@JUDGMENTTAG-ORDER
F.M. Ibrahim Kalifulla, J.@mdashThese two writ petitions have been filed by a practising Advocate of this Court by way of Public Interest Litigation.
2. In W.P.No.17353 of 2009, the prayer is for issuance of a writ of Quo Warranto directing the first respondent to explain under what authority he holds office of the Chairman of Bar Council of Tamil Nadu and Pondicherry and continue to hold the said post.
3. In W.P.No.17354 of 2009, the prayer is for issuance of a writ of Mandamus directing the Bar Council of India, New Delhi, the third respondent herein, to initiate appropriate action against the first respondent within a time frame as directed by the Hon''ble Supreme Court in the case of
4. According to the petitioner, an Anticipatory Bail petition filed by a medical practitioner came up before Hon''ble Mr.Justice R.Ragupathy, as he then was, on 29.06.2009; that the first respondent appeared on behalf of the accused and argued the case; that the learned Judge was not inclined to grant the Anticipatory Bail and was about to dismiss the petition and at that point of time, the first respondent alleged that the learned Judge was merely passing orders on the basis of the submissions of the prosecutor alone. In the said case it is stated that the prosecutor was representing the CBI. It is further alleged that in the course of the hearing, the learned Judge stated that "A Union Minister had called me to exert influence in favour of accused and to release the petitioner/accused on anticipatory bail. You yourself know everything.
5. The petitioner would therefore allege that the first respondent must be aware of the name of the Union Minister and the conduct of the first respondent in making aspersions against the learned Judge was gross contempt and interfered with the administration of justice. He would further allege that the first respondent being the Chairman of the State Bar Council, his behaviour amounts to contempt of Court.
6. In the affidavit filed in support of the writ petition, it is further alleged that the media reports revealed that the learned Judge addressed a letter to the Hon''ble The Chief Justice, that as per the information, the first respondent who appeared for the accused in the Anticipatory Bail petition met the learned Judge in his Chambers and pressurised the learned Judge to grant the relief to the accused and that he also contacted a Union Minister in his cell phone and wanted the learned Judge to speak to that Union Minister. According to the petitioner, such a conduct displayed by the first respondent also calls for contempt action.
7. It is further alleged that since the first respondent is holding a statutory office, his conduct in attempting to interfere with the course of justice by using the name of a Union Minister for achieving an illegal action and therefore, he is disqualified from holding the office of the Chairman of Bar Council of Tamil Nadu and Pondicherry. According to the petitioner, by virtue of the gravity of the conduct indulged in by the first respondent, his continuance in the office of Chairman, Bar Council of Tamil Nadu and Pondicherry would injure and damage the reputation of the said institution.
8. The petitioner by making reference to the various newspaper reports would contend that apart from initiating suo moto contempt action against the first respondent, necessary Quo Warranto should be issued calling upon the first respondent to explain as to under what authority he is holding the office of the Chairman, Bar Council of Tamil Nadu and Pondicherry, apart from necessary directions to the Bar Council of India to initiate appropriate action against him.
9. When the writ petitions were moved before a learned Single Judge on 17.07.2009, at the S.R. stage for maintainability, the learned Single Judge on noting that the petitioner has filed the writ petitions by way of Public Interest Litigation, directed the Registry to post the matter before the Hon''ble The Chief Justice for posting before an appropriate Bench. Thereafter, the writ petitions were posted for admission on 27.08.2009, and on that date, the petitioner filed an affidavit sworn to by an Advocate in which the said Advocate supported the version of the petitioner.
10. We also noted the averments of the petitioner in his affidavit, where it was stated that the learned Judge has written a letter to the Hon''ble The Chief Justice of the Madras High Court, we directed the Registrar General of this Court to inform the Court as to any such letter has been addressed by the learned Judge to the Hon''ble The Chief Justice. It was further directed that if any such letter had really been addressed, to circulate the same to this Court.
11. When the writ petitions were posted again on 31.08.2009, the Registry placed before us the letter of the learned Judge dated 02.07.2009. After going through the letter of the learned Judge, as we were prima facie satisfied that a case was made out for admission, RULE NISI was issued. On that date, notice was taken on behalf of the first respondent by his counsel and for the appearance of other respondents, it was directed to be posted after eight weeks.
12. It was again on 13.10.2009, when the learned Counsel for the first respondent sought for some more time for filing his counter, the case was posted to 27.10.2009. The case was then posted on 12.11.2009, 23.11.2009, 25.11.2009, 30.11.2009, 01.12.2009, 04.12.2009, 15.12.2009, 21.01.2010, 22.02.2010, 19.07.2010, 20.07.2010, 21.07.2010 and thereafter on 19.10.2010, when arguments were heard and orders reserved.
13. On behalf of the first respondent, counter affidavits were filed in both the writ petitions and by the third respondent Chairman of the Bar Council of India, New Delhi in W.P.No.17354 of 2009.
14. In the counter affidavit filed by the first respondent in the writ for Quo Warranto, the first respondent raised a preliminary objection by contending that none of the ingredients calling for issuance of Quo Warranto having been alleged in the affidavit filed in support of the writ petition, the prayer of the petitioner cannot be granted. According to the first respondent a writ of Quo Warranto would lie only if the appointment of the person is contrary to the rules governing the appointment, that the person so appointed is ineligible to hold the post and office in question should be a public office to which the person is appointed and it cannot be in respect of an elected office.
15. In W.P.No.17354 of 2009, the first respondent would contend that based on the affidavit averments and allegations, the petitioner should only approach the competent authority for taking any action in accordance with law and that going by the provisions contained in the Advocates Act, if at all the petitioner is aggrieved, he should only approach the State Bar Council in the first instance and thereafter the Bar Council of India. The first respondent therefore contended that the writ petition cannot be a remedy.
