROUND
 A civil appeal was dismissed in default vide order dated 8.3.2013 as none appeared to
press the appeal. An application for restoration of the said appeal was filed by Shri
Rameshwar Prasad Goyal, Advocate-on-Record (hereinafter referred to as AOR).
 The said application was listed in the Court on 8.7.2013. The Court was of the view that
the facts contained in the application were not correct and the counsel appearing for the
applicant was not able to clarify the same.
 The Court passed over the matter and asked the counsel appearing therein to call the AOR
who would be able to explain the factual controversy. When the matter was taken up in
the second round, the Court was informed that Shri Rameshwar Prasad Goyal, AOR
refused to come to the Court.
 It was also pointed out that the said AOR has filed extremely large number of cases in
this Court but never appears in the Court. In view of the refusal of the AOR to come to
the Court, this Court had no other option but to dismiss the application.
 However, the Court issued a show cause notice to the said AOR as to why his name
should not be removed from the register of AOR, as his conduct was ‘unbecoming’ of an
AOR.

B. ISSUES INVOLVED

1. Whether absence of AOR from his own cases amounts to “unbecoming” of an AOR?

C. RULES APPLICABLE

 Rule 5, Rule 6, Rule 8A, Supreme Court Rules, 1966;

 Order 4, Supreme Court Rules, 1966.

D. ANALYSIS

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The judge held that although, conduct of said AOR tantamount to interfering with
administration of justice, the AOR for the time being given one year's time to reform his
conduct and if no improvement is found, proceedings may be initiated against him again. The
matter was declared closed for the time being. It’s seen that an AOR is the source of lawful
recognition through whom the litigant is represented and therefore, he cannot deviate from
the norms prescribed under the rules. Lawyers must remember that they are equal partners
with judges in the administration of justice. If lawyers do not perform their function properly,
it would be destructive of democracy and the rule of law. The conduct of the AOR has been
reprehensible and not worth pardoning but even then, the Court has being merciful in
considering the facts and circumstances involved, and has warned him not to behave in future
in such manner and to appear in court in all the cases wherever he has entered appearance.
This is not the first time that such a case has come to the Court. The Hon’ble Court in
itsjudgement of In Re: Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting,
(1995) 3 SCC 619, this Court clearly propounded that, “The casualness and indifference with
which some members practice the profession are certainly not calculated to achieve that
purpose or to enhance the prestige either of the profession or of the institution they are
serving..”

E. CRITICAL ANALYSIS AND CONCLUSION

It is hence known that “Law is no trade, briefs no merchandise”. An advocate being an officer
of the court has a duty to ensure smooth functioning of the Court. He has to revive the person
in distress and cannot exploit the helplessness of innocent litigants. A wilful and callous
disregard for the interests to the client may in a proper case be characterised as conduct
unbefitting an advocate. If the AOR does not discharge his responsibility in a responsible
manner because he does not appear whenever the matter is listed or does not take any interest
in conducting the case, it would amount to not playing any role whatsoever. In such a fact-
situation, lending signatures for consideration would amount to misconduct of his duty
towards court. In case the AOR is only lending his signatures without taking any
responsibility for conduct of a case, the very purpose of having the institution of AOR stands
defeated.

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 VIII. Pandurang Dattaraya Khandekar v. Bar Council of Maharashtra – AIR 1984
SC 110
Supreme Court (AP Sen, ES Venkataraiah, RB Misra)

A. FACTUAL BACKGROUND
 The complainants alleged various acts of professional misconduct against the appellant
and Agavane.
 According to them, the appellant and Agavane sometimes impersonated as other
advocates for whom the briefs were meant and at times they directly approached the
clients and adopted questionable methods charging exorbitant fees.
 The State Bar Council referred to four specific charges relating to them, two of
impersonation as A.D. Ghospurkar and N.L. Thatte and depriving these gentlemen of the
briefs meant for them.
 The State Bar Council held that these two charges have not been substantiated and the
Disciplinary Committee of the Bar Council of India has not gone into them.
 Both the Disciplinary Committee of the Bar Council of India and the State Bar Council
however found the appellant and Agavane to be guilty of giving improper legal advice
and held the charge of professional misconduct proved, but having regard to the fact that
they were junior members of the bar, the Disciplinary Committee of the Bar Council of
India by its order dated April 23, 1976 held both the appellant and A.N. Agavane guilty
of professional misconduct and directed that the appellant be suspended for a period of
four months from June 1, 1976 and Agavane for a period of two months there from.

B. ISSUES INVOLVED
1. Is there a difference between the giving of improper legal advice and the giving of wrong
legal advice?
2. Can Courts adjourn matters because lawyers are on strike?
3. Can Court interfere with the concurrent finding of fact?

