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2004(3) Supreme 517
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
V.N. Khare, CJI., Brijesh Kumar & S.B. Sinha, JJ.
Bar Council of India -Petitioner
versus
High Court of Kerala -Respondents
Writ Petition No. 52 of 2002
Decided on 27-4-2004
Counsel for the Parties :
For the Petitioner : V.R. Reddy, Sr. Advocate, Sanjeev Sachdeva and Ms. Priya Mehra Puri, Advocates.
For the Respondents : TLV Iyer, Sr. Advocate, Vipin Nair, P.B. Suresh and Nikilesh R., Advocates.
For the Intervenor : Ms. B. Sunita Rao, Advocate.
Held : It is not in dispute that the validity of the said rule came up for consideration before a Bench of this Court in Pravin C. Shah Vs. K.A. Mohd. Ali and Another [(2001) 8 SCC 650] and therein it was upheld. The question appears to have also been deliberated upon before a Constitution Bench of this Court in Ex-Capt. Harish Uppal Vs. Union of India and Another [(2003) 2 SCC 45]. (Para 4)
An advocate is allowed considerable freedom in conducting his case. In the interest of the client, he even can cast reflections upon the character, conduct or credit of parties or witnesses with impunity, provided such comments are relevant to the issue before the court and the same is not defamatory in character. So long the conduct of the advocate does not amount to insult to the court, he may not be held up for contempt. Summary power of punishing for contempt is used sparingly and only in serious cases. Such a power which a court must of necessity possess but its usefulness depend upon the wisdom and restraint with which it is exercised. It is not used to suppress methods of advocacy. (Paras 12 and 13)
Punishment for commission of contempt and punishment for misconduct, professional or other misconduct, stand on different footings. A person does not have a fundamental right to practice in any court. Such a right is conferred upon him under the provisions of the Advocates Act which necessarily would mean that the conditions laid down therein would be applicable in relation thereto. Section 30 of the Act uses the expressions "subject to" which would include Section 34 of the Act. (Para 28)
Pointing out the difference between maintenance of dignity of court and corroding the majesty of it as also impairing the confidence of the public in the efficacy of the court vis-a-vis the professional misconduct of the lawyers, the Court held that Rule 11 is a self-operating provision. Addressing the question as to how a contemnor can purge himself of contempt, this Court held that obeying the orders of the court or undergoing the penalty imposed by it may not be necessarily sufficient to complete purging of the contemnor of the contempt, particularly, when the contemnor is convicted of criminal contempt it was observed that there must be something more to be done to get oneself purged of the criminal contempt. (Para 40)
Bar Council of India is not a citizen entitling it to raise the question of validity of the Rules on the touchstone of Article 19(1)(a) of the Constitution. It has no such fundamental right. No person aggrieved who is a citizen of India is before us. The contention of Mr. Reddy that Rule 11 of the Rules is violative of Article 19(1)(g) of Constitution of India is, thus, misplaced. We cannot permit the Bar Council to raise the said contention. (Para 42)
Before a contemnor is punished for contempt, the court is bound to give an opportunity of hearing to him. Even such an opportunity of hearing is necessary in a proceeding under Section 345 of the Code of Criminal Procedure. But if a law which is otherwise valid provides for the consequences of such a finding, the same by itself would not be violative of Article 14 of the Constitution of India inasmuch as only because another opportunity of hearing to a person, where a penalty is provided for as a logical consequence thereof, has been provided for. Even under the penal laws some offences carry minimum sentence. The gravity of such offences, thus, is recognized by the Legislature. The courts do not have any role to play in such a matter. Rule 11 framed by the Kerala High Court is legislative in character. As validity of the said rule has been upheld, it cannot be said that the same by itself, having not provided for a further opportunity of hearing the contemnor, would attract the wrath of Article 14 of the Constitution of India. (Paras 44 and 45)
JUDGMENT
S.B. Sinha, J.-
INTRODUCTION :
Constitutionality of Rule 11 of the Rules framed by the High Court of Kerala forbidding a lawyer from appearing, acting or pleading in any court till he got himself purged of the Contempt by an order of the appropriate court is in question in this writ petition.
BACKGROUND FACT :
2. The Bar Council of India is a statutory body constituted under the Advocates Act, 1961 ("the Act"). In terms of Section 34(1) of the Act, the High Court of Kerala framed rules; Rule 11 whereof reads as under :
"No advocate who has been found guilty of contempt of court shall be permitted to appear, act or plead in any court unless he has purged himself of the contempt."
3. Contending that the said provision is violative of Articles 14 and 19(1)(g) of the Constitution of India as also Section 34(1) of the Advocates Act on the ground that it seriously impinges upon and usurps the powers of adjudication and punishment conferred on the Bar Councils under the Act as also the principles of natural justice as application thereof is automatic, this writ petition has been filed by the Petitioner.
4. It is not in dispute that the validity of the said rule came up for consideration before a Bench of this Court in Pravin C. Shah Vs. K.A. Mohd. Ali and Another [(2001) 8 SCC 650] and therein it was upheld. The question appears to have also been deliberated upon before a Constitution Bench of this Court in Ex-Capt. Harish Uppal Vs. Union of India and Another [(2003) 2 SCC 45].
SUBMISSIONS :
5. Despite the said decisions Mr. V.R. Reddy, learned senior counsel appearing on behalf of the writ petitioner, would urge, relying on or on the basis of the decision of this Court in Supreme Court Bar Association Vs. Union of India and Another [(1998) 4 SCC 409], that as in terms of the provisions of the Advocate Act, the Bar Council of India is entitled to punish an Advocate counsel for commission of misconduct - whether professional or otherwise - in terms of Section 35 thereof; Rule 11 framed by the High Court of Kerala cannot be sustained. The learned counsel would strenuously contend that no prohibition can be imposed on a lawyer to practice following and consequent upon a decision of a court holding him guilty of commission of contempt. No time limit for debarment of an advocate having been prescribed under Rule 11 of the Rules, Mr. Reddy would submit that the same is ultra vires Article 14 of the Constitution of India. The learned counsel would argue that in applying the provisions of Rule 11, the principles of natural justice is violated as no other or further opportunity of hearing is to be given therefor and in that view of the matter too the impugned judgment cannot be sustained.
6. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the High Court of Kerala, on the other hand, would argue that the decision of the Constitution Bench itself in Supreme Court Bar Association (supra) is sufficient to uphold the validity of Rule 11 as therein the right of the courts to regulate the conduct of advocates within the court and to prescribe the conditions subject to which they can practise before it has been preserved which is not subservient to the disciplinary jurisdiction of the Bar Council.
7. The learned counsel would submit that the dicta laid down by the Constitution Bench has been referred to with approval in Harish Uppal (supra) and in that view of the matter too the right of the High Court to frame such a rule must be held to have been upheld.
8. Mr. Iyer would further urge that an advocate can start pleading and practising in court as soon as he purges himself of contempt in relation whereto he must demonstrate that a real and genuine remorse had been infused in him about his conduct as a first step; whereafter, he may seek pardon from the court concerned.
CONTEMPT JURISDICTION OF THE COURT :
9. Law of contempt both as regard its interpretation and application had posed complex questions before the Court. No branch of law poss
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