16. In the counter affidavit filed on behalf of the third respondent, Bar Council of India, the only relevant stand which can be culled out as stated in paragraph 16 is to the effect that the Bar Council of India is always ready and willing to offer all the best co-operation for achieving due and proper administration of justice, if this Court directs for any such action within the purview of the provisions of the Advocates Act and the Rules framed thereunder in the interest of justice. The rest of the statements contained in the counter affidavit of the third respondent are not germane for our consideration and therefore we are not referring to the same in detail.
17. In his submissions, the petitioner who appeared in person contended that the first respondent not having denied the various averments contained in the affidavit of the petitioner, it should be taken that those averments are true and further proceedings should be taken on that basis. The learned petitioner would contend that having regard to the magnitude of the conduct alleged against the first respondent and keeping in mind the pivotal post of Chairman of the State Bar Council held by the first respondent which is a Statutory Body controlling the members of the Bar in the State, apart from initiating appropriate contempt action against the first respondent, the third respondent Bar Council of India should also be directed to enquire into the allegations and punish the first respondent by suspending his practice.
18. The learned petitioner would request this Court to forward his complaint to the Bar Council of India for proceeding against the first respondent. The petitioner relied upon the decisions reported in
19. As against the above submissions, Mr.Vijay Narayan, learned senior counsel appearing for the first respondent by referring to Sections 3(2)(b), 3(3), 2(1)(j), 6(1)(c), 7(1)(b), 8, 35 and 36 of the Advocates Act as well as Chapter II Part VI of the Bar Council of India Rules contended that any allegations against the first respondent in the course of his discharge of professional duty as an Advocate can be by way of a complaint before the State Bar Council and the third respondent Bar Council of India only possess appellate jurisdiction and therefore if at all the petitioner wants to make any grievance as against the first respondent, he should have worked out his remedy under the provisions of the Advocates Act and the Bar Council of India Rules and hence the writ petitions are not maintainable.
20. As far as his claim for taking any action against the first respondent by way of contempt is concerned, the learned senior counsel would contend that by virtue of Section 20 of the Contempt of Courts Act, any such contempt action should have been initiated within one year. In support of his submissions, the learned senior counsel relied upon the decisions reported in
21. The learned Counsel would also contend that since the contentions of the petitioner do not fit in any of the Public Interest Litigation guidelines set done by the Hon''ble Supreme Court, on that ground as well, the writ petitions are not maintainable.
22. In these two writ petitions, the nature of relief claimed are threefold, that by virtue of the first respondent''s misbehaviour with the learned Judge in a judicial matter while representing a party as an Advocate, he is disqualified from continuing in the post of Chairman of the Bar Council of Tamil Nadu and Pondicherry, that having regard to the gravity of the misbehaviour indulged in by the first respondent, he should be proceeded with by way of contempt action and for the very same reason, the Bar Council of India should be directed to initiate action against him and suspend his practice.
23. Before going into the details of the nature of misbehaviour of the first respondent alleged in the writ petitions, we feel it appropriate to refer to the principles laid down in the various decisions placed before us on either side to reach a just conclusion.
24. We are conscious of the fact that the allegations alleged against the first respondent, if made out, would definitely call for serious action against him, in as much as, the first respondent made a crude attempt to interfere in the administration of justice.
25. Keeping the above perception in mind, we wish to define the scope of consideration of the claims made in the writ petitions and the stand of the first respondent in his attempt to meet those allegations. The decisions cited before us really throws much light on the issues raised and therefore we wish to be guided by the principles laid down therein.
26. In the decision reported in
53. For securing the above cherished objectives equally to all citizens irrespective of their religion, race, caste, sex, place of birth and the chronic socio-economic inequalities and disadvantages, the Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts, and for ensuring the principle of the #Rule of Law# which in the words of Bhagwati, J. (as the learned Chief Justice then was) #runs through the entire fabric of the Constitution#. To say differently, it is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours.
57. Regarding the significance of this principle, Chandrachud, J. (as the learned Chief Justice then was) in Union of India v. Sankalchand Himatlal Sheth said that the independence of judiciary is the "cardinal feature" and observed that the judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary.
(Emphasis added)
27. In the decision reported in
39. The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.
41. As held by this Court in the matter of Mr ''G'', A Senior Advocate of the Supreme Court (1995) 1 SCR 490, ''the Court, in dealing with cases of professional misconduct is not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character. ... He [a legal practitioner] is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action.
42. In
A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From that point of view, the conduct of the appellant was highly reprehensible.
(Emphasis added)
28. In the decision reported in
42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining #the jury, the judge and the hangman and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice.
43. The power of the Supreme Court to punish for contempt of court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of "professional misconduct" in a summary manner, giving a go-by to the procedure prescribed under the Advocates Act. The power to do complete justice under Article 142 is in a way, corrective power, which gives preference to equity over law but it cannot be used to deprive a professional lawyer of the due process contained in the Advocates Act, 1961 by suspending his licence to practice in a summary manner while dealing with a case of contempt of court.
71. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19-5-1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practise as an advocate vests exclusively in the Bar Council of the State concerned, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.
