IRAC Analysis

 In Re: Arundhati Roy,

[AIR 2002 SC 1357: (2002) 3 SCC 343].

Facts

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, a Booker-prize winning author.
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.

Issues

1. Whether it would be permissible to initiate contempt proceedings for scandalizing the court
where the contents of an affidavit cause no contempt to any Judge personally but the action
tried to cast an injury to the public by creating a wrong impression in the mind of the people
regarding integrity, ability and fairness of the judiciary?

2. Extent to which and circumstances in which fair criticism of Judge, court or its functioning
would be permissible under Article 19(1) (a) and (2)?
3. Whether freedom of press is guaranteed separately from and is the same as freedom of
expression under Article 19(1)?

4. How should the court deal with a case when a contemnor does not show any repentance or
remorse but persistently and consistently tried to justify the prima facie contemptuous action
and to frustrate the contempt proceedings?

Rules

The Contempt of Courts Act, 1971, Section 2(c) in the Contempt of Courts Act, 1971, The
Indian Penal Code, 1860, Section 14 in the Contempt of Courts Act, 1971, Article 19(1)(a) in
The Constitution of India 1949.

Analysis

The Court firstly stated that freedoms of speech and expression guaranteed by the
Constitution are subject to reasonable restrictions imposed by law, one of these being the
Contempt of Courts Act which, amongst other objectives, is directed at maintaining the
dignity and the integrity of the courts and the judiciary. It dismissed as irrelevant the
Respondent’s argument that the issue of whether truth could be pleaded as a defense to
contempt proceedings had to be determined. 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. 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.

Conclusion

The Supreme Court of India found the Respondent guilty of contempt for alleging in an
affidavit that the Supreme Court was muzzling dissent and criticism. 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.
 R.K. Anand vs. Registrar, Delhi High Court,
(2009) 8 SCC 106.

Facts

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. As the speeding car hit the group of persons standing on the road some
were thrown away but two or three persons landed on the car's bonnet and rolled down to the
ground under it. The car, however, did not stop. It moved on dragging along the persons who
were caught in its underside. It halted only after the driver lost control and going down a
distance of 200-300 feet hit the road divider. At this point the occupants came down from the
car to inspect the scene. They looked at the front and the rear of the car and would not have
failed to notice the persons caught under the car who were still crying for help and who
perhaps might have been saved if they were taken out even at that stage. But the anxiety of
the car's occupants to leave the accident site without delay seemed to override all other
considerations. They got back into the car, reversed it and drove on. The car went on
dragging the unfortunate victims trapped under it to certain and ghastly death and left behind
at the accident site dismembered limbs and dead bodies of men. 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)

Issues

1. Whether the conviction of the two appellants for committing criminal contempt of court is
justified and sustainable?

2. Whether the procedure adopted by the High Court in the contempt proceedings was fair
and reasonable, causing no prejudice to the two appellants?

3. 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?

4. Whether in the facts and circumstances of the case the punishments awarded to the
appellants can be said to be adequate and commensurate to their misdeeds?
Rules

The Contempt of Courts Act, 1971, Section 34 in The Advocates Act, 1961, Article 145 in
The Constitution of India 1949, Article 215 in The Constitution of India 1949

Analysis

Suo motu cognizance taken by High Court on basis of telecast alone. The court examined the
audio and video recordings of sting operation. The findings of High Court were sustained. It
had rightly punished them by prohibiting them from appearing for a period of four months
and holding that they had forfeited their right to be designated as Senior Advocates and
imposing fine. A motivated application for recusal needs to be dealt with sternly and viewed
as interference in due course of justice leading to penal consequences. Directions given 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.

