K - 710 PROFESSIONAL ETHICS by Mr. Lokendra Singh PDF

JANHIT COLLEGE OF LAW
LEGAL ETHICS

ACCOUNTABILITY FOR

LAWYERS AND

BENCH-‐BAR

RELATIONS
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Legal Ethics & Significance

The word ethics is derived from the Greek word ethos (character), and from
the Latin
word mores (customs). Together they combine to define how individuals
choose to
interact with one another. In philosophy, ethics defines what is good for the
individual
and for society and establishes the nature of duties that people owe
themselves and
one another. The following items are characteristics of ethics:
•Ethics involves learning what is right and wrong, and then doing the right
thing.
• Most ethical decisions have extended consequences.
• Most ethical decisions have multiple alternatives.
• Most ethical decisions have mixed outcomes.
• Most ethical decisions have uncertain consequences.
• Most ethical decisions have personal implications.
Legal profession is noble profession. The nobility of the legal profession is
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maintained by the adherence and observance of a set of professional norms by
those
who adopt this profession. It is knows as legal ethics or the ethics of the legal
profession. The fundamental of the legal ethics is to maintain the owner and
dignity of
the law profession, to secure a spirit of friendly cooperation between Bench
and Bar
in the promotion of highest standard of justice, to establish honorable and
fairdealings of the counsel with his client, opponent and witness, to establish a
spirit of brotherhood with bar.
ETHICS OF LEGAL PROFESSION

Meaning, Nature and Need

Professional ethics are a set of norms or codes of conduct, set by people in a
specific
profession. A code of ethics is developed for each profession. Suppose you
write
articles in a newspaper. Professional ethics require that you verify facts before
you
People are surprised when they hear that lawyers are expected to follow
professional
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ethics and that they are accountable for dishonest, irresponsible and
unprofessional
behavior. Further, most people do not know that lawyers in India can lose the
license
to practice if they are found guilty of unethical practices that tarnish the
dignity of
their profession. A lawyer must adhere to the professional norms, for fair
dealing with
his client and to maintain the dignity of the profession
The Bar Council of India is a statutory body that regulates and represents the
Indian
bar. It was created by Parliament under the Advocates Act, 1961. It
prescribes
standards of professional conduct and etiquette and exercises disciplinary

jurisdiction.
It sets standards for legal education and grants recognition to Universities
whose
degree in will serve as a qualification for students to enroll themselves as
advocates
upon graduation.

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PROFESSIONAL ETHICS

Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council
of India to
make rules so as to prescribe the standards of professional conduct and
etiquette to be
observed by the advocates. It has been made clear that such rules shall have
only
when they are approved by the Chief Justice of India. It has been made clear
that any
rules made in relation to the standards of professional conduct and etiquette
to be
observed by the advocates and in force before the commencement of the
Advocates
(Amendment) Act, 1973, shall continue in force, until altered or repealed or
amended
in accordance with the provisions of this act.
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Chapter II of part VI of the rules framed by the Bar Council of India deals with
the
standards of professional conduct and etiquette. It contains several rules
which lay
down the standards of professional conduct and etiquette. These rules specify
the
duties of an advocate to the Court, client, opponent and colleagues, etc.
The rules mentioned in chapter II of part VI of the rules of Bar Council of India
may
be discussed as follow-‐

Duty towards court

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The Bar Council of India has made certain rules so as to prescribe duties of an
advocate to the court. Such duties may be explained as follow
1) During the presentation the case and while acting otherwise as an advocate
before the court it is required to conduct himself with dignity and self
respect. It is his duty to submit his grievances to the proper authority. The
rule empowers the advocate to make complaint against judicial officer but
it should be submitted to proper authority.
2) An advocate is required to maintain towards the court respectful attitude
bearing in mind that the dignity of judicial office is essential for survival
of free community.
3) Rule has made it clear that no advocate shall influence the decision of the
court by any illegal means. It prohibits the private communication with the
judge relating to pending case. If any advocate attempt to influence the
decision of court by illegal means then it may amount to misconduct.
4) The rule requires the advocate to use his best effort to restrain and prevent
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his client from resorting to sharp or unfair practice opposite from council
or parties which the advocate himself ought not to do.
5) An advocate shall appear in court at all times only in the prescribe dress
and his appearance shall always be presentable.
6) An advocate shall not enter appearance act, plead, or practice in any way
before a court, tribunal, or authority mentioned in section 30 of the
Advocates Act, 1961 if the sole or any member thereof is related to the
advocate as father, nephew, grandfather, son, grandson, uncle, brother,
first cousin, husband, mother, wife, daughter, sister, niece, sister-‐in-‐law,
mother-‐in-‐law, and father-‐in-‐law.
7) The rule requires the advocate not to wear bands or gowns in public place
other than in court except on such ceremonial occasions and at such places as
the Bar Council of India and the court may prescribe.
8) The rule provides that an advocate shall not appear in or before any court
or tribunal or any other authority for or against an organization, institution,
society, or corporation if he is a member of executive committee of such
organization, institution, society, or corporation.

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9) An advocate shall not act or plead in any matter in which he himself has
some pecuniary interest.
Duty towards Client

Rule 11 to 33 deal with the duties of an advocate to his client. These rules may
be
explained as follow
10) Rule 11 provides that an advocate is bound to accept any brief in the court
or tribunal or before any authority which he proposes to practice at fee
consistent with his standing at bar and also nature of case.
11) Rule 12 provides that an advocate shall not withdraw from engagement
once accepted without sufficient cause and unless reasonable and
sufficient notice given to the client.
12) Rule 13 provides that an advocate should not accept the brief or appear in
a case in which he has reason to believe that he will be a witness.
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13) Rule 14 provides that an advocate shall at the commencement of his
engagement and during the continuance thereof make all such full and
frank disclosure to his client relating to his connection with the parties and
any interest in or about the controversy as are likely to affect his client’s
judgment in either engaging him or continuing the engagement.
14) Rule 15 provides that it is the duty of an advocate to uphold the interest of
his client fearlessly by all fair and honorable means without regard to any
unpleasant consequences to himself or to any other.
15) Rule 16 provides that an advocate appearing for the prosecution of
criminal trial shall so conduct the prosecution that it does not lead to
conviction of an innocent.
16) Rule 17 provides that an advocate shall not commit directly or indirectly
any breach of the obligation imposed by section 126 of Indian Evidence Act.
17) Rule 18 provides that an advocate shall not at any time be a party to the
fomenting litigation.
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18) Rule 19 makes it clear that an advocate shall not act on the instruction of
any person other than his client or his authorized agent.
19) Rule 20 provides that the fee of an advocate depending upon the success
of the sue he is considered as oppose to public policy. Contract for
contingent fee is also hit by section 23 of the Indian Contract Act.
20) Rule 21 provides that an advocate shall not buy or traffic in or stipulate for
or agree to receive any share or interest in any actionable claim.
21) Rule 22 provides that an advocate shall not directly or indirectly bid foe or
purchase either in his own name or any other name for his own benefit or
benefit of any other person, any property sold in execution of decree or
other proceeding in which he was professionally engaged.
22) Rule 23 provides that an advocate shall not adjust fee payable to him by
his client against his own personal property or liability to the client which
liability does not arise in course of his employment as an advocate.
23) Rule 24 provides that an advocate shall not do anything whereby he
abuses or take advantage of the confidence repose in him by his client.
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24) Rule 25 provides that an advocate should keep an account of clients
money entrusted to him and accounts should show amount received from
the client or on his behalf the expenses incurred for him and the debits
made on account of fees with the respective dates and all other necessary
particulars.
25) Rule 26 provides that where money are received from or on account of
client, the entries in the account should contain a reference as to whether
the amount have been received for fees or expenses and during the course
of the proceeding no advocate shall accept with the consent in writing of
the client concerned be at liberty to divert any portion of the expenses
towards fee.
26) Rule 27 provides that where any amount is received or given to him on
behalf of his client, the fact of such receipt must be intimated to the client
as early as possible. If the client demands the payment of such money and
in spite of such demand the advocate does not pay him, he will be guilty of
professional misconduct.
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27) Rule 28 provides that after termination of the proceeding the advocate
shall be at liberty to appropriate towards the settle fee due to him any sum
remaining unexpanded out of the amount paid or send to him for expenses
or any amount that has come into his hands in that proceeding.
28) Rule 29 provides that if the fee has been left unsettled the advocate can
deduct out of any money of the client remaining in his hand at the termination
of the proceeding for which he had been engaged.
29) Rule 30 provides that the copy of clients account shall be furnish to him
on demand provided the necessary charges are paid.
30) Rule 31 requires an advocate not to enter into arrangements whereby
funds in his hands are converted into loans. It makes it clear that an
advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.
31) Rule 32 prohibits an advocate to lend money to his client for the purpose
of any action for legal proceeding in which he is engaged by such client. It
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provides that an advocate shall not lend money to his client foe the
purpose of any action or legal proceeding in which he is engaged by such
client.
32) Rule 33 provides that an advocate who has at any time advice in
connection with the institution of the suit appeal or matter as drawn .

Duty towards opponent

Rule 34 and 35 framed by the Bar council of India contain provisions as to the
duties
of an advocate to the opponent.
Rule 34 provides that an advocate shall not in any way communicate or
negotiate
upon the subject matter of controversy with any party represented by an
advocate
except through that advocate.
Rule 35 provides that an advocate shall do his best to carry out all legitimate
promises
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made to the opposite party even though not reduced to writing or enforceable
under
the rules of the court. It is the duty of the advocate not to engage in discussion
or
argument about the subject of the dispute with the opposite party without
notice of his
counsel. Resolution 43 of Hoffman provides“I will never enter into any
conversation with my opponent’s client relative to his claim or defence, except
with the consent and in the presence of his counsel.”
Other duties

1) Rule 40 requires every advocate on the rolls of the State Bar Council to pay a
certain sum to the state bar council. Rule 41 provides that all the sums so
collected by the state bar council shall be credited in a separate fund to be
known as “Bar Council of India Advocates welfare fund for the State” and
shall be deposited in the bank as provided there under. According to rule 41(2)
the Bar Council of India Advocates Welfare fund Committee for the State
shall remit 20% of the total amount collected and credited to its account, to
the
bar council of India by the end of every month which shall be credited by the
Bar council of India and the Bar council of India shall deposit the said amount
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in a separate fund to be known as “Bar Council of India Advocates Welfare
fund.”
According to rule 41(3) the rest 80% of the total sum so collected by the Bar
Council of India Advocate Welfare Fund Committee for the state shall be
utilized for the welfare of the advocates in respect of welfare schemes
sponsored by the respective State Bar Council.
Rule 42 deals with the consequences of non payment of the said amount by
the
advocate. It provides that if an advocate fails to pay the aforesaid sum within
the prescribed time, the secretary of the State Bar Council shall issue to him a
notice to show cause within a month why his right to practice be not
suspended. In case the advocate pays the amount together with late fee within
the period specified in notice, the proceeding shall be dropped. If the advocate
does not pay the amount or fails to show sufficient cause, a committee of
three
members constituted by the state bar council in this behalf may pass an order
suspending the right of the advocate to practice.
Rule 43 provides that an advocate who has been convicted of an offence
mentioned under section 24-‐A of the Advocates Act or has been declared
insolvent or has taken full time service or part time service or engages in
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business or any avocation inconsistent with his practicing as an advocate or
has incurred any disqualification mentioned in the Advocates Act or the rules
made there under, shall send a declaration to the effect to the respective state
bar council in which the advocate is enrolled, within 90 days from the date of
such disqualification.
Rule 44 provides, an appeal shall lie to the bar council of India at the instance
of an aggrieved advocate within a period of 30 days from the date of the order
passed under rule 42 and 43.
Rule 44-‐A provides that there shall be a Bar council of India Advocates
Welfare Committee consisting of five members elected from amongst the
members of the council. The term of the members of the committee shall be
co-‐extensive with their term in the Bar Council of India. Rule 44-‐b makes it
clear that the Bar Council of India shall utilise the funds received under rule
41(2), stated above, in accordance with the scheme which may be framed from
time to time.
2) Duty in imparting training – rule 45 framed by the Bar Council of India
makes it clear that it is improper for an advocate to demand or accept fees or
any premium from any person as a consideration for imparting training in law
under the rules prescribed by the State Bar Council to enable such person to
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qualify for enrolment under the Advocates Act, 1961
3) Duty to render legal aid – rule 46 provides that every advocate shall in
practice of the profession of law bear in mind that any one genuinely in need
of a lawyer is entitled to legal assistance even though he cannot pay for it fully
or adequately and that within the limits of an advocates economic condition,
free legal assistance to the indigent and oppressed is one of the highest
obligation, as an advocate owes to the society.
4) Restriction on other employment – rules 47, 48, 49, 50, 51 and 52 deals with
the restrictions on other employment. Rule 47 provides that an advocate shall
not personally engage in any business but he may be a sleeping partner in a
firm doing business provided that in the opinion of the appropriate state bar
council the nature of the business is not inconsistent with the dignity of the
profession. Rule 48 makes it clear that an advocate may be director or
chairman of the board of directors of a company with or without any ordinary
sitting fees, provided none of his duties are of executive character. An
advocate shall not be a managing director or a secretary of any company. Rule
49 provides that an advocate shall not be a full time salaried employee of any
person, government, firm, corporation or concern, so long as he continues to
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practice and shall taking up any such employment intimate the fact to the bar
council on whose roll his name appears and shall thereupon cease to practice
as an advocate so long as he continues in such employment. Rule 50 provides
that an advocate who has inherited or succeeded by survivorship, to a family
business may continue it, but may not personally participate in the
management thereof.
Legal Profession in India
The history of the legal profession in India can be traced back to the
establishment of the First British Court in Bombay in 1672 by
Governor Aungier. The admission of attorneys was placed in the
hands of the Governor-in-Council and not with the Court. Prior to the
establishment of the Mayor’s Courts in 1726 in Madras and Calcutta,
there were no legal practitioners.
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The Mayor’s Courts, established in the three presidency towns,

were Crown Courts with right of appeal first to the Governor-in-
Council and a right of second appeal to the Privy Council. In 1791,
Judges felt the need of experience, and thus the role of an attorney
to protect the rights of his client was upheld in each of the Mayor’s
Courts. This was done in spite of opposition from Council members
or the Governor. A second principle was also established during the
period of the Mayor’s Courts. This was the right to dismiss an
attorney guilty of misconduct. The first example of dismissal was
recorded by the Mayor’s Court at Madras which dismissed attorney
Jones.
The Supreme Court of Judicature was established by a Royal

Charter in 1774. The Supreme Court was established as there was
dissatisfaction with the weaknesses of the Court of the
Mayor. Similar Supreme Courts were established in Madras in 1801
and Bombay in 1823. The first barristers appeared in India after the
opening of the Supreme Court in Calcutta in 1774. As barristers
began to come into the Courts on work as advocates, the attorneys
gave up pleading and worked as solicitors. The two grades of legal
practice gradually became distinct and separate as they were in
England. Madras gained its first barrister in 1778 with Mr. Benjamin
Sullivan.
Thus, the establishment of the Supreme Court brought recognition,

wealth and prestige to the legal profession. The charters of the
Court stipulated that the Chief Justice and three puisne Judges be
English barristers of at least 5 years standing.
The charters empowered the Court to approve, admit and enrol

advocates and attorneys to plead and act on behalf of suitors. They
also gave the Court the authority to remove lawyers from the roll of
the Court on reasonable cause and to prohibit practitioners not
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properly admitted and enrolled from practising in the Court. The

