R. Muthukrishnan vs The Registrar General of the High Court of Judicature at Madras

2. It is basically the lawyers who bring the cause to the Court, are supposed to protect the rights of individuals of equality and freedom as constitutionally envisaged and to ensure that the country is governed by the rule of law. Considering the significance of the Bar in maintaining the rule of law, right to be treated equally and enforcement of various other fundamental rights, and to ensure that various institutions work within their parameters, its independence becomes imperative and cannot be compromised. [Para 16][604-G-H; 605-A]

3. The Bar is an integral part of the judicial administration. In order to ensure that judiciary remains an effective tool, it is absolutely necessary that Bar and Bench maintain dignity and decorum of each other. The mutual reverence is absolutely necessary. It is the joint responsibility of the Bar and the Bench to ensure that equal justice is imparted to all. Independent Bar and independent Bench form the backbone of the democracy. Equal and even-handed justice is the hallmark of the judicial system. The protection of the basic structure of the Constitution and of rights is possible by the firmness of Bar and Bench and by proper discharge of their duties and responsibilities. [Paras 18,

19 and 21][605-D-F, H; 606-B]

4. For a value-driven framework, it is necessary that perspective is corrected in an ethical and morally sound perspective. The perception of ambulance chasers, money guzzlers and black sheep should not be presumptive. Such public perception about the lawyers undermines the credibility of the legal profession, all the evils from the system have to be totally weeded out. [Para 27][607-E-F]

5. The legislature has reposed faith in the autonomy of the Bar while enacting Advocates Act and it provides for autonomous Bar Councils at the State and Central level. The ethical standard of the legal profession and legal education has been assigned to the Bar Council. It has to maintain the dignity of the legal profession and independence of Bar. The disciplinary control has been assigned to the Disciplinary Committees of the Bar Councils of various States and Bar Council of India and an appeal lies to this Court under section 38 of the Act. The Bar Association must be self-governing is globally recognised. [Paras 31, 32][608E-G]

6. A bar association is generally deemed to be independent when it is mostly free from external influence and can withstand pressure from external sources on matters such as the regulation of the profession, disbarment proceedings and the right of lawyers to join the association. Judicial independence ensures that lawyers are able to carry out their duties in a free and secure environment and an independent judiciary also acts as a check on the independence of lawyers and vice versa. [Para 36][616B-C]

7. The Bar Council has the power to discipline lawyers and maintain nobility of profession and that power imposes great responsibility. The Court has the power of contempt and that lethal power too accompanies with greater responsibility. Contempt is a weapon like Brahmasatra to be used sparingly to remain effective. At the same time, a Judge has to guard the dignity of the Court and take action in contempt and in case of necessity to impose appropriate exemplary punishment too. A lawyer is supposed to be governed by professional ethics, professional etiquette and professional ethos which are a habitual mode of conduct. He has to perform himself with elegance, dignity, and decency. He has to bear himself at all times and observe himself in a manner befitting as an officer of the Court. He is a privileged member of the community and a gentleman. He has to be honest, courageous, eloquent, industrious, witty and judgmental. [Para 40][618-G-H; 619-A-B]

8. It is apparent from the provisions and scheme of the Advocates Act that the Act has never intended to confer the disciplinary powers upon the High Court or upon this Court except to the extent dealing with an appeal under Section 38 of Advocates Act. Section 34 of Advocates Act clearly enables the High Courts to prescribe conditions to practice. There can be certain conditions on right to practice and appear in a case which can be imposed by the High Court under Section 34 such as filing fresh vakalatnama, superseding the previous one that has to be done as per the High Court Rules, if any such provision has been made by the High Court. Section 34 contained in chapter IV of the Act intends to regulate the practice of the advocate in the High Court and subordinate courts. It does not empower it to frame the rules for disciplinary control. Within the purview of section 34 of the Act, a dress can also be prescribed for an appearance in the Court. The High Court is free to frame the rules for designation of the Senior Advocates and also the rules on similar pattern as framed by this Court for Advocates on Record. [Paras 44, 45 and 51][627-G; 622-F-H; 623-A-B]

9. There is no room for taking out the procession in the Court premises, slogan raising in the Courts, use of loudspeakers, use of intemperate language with the Judges or to create any kind of disturbance in the peaceful, respectful and dignified functioning of the Court. The instances of abject misbehavior of the advocates in the premises of the High Court of Madras resulting into requisitioning of CISF to maintain safety and majesty of the Court and rule of law. The acts complained of are not only contemptuous but also tantamount to gross professional misconduct. In case such state of affairs continue and Bar Councils fail to discharge duties the Court shall have to supervise its functioning and to pass appropriate permissible orders. Independence of Bar and Bench both are supreme, there has to be balance inter se. [Paras 28, 29][608-A-B, C-D, E-G]

