CASE ANALYSIS: In Re: Arundhati Roy

CITATION: AIR 2002 SC 1357/ (2002) 3 SCC 343

BENCH: Division Bench – Supreme Court (G.B. Pattanaik J. and R.P. Sethi J.)

A. FACTS IN BRIEF
• 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), Section 15 of the Contempt of Courts Act, 1971; Article 19(1)(a) in The
Constitution of India 1949.
 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 that
by 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. 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.
 CASE ANALYSIS: A. S. Mohd Rafi vs. State of Tamilnadu
CITATION: AIR 2011 SC 308
BENCH: Division Bench, Supreme Court (Markandey Katju J. and GS Misra J.)

A. FACTS IN BRIEF
• 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, the Constitution of India 1949; 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 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 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.
 CASE ANALYSIS: R.K. Anand vs. Registrar, Delhi High Court
CITATION: (2009) 8 SCC 106
BENCH: Division Bench – Supreme Court (B.N. Agrawal, G.S. Singhvi, and
Aftab Alam JJ. )

A. FACTS IN BRIEF
• 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 in The Advocates Act, 1961; Article 145 and
215 in the Constitution of India 1949.

D. ANALYSIS

The SC on a careful consideration of evidence came to the conclusion that the HC 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 that there was a wide gap between
professional misconduct and criminal contempt of court. The SC 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, SC 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 honor of Senior Advocate conferred on him in light of the
findings recorded in the SC 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 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 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.
 CASE ANALYSIS: Ramon Services Ltd. Vs. Subhash Kapoor
CITATION: AIR 2001 SC 207
BENCH: Single Judge Bench – Supreme Court (S.P Sethi J.)

A. FACTS IN BRIEF
• 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 CPC 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, The Advocates Act, 1961; Order IX Rule 7 and 16, Civil Procedure Code, 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 SC
644 that, “It is a settled law that strike or boycott by the advocates is no ground for
adjournment.” It’s 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 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.
 CASE ANALYSIS: Sanjay Kumar vs State Of Bihar
CITATION: (2014) 9 SCC 203
BENCH: Division Bench – Supreme Court (B.S. Chauhan, Chelameswar, M.Y.
Eqbal, JJ.)

A. FACTS IN BRIEF
• 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 of Contempt of Courts Act; Section 165 of the Indian Evidence Act, 1872.

D. ANALYSIS

n 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.
 CASE ANALYSIS: In Re: Vinay Chandra Mishra
CITATION: AIR 1995 SC 2348
BENCH: Division Bench, Supreme Court (K S Verma, P Sawant)

BENCH: Division Bench –

F. FACTS IN BRIEF
• 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.

G. 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?
 H. RULES APPLICABLE

Section 35 and Section 38 of the Advocates Act, 1961, Contempt of Courts Act, 1971, Article
129 and Article 142 of the Constitution of India.

I. 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

J. 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.
 CASE ANALYSIS: In Re: Rameshwar Prasad Goyal
CITATION: AIR 2014 SC 850
BENCH: Division Bench – Supreme Court (B.S. Chauhan, S.A. Bobde

A. FACTS IN BRIEF
• 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

Supreme Court Rules, 1966 - Rule 5, Supreme Court Rules, 1966 - Rule 6, Supreme Court
Rules, 1966 - Rule 8A; Supreme Court Rules, 1966 - Order 4.
 D. ANALYSIS

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 its judgement
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’s 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.
 CASE ANALYSIS: Pandurang Dattaraya Khandekar vs. Bar Council of
Maharashtra
CITATION: AIR 1984 SC 110
BENCH: Division Bench – Supreme Court (A.P. Sen, E.S. Venkataramiah, R.B.
Misra)
BENCH: Division Bench – Supreme Court (B.S. Chauhan, S.A. Bobde

A. FACTS IN BRIEF
• The complainants alleged various acts of professional misconduct against the appellant and
Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra, Bombay and
Agavane. Ors. (20.10.1983 - SC) : MANU/SC/0068/1983
• According to them,
BENCH: the appellant
Division Bench and agavaneCourt
– Supreme sometimes
(J.S. impersonated as other advocates
Verma, P.B. Sawant)
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

Advocate Act, 1961 - Section 35, Advocate Act, 1961 - Section 36B, Advocate Act, 1961 -
Section 38.
 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,
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.
 CASE ANALYSIS: Tushar D. Bhatt vs. State of Gujarat & Another
CITATION: (2009) 11 SCC 678
BENCH: Division Bench – Supreme Court (Dalveer Bhandari, J.M. Panchal)

A. FACTS IN BRIEF
• 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 and other Provisions of Gujarat Civil Services (Discipline and Appeal) Rules for
disobeying the orders of Head of the office
 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
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.

F. 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.
 CASE ANALYSIS: Mahipal Singh Rana vs. State of U.P.
CITATION: 2016 SC 3302
BENCH: Division Bench – Anil R. Dave, Kurian Joseph, Adarsh Kumar Goel

A. FACTS IN BRIEF
• 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 practise?

C. RULES APPLICABLE

Section 38 Appeal to the Supreme Court and Section 24A. Disqualification for enrolment,
Article 129- Supreme Court to be a court of record

D. ANALYSIS

In Supreme Court Bar Association v. Union of India1, 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 Advocate held that while in exercise of contempt
jurisdiction, this Court cannot take over jurisdiction of disciplinary committee of the Bar

1
(1998) 4 SCC 409
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 Court with 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
in spite of reference made to it, this Court can invoke its appellate power under Section 38 of
the Advocates Act and exercise suo motu 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.