Court maintained the right to admit, discipline and dismiss
attorneys and barristers. Attorneys were not admitted without
recommendation from a high official in England or a Judge in
India. Permission to practice in Court could be refused even to a
barrister.
In contrast to the Courts in the presidency towns, the legal

profession in the mofussil towns was established, guided and
controlled by legislation. In the Diwani Courts, legal practice was
neither recognized nor controlled, and practice was carried on by
vakils and agents. Vakils had even been appearing in the Courts of
the Nawabs and there were no laws concerning their qualification,
relationship to the Court, mode of procedure of ethics or
practice. There were two kinds of agents – a. untrained relatives or
servants of the parties in Court and b. professional pleaders who
had training in either Hindu or Muslim law. Bengal Regulation VII of
1793 was enacted as it was felt that in order to administer justice,
Courts, must have pleading of causes administered by a distinct
profession Only men of character and education, well versed in the
Mohamedan or Hindu law and in the Regulations passed by the
British Government, would be admitted to plead in the Courts. They
should be subjected to rules and restrictions in order to discharge
their work diligently and faithfully by upholding the client’s trust.
Establishment of the High Courts
In 1862, the High Courts started by the Crown were established at

Calcutta, Bombay and Madras. The High Court Bench was designed
to combine Supreme Court and Sudder Court traditions. This was
done to unite the legal learning and judicial experience of the
English barristers with the intimate experience of civil servants in
matters of Indian customs, usages and laws possessed by the civil
servants. Each of the High Courts was given the power to make
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rules for the qualifications of proper persons, advocates, vakils and

attorneys at Bar. The admission of vakils to practice before the
High Courts ended the monopoly that the barristers had enjoyed in
the Supreme Courts. It greatly extended the practice and prestige of
the Indian laws by giving them opportunities and privileges equal to
those enjoyed for many years by the English lawyers. The learning
of the best British traditions of Indian vakils began in a guru-shishya
tradition:
“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and
Sir S. Subramania Ayyar were quick to learn and absorb the
traditions of the English Bar from their English friends and
colleagues in the Madras Bar and they in turn as the originators of a
long line of disciples in the Bar passed on those traditions to the
disciples who continued to do the good work.”
Additional High Courts were established in Allahabad (1886), Patna
(1916), and Lahore (1919).
There were six grades of legal practice in India after the founding of
the High Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of
High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. The Legal
Practitioners Act of 1879 in fact brought all the six grades of the
profession into one system under the jurisdiction of the High
Courts. The Legal Practitioners Act and the Letters Patent of the
High Courts formed the chief legislative governance of legal
practitioners in the subordinate Courts in the country until the
Advocates Act, 1961 was enacted.
In order to be a vakil, the candidate had to study at a college or
university, master the use of English and pass a vakil’s
examination. By 1940, a vakil was required to be a graduate with
an LL.B. from a university in India in addition to three other certified
requirements. The certificate should be proof that a. he had passed
in the examination b. read in the chamber of a qualified lawyer and
was of a good character. In fact, Sir Sunder Lal, Jogendra Nath
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Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils who
were raised to the rank of an Advocate.
Original and appellate jurisdiction of the High Court.
The High Courts of the three presidency towns had an original

side. The original side included major civil and criminal matters
which had been earlier heard by predecessor Supreme Courts. On
the original side in the High Courts, the solicitor and barrister
remained distinct i.e. attorney and advocate. On the appellate side
every lawyer practiced as his own attorney.
However, in Madras the vakils started practice since 1866. In 1874,

the barristers challenged their right to do original side work.
However, in 1916, this right was firmly established in favour of the
vakils. Similarly, vakils in Bombay and Calcutta could be promoted
as advocates and become qualified to work on the original side. By
attending the appellate side and original side Courts each for one
year, a vakil of 10 years service in the Court was permitted to sit for
the advocates’examination.
Indian Bar Councils Act, 1926.
The Indian Bar Councils Act, 1926 was passed to unify the various
grades of legal practice and to provide self-government to the Bars
attached to various Courts. The Act required that each High Court
must constitute a Bar Council made up of the Advocate General,
four men nominated by the High Court of whom two should be
Judges and ten elected from among the advocates of the Bar. The
duties of the Bar Council were to decide all matters concerning
legal education, qualification for enrolment, discipline and control of
the profession. It was favourable to the advocates as it gave them
authority previously held by the judiciary to regulate the
membership and discipline of their profession.
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The Advocates Act, 1961 was a step to further this very

initiative. As a result of the Advocates Act, admission, practice,
ethics, privileges, regulations, discipline and improvement of the
profession as well as law reform are now significantly in the hands
of the profession itself.
PROFESSIONAL ETHICS & BAR-‐BENCH RELATIONS
TOPIC – Admission, Enrolment & Rights of Advocates
Section 24 of Advocates Act, 1961 lays down the categories of persons who are eligible
being admitted as advocates on the State roll. The persons applying for such admission
has to fulfil certain conditions briefed below:
a) Citizen of India – Sec 24(1)(a) of the Act provides that the person concerned should
be a citizen of India. Even the nationals of other country are permitted to practice
law in our country and may be admitted as an advocate on a State roll; if citizens of
India, duly qualified, are permitted to practice law in that other country. The person
desiring to practice law in India as such has to fulfil the other conditions as well as
have been laid down in Advocates Act, 1961.
b) Age -‐ Sec 24(1)(b) of the Act provides that the person concerned should have
completed the age of 21 years.
c) Degree of Law -‐ Sec 24(1)(c) of the Act provides that the person should have
obtained the degree in law -‐(i) before the 12th day of March, 1967, from any University in
the territory of India; or
(ii) before the 15th August, 1947, from any University in any area which was comprised
before that date within India as defined by the Government of India Act, 1935; or
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(iii) after the 12th day of March, 1967, save as provided in sub-‐clause (iiia), after
undergoing a three year course of study in law from any University in India which is
recognised for the purposes of this Act by the Bar Council of India; or
(iiia) after undergoing a course of study in law, the duration of which is not less than
two academic years commencing from the academic year 1967-‐68 or any earlier
academic year from any University in India which is recognised for the purposes of this
Act by the Bar Council of India; or
(iv) in any other case, from any University outside the territory of India, if the degree is
recognised for the purposes of this Act by the Bar Council of India or; he is barrister
and is called to the Bar on or before the 31st day of December, 1976 or has passed the
article clerks examination or any other examination specified by the High Court at
Bombay or Calcutta for enrolment as an attorney of that High Court; or has obtained
such other foreign qualification in law as is recognised by the Bar Council of India for
the purpose of admission as an advocate under this Act;
d) Fulfilment of Other Conditions -‐ Sec 24(1)(e) of the Act provides that the person
concerned should fulfil such other conditions as may be specified in the rules made
by the State Bar Council;
e) Payment of Stamp Duty -‐ Sec 24(1)(f) of the Act states that the person concerned
has to pay in respect of the enrolment, stamp duty, if any, chargeable under the
Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee of Rs. 600/-‐ (Rupees Six
25
Hundred Only) payable to the State Bar Council and Rs. 150/-‐ (Rupees One
Hundred Fifty Only) to the Bar Council of India, by way of a bank draft drawn in
favour of that Council:
Provided that where such person is a member of the Schedule Castes or the
Schedule Tribes and produces a certificate to that effect from such authority as may
be prescribed, the enrolment fee payable by him to the State Bar Council shall be
Rs.100/-‐ (Rupees One Hundred Only) and Rs. 25/-‐ (Rupees Twenty Five Only) to
the Bar Council of India.
The Bar Council may prescribe the qualifications for the purpose of admission as an
advocate on a State roll in addition to qualifications provided under Section 24(1)(c) but it
would not mean that such qualification would go counter to the section as mentioned
above. The Advocates Act, 1961 expressly authorises the Bar Council of India to add such
other conditions by making appropriate rules.
The provisions of Section 24(1)(f) of the Act fixes enrolment fee which is not
unconstitutional. The Bar Council of India is entitled to charge enrolment fee within the
limits determined by the Parliament. There is no constitutional vice in fixing the enrolment
fee to the extent it has been fixed by Parliament under the Act. The Bar Council, in the
instant case, was not permitted to recover such renewal fee from Advocates. It could
recover renewal fee only when authorised by an Act of Parliament.
According to Sec 25 of the Advocates Act, 1961, the application for admission as an
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advocate shall be made to the State Bar Council within whose jurisdiction the applicant
wishes to practice.
Reference of application to Enrolment Committee: Sec 26(1) of the said Act contains
the provision that a State Bar Council shall refer every application for admission as an
advocate to its enrolment committee, and subject to the provisions of sub-‐sections (2) and
(3) and to any direction that may be given in writing by the State Bar Council in this behalf,
such committee shall dispose of the application in the prescribed manner:
Provided that the Bar Council of India may, if satisfied, either on a reference made to it in
this behalf or otherwise, that any person has got his name entered on the roll of advocates
by misrepresentation as to an essential fact or by fraud or undue influence, remove the
name of such person from the roll of advocates after giving him an opportunity of being
heard.
Refusal of Application: Sec 26(2) Where the enrolment committee of a State Bar Council
proposes to refuse any such application, it shall refer the application for opinion to the Bar
Council of India and every such reference shall be accompanied by a statement of the
grounds in support of the refusal of the application.
Disposal of Application in conformity with Opinion of Bar Council of India: Sec 26(3)
The enrolment committee of a State Bar Council shall dispose of any application referred
to the Bar Council of India under subsection (2) in conformity with the opinion of the Bar
Council of India.
Communication of Refusal: Sec 26(4) Where the enrolment committee of a State Bar
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Council has refused any application for admission as an advocate on its roll, the State Bar
Council shall, as soon as may be, send intimation to all other State Bar Councils about
such refusal stating the name, address and qualifications of the person whose application
was refused and the grounds for the refusal.
Disqualifications for Enrolment: (Sec 24A) of the Advocates Act, 1961 lays down
certain conditions, the existence of which may disqualify a person from being enrolled as
an advocate as below –
(a) The person concerned should not be convicted of an offence involving moral
turpitude;
(b) The person concerned should not be convicted of an offence under the
provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);
(c) The person concerned should not be dismissed or removed from employment or
office under the State on any charge involving moral turpitude.
Provided that the disqualification for enrolment as aforesaid shall cease to have effect after
a period of 2 years has elapsed since his release or dismissal or, as the case may be,
removal.
The legislature, even at that stage does not appear to have thought of introducing a
statutory amendment to impose any ceiling limit based on the introduction of an upper age
to operate as a disqualifying factor against a person from getting enrolled into the State
rolls.
In the case of Sampath Kumar J Versus Bar Council of India (1995) before Madras
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High Court,
Facts: The rule which was the effect of putting an axe on the right of a person, who
otherwise eligible to be enrolled as an advocate has the consequence of substance,
prescribing disqualification. The prescription of an upper age with ceiling limit of 45 years
per se operates, as a permanent disqualification for a person otherwise entitled to get
enrolled as an advocate.
Held that: It may not be permissible for the Bar Council of India to superimpose a further
qualification by putting an upper age limit so as to disqualify or render ineligible a person,
though otherwise qualified from being enrolled merely on grounds of having reached a
particular maximum age limit prescribed under rules.
As per (Sec 26A) of the Advocates Act, 1961, a State Bar Council may remove from the
State roll the name of any advocate who is dead or from whom a request has been
received to that effect.
Enrolment of an Advocate: As per the (Section 22) of the Advocates Act, 1961, the
State Bar Council issues a certificate of enrolment. It is to be issued in the prescribed form
to every person whose name is entered in the State roll of advocates.
If there is any change in the place of permanent address of the advocate the same is to be
intimated to the State Bar Council within 90 days of such change. The enrolment as an
advocate cannot be denied to a law graduate, merely because he/she had undertaken
some other course of instruction during the time when he/she was studying in law classes
for a law degree.
29
It has been held by the Hon’ble Supreme Court of India in case reported in 1973, that Uttar
Pradesh State Legislature is competent to legislate and impose stamp duty on the
certificate of enrolment under (Sec 22) to be issued by the State Bar Council of Uttar
Pradesh.
Classes of Advocates: As per the Sec 16(1) of the Advocates Act, 1961, there are two
classes of advocates, namely Senior Advocates and Other Advocates. Sec 16(2) states
that, if the Supreme Court or a High Court is of the opinion that a particular advocate
possesses ability, standing at the Bar or special knowledge or experience in law, and if the
advocate concerned consents so, he/she may be designated as Senior Advocate.
Certain restrictions for Senior Advocates: According to Sec 16(3) of the Advocates Act,
1961 the Bar Council of India may prescribe certain restrictions in the matter of practice of
senior advocates. They are as below –
Ø An advocate who has been designated as senior advocate cannot file a
vakalatnama or act in any Court or Tribunal or before any person or authority as laid
down in Section 30 of the said Act.
Ø The senior advocate cannot directly appear before the Court or Tribunal or before
any person or authority mentioned in Section 30 of the said Act. He can appear only
through an advocate in Part-‐II of the State roll.
Ø The senior advocate can neither accept instructions to draft pleading or affidavits,
advice, on evidence, nor he can do any drafting work of an analogous kind in any
Court or Tribunal or before any person or authority as mentioned in Section 30, nor
30
can he undertake conveyance work of any kind.
Ø A senior advocate is free to make concessions or give undertaking in the course of
argument on behalf of his clients provided there are instructions from junior
advocate.
Ø A senior advocate is not free to directly accept from any client any brief instructions
for the purpose of appearing before any Court or Tribunal or before any person or
other authority in India.
Ø The advocate who has acted as a junior advocate in a given case cannot after his
becoming a senior advocate advises on grounds of appeal in a Court of appeal or in
the Supreme Court or an advocate in Part-‐II of the State roll.
Ø A senior advocate may in recognition of the services rendered by an advocate in
Part-‐II of the State roll appearing in any matter pay him a fee which he considers
reasonable.
Maintaining Roll of Advocates: Section 17(1) of the Advocates Act, 1961 states that the
Bar Council of every State has to prepare and maintain a roll of advocates where in the
names and addresses of the following persons are entered –
(a) all persons who were entered as advocates on the roll of any High Court under the
Indian Bar Councils Act, 1926 (38 of 1926), immediately before the appointed day
including persons, being citizens of India, who before the 15th day of August, 1947, were
enrolled as advocates under the said Act in any area which before the said date was
comprised within India as defined in the Government of India Act, 1935, and who at any
31
time express an intention in the prescribed manner to practise within the jurisdiction of the
Bar Council;
(b) all other persons who are admitted to be advocates on the roll of the State Bar Council
under this Act on or after the appointed day.
According to Sec 17(2) of the said Act, this roll of advocates is divided into 2 parts. The
first part is meant for the names of senior advocates and the second part is meant for the
names of other advocates.
According to Sec 17(4) of the said Act specifically provides that no person shall be
enrolled as advocate on the roll of more than one State Bar Councils.
The rules as regards to preparation and maintenance of the State roll are mentioned in
Chapter I of Part V of the Bar Council of India Rules as below –
1 (a) The Council may, from time to time, give directions as to the manner in which
the State Council shall prepare and maintain the rolls under Section 17 of the Act.
(b) The copies of the State rolls to be sent under Section 19 of the Act shall be in
Forms ‘B-‐1’ & ‘B-‐2’ and shall contain such further details as the Council may
specify.
2 Particulars of transfers under Sec 18 of the Act, cancellations directed under the
proviso to Sec 26(1) of the Act, punishments imposed by an order under Chapter V,
particulars as to result of appeals and relevant decisions of the Courts, and such other
matters which the Council may specifically direct, shall be noted in the said rolls.
3 Save as otherwise directed by the Council; no other particulars shall be entered in
32
the said rolls.
4 Every page of the roll shall bear the signature or a facsimile thereof, of the Secretary
or other person authorised by the State Council.
5 Authenticated copies of any additions or alterations made in the roll shall be sent to
the Council without delay.
Transfer of Name from One State Roll to another State Roll: According to Sec 18(1) of
Advocates Act, 1961, where the name of any person whose name is entered as an
advocate on the roll of any State Bar Council may make an application in the prescribed
form to the Bar Council of India for the transfer of his name from the roll of that State Bar
Council to the roll of any other State Bar Council and, on receipt of any such application
the Bar Council of India shall direct that the name of such person shall without the
payment of any fee, be removed from the roll of the first mentioned State Bar Council and
entered in the roll of the other State Bar Council and the State Bar Councils concerned
shall comply with such direction.
Provided that where any such application for transfer is made by a person against whom
any disciplinary proceeding is pending or where the Bar Council of India is of the view that
the application for transfer has not been made bonafide, and that the transfer should not
be made, the Bar Council of India may, after giving the person making the application an
opportunity of making a representation in this behalf, reject the application.
According to Sec 18(2) of Advocates Act, 1961, the transfer of name in no way affects the
seniority of the advocate, as the concerned advocate shall retain the same seniority in the
33
latter roll to which he was entitled in the former roll. It is to be noted that the advocate
applying has not to pay the fee of any kind for transferring of his name from one State roll
to another State roll.
The language of Sec 19 of the Advocates Act, 1961 lays down that every State Bar
Council shall send to the Bar Council of India an authenticated copy of the roll of
advocates prepared by it for the first time under this Act and shall also thereafter
communicate to the Bar Council of India all alterations in and any additions to such roll, as
soon as the same have been made.
The provision of Sec 20(1) of the said Act lays down that every advocate who was entitled
as of right to practise in the Supreme Court immediately before the appointed day and
whose name is not entered in any State roll may, within the prescribed time, express his
intention in the prescribed form to the Bar Council of India for the entry of his name in the
roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that
the name of such advocate shall, without payment of any fee, be entered in the roll of that
State Bar Council, and the State Bar Council concerned shall comply with such direction.
According to Sec 20(2) of the said Act, any entry in the State roll made in compliance with
the direction of the Bar Council of India is to be made in order of seniority. If an advocate
as is referred to in Sec 20 of the Advocates Act, 1961, omits or fails to express his
intention within the prescribed time, his/her name shall be entered in the roll of the State
Bar Council of India.
Advocates only recognised class of person entitled to practice law: The provisions of
34
Sec 29 of the Advocates Act, 1961, lays down that “subject to the provisions of this Act
and any rules made there under, there shall, as from the appointed day, be only one class
of persons, entitled to practice the profession law, namely advocates.
Right of Advocates to Practise: As per Sec 30, an advocate whose name is entered in
the State roll becomes entitled as of right to practise throughout the territories to which this
Act extends –
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any authority or person before whom such advocate is by or under any
law for the time being in force entitled to practise.
Appearance of Non-‐Advocate: Under Sec 32 of the Advocates Act, 1961 a discretionary
power is given to the Court to permit appearance to any non-‐advocate for a party. Sec 32
restricts the power of the Court to permit any non-‐advocate only to appear on behalf of the
party in any particular case.
In the instant case, the petitioner had not filed the petition in public interest and did not
disclose the circumstances which prevented the affected persons from approaching the
Court. In discharge of his professional obligations, the petitioner-‐advocate is not obliged to
file the writ petition on behalf of the clients. No circumstances were mentioned in the
petition which allegedly incapacitated the affected person from filing the writ petition. Sec
30 of the Advocates Act, 196 only entitles an advocate to practise the profession of law
and not to substitute himself in his own name, being not a part of the professional
35
obligation of the Advocate; the High Court was justified in dismissing the writ petition
holding that the petitioner-‐advocate had no locus standi.
Right to advocacy is a Statutory Right: It appears from the provisions of Secs 29 & 30
that the advocates have been conferred right to practise not only in all Courts including the
Supreme Court but also before any Tribunal or person legally authorised to take evidence
and also before any other authority or person before whom such advocate is by or under
any law for the time being entitled to practice. Therefore, the right of an advocate to
practise profession of law is statutory right and not a fundamental right.
A private person who is not an advocate and not a pleader enrolled, cannot be permitted
to argue and plead the case for a third party/person on the basis of attorney unless
permitted under special circumstances by the Court.
Power of Court to permit appearance of an individual: As regards the entitlement of an
individual to appear before the Court in a given case, Sec 32 of the Advocates Act, 1961
lays down that it is within the power of the Court, authority or person to permit any person
to appear before it or him in a particular case. The provisions confer a monopoly right of
pleading and practising law only on the enrolled advocates. A private person who is not an
advocate cannot or has no right to argue for a party. He/she must get the prior permission
of the Court for which motion must come from the party itself. It is open to the Court to
grant or withhold or withdraw permission in its discretion.
Right to Practise is different from Right of Appearance: Right to practise is different
from the right of appearance in a particular case. The right to practise is a right given to the
36
advocate to practise the profession of law before all Courts, Tribunals, authorities etc. The
right of appearance in a particular case depends upon the permission granted by the Court
under Sec 32 of the Advocates Act, 1961 which is an exception to the right of practise by
the advocates.
Permission once granted to appear may be withdrawn:
In the case of Harishankar Rastogi Versus Giridhari Sharma (1978)
Hon’ble Supreme Court held that a private person, who is not an advocate, has no right to
barge into the Court and claim to argue for a party. He must get the prior permission of the
Court, for which the motion must come from the party himself. It is open to the Court to
grant or withhold the permission in its discretion. In fact, the court may even after grant of
permission, withdraw it halfway through if the representative proves himself reprehensible.
The antecedents, the relationship, the reason for requisitioning the services of the private
person and a variety of the other circumstances must be gathered before the grant or
refusal of permission.
Advocates alone entitled to Practise: As per Sec 33 of Advocates Act, 1961 it is clear in
language laying down that “except as otherwise provided in this Act or in any other law for
the time being in force, no person shall on or after the appointed day, be entitled to
practise in any Court or before any authority or person unless he/she is enrolled as an
advocate under the said Act”.
A recognised representative cannot claim to appear as of right. Previous permission of
Court is necessary. There is no warrant whatsoever to place a recognised agent holding a
37
general power of attorney to take proceedings in Courts in the same position as an
advocate to whom a vakalatnama has been given.
The legal capacity of an advocate to practise the profession of law in Court and his
competency to act in Court for his client are not derived from any contract but from his
legally recognised status as an advocate. On account of his status, his duties are threefold
– to the client, to the Court, and to the public.
The expression “practise” clearly contemplates practising as a profession for gain. That
neither precludes a party in person in Court to argue his own case or appoint an agent
who is acceptable to the Court to present his cases other than a lawyer. Prohibition is to
practise as a profession and not for mere appearance in an isolated case.
The right of the advocates to practise in all Courts including Supreme Court as of right is
always subject to the rule making power of the High Court laying down conditions subject
to which an advocate shall be permitted to practise in the High Courts and the Courts
subordinate thereto.
38
An Advocate is regarded as an officer of the Court and is a part and parcel of a Court. He
must always respect and co-‐operate with the proceedings of the Court.
An Advocate must always respect the Court and follow 'Professional Ethics'.
Abbort Pary, LJ has formulated seven essential features and characteristics for advocacy.
These characteristics of an advocate are called the Seven Lamps of Advocacy.
A Judge is always considered Superior to an advocate because he represents the Justice.
Most Courts provide a Chamber for Advocates in the Court premises. An Allotment
Committee will generally be formed for the purpose.
The Right to Practice is a Fundamental Right guaranteed under Article 19(1) (g) of the
Constitution of India. However, Allotment of Chamber is neither a fundamental right nor a
statutory right for Advocates but is a customary practice followed to foster the Bar-‐Bench
Relations.
An Advocate can reject taking up a case citing it is not in the domain of his specialty.
However a Judge cannot reject a case that comes to him citing lack of knowledge in the
specialization of the case.
Advocates cannot wear bands or gowns in public places except in the Court premises and in
such ceremonial occasions and at places as prescribed by the Court or Bar Council.
• Advocates in India have to follow the rules and regulations prescribed the Bar Council of
India.
39
• Advocate has to pay the prescribed fee with the State Bar Council
Being an Advocate is a full time profession. Hence, many countries prohibit Advocates from
entering / running businesses or managing companies or being into a full-‐time salaried
employment
Advocate's Office
• An Advocate's Office is considered a public office in the sense that any person can
meet him and seek Legal help and advice.
• The Office should be adequately staffed.
• The Office should have a Library with Books and latest Journals and Computer
facility, preferably with internet access facility.
• Good Chamber is necessary so that he may have reasonable contact with the
Clients.
In some cases, Advocate goes unethical and does certain acts that cause delay for the
Courts to clear the cases:
• Filing of frivolous petitions

