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Autonomy Of the Bar Cannot Be Taken Over By The Court: SC Quashes Madras HC Disciplinary Rules For Lawyers
It has to be said with consummate ease that in one of the most commendable, significant and noteworthy judgments delivered by the top court in the last couple of years, the Supreme Court has just recently on January 28, 2019 very rightly quashed Rules 14-A to 14-D of the Rules of High Court of Madras, 1970 holding most emphatically that they are ultra vires to Section 34 of the Advocates Act and usurps the power of the Bar Council in Disciplinary matters. The latest, landmark and laudable judgment by a two-Judge Bench of Supreme Court titled R. Muthukrishnan v The Registrar General Of The High Court Of Judicature At Madras in Writ Petition (C) No. 612 of 2016 authored by Justice Arun Mishra for himself and Justice Vineet Saran observed that the Advocates Act never intended to confer the disciplinary powers upon the High Court or Supreme Court except to the extent dealing with an appeal under Section 38 of the Act. There can be no denying or disputing it!
Starting from the scratch, the ball is set rolling in para 1 wherein it is first and foremost pointed out that, “The petitioner, who is an Advocate, has filed the petition under Article 32 of the Constitution of India, questioning the vires of amended Rules 14-A, 14-B, 14-C and 14-D of the Rules of High Court of Madras, 1970 made by the High Court of Madras under section 34(1) of the Advocates Act, 1961 (hereinafter referred to as ‘the Advocates Act’).”
To be sure, para 2 then brings out that, “The High Court has inserted Rule 14A in the Rules of High Court of Madras, 1970 empowering the High Court to debar an Advocate from practicing. The High Court has been empowered to take action under Rule 14B, where any misconduct referred to under Rule 14-A is committed by an Advocate before the High Court then the High Court can debar him from appearing before the High Court and all subordinate courts. Under Rule 14-B(v) the Principal District Judge has been empowered to initiate action against the Advocate concerned and debar him from appearing before any court within such District. In case misconduct is committed before any subordinate court, the concerned court shall submit a report to the Principal District Judge and in that case, the Principal District Judge shall have the power to take appropriate action. The procedure to be followed has been provided in the newly inserted Rule 14-C and pending inquiry, there is power conferred by way of Rule 14-D to pass an interim order prohibiting the Advocate concerned from appearing before the High Court or the subordinate courts. The amended provisions of Rule 14A, 14B, 14C and 14D are extracted hereunder:
“14-A: Power to Debar:
(vii) An Advocate who is found to have accepted money in the name of a Judge or on the pretext of influencing him; or
(viii) An Advocate who is found to have tampered with the Court record or Court order; or
(ix) An Advocate who browbeats and/or abuses a Judge or Judicial Officer; or
(x) An Advocate who is found to have sent or spread unfounded and unsubstantiated allegations/petitions against a Judicial Officer or a Judge to the Superior Court; or
(xi) An Advocate who actively participates in a procession inside the Court campus and/or involves in gherao inside the Court Hall or holds placard inside the Court Hall; or
(xii) An Advocate who appears in the Court under the influence of liquor;
shall be debarred from appearing before the High Court or Subordinate Courts permanently or for such period as the Court may think fit and the Registrar General shall thereupon report the said fact to the Bar Council of Tamil Nadu.
14-B: Power to take action:-
(iv) Where any such misconduct referred to under Rule 14-A is committed by an Advocate before the High Court, the High Court shall have the power to initiate action against the Advocate concerned and debar him from appearing before the High Court and all Subordinate Courts.
(v) Where any such misconduct referred to under Rule 14-A is committed by an Advocate before the Court of Principal District Judge, the Principal District Judge shall have the power to initiate action against the Advocate concerned and debar him from appearing before any Court within such District.
(vi) Where any such misconduct referred to under Rule 14-A is committed by an Advocate before any subordinate court, the Court concerned shall submit a report to the Principal District Court within whose jurisdiction it is situated and on receipt of such report, the Principal District Judge shall have the power to initiate action against the Advocate concerned and debar him from appearing before any Court within such District.
14-C: Procedure to be followed:-
The High Court or the Court of Principal District Judge, as the case may be, shall before making an order under Rule 14-A, issue to such Advocate a summon returnable before it, requiring the Advocate to appear and show cause against the matters alleged in the summons and the summons shall if practicable, be served personally upon him.
14-D: Power to pass Interim Order:-
The High Court or the Court of Principal District Judge may, before making the Final Order under Rule 14-C, pass an interim order prohibiting the Advocate concerned from appearing before the High Court or Subordinate Courts, as the case may be, in appropriate cases, as it may deem fit, pending inquiry”.”