C. RULES APPLICABLE

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  Section 35, 36B, 38, Advocate Act, 1961.

D. ANALYSIS

The Supreme Court held that it is the duty of all Courts to go on with matters on their boards
even in the absence of lawyers. In other words, Court must not be privy to strikes or calls for
boycotts. It was held that if a lawyer, holding a vakalatnama of a client, abstains from
attending Court due to a strike call, he shall be personally liable to pay costs which shall be in
addition to damages which he might have to pay his client for loss suffered by him. There is
a world of difference between the giving of improper legal advice and the giving of wrong
legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a
legal practitioner in the exercise of his profession does not amount to professional
misconduct. In re A Vakil, ILR [1925] 49 Mad. 523. Coutts Trotter, C.J. followed the
decision in re G. Mayor Cooke [1889] 33 Sol. Jour. 397 and said that;"Negligence by itself is
not professional misconduct; into that offence there must enter the element of moral
delinquency".

The Court further stated that under Section 38 of the Advocate's Act 1961, this Court would
not, as a general rule, interfere with the concurrent finding of fact. by the Disciplinary
Committee of the Bar Council of India and the State Bar Council unless the finding is based
on no evidence or it proceeds on mere conjectures and surmises. Finding in such disciplinary
proceedings must be sustained by a higher degree of proof than that required in civil suits, yet
falling short of the proof required to sustain a conviction in a criminal prosecution. There
should be convincing preponderance of evidence.

E. CRITICAL ANALYSIS AND CONCLUSION

It is the solemn duty of the Bar Council of India and the State Bar Councils to frame proper
schemes for the training of the junior members of the bar, for entrusting of work to them, and
for their proper guidance so that eventually we have new generation of efficiently trained
lawyers. It is regrettable that even after more than two decades that the Advocates Act was
brought on the Statute Book, neither the Bar Council of India nor the State Bar Councils have
taken any positive steps towards ameliorating the conditions of the members of the bar,

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particularly of the junior members. It is pertinent to note that there is a thin line between
misconduct, negligence which can only be brought to conclusion only via precedents.

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 IX. Tushar D. Bhatt v. State of Gujarat & Another – (2009) 11 SCC 678
Supreme Court (Dalveer Bhandari, JM Panchal)

A. FACTUAL BACKGROUND
 The appellant had joined service of respondent as Food Inspector. The appellant worked
for 14 years as Food Inspector at Ahmedabad and Gandhinagar. In 1996, he was
transferred to Rajkot where remained for three years. Again, the appellant was transferred
to Bhuj. However, he did not join duty at Bhuj. Though the appellant was relieved on
05.10.1999 from Rajkot, yet he did not join duty at Bhuj.
 The Assistant Commissioner, Bhuj called upon the appellant to immediately join the
duty, but the appellant did not comply with his direction. The appellant on 17.01.2000
filed a reply to the show cause notice and bluntly refused to join duty at Bhuj. Ultimately,
the appellant was suspended from the service.
 The appellant was served with a charge-sheet on 05.05.2000 containing seven charges
like remaining unauthorizedly absent, deciding on his own the place of discharging his
duty without permission of the competent officer, exerting mental pressure and giving
threats, acting beyond his official under the provisions of the Gujarat Civil Services
(Discipline and Appeal) Rules, flouting and disobeying the orders of the Head of the
department as well as the Head of the office, Ignoring the office orders issued by the
Government, using intemperate language.

B. ISSUES INVOLVED
1. Whether the appellant is liable under Rule 6 of Gujarat Civil Services (Discipline and
Appeal) Rules, 1971 for continuous absence from services and disobeying the Head of the
office?

C. RULES APPLICABLE

 Rule 6, Gujarat Civil Services (Discipline and Appeal) Rules, 1971.

D. ANALYSIS

According to the Court, absenteeism and use of intemperate language which is a matter of
gross indiscipline is not a minor offence and thereafter being lenient about it would amount to

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injustice in the interest of the institution. The Appellant did not challenge the guilt proved by
the Inquiry Officer in the Report submitted, and thus, a proven guilt cannot be surpassed as a
minor offence. The Court held that if the Appellant can escape with minor penalty, then it
will certainly form a bad precedent and in a given case, some other unscrupulous
Government employee would resort to arm twisting of his superior for extorting a decision in
his favor. Thus, as per Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules,
1971, the offence committed in the case would warrant to the punishment of a dismissal from
service as decided by the Disciplinary Authority. Thereafter, a decision by the Disciplinary
Authority is limited. Only when an order of punishment is found to be so perverse that no
reasonable person can pass such order, or the punishment imposed is shockingly
disproportionate to the guilt established or there is violation of any fundamental rights or the
principles of natural justice, can there be unlimited judicial review. But, in the present case no
such facts have been warranted and thus the scope of judicial review by the Court, is limited.
Also, according to the Court, “…transfer is an incidence of service and transfers are made
according to administrative exigencies.” The Court observed in the present case that the
Transfer of the Appellant has only been made twice in his 18 years tenure and this cannot be
termed as mala fide. Thus, the allegations made by the appellant was devoid of any merit and
was dismissed.