77. However, the exercise of powers under the contempt jurisdiction cannot be confused with the appellate jurisdiction u/s 38 of the Act. The two jurisdictions are separate and distinct. We are, therefore, unable to persuade ourselves to subscribe to the contrary view expressed by the Bench in V.C. Mishra case because in that case the Bar Council had not declined to deal with the matter and take appropriate action against the advocate concerned. Since there was no cause pending before the Bar Council, this Court could not exercise its appellate jurisdiction in respect of a matter which was never under consideration of the Bar Council. 78. Thus, to conclude we are of the opinion that this Court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner for committing contempt of court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers u/s 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in Vinay Chandra Mishra, Re is not good law and we overrule it. 79. 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 from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for "professional misconduct", on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an advocate. Under Article 144 of the Constitution "all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court". The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act #in aid of the Supreme Court". It must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record records its findings about the conduct of an advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar Council concerned in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness or disrespectful conduct on the part of a counsel towards the court or disregard by the court of the privileges of the Bar. In case the Bar Council, even after receiving "reference" from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers u/s 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of course, the appellate powers u/s 38 would be available to this Court only and not to the High Courts. We, however, hope that such a situation would not arise.
(Emphasis added)
29. In the decision reported in
27. Does the law give a lawyer, unsatisfied with the result of a case, any licence to permit himself the liberty of scandalising a court by casting unwarranted imputations against the Judge in discharge of his judicial functions? Does the lawyer enjoy any special immunity under the Contempt of Courts Act, where he is found to have committed a gross contempt of court? The answer has to be an emphatic No.
32. The tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure an order which they desire or which they expect is on the increase. It is unfortunate that even some disgruntled lawyers also indulge in the same objectionable activities. No latitude can be given to a litigant who attempts to browbeat the court. In the instant case, the contemner, let alone showing any remorse or regret adopted an arrogant, defiant and contemptuous attitude. The contemner has been reckless, persistent and guilty of undermining the dignity of the courts and his actions are motivated, deliberate and designed. Sympathy in a case like this would be totally misplaced. Mercy has no meaning. The action of the contemner calls for a deterrent punishment so that it also serves as an example to others and there is no repetition of such a contempt by anyone else. We, therefore, having found the contemner guilty of committing contempt of court, sentence him to undergo simple imprisonment for a period of four months and to pay a fine of Rs.1000 (one thousand) and in default of payment of fine, to further undergo simple imprisonment for a period of 15 days.
34. Looking to the established facts of this Court, it is apparent that the conduct of the contemner was highly contumacious and even atrocious. He has abused professional privileges while practising as an advocate. We, therefore, deem it appropriate, in view of the observations made in Supreme Court Bar Assn. v. Union of India to direct that the copy of this judgment together with the relevant record be forwarded to the Chairman, Bar Council of India, who may refer the case to the committee concerned for appropriate action as is considered fit and proper.
(Emphasis added)
30. In
31. In 2001 (7) SCC 231 B.R. Kapur v. State of T.N., the scope of jurisdiction of the Writ of Quo Warranto has been stated as under in paragraph 79 :
79. Insofar as it relates to Article 361 of the Constitution, that the Governor shall not be answerable to any court for performance of duties of his office as Governor, it may, at the very outset, be indicated that we are considering the prayer for issue of the writ of quo warranto against Respondent 2, who according to the petitioner suffers from disqualification to hold the public office of the Chief Minister of a State. A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfil the required qualifications or suffers from any disqualification, which debars the person to hold such office.......
32. In the decision reported in
5. The scope of entertaining a petition styled as a public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this Court in various cases. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The Court has to act ruthlessly while dealing with impostors and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect.
6. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. See State of Maharashtra v. Prabhu and A.P. State Financial Corpn. v. GAR Re-Rolling Mills. No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Buddhi Kota Subbarao (Dr.) v. K. Parasaran.] Today people rush to courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in courts and among the public.
10. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
(Emphasis added)
33. In the decision reported in 2003 (4) SCC 712 High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, the scope and power of the writ of Quo Warranto has been susceptibly stated as under in paragraph 22 & 23 :
22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop.Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana.)
34. The scope of issuance of writ of Quo Warranto has been vividly stated by the Hon''ble Supreme Court in one of its earliest decisions reported in
7. As Halsbury has observed:
An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons, not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
35. As regards initiation of any proceedings for contempt and while analysing the limitation prescribed u/s 20 of the Contempt of Courts Act, the Hon''ble Supreme Court has held as under in paragraph 15 in the decision reported in
15. In the cases contemplated by (i) or (ii) above, it cannot be said that any proceedings for contempt have been initiated. Filing of an application or petition for initiating proceedings for contempt or a mere receipt of such reference by the court does not amount to initiation of the proceedings by court. On receiving any such document it is usual with the courts to commence some proceedings by employing an expression such as "admit", "rule", "issue notice" or "issue notice to show cause why proceedings for contempt be not initiated". In all such cases the notice is issued either in routine or because the court has not yet felt satisfied that a case for initiating any proceedings for contempt has been made out and therefore the court calls upon the opposite party to admit or deny the allegations made or to collect more facts so as to satisfy itself if a case for initiating proceedings for contempt was made out. Such a notice is certainly anterior to initiation. The tenor of the notice is itself suggestive of the fact that in spite of having applied its mind to the allegations and the material placed before it the court was not satisfied of the need for initiating proceedings for contempt; it was still desirous of ascertaining facts or collecting further material whereon to formulate such opinion. It is only when the court has formed an opinion that a prima facie case for initiating proceedings for contempt is made out and that the respondents or the alleged contemners should be called upon to show cause why they should not be punished; then the court can be said to have initiated proceedings for contempt. It is the result of a conscious application of the mind of the court to the facts and the material before it. Such initiation of proceedings for contempt based on application of mind by the court to the facts of the case and the material before it must take place within a period of one year from the date on which the contempt is alleged to have been committed failing which the jurisdiction to initiate any proceedings for contempt is lost. The heading of Section 20 is "limitation for actions for contempt". Strictly speaking, this section does not provide limitation in the sense in which the term is understood in the Limitation Act. Section 5 of the Limitation Act also does not, therefore, apply. Section 20 strikes at the jurisdiction of the court to initiate any proceedings for contempt.