Going ahead, it is then pointed out in para 3 that, “Rule 14-A provides that an Advocate who is found to have accepted money in the name of a Judge or on the pretext of influencing him; or who has tampered with the court record or court order, or browbeats and/or abuses a Judge or judicial officer; or is responsible for sending or spreading unfounded and unsubstantiated allegations/petitions against a judicial officer or a Judge to the superior court, or actively participates in a procession inside the court campus and/or involves in gherao inside the court hall or holds placard inside the court hall or appears in the court under the influence of liquor, the courts have been empowered to pass an interim order of suspension pending enquiry, and ultimately to debar him from appearing in the High Court and all other subordinate courts, as the case may be.”
More importantly, it is then very rightly brought out in para 4 that, “The aforesaid amended Rule 14-A to 14-D came into force with effect from the date of its publication in the Gazette on 25.5.2016. Petitioner has questioned the vires of amended Rules 14A to D on the ground of being violative of Articles 14 and 19(1)(g) of the Constitution of India, as also Sections 3C, 34(1), 35 and 49(1)(c) of the Advocates Act, as the power to debar for such misconduct has been conferred upon the Bar Council of Tamil Nadu and Puducherry and the High Court could not have framed such rules within ken of section 34(1) of the Advocates Act. The High Court could have framed rules as to the ‘conditions subject to which an advocate shall be permitted to practice in the High Court and the courts subordinate thereto’. Debarment by way of disciplinary measure is outside the purview of section 34(1) of the Act. The Bar Council enrolls Advocates and the power to debar for misconduct lies with the Bar Council. The effort is to confer the unbridled power of control over the Advocates which is against the rule of law. Misconduct has been defined under section 35 of the Advocates Act. Reliance has been placed on a Constitution Bench decision of this Court in Supreme Court Bar Association v. Union of India & Anr. (1998) 4 SCC 409.” It was a lawyer named R Muthukrishnan who had filed a writ petition in the Apex Court challenging the vires of amended Rules 14-A to 14-D of the Rules of High Court of Madras, 1970 made by the High Court of Madras under Section 34(1) of the Advocates Act, 1961.
What is more, it is then brought out in para 5 that, “The High Court of Judicature at Madras in its counter affidavit has pointed out that the rules are kept in abeyance for the time being and the Review Committee is yet to take a decision in the matter of reviewing the rules. In the reply filed the High Court has justified the amendment made to the rules on the ground that they have been framed in compliance with the directions issued by this Court in R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106 in which this Court has directed the High Courts to frame rules under section 34 of the Advocates Act and to frame the rules for having Advocates-on-Record based on the pattern of this Court. It has been further pointed out that the conduct and appearance of an advocate inside the court premises are within the jurisdiction of a court to regulate. The High Court has relied upon the decision in Pravin C. Shah v. K.A. Mohd. Ali (2001) 8 SCC 650 in which vires of similar rule was upheld as such the rules framed debarring the advocates for misconduct in court are thus permissible.”
Be it noted, it is then brought out in para 6 that, “The High Court has also relied upon the decision in Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 to contend that court has the power to debar advocates on being found guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. The High Court has referred to the decision in Bar Council of India v. High Court of Kerala (2004) 6 SCC 311”.
Of course, it is then further also brought out in para 7 that, “The High Court has contended that the rules have been framed within the framework of the directions issued by this Court and in exercise of the power conferred under section 34(1) of the Advocates Act. Pursuant to the directions issued in R.K. Anand’s case (supra), the matter was placed before the High Court’s Rule Committee on 17.3.2010. The Committee consisting of Judges, Members of the Bar Council and members of the Bar was formed, and the minutes were approved by the Full Court on 23.9.2010. Thereafter the Chief Justice of the High Court of Madras on 2.9.2014 constituted a Committee consisting of two Judges, the Chairman of Bar Council of Tamil Nadu & Puducherry, Advocate General of the High Court, President, Madras Bar Association, President, Madras High Court Advocates Association and the President of Women Lawyers’ Association to finalise the Rules.”
Elaborating further, it is then pointed out in para 8 that, “The High Court has further contended in the reply that the Director, Government of India, Ministry of Home Affairs vide communication dated 31.5.2007 enclosed a copy of the ‘Guidelines’ and informed the Chief Secretaries of the State Governments to review and strengthen the security arrangements for the High Courts and District/subordinate courts in the country to avoid any untoward incident. The High Court has further contended that there have been numerous instances of abject misbehaviour by the advocates within the premises of the High Court of Madras in the year 2015. The advocates have rendered the functioning of the court utterly impossible by resorting to activities like holding protests and waving placards inside the court halls, raising slogans and marching down the corridors of the court. Some advocates had resorted to using hand-held microphones to disrupt the proceedings of the Madurai Bench and even invaded the chambers of the Judges. There were two incidents when there were bomb hoaxes where clock-like devices were smuggled into the court premises and placed in certain areas. The Judges of the High Court were feeling totally insecure. Even CISF had to be employed. Thus, there was an urgent need to maintain the safety and majesty of the court and rule of law. After various meetings, the Rules were framed and notified. Order 4 Rule 10 of the Supreme Court Rules, 2013 is similar to Rules which have been framed. In Mohit Chaudhary, Advocate, In re, (2017) 16 SCC 78, this Court had suspended the contemnor from practicing as an Advocate on Record for a period of one month.”