10. The grave situation created in the High Court of Madras as well as at its Madurai Bench, which compelled the High Court to take action on the judicial side to ensure the modicum of security. The High Court had to order the security of the Court to be undertaken by CISF. In this regard, orders were passed in Suo Moto Writ Petition by the High Court of Madras. There is no doubt about it that the incidents pointed out were grim and stern action was required against the erring advocates as they belied the entire nobility of the lawyer’s profession. The High Court could have taken action under Contempt of Courts Act for aforesaid misconduct. [Paras 66, 70][664-F-G; 666-F; 665-B]

11. The High Court has overstretched and exceeded its power even in the situation which was so grim which appears to have compelled it to take such a measure. In fact, its powers are much more in Contempt of Courts Act to deal with such situation court need not look for Bar Council to act. It can take action, punish for Contempt of Courts Act in case it involves misconduct done in Court/proceedings. Circumstances may be grim, but the autonomy of the Bar in the disciplinary matters cannot be taken over by the Courts. It has other more efficient tools to maintain the decorum of Court. In case power is given to the Court even if complaints lodged by a lawyer to the higher administrative authorities as to the behaviour of the Judges may be correct then also he may be punished by initiating disciplinary proceedings as permitted to be done in impugned Rules 14 A to D that would be making the Bar too sycophant and fearful which would not be conducive for fair administration of justice. Fair criticism of judgment and its analysis is permissible. Lawyers’ fearlessness in court, independence, uprightness, honesty, equality are the virtues which cannot be sacrificed. [Para 77][669-H; 670-A-C]

12. It is also true that the disciplinary committee of the Bar Councils has failed to deliver the good. It is seen that the disciplinary control of the Bar Council is not as effective as it should be. It is high time that the Bar Council, as well as various State Bar Councils should take stock of the situation and improve the functioning of the disciplinary side. It is absolutely necessary to maintain the independence of the Bar and if the cleaning process is not done by the Bar itself, its independence is in danger. The corrupt, unwanted, unethical element has no place in Bar. If nobility of the profession is destroyed, Bar can never remain independent. Independence is constituted by the observance of certain ideals and if those ideals are lost, the independence would only remain on paper, not in real sense. [Para 71][666-G-H; 667A-B]

13. If the repository of the faith in the Bar fails to discharge their statutory duties effectively, no doubt about it that the same can be and has to be supervised by the Courts. The obligatory duties of Bar Council have found statutory expression in Advocates Act and the rules framed thereunder with respect to disciplinary control and cannot be permitted to become statutory mockery, such non-performance or delayed performance of such duties is impermissible. The Bar Council is duty bound to protect Bar itself by taking steps against black sheeps and cannot bely expectation of Bar in general and spoil its image. The very purpose of disciplinary control by Bar Council cannot be permitted to be frustrated. In such an exigency, in a case where the Bar Council is not taking appropriate action against the advocate, it would be open to the High Court to entertain the writ petition and to issue appropriate directions to the Bar Council to take action in accordance with the law in the discharge of duties enjoined upon it. But at the same time, the High Court and even this Court cannot take upon itself the disciplinary control as envisaged under the Advocates Act. [Para 72][667-C-E]

14. Contempt of court is a weapon which has to be used sparingly as more is power, same requires more responsibility but it does not mean that the court has fear of taking action and its repercussions. The hallmark of the court is to provide equal and even-handed justice and to give an opportunity to each of the system to ensure that it improves upon. Unfortunately, some advocates feel that they are above the Bar Council due to its inaction and they are the only champion of the causes. The hunger for cheap publicity is increasing which is not permitted by the noble ideals cherished by the great doyens of the bar, they have set by their conduct what should be in fact the professional etiquettes and ethics which are not capable of being defined in a narrow compass. [Para 74][668-C-D]

15. It has become very common to the members of the Bar to go to the press/media to criticize the judges in person and to commit sheer contempt by attributing political colours to the judgments. It is nothing less than an act of contempt of gravest form. Whenever any political matter comes to the Court and is decided, either way, political insinuations are attributed by unscrupulous persons/advocates. Such acts are nothing, but an act of denigrating the judiciary itself and destroys the faith of the common man which he reposes in the judicial system. In case of genuine grievance against any judge, the appropriate process is to lodge a complaint to the concerned higher authorities who can take care of the situation and it is impermissible to malign the system itself by attributing political motives and by making false allegations against the judicial system and its functionaries. Judges who are attacked are not supposed to go to press or media to ventilate their point of view. [Para 73][667-G-H; 668-A-B]