Conclusion

NDTV, a news channel telecast a programme on 30 May 2007 in which the IU Khan, Special
Public Prosecutor and R.K. Anand, the Senior Defence Counsel, were seen negotiating sell
out of a prosecution witness for a very high price. According to NDTV, the programme was
based on a clandestine sting operation. Delhi High Court suo motu initiated a proceeding for
criminal contempt and issued notice to R.K. Anand and IU Khan under Section 2(c) of the
Contempt of
Courts Act, 1971. During the pendency of the matter in the High Court, R.K. Anand filed a
petition requesting Justice Manmohan Sarin, the Presiding Judge to recuse himself from the
proceeding. He stated in the petition that he had a feeling that he was not likely to get justice
at the hands of Manmohan Sarin. He made the prayer that the main matter be transferred to
be heard by some other bench of which Justice Sarin was not a member. The High Court held
that the evidence and circumstances fully established that both IU Khan and R.K. Anand
were guilty of the charges framed against them. It accordingly convicted them for criminal
contempt of court and sentenced them by prohibiting them from appearing in the Delhi High
Court and the Courts subordinate to it for a period of four months from the date of the
judgment. The court also recommended to the full court to divest them of the honour of being
designated as Senior Advocates and also sentenced them to a fine of Rs. 2000/- each.
 S. Mohd Rafi vs. State of Tamilnadu,
[AIR 2011 SC 308].

Facts

On 14.12.2006 at about 9.20 p.m. the second petitioner (Mohd. Rafi) had entered the town
bus stand to board a bus to reach his home. He and Miss Sathyabama, the fifth respondent
(Police Constable) collided by mistake and this resulted in a wordy altercation. According to
the second petitioner, he was abused and beaten up by the fifth respondent and about four
constables who had gathered there, pushed him down and kicked several times and dragged
him to the nearby All Women Police Station (AWPS) and to Police Station few feet away and
beaten up again, even after he had revealed his identity as an Advocate. The police also
refused to take up his complaint. Later the second petitioner was taken to the Government
Hospital only at 1.45 A.M. the following day and as he was not given proper treatment and
there was also an attempt to falsely issue a Drunkenness Certificate (DC) as though he was
drunk. The second petitioner went to Kovai Medical Centre where he had earlier undertaken
treatment and had undergone surgery for his brain tumour. According to the second
petitioner, as a result of this surgery, he has lost his vision in his right eye as well as hearing
by his left ear. He had also suffered facial deformity due to paralysis. A CT scan was also
taken, from which it was found that the second petitioner had received multiple bruises and
there was a tear in his left ear because of the assault. It is also alleged that in order to suit
their convenience, the police also registered a complaint against the second petitioner, as
allegedly given by Sathyabama, as if he had outraged her modesty. The second petitioner has
alleged that because of the assault, he has been put to severe hardship, especially the artificial
instrument implanted in the brain during the earlier surgery was also affected. He suffers
severe pain in the spinal region due to the attack and is unable to sit continuously for more
than 15 minutes. Even after discharge from the hospital, he was required to take treatment
continuously and could not attend to his work for nearly three months. More than Rs.1 lakh
has been spent for his medical treatment so far because of this incident. In these
circumstances, the second petitioner has claimed compensation for a sum of Rs. 10 lakhs.
Issues

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?

3. Whether their actions reflect the dignity of the profession?

Rules

Article 22(1) in The Constitution of India 1949, Article 142 in The Constitution of India 1949

Analysis

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. We declare 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
message of the Gita.

Conclusion

In the earlier impugned order, 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.
 Pandurang Dattaraya Khandekar v. Bar Council of Maharashtra, Bombay,
AIR 1984 SC 110

Facts

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.

Issues

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?

Rules

Section 38 of the Advocates Act, 1961 & Section 36B of the Advocates Act, 1961
The test of what constitutes "grossly improper conduct in the discharge of professional duties"
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 decision was followed by the Calcutta High Court in re An Advocate ILR [1935] 62 Cal.
158 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.

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.
 In Re: Vinay Chandra Mishra,
AIR 1995 SC 2348

Facts

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.

Issues

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?

Rule

Section 35 and Section 38 of the Advocates Act, 1961; Contempt’s of Courts Act, 1971 &
Article 129 and Article 142 of the Constitution of India.
Analysis

The 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 contemners 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.

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.
 Sanjay Kumar Vs. The State of Bihar and Anr.,
(2014) 9 SCC 203

Facts

The Petitioner claimed to have been appointed by the private Respondent No. 2 in a fake
dental college as a Senior Lecturer for a period of one year and issued 12 postdated cheques
for payment of his salary out of which 9 cheques had bounced. The complainant-Petitioner
sent legal notice to the Respondent No. 2 but without giving them sufficient time to file a
reply, filed a complaint before the Magistrate The private Respondent challenged the said
order by filing the petition before the High Court which has been allowed. Aggrieved, the
Petitioner approached the 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.