It cannot be lost on us that it is then observed in para 9 that, “In Mahipal Singh Rana v. State of U.P. (2016) 8 SCC 335, the court has observed that the Bar Council of India might require restructuring on the lines of other regulatory professional bodies, and had requested the Law Commission to prepare a report. An Advisory Committee was constituted by the Bar Council of India. A Sub-Committee on ‘Strikes, Boycotts & Abstaining from Court Works’ was also constituted. Law Commission had finalized and published Report No. 266 dated 23.3.2017 and has taken note of the rules framed by the Madras High Court. Court has a right to regulate the conduct of the advocates and the appearances inside the court. As such it is not a fit case to exercise extraordinary jurisdiction and a prayer has been made to dismiss the writ petition.” It is then noted in para 10 that, “The petitioner in person has urged that rules are ultra vires and impermissible to be framed within scope of section 34(1) of the Advocates Act. They take away the independence of the Bar and run contrary to the Constitution Bench decision of this Court in Supreme Court Bar Association v Union of India (supra).”
While strongly and strenuously espousing the High Court’s contention by its learned senior counsel Mohan Parasaran, it is then narrated about it in para 11 that, “Shri Mohan Parasaran, learned senior counsel appearing on behalf of the High Court, has contended that the rules have been framed within the ambit of section 34(1) and in tune with the directions issued by this court in R.K. Anand v. Registrar, Delhi High Court (supra). He has also referred to various other decisions. It was submitted that under section 34 of the Advocates Act, the High Court is empowered to frmae rules to debar the advocate in case of unprofessional and/or unbecoming conduct of an advocate. Advocates have no right to go on strike or give a call of boycott, not even on a token strike, as has been observed in Ex-Capt. Harish Uppal (supra). It was also observed that the court may now have to frame specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Advocates appear in court subject to such conditions as are laid down by the court, and practice outside court shall be subject to the conditions laid down by the Bar Council of India. He has also relied upon Bar Council of India v. High Court of Kerala (2004) 6 SCC 311 in which the validity of Rule 11 of the Rules framed by the High Court of Kerala came up for consideration. Learned senior counsel has also referred to the provisions contained in Order IV Rule 10 of the Supreme Court Rules, 2013 framed by this Court with respect to debarring an Advocate on Record who is guilty of misconduct or of conduct unbecoming of an Advocate-on-Record, an order may be passed to remove his name from the register of Advocates on Record either permanently or for such period as the court may think fit. This Court has punished an advocate on record and has debarred him for a period of one month in the case of Mohit Chaudhary, Advocate (supra). The High Court has framed the rules to preserve the dignity of the court and protect rule of law. Considering the prevailing situation, it was necessary to bring order in the premises of the High Court. Thus framing of rules became necessary. The Bar Council of India and the State Bar Council have failed to fulfil the duties enjoined upon them. Therefore, it became incumbent upon the High Court to act as observed in Mahipal Singh Rana (supra) by this Court.”
Simply put, para 12 then brings out that, “This Court has issued a notice on the petition on 9.10.2017 and on 4.9.2018. The Court observed that prima facie the rules framed by the High Court appear to be encroaching on the disciplinary power of the Bar Council. As the time was prayed by the High Court to submit the report of the Review Committee, time was granted. In spite of the same, the Review Committee has not considered the matter, considering the importance of the matter and the stand taken justifying the rules. We have heard the same on merits and have also taken into consideration the detailed written submissions filed on behalf of the High Court.”
To put it succinctly, para 13 then makes it amply clear that, “The Advocates Act has been enacted pursuant to the recommendations of the All India Bar Committee made in 1953 after taking into account the recommendations of the Law Commission on the subject of the reforms of judicial administration. The main features of the Bill for the enactment of the Act include the creation of autonomous Bar Council, one for the whole of India and one for each State. The Act has been enacted to amend and consolidate the law relating to the legal practitioners and to provide for the constitution of the Bar Council and an All India Bar.”