• Unnecessary litigation
• Harassing the opposite parties
• Squeezing abnormal fee from client
• Shows large files and tells the client that they are still pending
• Says he couldn't get time being busy with a large case
• Different Courts are located at different places
• Negligence and indifference
• Ill-‐health of the advocate client/other party/witness etc

In India, the law relating to the Advocates is the Advocates Act, 1961 introduced and
thought up by Ashoke Kumar Sen, the then Law Minister of India, which is a Law passed by
the Parliament and is administered and enforced by the Bar Council of India. Under the Act,
the Bar Council of India is the supreme regulatory body to regulate the legal profession in
India and also to ensure the compliance of the laws and maintenance of professional
standards by the legal profession in the country. For this purpose, the Bar Council of India is
authorized to pass regulations and make orders in individual cases and also generally.
40
Each State has a Bar Council of its own whose function is to enroll the Advocates willing to
practice predominately within the territorial confines of that State and to perform the
functions of the Bar Council of India within the territory assigned to them. Therefore each
law degree holder must be enrolled with a (single) State Bar Council to practice in India.
However, enrollment with any State Bar Council does not restrict the Advocate from
appearing before any court in India, even though it is beyond the territorial jurisdiction of
the State Bar Council which he is enrolled in.
The advantage with having the State Bar Councils is that the work load of the Bar Council of
India can be divided into these various State Bar Councils and also that matters can be dealt
with locally and in an expedited manner. However for all practical and legal purposes, the
Bar Council of India retains with it the final power to take decisions in any and all matters
related to the legal profession on the whole or with respect to any Advocate individually, as
so provided under the Advocates Act, 1961.
The process for being entitled to practice in India is twofold. First, the applicant must be a
holder of a Law Degree from a recognized institution in India (or from one of the four
recognized Universities in the United Kingdom) and second, must pass the enrollment
qualifications of the Bar Council of the state where he/she seeks to be enrolled. For this
purpose, the Bar Council of India has an internal Committee whose function is to supervise
and examine the various institutions conferring law degrees and to grant recognition to
these institutions once they meet the required standards. In this manner the Bar Council of
India also ensures the standard of education required for practicing in India are met with.
As regards the qualification for enrollment with the State Bar Council, while the actual
formalities may vary from one State to another, yet predominately they ensure that the
application has not been a bankrupt/criminal and is generally fit to practice before Courts of
India.
Enrollment with a Bar Council also means that the Law Degree holder is recognized as an
Advocate and is required to maintain standards of Conduct and Professional demeanor at
all times, both on and off the profession. The Bar Council of India also prescribes "Rules of
Conduct" to be observed the Advocates in the Courts, while interacting with Clients and
even otherwise.
All Advocates in India are at the same level and are recognized as such. Any distinction, if
any, is made only on the basis of Seniority, which implies the length of practice at the Bar.
As recognition of Law Practice and specialization in an area of Law, there is a concept of
conferral of Senior Advocate status. An Advocate may be recognized by the Judges of the
41
High Court (in case of an Advocate practicing before that High Court) or by the Supreme
Court (in case of the Advocate practicing before the Supreme Court). While the conferral of
Senior Advocate status not only implies distinction and fame of the Advocate, it also
requires the Senior Advocate to follow higher standards of conduct and some distinct rules.
Also, a Senior Advocate is not allowed to interact directly with the Clients. He can only take
briefs from other Advocates and argue on the basis of the details given by them. From the
year 2010 onwards a mandatory rule is made for Lawyers passing out from the year 2009-‐
10 to sit for an evaluation test named AIBE (All India Bar Exam) for one to qualify as an
Advocate and Practice in the Courts.
Further, under the Constitutional structure, there is a provision for elevation of Advocates
as Judges of High Courts and Supreme Court. The only requirement is the Advocate must
have a ten years standing before the High Court (/s) or before the Supreme Court to be
eligible for such. (Article 217 and 124 of the Constitution of India for High Courts and
Supreme Court respectively)
CHAPTER III (Advocates Act, 1961)

ADMISSION AND ENROLMENT OF ADVOCATES
Section 16 Senior and other
16-‐1 There shall be two classes of advocates, namely, senior advocates and other advocates.
16-‐2 An advocate may, with his consent, be designated as senior advocate if the Supreme
Court or a High Court is of opinion that by virtue of his ability 1[standing at the Bar or special
knowledge or experience in law] he is deserving of such distinction.
16-‐3 Senior advocates, shall in the matter of their practice, be subject to such restrictions as
the Bar Council of India may, in the interest of the legal profession, prescribe.
16-‐4 An advocate of the Supreme Court who was a senior advocate of that Court
immediately before the appointed day shall, for the purposes of this section, be deemed to
be a senior advocate:
2
[Provided that where any such senior advocate makes an application before the 31st
December, 1965, to the Bar Council maintaining the roll in which his name has been
entered that he does not desire to continue as a senior advocate, the Bar Council may grant
the application and the roll shall be altered accordingly].
42
1. Subs. By Act No. 60 of 1993, for the words “experience and standing at the
Bar.”
2. Ins. By Act No. 21 of 1964.
Section 17 State Bar Councils to maintain roll of Advocates
17-‐1 Every State Bar Council, shall prepare and maintain a roll of advocates in which shall be
entered the names and addresses of-‐
(a) All persons who were entered as advocates on the roll of any High Court
under the Indian Bar Councils Act, 1926 (38 of 1926) immediately before
the appointed day 1[including persons, being citizens of India, who before
the 15th day of August, 1947, were enrolled as advocates under the said
Act in any area which before the said date was comprised within India as
defined in the Government of India Act, 1935, and who at any time]
express an intention in the prescribed manner to practice within the
jurisdiction of the Bar Council;

(b) All other persons who are admitted to be advocates on the roll of the
State Bar Council under this Act on or after the appointed day.
17-‐2 Each such roll of advocates shall consist of two parts, the first part containing the
names of senior advocates and the second part, the names of other advocates.