Issues

1. Whether asking the Court to ignore pleadings is allowed?

2. Whether it is justified for an Advocate on Record to remain absent without intimating the
court about it?

Rules

Section 165 of the Indian Evidence Act, 1872; Sections 406, 420 Indian Penal Code; Section
138 of NI Act & Section 482 of the Code of Criminal Procedure, 1973.

Analysis

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 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 considered 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.

Conclusion

The petition was rightfully dismissed. In such a chaotic situation, any lawyer under the label
of "proxy counsel", a phrase not traceable under the Advocates Act, 1961 or under the
Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the
Court under a false impression that he has a right to waste public time without any authority
to appear in the Court, either from the litigant or from the AOR, as in the instant case. The
AOR, with impunity was disdainful towards the order of this Court directing him to appear in
the Court. He had also not filed any appearance for the counsel who had appeared, nor the
said counsel disclosed his name. The Court takes serious note of the conduct of the AOR,
Shri Manu Shanker Mishra and warns him to behave in an appropriate manner befitting the
conduct of an advocate and an AOR otherwise this Court will not hesitate to take action
against him. His conduct will be under close watch of this Court.
 Ramon Services Ltd. Vs. Subhash Kapoor AIR 2001 SC 207

Facts

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.

Issue

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?

Rule

Civil Procedure Code, 1908 - Order IX Rule 7 and 16 of Ex parte decree passed.

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.

Conclusion

Its hence seen that the learned single judge rightly stated that persons belonging to the legal
profession are concededly the elite of the society. Strikes by the professionals including the
advocates cannot be equated with strikes undertaken by the industrial workers in accordance
with the statutory provisions. Abstaining from the courts by the advocates, by and large, does
not only affect the persons belonging to the legal profession but also hampers the process of
obtaining justice especially by the helpless litigants. Legal profession is essentially a service-
oriented profession. The relationship between the lawyer and his client is one of trust and
confidence. With the strike by the lawyers, the process of court intended to secure justice is
obstructed which is unwarranted under the provisions of the Advocates Act and hence the
litigant who suffers entirely has the remedy to sue the advocates for damages.
 Re: Rameshwar Prasad Goyal AIR 2014 SC 850

Facts

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.

Issues

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

Rules

Relevant rules for the purpose of adjudicating upon the issue involved herein are contained in
Order IV of the Supreme Court Rules, 1966 which read as under:

“4. Any advocate not being a senior advocate may, on his fulfilling the conditions laid down
in rule 5, be registered in the Court as an advocate on record is read with Rule 6, Rule 8A and
Rule 10
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 been 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. It’s seen in the Judgement of
In Re: Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, (1995) 3 SCC 619,
this Court held 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.”

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 willful and callous
disregard for the interests to the client may in a proper case be characterized 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.
 Tushar D. Bhatt v. SOG

Facts

The case is one of alleged wrongful dismissal of a government employee, Tushar D Bhatt for
flouting orders of transfer and non-compliance with directives issued by a superior officer
along with disciplinary issues. Pursuant to the same the petitioner moved the Gujarat High
Court.

Issues

1. Is the punishment of dismissal from Service disproportionate to the guilt found to be proved?
2. Is the scope of judicial review against actions taken by the Disciplinary Authority, limited?
3. Is the transfer of the appellant mala fide?

Rules

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

Precedents: Gujarat Electricity Board and Anr v. Atmaram Sungomal Poshani

(MANU/SC/0200/1989) – “… If he fails to proceed on transfer in compliance to the transfer
order, he would expose himself to disciplinary action under the relevant Rules as has
happened in the instant case. The respondent lost his service as he refused to comply with the
order of his transfer from one place to the other”

Mithilesh Singh v. Union of India and Ors. (MANU/SC/0160/2003) – “Absence from duty
without proper intimation is indicated to be a grave offence warranting removal from
service.”

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.