16. The statutory rules prohibit advocates from advertising and in fact to cater to the press/media, distorted versions of the court proceedings is sheer misconduct and contempt of court which has become very common. It is making it more difficult to render justice in a fair, impartial and fearless manner though the situation is demoralizing that something has to be done by all concerned to revamp the image of Bar. It is not open to wash dirty linen in public and enter in accusation/debates, which tactics are being adopted by unscrupulous elements to influence the judgments and even to deny justice with ulterior motives. It is for the Bar Council and the senior members of the Bar who have never forgotten their responsibility to rise to the occasion to maintain the independence of the Bar which is so supreme and is absolutely necessary for the welfare of this country and the vibrant democracy. [Para 74][668-E-G]

17. The separation of powers made by the forefathers, who framed the Constitution, ensured independent functioning. If things are permitted to be settled by resorting to the unscrupulous means and institution is maligned by creating pressure of any kind, the very independence of the system would be endangered. Cases cannot be decided by media trial. Bar and Bench in order to protect independence have their own inbuilt machinery for redressal of grievance if any and they are supposed to settle their grievances in accordance therewith only. No outside interference is permissible. Considering the nobility, independence, dignity which is enjoined and the faith which is reposed by the common man of the country in the judiciary, it is absolutely necessary that there is no maligning of the system. Mutual respect and reverence are the only way out. For the protection of democratic values and to ensure that the rule of law prevails in the country, no one can be permitted to destroy the independence of the system from within or from outside. [Para 75][668-G-H; 669-A-C]

18. Soul searching is absolutely necessary and the blame game and maligning must stop forthwith. Confidence and reverence and positive thinking is the only way. It is pious hope that the Bar Council would improve upon the function of its disciplinary committees so as to make the system more accountable, publish performance audit on the disciplinary side of various bar councils. The same should be made public. It is basically not for the Court to control the Bar. It is the statutory duty of Bar to make it more noble and also to protect the Judges and the legal system, not to destroy the Bar itself by inaction and the system which is important pillar of democracy. [Para 76][669E-F, G]

19. By amending the High Court Rules, 1970, the High Court of Madras has inserted impugned Rules 14(A) to 14(D). The rules have been framed in exercise of the power conferred under Section 34 of the Advocates Act. Section 34 of the Act does not confer such a power to frame rules to debar lawyer for professional misconduct. The amendment made by providing Rule 14(A)(vii) to (xii) is not authorized under the Advocate Act. The High Court has no power to exercise the disciplinary control. It would amount to usurpation of the power of Bar Council conferred under Advocates Act. However, the High Court may punish advocate for contempt and then debar him from practicing for such specified period as may be permissible in accordance with law, but without exercising contempt jurisdiction by way of disciplinary control no punishment can be imposed. As such impugned rules could not have been framed within the purview of Section 34. Provisions clearly impinge upon the independence of the Bar and encroach upon the exclusive power conferred upon the Bar Council of the State and the Bar Council of India under the Advocates Act. The amendment made to the Rules 14(A) to 14(D) have to be held to be ultra vires the power of the High Court. [Para 52][627-H; 628-A-D]

Supreme Court Bar Association v. Union of India & Anr (1998) 4 SCC 409 : [1998] 2 SCR 795; Bar Council of Maharashtra v. M.V. Dabholkar & Ors. (1975) 2 SCC 702 : [1976] 1 SCR 306 – followed

Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC

45 : [2002] 5 Suppl. SCR 186; Mahipal Singh Rana v. State of U.P. (2016) 8 SCC 335 – distinguished.

R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC

106 : [2009] 11 SCR 1026 – relied on.

Pravin C. Shah v. K. A. Mohd. Ali (2001) 8 SCC 650 : [2001] 3 Suppl. SCR 675; Bar Council of India v. High Court of Kerala (2004) 6 SCC 311 : [2004] 1 Suppl. SCR 649; Mohit Chaudhary, Advocate, In re, (2017) 16 SCC 78 : [2017] 8 SCR 764; In reference: Vinay Chandra Mishra (1995) 2 SCC 584 : [1995]

2 SCR 638; Bar Council of India v. High Court of Kerala (2004) 6 SCC 311 : [2004] 1 Suppl. SCR 649 – referred to.