17-‐3 Entries in each part of the roll of advocates prepared and maintained by a State Bar
Council under this section shall be in the order of seniority, 2[and, subject to any rule that
may be made by the Bar Council of India in this behalf, such seniority shall be determined)
as follows: -‐

(a) The seniority of an advocate referred to in clause (a) sub-‐section (1) shall
be determined in accordance with his date of enrollment under the
Indian Bar Council Act, 1926 (38 of 1926);

(b) The seniority of any person who was a senior advocate of the Supreme
Court immediately before, the appointed day shall, for the purposes of
the first part of the State roll, be determined in accordance with such
principles as the Bar Council of India may specify;

43
3[(c) ***]
(c) The seniority of any other person who, on or after the appointed day, is
enrolled as a senior advocate or is admitted as an advocate shall be
determined by the date of such enrolment or admission, as the case may
be.
(d) 4[(e) Notwithstanding anything contained in clause (a), the seniority of an
attorney enrolled [whether before or after the commencement of the
Advocates (Amendment) Act, 1980] as an advocate shall be determined
in accordance with the date of his enrolment as an attorney]
17-‐4 No person shall be enrolled as an advocate on the roll of more than one State Bar
Council.
1. Subs. By Act No. 60 of 1993, for the words “experience and standing at the
Bar.”
2. Subs. By Act 21 of 1964, for the words “and, such seniority shall be
determined”.
3. Omitted by Act 60 of 1973
4. Ins. By Act 47 of 1980
Section 18 Transfer of name from one State roll to another
18-‐1 Notwithstanding anything contained in Section 17, any person whose name is entered
as an advocate on the roll of any State Bar Council may make in application in the
prescribed from to the Bar Council of India for the transfer of his name from the roll of that
State Bar Council to the roll of any other State Bar Council and, on receipt of any such
application the Bar Council of India shall direct that name of such person shall without the
entered in the roll of the other State Bar Council and the State Bar Councils concerned shall
comply with such direction:
1
[Provided that where any application for transfer is made by a person against whom any
disciplinary proceeding is pending or where for any other reason it appears to the Bar
44
Council of India that the application for transfer has not been. Made bona fide and that the
transfer should not be made, the Bar Council of India may, after giving the person making
the application an opportunity of making representation in this behalf, reject the
application.]
18-‐2 For the removal of doubts it is hereby declared that where on an application made by
an advocate under sub-‐section (1), his name is transferred from the roll of one State Bar
Council to that of another, he shall retain the same seniority in the latter roll to which he
was entitled in the former roll.
1. Ins. By Act 21 of 1964
Section 19 State Bar Councils to send copies of rolls of advocates to the Bar Council of India
Every State Bar Council shall send to the Bar Council of India an authenticated copy of the
roll of advocates prepared by it for the first time under this Act and shall thereafter
communicate to the Bar Council of India all alterations in, the addition to, any such roll, as
Section 20 Special provision for enrolment of certain Supreme Court Advocates
20-‐1 Notwithstanding anything contained in this Chapter, every advocate who is entitled as
of right to practice in the Supreme, Court immediately before the appointed day and whose
name is not entered in any State roll may, within the prescribed time, express his intention
in the prescribed form to the Bar Council of India for the entry of his name in the roll of a
State Bar Council and on receipt thereof the Bar Council of India shall direct that the name
of such advocate shall, without payment of any fee, be entered in the roll of that State Bar
Council, and the State bar Council concerned shall comply with such direction.
20-‐2 Any entry in the State roll made in compliance with the direction of Bar Council of India under
sub-‐section (1) shall be made in the order of seniority determined in accordance with the provisions
of sub-‐section (3) of Section 17.
20-‐3 Where an advocate referred to in sub-‐section (1) omits or fails to express his intention within
the prescribed time, his name shall be entered in the roll of the State Bar Council of Delhi.]
45
1. Subs. By Act No. 60 of 1973
Section 21 Disputes regarding seniority
21-‐1 Where the date of seniority of two or more persons is the same, the one senior in age shall be
reckoned as senior to the other.
1
21-‐2 Subject as aforesaid, if any dispute arises with respect to the seniority of any person, it
shall be referred to the State Bar Council concerned for decision.]
Section 22 Certificate of enrolment
22-‐1 There shall be issued a certificate of enrolment in the prescribed form by the State Bar
Council of every person whose name is entered in the roll of advocates maintained by it under this
Act.
22-‐2 Every person whose name is so entered in the State roll shall notify any change in the
place of his permanent residence to the State Bar Council concerned within ninety days of
such change.]
Section 23 Right of pre-‐audience
23-‐1 The Attorney General of India shall have pre-‐audience over all other advocates.
23-‐2 Subject to the provisions of sub-‐section (1), the Solicitor-‐General of India shall have
pre-‐audience over all other advocates.

23-‐3 Subject to the provisions of sub-‐sections (1) and (2), the Additional Solicitor-‐General of
India shall have pre-‐audience over all other advocates.
123-‐3A Subject to the provisions of sub-‐sections (1), (2) and (3), the second Additional
Solicitor-‐General of India shall have pre-‐audience over all other advocates.]
46
23-‐4 Subject to the provisions of sub-‐section (1), 1[(2), (3) and (3A)] the Advocate General of
any State shall have pre-‐audience over all other advocates, and, the right of pre-‐audience
among Advocates-‐General inter se shall be determined by their respective seniority.
23-‐5 Subject as aforesaid-‐
(i) Senior advocates shall have pre-‐audience over other advocates; and
(ii) The right of pre-‐audience over senior advocates inter se and other advocates
inter se shall be determined by their respective seniority.
1. Ins. By Act No. 47 of 1980
Section 24 Persons who may be adopted as advocates on a State roll
24-‐1 Subject to the provisions of this Act, and the rules made there under, a person shall be
qualified to be admitted as an advocate on a State roll, if he fulfills the following conditions,
namely: -‐
24-‐1 (a) He is a citizen of India:
Provided that subject to the other provisions contained in this Act, a national of any other
country may be admitted as an advocate on a State roll, if citizens of India, duly qualified,
are permitted to practise law in that other country;
24-‐1 (b) He has completed the age of twenty-‐one years;
24-‐1 (c) He has obtained a degree in law-‐
(i) Before the 1[12th day of March, 19671 from any University, in the territory of
India; or
(ii) Before the 15th of August, 1947, from any University in any area which was
comprised before that date within India as defined by the Government of India Act, 1935; or
2
[(iii) After the 12th day of March, 1967, save as provided in sub-‐clause (iii) After
undergoing a three years course of study in law from any University in India which is
47
(iiia) After undergoing a course of study in law, the duration of which is not less than
two academic years commencing from the academic year 1967-‐68 or any earlier academic
year from any University in India which is recognised for the purposes of this Act by the Bar
Council of India; or]
2
[He is a barrister and is called to the Bar on or before the 31st day of December, 1976 3[or
has passed the articled clerks’ examination or any other examination specified by the High
Court at Bombay or Calcutta for enrolment as an attorney of that High Court;] or has
obtained such other foreign qualification in law as is recognised by the Bar Council of India
for the purpose of admission as an advocate under this Act]:
4
(iv) In any other case, from any University outside the territory of India, if the
degree is recognised ‘for the purpose of this Act by the Bar Council of India] or;
5
[(d) * * *]
(e) He fulfills such other conditions as may be specified in the rules made the State
bar Council under this Chapter;
2
[(f) He has paid, in respect of the enrolment, stamp duty, if any, chargeable under
the Indian Stamp Act 1899, and an enrolment fee payable to the State Bar Council of 6[six
hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a
bank draft drawn in favour of that Council]:
If where such person is a member of the Scheduled Castes or the Scheduled Tribes and
produces a certificate to the effect from such authority as may be –scribed, the enrolment
fee payable by him to the State Bar Council shall be 6[one hundred rupees and to the Bar
Council of India, twenty-‐five rupees].
7
[Explanation –For the purposes of this sub-‐section, a person shall be deemed to have
obtained a degree in law from a University in India on the date on which the results of the
examination for that degree are published by the University on its notice-‐board or
otherwise declaring him to have passed that examination].
24-‐2 Notwithstanding anything contained in subsection (1) 8[a Vakil or a pleader who is a
law graduate] may be admitted as an advocate on a State roll, if he
48
(a) Makes an application for such enrolment in accordance with the revisions of this
Act, not later than two years from the appointed, day, and
(b) Fulfills the conditions specified in clauses (a), (b) and (f) of subsection (1)
9
[(3) Notwithstanding anything contained in subsection (1) a person who-‐
(a) 10[* * *] has, for at least three years, been a vakil or a pleader or a mukhtar or
was entitled at any time to be enrolled under any law 7[* * *] as an advocate of a
High Court (including a High Court of a former Part B State) or of a Court of Judicial
Commissioner in any Union territory; or
11
[(aa) Before the 1st day of December, 1961, was entitled otherwise than as an
advocate to practise the profession of law (whether by way of pleading or acting or
both) by virtue of the provisions of any law, or who would have been so entitled had
he not been in public service on the said date; or]
12[(b) * * *]
(c) Before the 1st day of April, 1937, has been an advocate of any High Court in any
area which was comprised within Burma as defined in the Government of India Act,
1935-‐, or
(d) Is entitled to be enrolled as an advocate under any rule made by the Bar
(e) Council of India in this behalf, may be admitted as an advocate on a State roll if
he-‐
(i) Makes an application for such enrolment in accordance with the provisions of this
Act; and
(ii) Fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-‐section
13
[(4) * * *]
2. Subs. By Act No. 60 of 1973.
49
3. Ins. By Act No. 107 of 1976.
5. Omitted by Act No. 60 of 1973.
10. Certain words omitted by Act No. 33 of 1968.
12. Omitted by Act No. 60 of 1973
13. Omitted by Act No. 107 of 1976
Section 24A Disqualification for enrolment
24-‐1A No person shall be admitted as an advocate on a State roll-‐
(a) If he is convicted of an offence involving moral turpitude;
(b) If he is convicted of an offence under the provisions of the Untouchables (Offences) Act,
1955;
2(c) If he is dismissed or removed from employment or office under the State on any
charge involving moral turpitude.
Explanation. –In this clause, the expression ‘State’ shall have the meaning assigned to it
under article 12 of the Constitution:]
If the disqualification for enrolment as afore said shall cease to have effect after a period of
two years has elapsed since his 3[release or dismissal or, as the case may be, removal.]
50
24-‐2A Nothing contained in sub-‐section (1) shall apply to a person who having been found guilty is
dealt with under the provision of the Probation of Offenders Act, 1958 (20 of 1958).
1. Certain words omitted by Act No. 33 of 1968.
Section 25 Authority to whom applications for enrolment may be made
An application for admission as an advocate shall be made in the prescribed form to the
State Bar Council within whose jurisdiction the applicant proposes to practise.
Section 26 Disposal of an application for admission as an Advocate
26-‐1 State Bar Council shall refer every application for admission as an advocate to its
enrolment committee, and subject to the provisions of sub-‐section (2) and (3), 1[and to any
direction that may be given in writing by the State Bar Council in this behalf] such
committee shall dispose of the application in the prescribed manner:
2
[Provided that the Bar Council of India may, if satisfied, either on a reference made to it in
heard.]
26-‐2 Where the enrolment committee of State Bar Council proposes to refuse any such application,
it shall refer the application for opinion to the Bar Council of India and every such reference shall be
accompanied by a statement of the grounds in support of the refusal of the application.
26-‐3 The enrolment committee of State Bar Council shall dispose of any application referred to the
Bar Council of India under sub-‐section (2) in conformity with the opinion of the Bar Council of India.
2
26-‐4 Where the enrolment committee of a State Bar Council has refused any application for
admission as an advocate on its roll, the State Bar Council shall as soon as may be, send
intimation to all other State Bar Councils about such refusal stating the name, address and
qualifications of the person whose application was refused and the grounds for the refusal.]
51
1. Ins. By Act 21 No. of 1964
2. AddedbyActNo.21of l964.
Section 26A Power to remove names from roll
A State Bar Council may remove from the State roll the name of any advocate who is dead
or from whom a request has been received to that effect.)

1. Subs. by Act No. 60 of 1973.

Section 27 Application once refused not to be entertained by another Bar Council except
in certain circumstances

Where a State Bar Council has refused the application of any person for admission as an
advocate on its roll, no other State Bar Council shall entertain an application for admission
of such person as an advocate on its roll, except with the previous consent in writing of the
State Bar Council which refused the application and of the Bar Council of India.

Section 28 Power to make rules
28-‐1 A State Bar Council may make rules to carry out the purposes of this Chapter.
28-‐2 In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for-‐
1
[(a) The time within which and form in which an advocate shall express his intention
2
for the entry of his name in the roll of a State bar Council under Section 20;] [(b) * * *]
(c) The form in which an application shall be made to the Bar Council for admission
as an advocate on its roll and the manner in which such application shall be disposed of by
the enrolment committee of the Bar Council;
(d) The conditions subject to which a person may be admitted as an advocate on any
such roll:
(e) The instilments in which the enrolment fee may be paid.
52
28-‐3 No rules made under this Chapter shall have effect unless the Bar Council of India has
approved them.
CHAPTER IV
RIGHTS TO PRACTISE (Advocates Act, 1961)

Section 29 Advocates to be the only recognised class of persons entitled to practice law

Subject to the provisions of this Act and any rules made there under, there shall, as from the
appointed day, be only one class of persons entitled to practise the profession of law,
namely, advocates.

Section 30 Right of advocates to practise
30-‐1 Subject to provisions of this Act, every advocate whose name is entered in the 1[State
roll] shall be entitled as of right to practise throughout the territories to which this Act
extends, -‐

(i) In all Courts including the Supreme Court;
(ii) Before any tribunal or person legally authorised to take evidence; and
(iii) Before any other authority or person before whom such advocate is by or under
any law for the time being in force entitled to practice.

1. Subs. By Act 60 No. Of 1973 for “common roll”.

Section [31. * * *]
53

Section 32 Power of Court to permit appearances in particular cases
Notwithstanding anything contained in this Chapter, any court, authority, or person may
permit any person, not enrolled as an advocate under this Act, to appear before it or him in
any particular case.
Section 33 Advocates alone entitle to practise
Except as otherwise provided in this Act or in any other law for the time being in force, no
person shall, on of after the appointed day, be entitled to practise in any court or before any
authority or person unless he is enrolled as an advocate under this Act.
Section 34 Power of High Courts to make rules
34-‐1 The High Court may make rules laying down the conditions subject to which an advocate shall
be permitted to practise in the High Court and the courts subordinate thereto.
1
34-‐1A The High Court shall make rules for fixing and regulating by taxation or otherwise the
fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all
proceedings in the High Court or in any Court subordinate thereto.
2
34-‐2 Without prejudice to the provisions contained in sub-‐section (1), the High Court at
Calcutta may make rules providing for the holding of the Intermediate and the Final
examinations for articled clerks to be passed by the persons referred to in Section 58 AG for
the purpose of being admitted as advocates on the State roll and any other matter
connected therewith.]
3
[34-‐3 * * *]

54

Related Cases / Recent Cases / Case Laws

R Vs Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1, UK Supreme
Court, January 2013: Legal advice privilege should not be extended to communications in
connection with advice given by professional people other than lawyers, even where that advice is
legal advice which that professional person is qualified to give.

Central Bureau of Investigation, Hyderabad Vs K Narayana Rao: A lawyer does not tell his client
that he shall win the case in all circumstances... a professional may be held liable for negligence on
one of the two findings, viz., either he was not possessed of the requisite skill which he professed to
have possessed, or, he did not exercise, with reasonable competence in the given case, the skill
which he did possess.
..it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is
the lawyer’s responsibility to act in a manner that would best advance the interest of the client.
Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal
prosecution, particularly, in the absence of tangible evidence that he associated with other
conspirators.

55
Deepak Aggarwal Vs Keshav Kaushik and Others, Civil Appeal Jurisdiction, Civil Appeal No. 469 OF
2013, Supreme Court of India Judgement dated January 21, 2013: Vinay Balachandra Joshi Vs
Registrar General, Supreme Court of India (1998) 7 SCC 461: .. It would be a matter of discretion of
the Principal Judge of the Court to decide to whom and to what extent that facility should be
extended when the same is available... It would be for him to decide when, to whom, to what extent
and on what terms and conditions he should allot Chambers.