Also, there can be no gainsaying the irrefutable fact as stated in para 14 that, “The legal profession cannot be equated with any other traditional professions. It is not commercial in nature and is a noble one considering the nature of duties to be performed and its impact on the society. The independence of the Bar and autonomy of the Bar Council has been ensured statutorily in order to preserve the very democracy itself and to ensure that judiciary remains strong. Where Bar has not performed the duty independently and has become a sycophant that ultimately results in the denigrating of the judicial system and judiciary itself. There cannot be existence of a strong judicial system without an independent Bar.”
No doubt, it is then rightly underscored in para 70 that, “The debarment cannot be ordered by the High Court until and unless advocate is prosecuted under the Contempt of Courts Act. It cannot be resorted to by undertaking disciplinary proceedings as contemplated under the Rules 14-A to 14-D as amended in 2016. That is a clear usurpation of the power of the Bar Council and is wholly impermissible in view of the decision of this Court in Supreme Court Bar Association vs Union of India (supra) that has been followed in all the subsequent decisions as already discussed. 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.”
It is then conceded in para 71 that, “It is also true that the disciplinary committee of the Bar Councils, as observed by this Court in Mahipal Singh Rana and Mohit Chowdhary (supra), 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. The cases are kept pending for a long time, then after one year they stand transferred to the Bar Council of India, as provided under the Advocates Act and thereafter again the matters are kept pending for years together. It is high time that the Bar Council, as well as the 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.”
Alarmingly, it is then observed in para 72 that, “The situation is really frustrating 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 as 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 let us not forget that a caveat is then added in this same para 72 and it is then made amply clear that, “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. No doubt about it that the Court has the duty to maintain its decorum within the Court premises, but that can be achieved by taking appropriate steps under Contempt of Courts Act in accordance with law as permitted under the decisions of this Court and even by rule making power under Section 34 of the Advocates Act. An advocate can be debarred from practicing in the Court until and unless he purges himself of contempt.”
What is even more alarming is that it is then further observed in para 73 that, “It has been seen from time to time that various attacks have been made on the judicial system. 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.”
Striking a note of caution, the Bench then observes in para 74 that, “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. 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.”
Going forward, it is then enunciated clearly and convincingly in para 75 that, “The separation of powers made by the forefathers, who framed the Constitution, ensured independent functioning. It is unfortunate that without any rationale basis the independence of the system is being sought to be protected by those who should keep aloof from it. Independence of each system is to come from within. 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.”
Continuing in the same vein, Justice Arun Mishra who authored this judgment for himself and Justice Vineet Saran then in this very same para 75 very rightly and commendably points out that, “A lot of sacrifices are made to serve the judiciary for which one cannot regret as it is with a purpose and to serve judiciary is not less than call of military service. 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. We have to watch on Bar independence. Let each of us ensure our own institution is not jeopardized by the blame game and make an endeavor to improve upon its own functioning and independence and how individually and collectively we can deliver the good to the citizen of this great country and deal with every tear in the eye of poor and down-trodden as per constitutional obligation enjoined on us.”
Needless to say, it is then fervently hoped in para 76 that, “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. The Bar Council of India under its supervisory control can implement good ideas as always done by it and would not lag behind in cleaning process so badly required. It is to make the profession more noble and it is absolutely necessary to remove the black sheeps from the profession to preserve the rich ideals of Bar on which it struggled for the values of freedom.” In this same para, it is then further clarified that, “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.”
Finally and perhaps most importantly, let us now deal with the concluding paras 77 and 78. Para 77 while giving a rap on the knuckles of the High Court minces no words in holding that, “We have no hesitation to hold that 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 14A 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. It is duty of the lawyer to lodge appropriate complaint to the concerned authorities as observed by this Court in Vinay Chandra Misra (supra), which right cannot be totally curtailed, however, making such allegation publicly tantamounts to contempt of court and may also be a professional misconduct that can be taken care of either by the Bar Council under the Advocates Act and by the Court under the Contempt of Courts Act. The misconduct as specified in Rule 14-A may also in appropriate cases tantamount to contempt of court and can be taken care of by the High Court in its contempt jurisdiction.”
Lastly, para 78 envisages that, “Resultantly, we have no hesitation to strike down impugned Rules 14-A to 14-D as framed in May, 2016 by the High Court of Madras as they are ultra vires to Section 34 of the Advocates Act and are hereby quashed. The writ petition is allowed. No costs.”
All said and done, it has to be said in all fairness that this latest, landmark and laudable judgment by the Supreme Court has sought to send out a loud and clear message to all the High Courts and even the top court itself that autonomy of the Bar cannot be taken away by the Courts. It has clearly and convincingly quashed all the disciplinary rules enacted by Madras High Court for lawyers as has been explained above! All courts from top to bottom must comply with it unconditionally and uniformly! For the judicial system to work smoothly, it is imperative that there is a fearless and independent Bar with full autonomy to function and to take action against members who break rules and this has been underscored also very rightly in this commendable and noteworthy judgment! No denying it!