E. CRITICAL ANALYSIS AND CONCLUSION

The appellant in the present matter failed to show cause as to why one of the punishments
indicated in Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules should not be
imposed on him. The appellant has been giving improper and unaccepted justifications for
failing to obey the order of Head and remaining absent from his duties. It is observed through
the analysis that all the tribunals that the appellant has taken resort to decided rightly against
the appellant considering the carelessness and indiscipline on his part. It is thus concluded
that the court in hearing the present case has very well dismissed the appeal against the
appellant as the appellant failed to give answers for his unjustified and clearly seemed to be
deliberate absence from his duty calling him to be liable under the Provisions of Gujarat Civil
Services (Discipline and Appeal) Rules.

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 X. Mahipal Singh Rana v. State of U.P. – AIR 2016 SC 3302
Supreme Court (Anil R. Dave, Kurian Joseph, Adarsh Kumae Goel)

A. FACTUAL BACKGROUND
 An appeal is preferred under Section 19 of the Contempt of Courts Act, 1971 against the
judgment and order delivered by the High Court of Judicature at Allahabad, whereby the
High Court found the appellant guilty of Criminal Contempt for intimidating and
threatening a Civil Judge (Senior Division), Etah and sentenced him to simple
imprisonment of two months with a fine of Rs. 2,000/-
 The High Court further directed the Bar Council of Uttar Pradesh to consider the facts
contained in the complaint of the Civil Judge (Senior Division) Etah, and to initiate
appropriate proceedings against the appellant for professional misconduct.
 The appeal was admitted by Supreme Court and the part of the impugned judgment,
which imposed the sentence, was stayed and the appellant was directed not to enter the
Court premises at Etah. Notice was issued to the Supreme Court Bar Association, Bar
Council of India and to the Attorney General.

B. ISSUES INVOLVED
1. Whether Court has jurisdiction vis-à-vis statutory power of Bar Council on conviction of
an advocate for criminal contempt and his right to practice?

C. RULES APPLICABLE

 Section 19, Contempt of Courts Act, 1971;

 Section 34, Advocates Act, 1961;
 Article 129, Constitution of India, 1950.

D. ANALYSIS

In Supreme Court Bar Association v. Union of India, the court while examining its powers
under Article 129 of the Constitution with regard to awarding sentence of imprisonment
together with suspension of his practice as an Advocateheld that while in exercise of
contempt jurisdiction, this Court cannot take over jurisdiction of disciplinary committee of

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the Bar Council and it is for the Bar Council to punish the advocate by debarring him from
practice or suspending his licence. It was further held that this court or the High Court can
prevent the contemnor advocate from appearing before it or other courts till he purges himself
of the contempt which is different from suspending or revoking the licence or debarring him
to practice.

In R.K. Anand v. Registrar, Delhi High Courtwith reference to Section 34 of the Advocates
Act, it was held that the court has a right to bar the advocate concerned from appearing before
the courts for an appropriate period of time. Regulation of right of appearance in courts is
within the jurisdiction of the courts. In the present case, in spite of direction of the High
Court as long back as more than ten years, no action was taken by the Bar Council. In view of
such failure of the statutory obligation of the Bar Council of the State of Uttar Pradesh as
well as the Bar Council of India, this Court has to exercise appellate jurisdiction under the
Advocates Act in view of proved misconduct calling for disciplinary action.

In Supreme Court Bar Association, it was held that where the Bar Council fails to take action
inspite of reference made to it, this Court can invoke its appellate power under Section 38 of
the Advocates Act and exercise suomotu powers for punishing the contemnor for professional
misconduct.

E. CRITICAL ANALYSIS AND CONCLUSION

The Supreme Court disposed of this appeal and upheld the conviction and the direction by the
Allahabad High Court that the advocate shall not be permitted to appear in courts in District
Etah until he purges himself of contempt. The Court also held Section 24A of the Advocates
Act applies to an advocate also and under this the enrolment of the contemnor Advocate will
stand suspended for two years.

Supreme Court also observed that there is an urgent need to review the provisions of the
Advocates Act dealing with regulatory mechanism for the legal profession. It has requested
the Law commission and Government of India to take appropriate steps in this regard. In
view of above the Law Commission of India had undertaken a study and requested the Bar
Council of India and all State Bar Councils, Bar Association of the Supreme Court and
Advocates on Records Association of Supreme Court, Advocates Associations’ in the High
Courts and their respective Benches to send their comments.

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