C Ravichandran Iyer Vs Justice AM Bhattacharjee (1995) 5 SCC 457: The Supreme Court discussed
at length and has laid down several principle and guidelines in regard to Bar-‐Bench relations.

UP Sales Tax Service Association Vs Taxation Bar Association (1995) 5 SCC 716: The appearance of
an Advocate before a tribunal carrying his licensed revolver is condemned by the Supreme Court.
The act is considered inconsistent with dignity of the Court. The Supreme Court advised Advocates
to be equipped with law and precedents but not with firearms.

Satyendra Narain Singh and others Vs Ram Nath Singh and others, AIR 1984 SC 1755: When a case
of a Advocate Son came before a Judge Father, the Advocate-‐Son withdrew from the case. The
Supreme Court felt that the Advocate son, rather than the judge father, withdraws from the case.

P G Gupta Vs Ram Murti (1997) 7 SCC 147 In the matter of Madhav Singh, AIR 1923 Pat 185:
Advocates and pleaders are enrolled not only for the purpose of rendering assistance to the Courts
in the administration of Justice but also for giving Professional Advice to their Clients for which they
are paid by those members of the public who require their services.

In the matter of Babu Diwakar Prasad Mithal, AIR 1924 All 253: Advocates are agents, not of their
Client who pay them, but are acting in the administration of Justice.
INTRODUCTION
Rule of Law is the basic principle of governance of any civilized and democratic society.
The principle asserts supremacy of law bringing under its purview everyone,
individuals and institutions at par without any subjective discretion. It connotes the
meaning that, “Whoever the person may be, however High he or she is, no one is above
the law notwithstanding how powerful and how rich he or she may be.” There can be no
Rule of Law unless the bulwark of that grand concept “the Court of Justice” are kept
alive at institutions breathing freedom, openness and justice. No society can exist
without laws and laws have no meaning, if they cannot be enforced. It is through the
Courts that the rule of law reveals its meaningful content. The Indian Constitution is
56
based upon the concept of Rule of Law and for achieving this cherished goal, the
framers of Indian Constitution has assigned the special task to the judiciary. The
judiciary is the guardian of the Rule of Law. Hence judiciary is not the third pillar but
the central pillar of the democratic state. An independent or impartial Judiciary is the
sine qua non of a healthy society. It is the last resort for the common people of a country,
as they repose their ultimate faith in it to get justice. Therefore, it is essential for the
Judiciary to be protected from all sorts of evil likely to affect the administration of
justice. For better protection and preservation of prestige and dignity of the courts, the
law on contempt of court has evolved. So, broadly speaking, this law helps the courts in
discharging justice keeping its stand supreme in the eye of society. Actually this law
aims at ensuring the administration of justice by courts in the society.

The essence of contempt is action or inaction amounting to an interference with or
obstruction to or having a tendency to interfere with or to obstruct the due
Administration of Justice. Lowering the dignity of the court or shaking confidence of the
public in it is undoubtedly reprehensible. But if general remarks impugning the
independence of a court are made, such remarks can tend to interfere with or obstruct
the administration only indirectly and remotely. In such cases there can be no warrant
for the exercise of the extraordinary powers which the courts possess to deal with
contempt. The power to punish for contempt any one who interferes with the
Administration of Justice is an inherent power vested in the judiciary.

The law of contempt is based on the sound public confidence in the administration of
justice. The purpose of contempt jurisdiction is to uphold the majesty and dignity of law
courts and their image in the minds of the public at large. The object of the discipline
enforced by the court in case of contempt of court is not to vindicate the dignity of the
57
court or of the judge but to prevent undue interference with the administration of
justice.
DEFINING CONTEMPT OF COURT

The Contempt of Courts Act, 1971 defines “contempt of court” for the first time. Before
it, there was no statutory definition of the concept, “Contempt of Court”. Even the
definition of contempt of court given in the Contempt of Courts Act, 1971, is not a
definition, but only the classification or categories of Contempt of Courts, Actually, it is
very difficult to define the concept, “Contempt of Court”. What would offend the dignity
of the Court and lower the Court’s prestige is a matter for the Court to determine and it
cannot be confined with the four walls of a definition (State of Bihar vs. Shree Kuber
Nand Kishore Singh, 1986 PLR 933; Ahmed Ali vs Supdt. Dist. Jail Tezpur, 1987 Cr LJ 1845).

In the opinion of Oswald contempt of Court may be said to be constituted by any
conduct that tends to bring the authority and administration of law into disrespect or
disregard or to interfere with or prejudice parties, litigation or their witnesses during
the litigation.

In Halsbury’s it has been defined as “Any act done or writing published which is
calculated to bring a Court or Judge into contempt or to lower his authority or to
interfere with the due course of justice or the lawful process of the Court is Contempt of
Court”

According to Section 2(a) of the Contempt of Courts Act, 1971 “contempt of Court”
means Civil Contempt or Criminal Contempt. Section 2(b) of the Act provides that “civil
contempt” means willful disobedience to any judgment, decree, direction, order, writ or
other process of a Court or willful breach of an undertaking given to a Court. Section
58
2(c) of the Act provides that “Criminal Contempt” means the publication (whether by
words, spoken or written or by signs or by visible representations or otherwise) of any
matter or the doing of any other act whatsoever which :-‐
(i) scandalizes or tends to scandalize or lowers or tends to lower, the authority of,
any Court, or
(ii) prejudices or interferes or tends to interfere with the due course of any judicial
proceeding or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the
administration of justice in any manner

The above definition contained in the Contempt of Courts Act, 1971 is not exhaustive. It
merely indicates that the contempt may be civil contempt or criminal contempt.
Actually the Contempt of Court cannot be defined exhaustively. It, is, thus better to leave
it to the court to deal with each case as it comes and a right of appeal in all cases of
contempt will cure whatever defect there may be in the application of law.

NATURE AND EXTENT OF PUNISHMENT
Section 12 of the Contempt of Courts Act, 1971 makes provision in respect of
punishment for contempt of court. The provisions of Section 12 are as follows:

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of
Court may be punished with simple imprisonment for a term which may extend to six
months, or with fine which may extend to two thousand rupees, or with both: Provided
that the accused may be discharged or the punishment awarded may be remitted on
apology being made to the satisfaction of the Court.

Explanation -‐
59
An apology shall not be rejected merely on the ground that it is qualified or conditional
if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no Court
shall impose a sentence in excess of that specified in sub section for any contempt either
in respect of itself or of a Court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty
of a civil contempt, the Court, if it considers that a fine will not meet the ends of justice
and that a sentence of imprisonment is necessary shall, instead of sentencing him to
simple imprisonment, direct that the he be detained in a civil prison for such period not
exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of Court in respect of any undertaking
given to a Court is a company, every person who, at the time the contempt was
committed, was in charge of, and was responsible to, the company for the conduct of
business of the company, as well as the company, shall be deemed to be guilty of the
contempt and the punishment may be enforced, with the leave of the Court, by the
detention in civil prison of each such person : Provided that nothing contained in this
sub section shall render any such person liable to such punishment if he proves that the
contempt was committed without his knowledge or that he exercised all due diligence
to prevent its commission.

(5) Notwithstanding anything contained in sub section (4) where the contempt of Court
referred to therein has been committed by a company and it is provided that the
contempt has been committed with the consent or connivance of, or is attributable to
any neglect on the part of, any director, manger, secretary or other officer of the
60
company, such director, manager, secretary or other officer shall also be deemed to be
guilty of the be contempt and the punishment may be enforced, with the leave of the
Court, by the detention in civil prison of such director, manager, secretary or other
officer.

Explanation -‐ For the purpose of sub sections (4) and (5) -‐
(a) 'Company' means anybody corporate and includes a firm or other association of
individuals, and
(b) 'Director' in relation to a firm, means a partner in the firm.

Ordinarily the punishment prescribed under the Act is simple imprisonment for a term
which may extend to six months or with fine which may extend to two thousand rupees
or with both. There is a proviso appended to Section 12 which provides that the accused
may be discharged or the punishment awarded may be remitted on apology being made
to the satisfaction of the Court (Section 12(1) of the Contempt of Courts Act, 1971). The
apology shall not be rejected merely on the ground that it is qualified or conditional if
the accused makes it bona fide (Explanation to Section 12(1) of the Contempt of Courts
Act, 1971 ). Previously apology if conditional was not accepted. Now the law has been
amended by this provision which says that an apology shall not be rejected merely
because it is conditional. This was necessary because often it was felt that the alleged
contemnor was convinced that he had not committed any contempt of court, and yet he
did not want to contest the finding to the contrary given by the court. In such
circumstances, if the contemnor explained his point of view and then submitted that if
the court was of the opinion that contempt was committed, he apologized. Similarly,
many other situations could arise in which conditional apology was offered.

61
Now the position is made clear that apology will not be rejected for the simple reason of
being conditional. Facts have to be examined before the same can be rejected. Another
important feature of the section is that in civil contempt’s, sentence of imprisonment is
to be inflicted only when it is considered that sentence of fine will not meet ends of
justice. Corporations have also been declared as capable of being punished.

Sometimes personal considerations affect the award of punishment under contempt
matters. In Hoshiam Shavaksha Dolikuka v. Thrity Hoshie Dolkuka (1982, 2 SCC 577
at p. 582), the Court felt that imposition of any kind of punishment on the father for
whom daughter has a lot of affection is likely to upset her and cause her mental distress.
In the unfortunate and acrimonious dispute between the husband and the wife, the
main concern in the instant case has been the welfare of the child. Only taking into
consideration the fact that the welfare of the child is likely to be affected, the court was
of the opinion that under the present circumstances and in the situation now prevailing
one should let off the father with a reprimand and a warning, although he has been
rightly found guilty of having committed contempt of court by the Bombay High Court,
in the hope that the appellant in future will not do any such act as may constitute
contempt of court and will try to serve the cause of welfare of the minor daughter by
carrying out the directions given by the court.

The Supreme Court in R. K. Garg v. State of H.P. (1981, 3 SCC 166 at p. 167), held that
the contemner had suffered enough in mind and reputation and no greater purpose was
going to be served by subjecting the contemner to a long bodily suffering. The
punishment in this case was reduced to one month imprisonment from six months
whereas the fine was enhanced from Rs. 200/-‐ to Rs. 1000/-‐.

62
In Zahira Habibullah Sheikh V. State of Gujarat (AIR 1998 SC 1895), the Supreme
Court has observed that the Parliament by virtue of Entry 77 of List I is competent to
enact a law relating to the powers of the Supreme Court with regard to contempt of
itself and such a law may prescribe the nature of punishment which may be imposed on
a contemner by virtue of Article 129 read with Article 142 (2) of the Constitution. Since
now law has been enacted by Parliament, the nature of punishment prescribed under
the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the
extent of punishment as prescribed under that Act can apply only to the High Court
because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the
Supreme Court except that Section 15 prescribes procedural mode for taking
cognizance of the criminal contempt by the Supreme Court also. Section 15 is not a
substantive provision conferring contempt jurisdiction.

(i) Meaning of Apology
According to the Oxford Pocket Dictionary of Current English the term apology means a
regretful acknowledgment of an offense or failure.

As stated earlier the accused or contemner may be discharged or the punishment
awarded may be remitted on apology being made to the satisfaction of the court. But in
serious matters the apology cannot be accepted. Where statements were an intentional
assault on the integrity and impartiality of a learned Judge of High Court and on the fair
name of the High Court, and irreparable damage had already been done; no apology
could undo it. The journalistic restraint, which should be inherent in a columnist of the
Illustrated Weekly, was thrown into the winds. He cannot take cover under an apology,
tendered later when proceedings in contempt are initiated under the Contempt of
Courts Act.

63
The Apex Court in State v. Radhagobinda Das (AIR 1954 Orissa 7 ), held that if the law
finds one to be guilty of contempt and he bows down to the judgment of the court that is
not any adequate expression of apology.

Apology is an act of contrition and it must not be shorn of penitence. Tendering of
apology cannot be a panacea in every case of contempt. In State of Orissa v. R. N. Patra
(1975 41 Cut LT 329), the Court held that no apology could undo gross contempt and
serious cases of contempt. In Rupert J. Bamabas v. N Bharani (1990 LW (Crl) 27 Mad),
it was held that the court can, even when accepts the apology, commit an offender to
prison or otherwise punish him. In State of Punjab v. Raddha Krishan Khanna (AIR
1961 Punj 113) the Apex Court held that an unreserved apology, in less serious cases,
has the asset of taking the stringent of contempt.

(ii) Nature of Apology
Apology is an act of contrition. Unless apology is offered at the earliest opportunity and
in good grace, apology is shorn of penitence. Tendering of apology cannot be a panacea
in every case of contempt. If that were so, cases of gross contempt would go unpunished
and serious mischief would remain unchecked in spite of the fact that provision has
been made under the Contempt of Courts Act. Thus the purpose of the Statute would be
frustrated (State v. R.N. Patra, (1976) 1 Cr. L.J. at p. 445 Orissa)

Apology cannot be a weapon of defense forged always to purge the guilty. It is intended
to be evidence of real contribution, the manly consciousness of a wrong done, of an
injury inflicted and the earnest desire to make such reparation as lies in the wrong
doer's power. Only then it is of any avail in a court of Justice. But before it can have that
effect, it should be tendered at the earliest possible stage, not the latest. Even if wisdom
dawns only at a later stage, the apology should be tendered unreservedly and
64
unconditionally, before the Judge has indicated the trend of his mind. Unless that is
done, not only is the tendered apology robbed of all grace but it ceases to be an apology.
It ceases to be the full, frank and manly confession of a wrong done, which it is intended
to be (In the matter of Hiren Bose, 1969 Cr. L.J. 40 at p. 43 Cal). Apology must be
voluntary, unconditional and indicative of remorse and contrition and it should be
tendered at the earliest opportunity (Bhalchandra Gangadhar Ghate v. Pralhad Sadhuji
Raghute, 1976 Mah. 711 at p. 712)

(iii) Apology, when cannot be accepted
It is not necessary that every apology is to be accepted by the court. A court can refuse
to accept an apology which it does not believe to be genuine, it can, even when it accepts
the apology, commit an offender to prison or otherwise punish him.

The Court in Lal Behari v. State (A.I.R. 1953 All 153 at p. 158 ) held that what may
appear to a sophisticated mind as harsh, rough, rude and uncouth, may not be so to
unsophisticated and even to angry irritated, and brooding. There is nothing to hold that
the opponent was actuated by desire to disrepute not sure about his ability to express
what he feels just or unjust. Under these circumstances, there is no hesitation in
accepting his apology.

The Court may or may not accept an apology goes to sentence and cannot, therefore, be
accepted without a finding that contempt has been committed. However, apology,
though not a weapon of defence forged always to purge the guilty, should be tendered
out the earliest possible stage, unreservedly and unconditionally and it must be
indicative of remorse and contrition as well as free, full, frank and manly confession of a
wrong done (Re Hirenn Bose, AIR 1969 Cal 1). A hauling, hesitating and vacillating
65
apology deserves to be rejected (State of Uttar Pradesh v. Krishna Madho, AIR 1952 All
86).

(iv) Punishment Primarily a Matter of Discretion
To award punishment for contempt is a matter sole discretion of the court. It has been
seen in some cases where a contemnor has been sufficiently punished for disobeying a
court order he may not be punished further for continuing to do the same thing, even
though in a sense he is continuing to be contumacious. In doing so the court takes the
view that the contemner has been punished enough for the original contempt, and he is
not going to comply with the original order however long he stays in custody, therefore,
there is no justification for continuing to keep him in prison (Enfield London Borough
Council v. Mahoney, (1983) 2 All E.R. 901 at p. 907)

(v) Quantum of Punishment
Ignorance of law is no excuse. A person who inflicts an injury upon another in
contravention of law is not allowed to say that he did so with an innocent mind; he is
taken to know the law, and he must act within the law (Balkrishna Narayan Saoji v. Col.
N.S. Jatar, Inspector General of Prisons, C.P. & Berar, Nagpur, A.I.R. 1945 Nag. 33 at p. 47).