36. As regards the power of the High Court to punish for contempt under Article 215 and the harmonious manner in which Section 20 of the Contempt of Courts Act can be interpreted has been laid down by the Hon''ble Supreme Court in paragraph 30, 42 and 44 in the decision reported in
30. There can be no doubt that both this Court and High Courts are courts of record and the Constitution has given them the powers to punish for contempt. The decisions of this Court clearly show that this power cannot be abrogated or stultified. But if the power under Article 129 and Article 215 is absolute, can there by any legislation indicating the manner and to the extent that the power can be exercised? If there is any provision of the law which stultifies or abrogates the power under Article 129 and/or Article 215, there can be little doubt that such law would not be regarded as having been validly enacted. It, however, appears to us that providing for the quantum of punishment or what may or may not be regarded as acts of contempt or even providing for a period of limitation for initiating proceedings for contempt cannot be taken to be a provision which abrogates or stultifies the contempt jurisdiction under Article 129 or Article 215 of the Constitution.
42. The decision in Om Prakash Jaiswal case to the effect that initiation of proceedings u/s 20 can only be said to have occurred when the court formed the prima facie opinion that contempt has been committed and issued notice to the contemner to show cause why it should not be punished, is taking too narrow a view of Section 20 which does not seem to be warranted and is not only going to cause hardship but would perpetrate injustice. A provision like Section 20 has to be interpreted having regard to the realities of the situation. For instance, in a case where a contempt of a subordinate court is committed, a report is prepared whether on an application to court or otherwise, and reference made by the subordinate court to the High Court. It is only thereafter that a High Court can take further action u/s 15. In the process, more often than not, a period of one year elapses. If the interpretation of Section 20 put in Om Prakash Jaiswal case is correct, it would mean that notwithstanding both the subordinate court and the High Court being prima facie satisfied that contempt has been committed the High Court would become powerless to take any action. On the other hand, if the filing of an application before the subordinate court or the High Court, making of a reference by a subordinate court on its own motion or the filing of an application before an Advocate-General for permission to initiate contempt proceedings is regarded as initiation by the court for the purposes of Section 20, then such an interpretation would not impinge on or stultify the power of the High Court to punish for contempt which power, dehors the Contempt of Courts Act, 1971 is enshrined in Article 215 of the Constitution. Such an interpretation of Section 20 would harmonise that section with the powers of the courts to punish for contempt which is recognised by the Constitution.
44. Action for contempt is divisible into two categories, namely, that initiated suo motu by the court and that instituted otherwise than on the court''s own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the court itself which must initiate by issuing a notice, in the other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.
37. Keeping the above legal principles in mind, when we recapitulate the core allegation of the petitioner against the first respondent, on 29.06.2009, the first respondent while appearing on behalf of the accused in an Anticipatory Bail application alleged to have misbehaved in the Court by making certain unwarranted allegations against the learned Judge when the learned Judge expressed his opinion that there was no merit to grant the Anticipatory Bail applied for.
38. The further allegation is that in spite of the learned Judge''s advice to the first respondent not to exceed his limits, he continued with his defiant behaviour and at one point of time, the learned Judge stated to have retorted and said that the first respondent exerted influence on the learned Judge to favour the accused by granting the Anticipatory Bail and that at the instance of the first respondent an Union Minister also tried to apply pressure on the learned Judge.
39. In order to ascertain the correctness of the allegations, we deem it appropriate to refer to the letter of the learned Judge dated 02.07.2009, addressed to the Hon''ble The Chief Justice instead of making reference to either the allegations contained in the petitioner''s affidavit or any other material placed before the Court.
40. The letter of the learned Judge is dated 02.07.2009, and the relevant part where there is specific reference to the first respondent contained in the said letter are as under:
On 12.06.2009, at about 2 P.M. during Lunch Recess, while I was in the Chamber, High Court, Madras, my Office Assistant Mr.Mujibir Ali informed me that Mr.Chandramohan, Chairman, Bar Council of Tamil Nadu, is waiting and seeking for an appointment to meet me and, immediately, I allowed him to come in. To start with, he discussed about the general subject on Advocates and so proceeding, he said that two persons, who are father and son/accused in a criminal case, are family friends of a Union Minister by name Raja, and that the petition filed by them for anticipatory bail must be considered favourably. Simultaneously, he handed over his mobile phone by saying that the Union Minister is on the line to have a talk with me. Right away, I discouraged such conduct of Mr.Chandramohan and told him that the case would be disposed of in accordance with law, if listed before me.
Subsequently, on 29.06.2009, second anticipatory bail petition came to be filed for the same accused and on behalf of Mr.Chandramohan (counsel on record for the petitioners/accused), who was present in court, Mr.Masood, Advocate, argued by stating that some new points need to be submitted and, for such purpose, the Case Diary must be summoned. Adverting to the counter filed by the prosecution and referring to the view I had already taken during the previous occasion and pointing out that there was no change of circumstance to positively consider the case of the petitioners, it was conveyed that there was no valid reason or ground to grant the prayer in the 2nd petition. It was also observed that the counsel may argue the case in detail, however, this time orders would be passed on merits and they would not be allowed to withdraw the petition. Again, the counsel insisted that the case diary must be called for and the case be heard in detail with reference to the materials collected during the course of investigation. I have impressed upon the representing counsel by explicating that alike direction could be given to the prosecution only in the event of the Judge satisfying that such course is inevitable and absolutely necessary in a given situation and that, on mere demands and as a matter of routine, such exercise cannot be undertaken. At that time, Mr.Chandramohan stood up and made a similar demand and when I emphatically declined to accede to his adamant demand, he vociferously remarked that the Court is always taking sides with the prosecution and not accepting the submissions made by the counsel for the accused while giving importance to the Prosecutor. On such pointless remark, I said that the counsel engaged to argue on his behalf has made his submission and he is not supposed to pass such slanderous and derogatory remarks; for, all these days, the court has been passing orders after hearing the parties and assessing the cases on their own merits and in accordance with law. In spite of that, Mr.Chandramohan, insisted that the Case Diary must be summoned and the matter be adjourned to some other day. Since Mr.Chandramohan highly raised his voice and his approach towards the court was quarrelsome, I told him that a person like him, an advocate holding position as Chairman of a State Bar Council, should not behave in such a fashion. Still the learned Advocate was outburst and uncontrollable, and I observed that a counsel, who made an attempt to exert influence on the court by using the name of a Cabinet Minister, cannot be allowed to succeed in snatching an order in his favour by advancing threat. Due to such odd experience, I had to direct the Registry to place the papers before Your Lordship for obtaining orders to post the case before some other learned Judge. The case concerned was taken up at the end in the afternoon and inside the court hall, there were about 4 to 5 Advocates present and no one from the Press was there. That being so, the oral observations actually made came to be translated by the Print and Electronic media with their own interpretations and ideas.... I have written this letter/report to apprise Your Lordship the actual state of affairs involved.