Conclusion

The case was presented twice in front of the same High Court, and both the judgements were
against the appellant and so was the judgement of the Hon’ble Supreme Court. The case can
be cited as a strong precedent for future employees that flout orders of transfers, remain
absent from duty for a considerably long time without notice and indulge in a practice that is
highly deplorable.
 Mahipal Singh Rana V. State of UP AIR 2016 SC 3302

Facts

The present appeal is preferred under Section 19 of the Contempt of Court’s Act, 1971
against the judgment and order of 2005, December by the Allahabad High Court, whereby
the appellant was found guilty of criminal contempt for intimidating and threatening a Civil
Judge (Senior Division), and sentenced him to simple imprisonment of two months with a
fine of Rs. 2000/- and in default of the payment of the fine, the appellant to undergo further
imprisonment of two weeks. In January 2006, this appeal was admitted by this court and that
part of the impugned judgment, which imposed the sentence, was stayed and the appellant
was directed not to enter the court premises. On 6th March, 2013 restriction on entry of the
appellant into the court premises as per order was withdrawn. Thereby, the appellant was
permitted to enter the court premises at (Etah), U.P. The said restriction was however
resorted later.

Issues

Whether on conviction for criminal contempt, the appellant can be allowed to practice?

Rules

Contempt of Court’s Act, 1971-S.2, 12, 15(2), 19, 20; Advocate’s Act, 1961- S.24A, 24A (1),
30, 34(1), 35, 38, 49; Architect’s Act, 1972; Chartered Accountant’s Act; Company
Secretaries Act 1980, Pharmacy Practice Regulations, 2015, Indian Medical Council
Regulations, 2002.

Analysis

The criminal history of the contempner, the acceptance of facts in which his actions were
found contumacious and he was discharged on submitting apologies on two previous
occasions and the allegations against him in which he was found to continue with
intimidating the judicial officers compelled to issue interim orders restraining his entry of the
contemner in the judgeship at Etah. The Bar Council of U.P. is fully aware of his activities
but has chosen not to take any action in the matter. In fact, the Bar Council hardly takes
cognizance of such matters at all. The Court did not interfere with the statutory powers of
the Bar Council of UP to take
appropriate proceeding against the contemner with regard to his right to practice, and did not
take away right of practice vested in him by virtue of his registration with the Bar Council.
He was not barred from practice but was only restrained to appear in the judgeship at Etah in
the cases he was engaged as an advocate. The repeated contumacious conduct, without any
respect to the court committed by him repetitively by intimidating the judicial officers, called
for maintaining peace in the premises of judgeship at Etah.

The right to practice, no doubt, is the genus of which the right to appear and conduct cases in
the court may be specie. But the right to appear and conduct cases in the court is a matter on
which the court must and does have major supervisory and controlling power. Hence courts
cannot be and are not divested of control and supervision of conduct in court merely because
it may involve a right of an advocate. A rule that can stipulate that a person who has
committed contempt of court or has behaved unprofessionally and in an unbecoming manner
will not have the right to continue to appear and plead and conduct cases in courts. The Bar
Council cannot overrule such a regulation concerning the orderly conduct of court
proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by.

Conclusion

Conviction of the appellant is justified and is upheld. The sentence of imprisonment awarded
to the appellant is set aside in view of his advanced age but sentence of fine and default are
upheld. Further directions that the appellant shall not be permitted to appear in district courts
Etah unless he purges himself of contempt is also upheld; Under Section 24A of the
Advocate’s Act, the enrollment of the appellant will stand suspended for two years from the
date of this order. As a disciplinary measure for proof misconduct, the license of the appellant
will be suspended for further five years. An advocate who is found guilty of contempt of
court may also, as already noticed, be guilty of professional misconduct in a given case but it
is for the Bar Council of the State or Bar Council of India to punish that advocate by either
debarring him for practice or suspending his license as may be warranted in the facts and
circumstances of each case.
Reference & Bibliography

The Constitution of India 1949.

Indian Evidence Act, 1872.
Indian Penal Code. 1860.
Code of Criminal Procedure, 1973.
Contempt of Court’s Act, 1971.
Company Secretaries Act 1980.
Pharmacy Practice Regulations, 2015.
Indian Medical Council Regulations, 2002.
Gujarat Civil Services (Discipline and Appeal) Rules, 1971.
Supreme Court Rules, 1966.
Civil Procedure Code, 1908.