It is not open to accept the easy and ready solution of accepting the apology and
imposing a fine in the case of a contumacious disregard of all decencies, which can only
lead to a serious disturbance of the system of administration of justice unless duly
repaired at once by inflicting an appropriate punishment on the contemner which must
be to send him to jail to atone for his misconduct and therefore to come out of prison a
chastened and a better citizen (Ashram M. Jain v. A.T. Gupta, (1983) 2 Cr. L.J. 1499 at p.
1500)

66
In Nawal Kishore Singh v. Rajendra Prasad Singh (A.I.R. 1976 Pat. 56 at p. 57), it was
held that the order of detention in the civil prison is intended to be passed in addition to
the attachment of the property of the guilty person.

(vi) Impact of conduct of contemnor on Quantum of Punishment
An important question relating to quantum of punishment arises that whether the
conduct of contemner affect the quantum of punishment i.e., good conduct help in
reducing the punishment of imprisonment and fine and vice versa. When the Court
reaches the conclusion that there is a punishable contempt, the conduct of the
respondents and the subsequent events, may have effect and impact upon the quantum
of punishment. Such matters may not have a direct relevance on the question whether a
particular passage which had been the subject-‐matter of a specific charge does or does
not amount to criminal contempt (Guruvayur Devaswom Managing Committee v. Pritish
Nandy, 1987 Cr.L.J. 192 Ker)

The Apex Court in Shyam Sundar v. Satchidananda Rakshit (A.I.R. 1955 Cal. 351 at p.
353), held that the punishment should be primarily for upholding the dignity of the
court and maintaining due respect for the administration of justice. There should be no
element of vindictiveness in it and it should not be allowed to be used for feeding a
private grudge or as an offensive weapon to satisfy private vendetta.

CONTEMPTS NOT PUNISHABLE IN CERTAIN CASES
Notwithstanding anything contained in any law for the time being in force, no
Court shall impose a sentence under this Act for a contempt of Court unless it is
satisfied that the contempt is of such a nature that it substantially interferes, or
tends substantially to interfere with the due course of justice (Section 13 of the
Contempt of Courts Act, 1971 has been amended and new provision have been discussed in
67
the later part of this Chapter under the heading of the Contempt of Courts (Amendment)
Act, 2006)

The law does not take into consideration the trivial matters even though such matters in
the technical sense may be covered under law. The contempt law is also developed on
this cardinal rule of law that minor matters must be ignored.
It is submitted that every infraction of court's order is not contempt of court (H.S.
Butalia v. Subhas Saksena, 1974 Cr LJ 828 Cal) Thus, this section in unambiguous and in
clear terms declares that only willful and deliberate disobedience of court's order or
substantial interference in courts order is to be punished. A party (or person) can be
committed for contempt only owing to any willful or deliberate or reckless
disobedience of the order of the court (Jiwani Kumari v. Satyabrata Chakraborty, AIR
1991 SC 326) Technical contempt’s are to be ignored (Baradakanta Mishra v. The
Registrar, Orissa High Court, AIR 1974 SC 710) But the contempt by a senior lawyer could
not be ignored. The vituperative language was the outcome of a defeated Advocate
which appeared to be a very serious matter to the High Court. The matter becomes
more serious when it has happened in a mofussil place where there are one or two
courts and a few lawyers, and the litigating public is mostly illiterate or poorly
educated, therefore under such circumstances contempt is not to be ignored or allowed
to pass by (Rama Dayal, Markarha v. The State of Madhya Pradesh, A.I.R. 1978 SC 921 at
p. 929)

CONCLUSION
“Judge not lest ye be judged” is a Biblical maxim that should apply to judges as much as it
applies to lay people. Just as judges have the right to judge litigants; litigants have the
right to judge judges. They have a public interest to know how judges have conducted
68
themselves in court, and in each case. In an open justice system, no judge and no court
can avoid criticism, fair or foul. Lord Atkin once said, “Justice is not a cloistered virtue;
she must be allowed to suffer the scrutiny and respectful, even though outspoken,
comments of ordinary men.” To speak one’s mind is a right that cannot be denied to any
citizen. To suppress this in the name of scandalizing the court is no guarantee that the
respect and dignity of the court will be enhanced. As Lord Denning remarked (in
Quintin Hogg’s Case), “Let me say at once that we will never use this [contempt]
jurisdiction as a means to uphold our own dignity. That must rest on surer foundations”.
The contempt power in a democracy is only to enable the court to function effectively,
and not to protect the self-‐esteem of an individual judge. The foundation of judiciary is
based on 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 disrupting its working, the
edifice of the judicial system gets eroded. Judiciary by punishing the guilty infuses faith
in the supremacy of law and omnipotence of justice. Every offender is to be punished for
contumacious acts under the relevant contempt laws, but it is extremely important to
make it sure by the judiciary that these provisions are not to be misused.

It can be adequately inferred that the Contempt of Courts Act, 1971 is of paramount
importance in the context of sustaining the concept of justice. It aides to make the
process of administering justice expeditious as well as upholds the dignity and faith the
people have bestowed in the judicial system of the country. In itself, it abstains from any
form of arbitrariness. It gives every organization or individual charged under the act
reasonable grounds to defend it or himself, as the case may be. The restrictions, it
imposes, is just and fair in them. Moreover, it recognizes the equal footing of all people
in the country by bringing the judiciary and its officials within its ambit.
69
CONTEMPT
An act of deliberate disobedience or disregard for the laws ,
regulations, or decorum of a public authority such as a court
or legislative body.
CONTEMPT OF COURT
It is a behaviour that opposes or defies the authority, justice
and dignity of the court. Contempt charges may be brought
against parties to proceedings; lawyer or other court officers;
witness; or people who insert themselves in a case, such as
protesters outside a court room. Courts have great leeway in
making contempt charges , and thus confusion sometimes
exist about the distinction between types of contempt .
Generally , however, contempt proceedings are categorized as
civil or criminal.
70
SECTION 2 ON THE CONTEMPT OF COURTS ACT

1971
a) “Contempt of Court” means civil contempt or criminal
contempt.
b) “Civil contempt” means wilful disobedience to any

judgement , decree, direction , order , writ or other
process of a court or wilful breach of an undertaking
given to a court.
c) “Criminal contempt” means the publication (whether by

words, spoken, or written ,or by signs , or by visible
representation or otherwise) of any matter or the doing of
any other act whatsoever which.
71
i. Scandalizes or tends to scandalise , or lowers or tends

to lower the authority of , any court;
ii. Prejudices , or interferes or tends to interfere with due

course of any judicial proceeding.
iii. Interferes or tends to interfere with , or obstructs or

tends to obstruct , the administration of justice in any
other manner.
CRIMINAL CONTEMPT CHARGES
Criminal contempt charges become separate charges from the

underlying case . Unlike civil contempt sanctions, criminal
contempt charges may live or after resolution of the
underlying case.
One charged with criminal contempt generally gets the
constitutional rights guaranteed to criminal defendants ,
including the right to counsel, right to put on a defence, and
the right to a jury trial in certain cases. Charges of criminal
contempt must be proven beyond a reasonable doubt.
72
However incarceration of contempt may begin immediately,

before the contempt charge is adjudicated and the sentence
decided. Depending on the jurisdiction and the case, the same
judge who decided to charge a person with contempt may end
up residing over the contempt proceedings.
Criminal contempt can bring punishment including jail time
and / or a fine.
DR. DC. SAXENA V/S HONBLE CHIEF JUSTICE OF

INDIA
In a clash of competing interests in constitutional contours,

this case calls to strike a balance between the freedom of
speech and expression, a salutary right in a liberal
73
democratic society and paramount countervailing duty to

maintain public confidence in the administration of justice.
The petitioner has initiated public interest litigation under
Article 32 of the Constitution to direct Sri P.V. Narasimha
Rao, the President of Indian National Congress and the former
Prime Minister of the country to pay a sum of Rs.8.29 lakhs
and odd said to be due to the union of Indian for use of Indian
Air Force aircraft or helicopters from October 1, 1993 to
November 30, 1993. When writ Petition No. 432/95 was
posted for hearing on July 17,1995 before the learned Chief
Justice of India and brother Justice S.C. Sen the solicitor
General for India, Shri Dipankar P. Gupta was sent for and the
Court directed him to have the averments verified to be
correct and directed the petition to be listed after two weeks.
On August 7,1995, the writ petition came before the Bench
comprising the learned CJI, Justice S.C. Sen and Justice K.S.
Paripoornan. It is not in dispute that the Solicitor General had
placed the record before the Court and upon perusal thereof
and after hearing the petitioner-in-person, the Bench
summarily "dismissed"" the writ petition which had triggered
the petitioner to file yet another writ petition, this time against
the learned Chief Justice of India, Justice A.M. Ahmadi. The
Registry raised objections for its maintainability but, at eh
insistence of the petitioner, it was posted, with office
objections, for hearing, as unregistered Writ petition (c) NO. -
17209/95 on January 13,1996 before a Bench of three learned
Judges, viz. Justice J.S. Bharuchal. The petitioner, again
74
appearing in person, persisted to justify the averments made

against the learned CJI, Justice A.M. Ahmadi in the writ
petition. In spite of the Court having pointed out that the
averments were scandalous, the proceeding of the Court did
indicate that the petitioner reiterated that he "stood by the
averments made therein" and sought for declaration [1] that
Justice A.M. Ahmadi is unfit to hold the office as Chief
Justice of India; [2] that he should be tripped of his
citizenship; [3] to direct registration of an FIR against him
under various provisions of Indian penal Code for committing
forgery and fraud and under the prevention of Corruption Act;
(4) to direct prosecution of him under the prevention of
Corruption Act; (5) to direct him to defray from his personal
pocket the expenses incurred by the petitioner in filing the two
writ petitions, i.e., W.P. No. 432/95 and the second writ
petition; (6) to direct justice A.M. Ahmadi to reimburse from
his pocket to the public exchequer the entire loss caused to the
State,. as a consequence of non-payment of the dues by Sri
P.V. Narasimha Rao with interest at 18% per annum and (7)
other consequential directions. After hearing the petitioner,
the Bench dismissed the second writ petition with the order as
under: "The several averments in the writ petition are
scandalous and it is surprising that the petitioner, who is said
to be a Professor in a University, has chosen to draft and file
such a writ petition. His understanding of the meaning of
Article 32 of the Constitution, is to say the least, preposterous.
The allegations made are reckless and disclose irresponsibility
75
on the part of the petitioner. This writ petition is wholly

misconceived and is an abuse of the process of the Court. The
writ petition has no merit. The writ petition is, therefore,
dismissed. In view of the attitude of the petitioner even at the
hearing, when the persisted in this stand and, on our asking
him, reiterated that he stood by the scandalous averment made
therein, we consider it our duty to issue to the petitioner a
notice to show cause why proceedings to punish him for
contempt of this Court should not be initiated against him.
The Registry to take the necessary steps for registering the
matter as a contempt petition. The petitioner who is present-
in-person is given notice of the contempt petition. He is
required to file his reply within four wheels to show cause
why proceedings for contempt should not be initiated against
him. We request the learned Solicitor General to assist the
Court in this contempt matter.List the matter after notice of
the date fixed by Registry is given to Dr. D.C. Saxena and the
Solicitor
General."
While dismissing the petition, this Court observed in the later
part of the order the petitioner's conduct in his persistence to
stand by the scandalous averments made against the learned
Chief Justice of India. This Court was constrained to initiate
contempt proceedings and enlisted 14 instances which would
prima facie constitute contumacious conduct of the petitioner
76
to scandalise the Court. In the meanwhile, the petitioner wrote

in a newspaper criticising Justice J.S. Verma. Resultantly,
Justice J.S. Verma reclused himself from the Bench. Thus the
matter was posted before this Bench.
On April 12,1996, the petitioner filed his reply to the show
cause notice styling the same as "preliminary submissions"
and reiterated his averments, which, as pointed by this Court,
would constitute scandalisation of the Court and yet he had
given his justification for accusing the chief Justice of India.
However, at the end, as a foot-note, he has written in his own
hand-writing as under: "N.B. If some passages seem strindent
or pungent, the defendantis willing to suitably modify them."
On April 14,1996, this court passed the order as under;
"Pursuant to the notice issued by this Court the Contemnor
Dr. D.C.Saxena is present today in person. He has stated that
he would modify the offending portions noted in the show
cause notice in Item (ii),(iv) (vi), (vii), (viii), (x),(xii),(xiii)
and wishes to withdraw unconditionally item (xiv), paras B
and C. The learned Solicitor General has pointed out that even
if the Contemnor withdraws or files statement in the modified
form what the Court required to do is whether his statements
made in the writ petition originally filed constitute contempt
of the Court or not statements would not be of material
relevance for consideration. Since the contemnor seeks time
to submit the show contemnor seeks time to submit the show
cause in the modified language which he wishes to place
77
before the court, at his request the matter is adjourned to may

2,1996 at 2.00p.m. The Registry is directed to supply
complete set of papers to learned solicitor General."
When the case came up for hearing on May 2, 1996, the
petitioner filed amended portions to substitute the averments
made, at proper places, in the second unnumbered writ
petition. We have heard learned Solicitor General as amicus
curiae and the petitioner-in-person. Before opening the case,
the solicitor General, in view of the seriousness of the
averments made by the petitioner in the petition filed against
the chief Justice of India, and in view of his stand in both the
preliminary submissions to the contempt notice and the
revised averments made in the writ petition, suggested that it
would be advantageous for the petitioner to have consultation
and legal assistance of any counsel of his choice and to revise
his stand, but the petitioner remained silent and got along with
the case. The learned solicitor General stated that on July 17,
1995, the Court had sent for and called upon him to have the
allegations made in the first writ petition, verified and to place
the factual position before the Court. Pursuant thereto, on
August 7,1995, he had placed the record before the Court
which are confidential in nature. After their perusal and
hearings the petitioner, the Court did not think it necessary to
issue the directions as sought for. At this stage, we would
point out that when Sri P.V. Narasimha Rao, as president of
Indian National Congress or as the former prime Minister,
78
was alleged to have used the defence aircrafts, this Court

obviously was of the view that the relationship between the
two wings of the Government or the political party, i.e., the
Indian national Congress is of debtor and creditor and that,
therefore, prerogative writ under Article 32 of the
Constitution would not lie to enforce contractual dues
adjustable as per their practice. The exercise of the power
under Article 32 was, therefore, obviously thought to be
uncalled for. Supreme Court being the highest Judicial forum,
the need to record reasons is obviated since there is no further
appeal against the order of this Court. Recording reasons is
not, therefore, necessary nor is called for.
The learned solicitor General, therefore, contended that when
the Court dismissed the writ petition, the petitioner, being a
professor of English in Chandigarh University, should have
exercised restraint and felt duty- bound not to proceed further
in the matter. Instead, he filed the second writ petition with
allegations which are ex-facie contumacious. The petitioner
reiterated the same in his preliminary submissions to the
notice of the contempt. His modified statement filed on April
24,1996 itself is not relevant. What would be material and
relevant for consideration is whether the allegations made
against the learned Chief Justice of India in the Second Writ
petition do constitute contempt of the Court. The modified
stand, therefore, is not relevant to adjudge whether the
petitioner has committed contempt of this Court. The Court,
79
therefore, has to consider the totality of the averments and

their effect on the judicial process to adjudge the conduct of
the petitioner to be contumacious. The petitioner contended
that he did not seek any personal gain for himself. As a duty-
bound citizen, he was actuated to see that the public dues are
recovered from any person how-so-high he may be. To the
best of his understanding, the petitioner made the averments
for public good and he has no intention to scandalise the
Court. He had approached this Court earlier more than 12
times to vindicate public justice. As a human being, he is
fallible but he has no intention to denigrate the Court to which
he has highest respect. His modified language in the statement
filed on April 24,1996 does indicate his intention.
In the proceedings of the Court dated July, 17,1995, it was
recorded that the Solicitor General had appeared for Sri P.V.
Narasimha Rao who was impleaded in his personal capacity.
It is the petitioner's contention that the solicitor General
cannot appear for him. He was not assisting the Court as
amicus. When the Chief justice called for the records from the
Government through solicitor General, it is Court's duty to
give him copies of those documents but the same were denied
to him. It is his xiv) Page 9 prayer
(a) Declare the respondent unfit to hold office as chief Justice
of
India;
80
(b) Strip the respondent of his citizenship;