(Emphasis added)
41. After perusing the contents of the above letter, at the very outset we wish to state that there is no reason to doubt the veracity of the statement of the learned Judge in the absence of any allegations of ill-will or mala fides alleged against the learned Judge.
42. It will be appropriate to mention at this juncture that when the whole basis for the initiation of this Public Interest Litigation was by way of reaction to the unprecedented incident wherein an Advocate who is also holding a responsible position as Chairman of the State Bar Council alleged to have misbehaved towards the learned Judge in the Court Hall and also the reaction of the learned Judge in the open Court Hall which revealed to great extent the conduct of the first respondent in having attempted to influence the learned Judge earlier relating to the grant of Anticipatory Bail and the nature of such incident was set out by the petitioner in his affidavit with little more particulars, the first respondent was expected to explain the situation in his own words if any different happenings had taken place.
43. The conduct of the first respondent in having maintained silence in his counter affidavit goes to show to a very large extent the first respondent in effect admitted the allegations. It will be relevant to state that the behaviour of the first respondent in Court was witnessed by the State Prosecutor who was present as well as the counsel on Record by name one Mr.Masood, who argued the case on behalf of the first respondent, who represented the accused in the Anticipatory Bail application. No affidavit was filed by the said counsel about what transpired in Court. The above facts only lead us to reach a conclusion that the outburst of the learned Judge was true and the reflection of the same as contained in his letter remains uncontroverted. Though the letter was called for from the Registry and produced before Court, the first respondent did not evince any interest to know the contents. No steps were taken at his instance either for getting a copy of the letter or its contents. It is also relevant to state that the first respondent neither repented for nor displayed any conduct of remorse in order to show any lenience.
44. The sum and substance of the allegations contained in the letter is that not being able to bear the extreme behaviour of the first respondent, the learned Judge apart from advising him to maintain the decorum of the Court by specifically referring to his status as the Chairman of the State Bar Council and also referred to his earlier behaviour in the Chambers of the learned Judge when he tried to influence the learned Judge by using the name of a Central Cabinet Minister.
45. Therefore, if really such an incident had not taken place inside the Court Hall, the first person to have refuted that statement should have been the first respondent. That apart, since he had the assistance of another Advocate by name Mr.Masood, the said Advocate could have also explained the situation if the said situation was different from what has been alleged by the learned Judge. Therefore, we are convinced and also emboldened to state that whatever stated by the learned Judge in his letter dated 02.07.2009, as reflecting the exactitude of the incident that happened on 29.06.2009, in the Court Hall.
46. For the very same reason, we proceed to state that whatever stated by the learned Judge as against the first respondent on 12.06.2009, at about 2.00 pm during lunch recess in his Chambers will also have to be taken as a gospel truth (a saying held in esteem).
47. In fact when the first respondent filed his counter affidavit in the writ petitions, after noticing that there was no specific reference; leave alone denial of the allegations levelled against him vis-a-vis the learned Judge; we pointed out the same to the learned Counsel, to which the representation on behalf of the first respondent was that since they are raising a preliminary issue as regards the maintainability of both the writ petitions, the first respondent is not traversing the allegations.
48. We however made it clear to the learned senior counsel appearing for the first respondent that it is always open to the first respondent to come forward with any additional affidavit relating to the allegations or the incident and that such an opportunity will not be extended to him if he fails to avail at the earliest point of time.
49. However, on behalf of the first respondent a firm stand was taken that he is not inclined to traverse those factual allegations levelled against him and that he wanted to stand or fall by the preliminary issues raised in the counter affidavit.
50. Therefore, de hors the prayers of the petitioner in these two writ petitions, we find an onerous responsibility is imposed on us to deal with the first respondent having regard to the nature of allegations levelled against him by no less than a person who was a sitting Judge of this Court, more so, as the first respondent is in the status as Chairman of the State Bar Council which institution inter alia has disciplinary control over several thousand lawyers practising in the High Court as well as in the subordinate courts and other quasi judicial institutions.
51. In order to justify any conclusion to be ultimately arrived at in this proceedings, the allegations levelled against the first respondent needs to be examined in little more detail as contained in the letter dated 02.07.2009, of the learned Judge.
52. According to the learned Judge, the first respondent was allowed to meet him in his Chambers on 12.06.2009, at about 2.00 p.m. for the simple reason that the first respondent was holding the office of Chairman, Bar Council of Tamil Nadu and Pondicherry and was waiting and seeking an appointment to meet him. Unfortunately, such a courtesy extended by the learned Judge appeared to have been abused by the first respondent by making a reference to some accused in a criminal case for whom he was appearing.