(c) Direct the registration of an F.I.R. against the respondent
under the Indian penal Code for committing forgery and fraud;
(d) Direct the respondent's prosecution under the prevention of

corruption Act.
The alleged contemnor filed written submissions in reply to
the contempt notice. His first submission was that the Bench
which had heard and dismissed the second writ petition had
been constituted by the respondent, who had thereby become
a judge in his own cause. The second writ petition was,
accordingly, not listed before a court, competent to dispose it
of, so that the order of its dismissal was non est, and it was
still deemed to be pending. The contempt notice was,
therefore, premature. The written submissions then dealt with
the portions of the second writ petition which had been
indicated in the contempt notice and reiterated the same,
except only that it was submitted that the allegation about
fabrication of the court proceedings of 7th August, 1995, was
"somewhat unhappily would". It was submitted thereafter that
the contempt of Courts Act was a legacy of British
imperialism and, while appropriate to a "banana republic",
was imcompatible with a democratic, people's polity; it was a
law-less law because it fused the offices of the prosecutor and
the judge and "belongs with the infamous Spanish
inquisition". After his signature at the foot of the written
81
submissions, the alleged contemnor added in hand, "N.B. If

some passages seem strident or pungent, the defendant is
willing to suitably modify them."
The contempt notice came up before this Bench on 15th April,
1996. The following order was then passed; "Pursuant to the
notice issued by
this court the Contemnor Dr. D.C.. Saxena is present today in
person. He has stated that he would modify the offending
portions noted in the show cause notice in Item (ii),(iv),(vi),
(vii),(viii),(x),(xi),(xii),(xiii) and wishes to withdrew
unconditionally item xiv, paras B and C. The learned Solicitor
General has pointed out that even if the Contemnor withdraws
or files statement in the modified form what the Court
required to do is whether originally filed constitute contempt
of the statements would not be of material reliance time to
submit the show cause in the modified Court, at his request eh
matter is adjourned to may 2,1996 at 2.00 P.M. The Registry
is directed to supply complete set of papers to learned
Solicitor
General."
extract the relevant portions supplied to him by show cause
and his reply thereto and of preliminary submissions and his
modified statement as a substitution to the averments made in
the second writ petition and the effect thereof. In respect of
82
the averments made in the offending portions of item 1,3,

5,9,13 and 14(a) and (d), the petitioner stood by them. He
submitted his modified statement on April 24,1996 only for
the rest of the statements. Let us first consider the unmodified
averments before examining the original and the modified
averments. The first averment made at page 4 in paragraph 9
is that "it was improper for justice Ahmadi to hear it". Item 3
at page 6 in paragraph 14 is: "To this Justice Ahmadi
responded that he (the solicitor General) was there to assist
the Court, contrary to the evidence of the court proceedings".
Item 5 relating to the averments made in page 6 in paragraph
17 is; "the subsequent course of action by Justice Ahmadi, in
dealing with the grouse of the petitioner and dismissing his
petition is totally unjust, unfair, arbitrary and unlawful. It is in
flagrant violation of the mandates of Article 14 of the
constitution, which "runs like a golden thread" through it ad is
the foundation of justice and fair play". Item 9 relating to the
averments made at page 8 in paragraph 18(f) is: "what are the
legal consequences of the violation of the sacred oath of office
by justice Ahmadi?" Item 14(a) relating to the prayer portion
is: "declare the respondent (justice A.M. Ahmadi) unfit to
hold office as Chief Justice of India" and item 14(d) is:
"Direct the respondent's (Justice A.M. Ahmadi's) prosecution
under the prevention of Corruption Act." The petitioner in his
affidavit filed in support of the second writ petition has stated
in para 2 thereof thus: "I am actuated purely by national
interests and no personal gains and have truthfully and
83
carefully stated the facts (emphasis supplied), in pursuance of

my fundamental duties, which can be effectively performed
only through the fundamental rights enjoyed as a citizen of
India." In his preliminary submissions, he has stated that the
writ petition under Article 32 shall be heard by a Division
Court of not less than 5 Judges. Emphasis was added by the
petitioner himself. Since the writ petition was not listed before
a Court components to dispose of the same, it made the order
of dismissal non est and it should be deemed to be pending
and is "not yet decided and disposed of constitutionally". No
contempt proceedings can, therefore, be initiated. The notice
is , therefore, pre-mature. Constitution of the Bench by the
chief Justice is in violation of the principles of natural justice
as no one can be a judge of his own cause. Justice "should not
only be done but should manifestly and undoubtedly seem to
be done. nothing is to be done which creates even a suspicion
that there has been an improper interference of the course of
justice.", he quoted the above statement of Lord Heward, C.J.
Regarding Item 1 referred to hereinbefore; he justified the
imputation stating that no person can be a Judge in his own
cause directly or indirectly. In spite of his objection, the
respondent (CJI) chose to constitute the bench himself as a
presiding judge. According to the petitioner the word "
improper", therefore was used in that perspective, with regard
to the averments made in Item 3, his reply was that the Court
proceedings dated July 17,1995 recording that the solicitor
General, Shri Dipankar Gupta appeared in his official capacity
84
to Sri P.V. Narasimha Rao, a private party. He had stated that

even assuming, though not conceding, that he (Solicitor
General was acting as amicus curiae also was not recorded in
the Court proceedings. Therefore, his comment that CJI had
Fabricated false record is fair and an accurate report of the
court proceedings protected under section 4 of the Act. With
regard to Item 5, he states thus: " This is a reaffirmation of an
unimpeachable legal proposition in the most widely-prevalent
legal phraseology, to which no umbrage can be taken, for by
this logic all petitions containing this phrase would be deemed
contemptuous. Even the part of the quotation is from a leading
decision of this Hon'ble Court in Maneka Gandhi's case."
With regard to averments made in item 9, he justified it
stating that "this again is an unresolved question of great legal
significance and he cited as analogy of Mr. Fazlul Huq, then
Chief Minister of Bengal and quoted a passage from a special
Bench decision of the Calcutta High Court in R.C. Pollard v.
Satya Gopal Majumdar [A.I.R. 1943 Cal. 594 (605)]. He
added special emphasis to the words "the clear violation of it
brands a man as unfit for public office" and stated that it is a
legal question of substantial importance relating to the
violation of oath of office, contained in the Third Scheduled
of the Constitution and it cannot be disposed of by a three
judge Bench. It cannot be considered as personal imputation
against the judge. With regard to imputation and prayer (a) in
item 14, he says that the analogy he had taken from the
85
Calcutta High Court decision. It was natural corollary to the

legal proposition considered by a constitution Bench. with
regard to prayer (d) in Item 14, he states that this is only a
prayer for relief sought. The defence taken in relation to
(xiv)(b) and (c) would equally be applicable and so he has
reaffirmed them to be correct. The allegations, therefore, are
neither "reckless" nor do they "disclose irresponsibility" (put
within inverted comma by the petitioner himself) and is not
"an abuse of the process of the Court."
He reiterated that "several averments in the writ petition"
being truthful, factual, and made without rancour or malice
and for no personal, gain, should not be construed
"scandalous" (inverted commas were put by the petitioner
himself).
Let us now consider other imputations, in the language of
petitioner himself with regard to the "truthfully and carefully"
stated facts. At page 5 in para 10, the petitioner has stated that
"Justice Ahmadi's utmost reluctance to perform his
fundamental duties and constitutional obligations was
apparent. when after failing to browbeat the petitioner, he
stated that it would be taken up at the end of the cause list." in
his preliminary submissions he has stated that "this is a fair
and accurate submission of the Court proceedings on matter
which had already been "heard and finally decided"."(inverted
commas were put by the petitioner himself). He sought
protection to it, as a fair comment, under Section 4 of the Act.
86
He further justified it stating that even the use of the would

"browbeat" by the petitioner is a "fair criticism of judicial act"
(inverted comma was put by the petitioner himself) to imply
that proper hearing was not being granted to the petitioner
who had approached the highest Court of the land to 'Protect
and safeguard public property". he justified them as a
"statement of truthful facts", for public good should not be
construed as disrespect to the Hon'ble Court. After offering
justification in his modified statement, he reiterates thus: "The
petitioner discerned reluctance on the part of the presiding
judge to allow the relief claimed, which was in public interest,
and actuated by the desire to "Preserve and protect public
property," without any personal malice." It would, thus,
indicate that the petitioner imputed motives to Justice A.M.
Ahmadi, chief justice India, in the discharge of his
constitutional duty and that by not admitting the writ petition
or dismissing the petition, the CJI was reluctant to perform his
constitutional duty. He knew that the word "browbeat" is a
strident imputation to the Court and, therefore, in his modified
reluctance". Even in the modified statement, he attributed
motives to CJI in the performance of his constitutional duty
while the Bench that dismissed the first writ petition consisted
of three judges. By inference, he suggested the other brother
Judges to be mere non-entity. With regard to item 4 at page 6
in para 15, he imputed to the CJI that "and without recording
the reasons for dismissing the petition. So much for the
vaunted adherence to the twin principles of transparency and
87
accountability." In his preliminary submissions, he has given

justification for his attributed motives to CJI stating that the
Solicitor General handed over some documents to the bench,
without supplying the copy thereof to the bench, without
supplying the copy thereof to the petitioner. When he had
objected to it in his own language, he avers that "justice
Ahmadi asked him to argue on the supposition that nothing
had been given to the bench. In view of this, reference has
been made to the "twin principles of transparency and
accountability which", according to the petitioner, "is a fair
and accurate report of court proceedings, which is also for the
"public good"." (inverted commas were put by the petitioner
himself). In the modified statement he stated thus: "That
justice Ahmadi ultimately dismissed the petition, observing
that the Government of India was capable to realise the dues
from Shri Rao (which it had no to done in two years) and
without recording the reasons for dismissing the petition, for
which lapse it has often berated High Courts, in pursuance of
the twin principles of transparency and accountability". It
would, thus be seen that as regards this imputation, the
petitioner gives justification that there was omission to record
reasons for dismissal of the writ petition; he imputed to CJI
that the CJI facilitated Sri Narasimha Rao to avoid payment of
public dues. The act of the Court was not transparent.
According to the petitioner, it is a lapse on the part of the
Court for which the Court conduct, by implication, was not
transparent and the Court must be accountable.
88
Item 6 at page 7 in paragraph 18(c) reads thus: "For causing

fabrication of courts proceedings of 7th August, 1995, and not
mentioning the fact of appearance of the solicitor General,
would justice Ahmadi not be liable to prosecution under the
relevant provisions of the Indian penal code in consonance
with the time-honoured maxim, `Be you ever so high, the law
is above you"?" (inverted commas were put by the petitioner
himself). In his preliminary submissions he stated that
"Although somewhat unhappily worded, it is one of the
substantial questions of law, which needed to be determined
by a constitution Bench of the apex court". According to him,
above maxim is one to which this court has repeatedly stated
to have avowed allegiance. In his modified version, he stated
thus: "For inaccurate recording of the court proceedings of 7
August, 1995, and not mentioning even the fact of appearance
of the solicitor General for the respondent, what responsibility
would ensue on the presiding judge, who dictated them?" It
would, therefore, in the language of the petitioner, be
"discernible" difference of the imputation as originally made
in the writ petition and reiterated in his preliminary
submissions and its impact was understood by the petitioner.
Therefore, he made the amended version imputing
responsibility to justice Ahmadi personally for the so called
inaccurate recording of the Court proceedings and stated that
the CJI should be prosecuted for the record said to be falsely
recorded by CJI after fabrication and it is a fraud and CJI is
liable for prosecution for fraud etc. Item 7 at page 6 in
89
paragraph 18(d) reads thus; "can justice Ahmadi be allowed to

take shelter behind the cloak of the judicial immunity, in the
facts and circumstances of the instance case, particularly
when unlike the president of India, who cannot be impleaded
in Civil or criminal proceedings "during his term of office,"
CJI enjoys no such constitutional protection?" In his
preliminary submissions, he stated that this is yet another
constitutional conundrum which needed to be resolved by a
constitution Bench of the Hon'ble Court under Article 145(3)
read with Supreme Court Rules. According to the petitioner
"Crucial to it are "the facts and circumstances" (inverted
commas were put by the petitioner himself) spelled out
earlier". implicitly conferring immunity on the congress
president, Sri P.V. Narasimha Rao, from laws of the land do
not apply. Is this not a negation of all that the constitution
holds sacred?" In the modified version, he stated thus "when
under the Constitution Judges of superior courts do not,
unlade the president of India, enjoy total immunity during
their term of office, can the presiding judge, be allowed to
make such a claim for wrong doing?" (Emphasis supplied).
He, thus, imputed to the chief justice of India, Justice Ahmadi
motives that CJI allowed Sri Narasimha Rao, Congress
president, to avoid payment of dues causing loss to the
national exchequer treating him as a class by himself and the
CJI neglected to perform the constitutional duty which he
holds sacred which is a wrong-doing. therefore, chief Justice
of India should not be allowed to take judicial immunity and
90
is liable to criminal prosecution even during his term of office

as CJI.
Item 8 of the imputation at page 7 in para 18(e) reads thus;
"for willfully and advertently violating (emphasis supplied)
the fundamental rights of not only the petitioner as an
individual, but that of the people of India, who are ultimately
sovereign, as stated in the preamble to the Constitution, has
not justice Ahmadi forfeited any legal protection, even if it
were available to him?" In his preliminary submissions, he
has stated that "The first part of the sentence is based on the
implicit constitutional provisions and in fact shows that the
petitioner/defendant looks upon the apex court as the guardian
of his fundamental rights and those of the voiceless millions.
The second part raises a constitutional question, which needed
determination by an appropriate bench." In the amended
version, he reiterated that "for violating the fundamental rights
of not only the petitioner, as an individual, but also that of the
people of India, who are the ultimate sovereign, as stated in
the preamble to the Constitution, has not justice Ahmadi sent
wrong signals tot he entire judiciary of which he is the head".
In this paragraph, it is clear that the petitioner knew the
distinction between the imputation as originally attributed to
the Chief justice of India as Head of the Institution, i.e.,
Judiciary and reiterated in his preliminary submissions that
CJI "willfully" and "advertently" violated the petitioner's and
people's fundamental right to redressal by wrongful dismissal
91
of the writ petition. He knew its indelible effect on the public