53. Apart from that, he went to the extent of telling the learned Judge that he should pass favourable orders in the anticipatory bail applications. To crown it all, he wanted the learned Judge to talk to some Union Minister who was stated to be waiting on a call in the first respondent''s mobile phone.
54. In the said situation, the learned Judge was stated to have appropriately told the first respondent that any judicial matter will be disposed of in accordance with law if listed before him.
55. In fact, in our considered view, such a reaction of the learned Judge was much more courteous than was expected and the first respondent for what has been alleged against him by the learned Judge, in our considered opinion did call for a very stringent action at that point of time itself by handing him over to the appropriate authorities. Apparently, the learned Judge did not want to precipitate his conduct and thereby bring great disrepute to the institution. Unfortunately, the first respondent who is holding a high office as Chairman, State Bar Council instead of realising the magnanimous attitude of the learned Judge, displayed a much more disastrous attitude by behaving in a unruly manner in the Court Hall on 29.06.2009, when the learned Judge had no other option except to reveal in the open Court the monstrous and unpardonable behaviour of the first respondent in the open Court in the presence of Advocates and thereby brought it to the knowledge of the public at large.
56. The monstrosity of the allegations cannot be belittled by trying to find out whether such a conduct can be brought within the parameters of the issuance of the writ of Quo Warranto or to be dealt with as it used to be by the Bar Council while dealing with cases of professional misconduct alleged against the Advocates by either a litigant public or others. The magnitude of the behaviour of the first respondent, in our considered opinion was unprecedented and the same has got to be dealt with an iron hand in order to ensure that such a behaviour is not even dreamt to be attempted by any other unscrupulous element under the garb of wearing the glorious robes of an Advocate.
57. We wish to reinforce our perception and state that uncontraverted conduct of the first respondent is of such a grave magnitude which gave a severe blow to the institution and cannot be treated as a simple attempt of tactical advantage tried to be gained by approaching the learned Judge. We are convinced that having regard to the uncontraverted allegations placed before us at the instance of the petitioner and fully supported with very many details by the learned Judge in his letter dated 02.07.2009, this Court cannot glibly swallow such a monstrous behaviour of the first respondent against the institution which would otherwise result in encouraging such unscrupulous elements to wag their tail against the institution thinking that the same can be got over in the Court by resorting to legal jargons.
58. We are of the considered view that unless such a conduct is nipped at the bud, it will erode the Majesty of the institution and provide scope for bringing the Majesty of the institution as well as the Hon''ble Judges to great disrepute.
59. In this context, it will be appropriate to borrow the expression of the Hon''ble Supreme Court in the decision reported in
60. Before proceeding to pass final orders in these writ petitions, we feel that the various principles set out by the Hon''ble Supreme Court in the decisions referred in the earlier paragraphs can be listed out, which reads as under:
(a) The Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts.
(b) It is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours.
(c) The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State.
(d) The judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land.
(e) If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs.
(f) It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour.
(g) The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice.
(h) When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.
(i) At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute.
(j) Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice.
(k) In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice.
(l) No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice.
(m) It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the Rules framed thereunder.
(n) whenever a court of record records its findings about the conduct of an advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the Bar Council concerned, appropriate action should be initiated by the Bar Council concerned in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette.
(o) The tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure an order which they desire or which they expect is on the increase.
(p) No latitude can be given to a litigant who attempts to browbeat the court.
(q) Sympathy in a case like this would be totally misplaced. Mercy has no meaning.
(r) The Court has to be satisfied about (i) the credentials of the applicant;
(ii) the prima facie correctness or nature of information given by him; (iii) the information being not vague and indefinite. The information should show gravity and seriousness involved.
(s) Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good.
(t) Court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration.
61. Applying the above principles, we are convinced that the unprecedented behaviour of the first respondent consists of several facets of conduct which was unbecoming of the lawyer or Advocate who despite authority given to him by Advocates Act is nevertheless an Officer of the Court. By attempting to influence a Hon''ble Judge by getting entry into his Chambers in respect of a judicial matter itself on the face of it a highly condemnable act apart from such conduct to be described or brought within any of the specified misconduct under the Bar Council of India Rules and the Advocates Act.
62. The first respondent could gain entry into the Chambers of the learned Judge mainly because of his status as Chairman of the State Bar Council. As a Chairman he was representing several thousand lawyers practising in this State as well as in the Courts in other States. Every year when fresh law graduates seek for enrolment as Lawyer, such enrolment is carried out in the Bar Council at the behest of the Chairman and its members. We need not elaborate the high responsibility and the leadership quality to be displayed as the Chairman of the State Bar Council for the other lawyers to emulate, atleast the junior members of the Bar.
63. Apart from making an attempt to influence the learned Judge, the letter of the learned Judge discloses that he also attempted to influence him by stating that some other Union Minister wanted to talk to the learned Judge which the learned Judge stated to have politely declined and also advised him not to make any such attempt to interfere in the judicial administration.
64. Apart from behaving in such a ruthless manner in the Chambers of the learned Judge, the first respondent was stated to have behaved, in the words of the learned Judge, in a very unruly manner in the open Court while on behalf of the first respondent some other counsel viz., one Mr.Masood stated to have argued the Anticipatory Bail application and in the said situation there was no warrant for the first respondent to have interfered in the proceedings.
65. Going by the words of the learned Judge, the first respondent stated to have persisted in his adamant behaviour in spite of the learned Judge cautioning him not to make slanderous and derogatory remarks. The first respondent stated to have also raised his voice and that his approach was quarrelsome towards the learned Judge and the letter of the learned Judge also states that in spite of the learned Judge pointing out to him having regard to his position as Chairman of the State Bar Council, he should maintain a better behaviour, he continued with his outburst and that the same was uncontrollable and ultimately because of the extreme conduct displayed by the first respondent, the learned Judge had to request the Hon''ble The Chief Justice to post the case before some other learned Judge.
66. The above factors vividly explain the magnitude of the behaviour of the first respondent towards the learned Judge, the Court and the institution and that he was unmindful of the consequence that would arise therefrom. Such a defiant attitude displayed by the first respondent only shows that he can go to any extreme and then try to get rid of it by taking umbrage under some legal lacuna, such as no ground made out for issuance of Quo Warranto or no scope to initiate any contempt action.
67. Having noticed such an extreme conduct of the first respondent and having been satisfied with the factum of such a conduct displayed by him, we are of the considered opinion that it calls for very stringent action against the first respondent to uphold the majesty of law and the administration of justice.
68. Having travelled thus far, now, when we examine the prayers of the petitioner, one is for issuance of writ of Quo Warranto and the other one is for issuance of writ of Mandamus directing the Bar Council of India, New Delhi the third respondent in W.P.No.17354 of 2009, to initiate appropriate action within a time frame against the first respondent following the decision of the Hon''ble Supreme Court reported in
69. Dealing with the second prayer, we feel it appropriate to refer to some of the relevant provisions of the Advocates Act, 1961.
70. u/s 2(1)(g) the ''High Court'' has been defined to mean except in sub-section (1) and (1A) of Section 34 and Sections 42 and 43, does not include a Court of the Judicial Commissioner, and in relation to a State Bar Council, it means in the case of a Bar Council constituted for a State or for a State and one or more Union Territories, the High Court for the State.
71. u/s 6(1)(c) among the functions of the State Bar Council it includes power to entertain and determine cases of misconduct against advocates on its roll.
72. u/s 7(1)(f),(g) & (l), the Bar Council of India''s functions includes to deal with and disposal of any matter arising under this Act, which may be referred to it by the State Bar Council; to exercise general supervision and control over State Bar Councils and to perform all other functions conferred on it by or under this Act.
73. Section 9 empowers the Bar Council to constitute one or more disciplinary committees and who all can be members of such committees have been set out. u/s 10A(5), the manner in which the disciplinary committee should function has been set out.
74. Under Sections 35 and 36 of the Act, the disciplinary powers of the State Bar Council and the Bar Council of India have been prescribed. The powers of the disciplinary committee have been set out u/s 42.
75. u/s 48B the Bar Council of India have been given supernumerary powers to have control over the State Bar Councils with further power to give directions to the State Bar Councils or to any of its committees and on such directions being given by the Bar Council of India it has been mandatorily ordained upon the State Bar Councils to comply with such directions.
76. By virtue of the powers contained u/s 49(1)(c) of the Act, Rules have been framed by the Bar Council of India, wherein in Chapter-II, the duties of the Advocates towards the Court, to the client, to the opponent and to the colleagues have been set out in detail, apart from certain other duties and other obligations.
77. Under Chapter-III of the said Rules, the prohibition imposed on an Advocate who has been removed by an order of the Hon''ble Supreme Court or by the High Court or the Bar Council has been set out.
78. Under Part VII of the said Rules, the manner in which a complaint and enquiry under Sections 35, 36 and 36B of the Act are to be dealt with have been detailed.
79. Keeping the above statutory provisions in mind, when we examine the case on hand, and the prayer of the petitioner, we are convinced that having regard to the magnitude of the misbehaviour displayed by the first respondent as described by us in the earlier paragraphs, we feel that appropriate directions should be issued to the third respondent to initiate necessary disciplinary action against the first respondent and proceed against him in accordance with the relevant provisions of the Advocates Act and the Bar Council of India Rules.
80. In fact as noted by us earlier and fortunately for us, the third respondent in paragraph 16 of his counter affidavit has expressed an undertaking that it is ready and willing to offer all the best co-operation for achieving due and proper administration of justice, if this Court directs for any such action within the purview of the provisions of the Advocates Act and the Rules framed thereunder in the interest of justice.
81. When we examine the scope of issuance of such direction to the third respondent, we have to keep in mind that the first respondent having all along been the Chairman of the Bar Council of Tamil Nadu, it will not be appropriate to entrust the task of proceeding against him by way of disciplinary action with the Bar Council of Tamil Nadu. We should not be taken to mean that we have developed any lack of confidence in the State Bar Council. It is well known that justice should not only be done, but should also seems to be done. Noting the kind of behaviour displayed by the first respondent before a learned Judge of this Court, we do not wish to give any scope or room for repetition of such conduct before a Forum where the first respondent was keeping control from the date he was holding office as its Chairman. Further, as noted earlier, u/s 7(1)(f),(g) and (l), the functions of the Bar Council of India includes its power to deal with and dispose of any matter arising under the Act, which may be referred to it by a State Bar Council or which it can exercise by way of general supervision and control over such Bar Council and also perform all other functions conferred on it by or under the Advocates Act.
82. Further Section 36(2) of the Act specifically reads as under" "36. Disciplinary powers of Bar Council of India:
(1)****
(2) Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by a State Bar Council or an application made to it by any person interested, withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
83. The said Section 36(2) of the Act in any case provides a non-obstante clause contained in that Chapter namely Chapter-V which contains Section 35 by which on its own motion or on a report by the State Bar Council or based on an application made to it by any person interested can withdraw for enquiry before itself any proceedings for disciplinary action against any Advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
84. In the event of such an exercise being made by the Bar Council of India u/s 36(2) by virtue of Section 36(3), it is only to be observed, so far as may be, the procedure laid down in Section 35 namely the provisions which empowers the State Bar Council to impose punishment on Advocates for misconduct.
85. We are therefore, of the view that it will be more appropriate if the task of proceeding against the first respondent by way of disciplinary action for his misbehaviour can be directed to be made by the third respondent Bar Council of India.
86. Before issuing necessary directions in that respect, we also feel it necessary to state as to why such a course has to be adopted as against the first respondent. In the earlier paragraphs we have narrated in detail as to the nature of behaviour of the first respondent on 12.06.2009, in the Chambers of the learned Judge and on 29.06.2009, in the Open Court.
87. In this context, when we refer to Chapter II of the Bar Council of India Rules, u/s I, the duties of the Advocate to the Court has been mentioned. In the preamble of the said Section I, it has been stated as under:
An advocate shall, at all times, comfort himself in a manner befitting his status as an officer of the Court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned in both letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned." Paragraphs 1 to 3 are also relevant, which are as under: "1. An advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities. 2. An advocate shall maintain towards the Courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community. 3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.
88. We are convinced that the conduct of the first respondent, as narrated by the learned Judge in his letter dated 02.07.2009, squarely fits into the above paragraphs as well as the preamble. Therefore, it is imperative that the first respondent having behaved in such an unmindful conduct, derogatory to the interest of the institution, it is just and necessary that the third respondent Bar Council of India proceed against the first respondent by way of appropriate disciplinary action.
89. We are also convinced that in the interest of public at large and in order to ensure that such belligerent behaviour and unbecoming conduct of an Advocate should not reoccur again before any Judicial Forum, it is just and proper that such a drastic action is initiated against the first respondent.
90. In order to ensure that such action directed to be initiated is in accordance with the provisions contained under the Advocates Act, we direct the petitioner to prefer a formal complaint before the State Bar Council within two weeks from the date of receipt of a copy of this order by enclosing a copy of this order and simultaneously, file a copy of such complaint before the third respondent Bar Council of India. The Bar Council of India is further directed to exercise its powers u/s 36(2) of the Act and withdraw to itself the complaint now directed to be made by the petitioner before itself for enquiry and dispose of the same in the manner set out u/s 36(3) and other relevant provisions of the Advocates Act.
91. While issuing such directions, we also deem it necessary to pass certain other orders in order to ensure that the proceedings to be initiated against the first respondent are proceeded with without any scope of interference by the first respondent since the conduct of the first respondent as displayed before the learned Judge itself discloses that he had no respect for law or discipline as an Advocate and having regard to the monstrosity of the conduct displayed by the first respondent, we feel that while exercising power under Article 226 of the Constitution of India, we would be fully justified in issuing certain further directions by which the first respondent should be temporarily stripped off his position as Member of the Bar Council of Tamil Nadu and Pondicherry and consequently as its Chairman, in order to enable the third respondent Bar Council of India to proceed with the disciplinary action against the first respondent without any interference as would have been done against any other ordinary Advocate. In fact Chapter-III of the Bar Council of India Rules, paragraph 6 (1) & (2) discloses that such a debarment can be made in the interest of Justice by this Court.
92. That apart, we feel that the power of this Court under Article 226 of the Constitution of India is wide enough to give such a direction in public interest. In the celebrated decision of the Hon''ble Supreme Court reported in
(Emphasis added)
93. We are convinced that this is a case where this Court while affirming its jurisdiction under Article 226 of the Constitution of India, in a situation the monstrosity of which has been demonstrated in detail in the earlier paragraphs of this order, it has become imperative for this Court to issue such directions that would meet the ends of Justice. With that view, we deem it appropriate to suspend the first respondent''s status as Member and consequently as Chairman of the Bar Council of Tamil Nadu and Pondicherry, pending final orders to be passed by the third respondent Bar Council of India.
94. As far as the issuance of writ of Quo Warranto is concerned, having regard to the directions which we have issued in this order, we are of the view that there is no necessity for issuing any other order in that writ petition. For the very same reason, we also deem it unnecessary for initiating any contempt action against the first respondent and also for the reason that the directions issued by us in W.P.No.17354 of 2009, would sufficiently safeguard the interest of the institution namely the Judiciary and would fulfil the requirements. However, it should not be taken to mean that no contempt action is called for. It is one thing to say that the conduct of a person amounts to contempt of Court and another to say that a conduct as found established calls for much more stringent action than by way of contempt action. Having regard to the other order passed and directions issued, we are not now inclined to take any proceedings for contempt.
95. In fine, these writ petitions are disposed of with the following directions to the petitioner, the Bar Council of Tamil Nadu and the third respondent viz.,:
(a) The petitioner shall file a formal complaint along with a copy of this order before the Bar Council of Tamil Nadu and Pondicherry, within two weeks, from the date of receipt of a copy of this order;
(b) The petitioner shall file a copy of the said complaint with the third respondent Bar Council of India simultaneously;
(c) The third respondent Bar Council of India is directed to withdraw the complaint filed as directed before the Bar Council of Tamil Nadu and Pondicherry to its file in exercise of its power u/s 36(2) and (3) of the Advocates Act and dispose of the same in accordance with law;
(d) The first respondent''s status as Member and consequently as Chairman of the Bar Council of Tamil Nadu and Pondicherry shall stand suspended forthwith and he shall not be permitted by the State Bar Council to function as such pending disposal of the disciplinary action by the third respondent Bar Council of India;
(e) The production of a copy of this order shall be sufficient for the respondents herein and all concerned to comply with the directions contained in this order; and
(f) The letter written by the learned Judge shall be kept under the custody of the Registrar General of this Court in a sealed cover which shall however form part of the record of these two writ petitions. 96. In the light of the above directions, no orders are necessary in the connected miscellaneous petitions and the same are closed. There will be no order as to Costs.