confidence in the efficacy of judicial dispensation and
propriety of the judicial process. When they read the
imputation, he attributed to the Chief Justice that CJI willfully
and advertently violated the fundamental rights of the
petitioner and other people in dismissing the writ petition.
Thereby, justice Ahmadi forfeited legal protection of law, if it
were available to him and he stated in his modified version
that the action of Chief Justice of India sent wrong signals to
the entire judiciary of which he is the head. In other words, it
would imply that CJI as judge and as head of the institution
committed misconduct. Imputation 10 made at page 8 in
paragraph 18(g) reads thus: "For deliberate and willful failure
to perform his fundamental duties and stultifying their
performance by the petitioner, should not justice Ahmadi be
stripped of his citizenship, because duties alone can confer the
corresponding legal and constitutional rights?. In his
preliminary submissions, he has stated that this is also a
constitutional question needed to be interpreted on the ambit
and enforceability of fundamental duties in Article 51-A; it
should not be considered by a Division bench. "Moreover, this
is a logical corollary of the foregoing question of law. It is
respectfully reiterated that a question of law is not a personal
imputation or insinuation." In his modified version, he has
stated thus: "For failure to perform his fundamental duties and
impeding their performance by the petitioner, should not
justice Ahmadi be regarded as accountable to the people of
92
India, because duties alone can confer the corresponding legal

and constitutional rights?" In this behalf, it is clear that the
petitioner is well conversant with the effect of "a personal
imputation and the negation". He attributed that Justice
Ahmadi, Chief Justice of India deliberately and willfully
failed to perform his fundamental duties by dismissing the
first writ petition and stultified the performance of the duty by
the petition and stultified the performance of the duty by the
petitioner. Thereby Justice Ahmadi "be stripped of his
citizenship". He also knew that for exercise of legal or
constitutional rights one owes corresponding duties. The
person who fails to perform the duty is accountable to the
people. CJI willfully, in other words, deliberately with supine
indifference dismissed the writ petition. CJI does not get legal
protection but also forfeits his citizenship. Imputation 11 at
page 8 in paragraph 18(h) reads thus: "For allowing his son
who is a practising in the Supreme Court, to stay with him in
his official residence, and presumably in the supreme Court,
to stay with him in his official residence, and presumably
misusing official facilities and prestige of office of chief
Justice of India, is not Justice Ahmadi liable to be prosecuted
under the prevention of corruption act, in view of the ratio
decidendi of Veeraswami's case?" In his preliminary
submissions, he reiterated that this is a question law based on
information he had received from "public
documents"(inverted commas were put by the petitioner
himself) from an Article which was said to have appeared in
93
"India Today", with Justice Ahmadi's photograph and yet

another one said to have been published in "The Times of
India", authored by a woman senior Advocate of this Court.
He states that "It is widely talked in legal circles that apart
from being favoured in appointment on local commissions (by
the Delhi High Court) Justice Ahmadi's son (and daughter
also) are very often assigned government briefs". In support
of his imputation, he seeks justification from the observation
made by this Court in C. Ravichandran Iyer V. Justice A.M.
Bhattacjarkee & Ors. [(1995) 5 SCC 457] of transparency of
the conduct of the Judge on and off the bench. He further
added that "the criminal contempt application of one M.P.
Shorewala against the petitioner/defendant was got filed and
in gross violation of statutory provision (mentioned in the
office report) was got listed next to the petitioner's civil writ
petition on the same day. i.e., 30th January, 1996, for reasons
which need no dilation'. The petitioner had not modified in his
modified version, though he undertook to do so. He stood by
the above imputation and reiteration with further justification
in that behalf made in his preliminary submissions. we may
observe here itself that personal imputation against the chief
Justice of India, Justice Ahmadi of allowing his son to
practise in the supreme court is false. His permitting his son to
reside in his official residence said to be in abuse of his
official position has no relevance to the first writ petition
relating to the recovery of the alleged arrears said to be due
from Sri P.V. Narasimha Rao. During the course of hearing,
94
when it was pointed out to the petitioner that as a fact the son
of justice Ahmadi is not practising in the Supreme Court and
that the above imputation has no rational connection to the
first writ petition and of the necessity to allege them in the
second one, no answer was given by the petition and of the
necessity to allege them in the second one, no answer was
given by the petitioner. He sought to justify it on the basis of
the reports said to have been published in the newspapers.
When we further inquired from him whether he made any
independent inquiry in the matter or on the accuracy of the
newspaper publications, he stated that he relied upon the
above statements as an accurate statement of fact reported
therein. We may mention that this imputation has no
relevance to the first proceedings. As a fact, the son of Justice
Ahmadi is not practising in the Supreme Court. The alleged
facility of permitting his son to stay in his official residence
bears no relevance to the proceedings. The imputations were
obviously off the cup. Imputation 12 made at page 8 in
paragraph 18(i) reads thus: " Is Justice Ahmadi not liable to
pay from his pocket not only the legitimate costs incurred by
the petitioners in C.W.P. No. 432 of 1995 and the present
petition, but also the loss caused to the public exchequer by
non-payment of dues with 18% interest by Shri P.V.N. Rao?"
In his preliminary submissions he reiterated it giving further
justification thus: "This is the law laid down by this Hon'ble
Court in relation to public servants. Whether it is also
applicable to holders of constitutional office or not is a
95
substantial question of law, which should have been answered

by a constitution bench." In his modified version he has stated
thus: "who would be liable to reimburse the legitimate costs
incurred by the petitioner by filing C.W.P. No.432 of 1995,
and the present petition and the huge loss caused to the public
exchequer because of the persistent default in paying them by
P.V. Narasimha Rao, with 18% interest?" it would, thus, be
apparent that for dismissal of the writ petition filed by a party,
by a judicial act, the presiding judge of the Court is liable to
pay costs to the litigant and also the resultant loss to the public
exchequer for non-payment of the dues by the defaulter with
interest. He justified it stating that when a public servant
causes loss to the State and the same is sought to be recovered
from him, why not the constitutional functionary for judicial
act is also liable to pay over the same. In other words, if the
Court dismisses a petition filed by a litigant, the resultant
costs must be born by the presiding officer of the Court.
Equally, the loss caused to the State should also be
recoverable from the presiding judge from his personal pocket
.
Regarding imputation 13, though he stated that he wished to
make modification to it, in his amended version, he did not
touch upon the same.
Imputation 13 at page 8 reads thus: "since no person can be a
judge in his own cause, the senior-most judge of the Hon'ble
Court may be permitted to constitute a constitution bench, for
96
expeditious hearing of the petition excluding any judge who

owes his elevation to the apex court to justice Ahmadi.
Further during its pendency, Justice Ahmadi may be advised
to proceed on leave, so that he may not directly or indirectly
influence any of the judges hearing the matter." In his
preliminary submissions, he reiterates that " The prayer is in
strict conformity with the maxim cited earlier in the words of
lord Heward, C.J." He justified it on the basis of Justice P.N.
Bhagwati (as he then was), the senior-most judge's presiding
over P.S. Gupta's case, i.e., First judges case when justice
Chandrachud was imputed with some allegations. He also
justified his quoting the advice given to Justice V.
Ramaswami to proceed on leave when enquiry was pending
against him under the Judges [Inquiry] Act. It would be seen
that in this imputation, he categorically asserts and relies that
justice Ahmadi, Chief justice of India would bring about
influence directly or indirectly upon his colleagues when the
matter was to be heard. While he is in the office, he also
should not function as Chief Justice pending his second writ
petition. CJI also should not constitute any benches. That
should be done by the senior-most puisne Judge. Any Judge
appointed to this Court during his tenure as CJI should not
hear ht e case as CJI directly or indirectly would influence
them when the case relating to his was dealt with. In other
words, his imputation is that Judges appointed to the Supreme
Court during the tenure of Justice A.M. Ahmadi as CJI
amenable to influence in deciding the cases at the behest of
97
the CJI as they owe their appointments to him. In other words,

as soon as a writ petition under Article 32 or petition under
Article 136 was filed attributing motives or bias to the CJI [it
would equally apply to any Judge he should desist to perform
judicial and administrative work. He should proceed on leave
till that case is decided. The senior-most puisne Judge should
assume the work of the CJI.
Imputations in Prayer (b) and (c) read as under: "(b) strip the
respondent (Justice
A.M. Ahmadi) of his citizenship";
and (c) Direct the registration of
an FIR against he respondent
(Justice A.M. Ahmadi) under the
Indian Penal Code for committing
forgery and fraud."
In his preliminary submissions, he has stated with regard to
stripping of citizenship of CJI that "this may have been the
consequence of the constitution bench affirming the view
taken by the Calcutta High Court cited earlier. Moreover, this
is only a prayer for relief sought, which does not fall within
the mischief of the Contempt of Courts Act." With regard to
98
prayer (c) he states thus: "the plea taken in relation to (xiv (b).
Now, in the modified statement, he seeks to withdraw them
and states "May kindly be treated as deleted". It would, thus,
be clear that his asking for stripping of the citizenship of the
Chief Justice of India is for dismissing his writ petition and
prosecution is the consequence of a decision of this Court
which had affirmed the judgment of the Calcutta High Court
in Fazalul Haq's, Chief Minister, Bengal's case.
At this stage, it may be relevant to mention that the petitioner,
either in his preliminary submissions or modified version filed
on April 24, 1996, during the course of hearing, did not tender
any unconditional apology for the imputations made against
CJI. On the other hand, it is clear that being a professor of
English. he knew the consequences of the language used, its
purpose and effect and pressed for consideration. At the time
of dismissing the second writ petition to a pointed reference of
the allegations to be scandalous, it was recorded in the order
and there was no demur from the petition to the contra, that
the petitioner stood by them. In other words, he would bear
the consequences that would flow therefrom. According to the
petitioner, many an imputation bearing constitutional contour
require interpretation by a bench of five Judges under Article
145(3). We need not refer the case to the constitution Bench
merely because the petitioner has raised that contention in the
petition; nor the same requires decision unless the Court finds
99
that the petition cannot be disposed of without the questions

being decided by the constitution Bench.
When imputations were made against the Chief Justice, the
petitioner assumed, in our view, "wrongly" that CJI cannot
constitute benches nor he should discharge the functions of
Chief Justice until the matter is decided. On appointment by
the president by a warrant and on his taking oath of office, the
CJI becomes entitled to discharge the functions and duties of
that office including constitution of benches and assignment
of judicial work to judges as per procedure. This
responsibility flows from the office and none including a
litigant has right to demand for contra position. As regards his
personal disposition to hear a case by a bench of which he is a
member, it is his own personal volition. The Chief Justice's
prerogative to constitute benches and assignment of judicial
business would no hinge at the whim of a litigant.
The decisions of different benches are the decisions of the
Court. For the convenient transaction of business, the senior
judge among the members composing the Bench gets the
privilege to preside over the Bench but the decision is that of
the Court. The members composing the Bench collectively
speak for the Court and would bear collective responsibility
for the decision unless separate opinions are expressed by
individual members composing the Bench. Majority opinion
is the law as envisage under Article 145(5) of the constitution.
Their opinion or order thus is the opinion or order of the
100
Court. The minority opinion also would form part of the

judgment or order but remains the minority view. The Chief
justice is first among the colleagues. The question, therefore,
arises: whether the afore- enumerated imputations constitute
contempt of this court? Though the petitioner contended that
the provisions of the Act are ultra vires Article 19 [1] (a) of
the constitution, it is not necessary for the purpose of this case
to twelve upon that contention. This court has taken suo motu
cognizance of contempt of this Court under Article 129 of the
Constitution of India which reiterates as a court of record, its
power to punish for contempt of itself. As pointed out in the
proceedings of this Court dated January 13, 1996, in spite of
the fact that this Court brought to his attention the gravity of
the imputations, the petitioner insisted and reiterated that he
stood by the scandalous averments made therein. This Court
being duty bound, was, therefore, constrained to issue notice
of contempt. The question, therefore, is: whether the aforesaid
imputations are scurrilous attack intended to scandalise the
Court and do they not impede due administration of Justice?
Words are the skin of the language. Language in which the
words are couched is media to convey the thoughts of the
author. Its effect would be discernible from the language
couched proprio vigore. The petitioner, a professor of English
language in clear and unequivocal language emphasised and
reaffirmed that the averments were "truthfully and carefully"
worded. The question is: to what extent the petitioner is
entitled to the freedom of those expressions guaranteed under
101
Article 19[1](a) of the Constitution? If they are found

scandalous, whether he would get absolved by operation of
Article 19[1] (a) ?. As this Court has taken suo motu action
under article 129 of the Constitution and the word `contempt'
has not been defined by making rules, it would be enought to
been defined by making rules, it would be enought to fall back
upon the definition of 'criminal contempt" defined under
section 2(c) of the act which reads thus:
"Criminal Contempt" means the publication (whether by
words, spoken or written, or by signs, or buy visible
representations, or otherwise of any other act whatsoever
which--
(i) Scandalises or tends to scandalise, or lowers or tends to
lower the authority of any court:
or
(ii) Prejudices, or interferes or tends to interfere with, the due
course of any judicial proceedings;
or
(iii) interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other manner."
(emphasis supplied)
102
It is doubtless that freedom of speech and of expression

guaranteed by Article 19[1] (a) is one of the most precious
liberties in our secular, socialist republic. Freedom of
expression is a prized privilege to speak one's open mind
although not always in perfect good taste of all institutions.
Since it opens up channels of open discussion, the opportunity
of speech and expression should be afforded for vigorous
advocacy, no less than abstract discussion. This liberty may
be regarded as an autonomous and fundamental good and its
value gets support from the need to develop our evolving
society from unequal pas t to a vigorous homogeneous
egalitarian order in which each gets equality of status and of
opportunity; social, economic and political justice with
dignity of person so as to build an integrated and united
Bharat. Transformation for that strong social restructure
would be secured when channels for free discussion are wide
opinion and secular mores are not frozen. All truths are
relative and they can be judged only in the competition of
market. Liberty is not to be equated with certainty. Freedom
of expression equally generates and disseminates ideas and
opinions, information of political and social importance in a
free market place for peaceful social transformation under rule
of law. The doctrine of discovery of truth does require free
exchange of ideas and use of appropriate language. words are
the skin of the language which manifests the intention of its
maker or the speaker. The right to free speech is, therefore, an
integral aspect of right to self-development and fulfillment of
103
person's duties some of which are proselytised in part IVA of

the Constitution as Fundamental Duties. The end of the State
is to secure to the citizens freedom to develop his faculties,
freedom to think as he will, to speak as he thinks and read as
indispensable tools to the discovery of truth and realisation of
human knowledge and human rights. Public discussion is
political liberty. The purpose of freedom of speech is to
understand political issues so as to protect the citizens and to
enable them to participate effectively in the working of the
democracy in a representative form of Government. Freedom
of expression would play crucial role in the formation of
public opinion on social, political and economic questions.
Therefore, political speeches are given greater degree of
protection and special and higher status than other types of
speeches and expressions. The importance of speaker's
potential development on political and social questions is also
relevant to encourage human development for effective
functioning of democratic institutions.
Equally, debate on public issues would be uninhibited, robust
and wide open. It may well include vehement, sarcastic and
sometimes unpleasant sharp criticism of Government and
public officials. Absence of restraint in this area encourages a
well informed and politically sophisticated electoral debate to
conform the Government in tune with the constitutional
mandates to return a political party to power. Prohibition of
freedom of speech and expression on public issues prevents
104
and stifles the debate on social, political and economic

questions which in long term endangers the stability of the
community and maximises the source and breeds for more
likely revolution. If maintenance of democracy is the
foundation for free speech, society equally is entitled to
regulate freedom of speech or expression by democratic
action. The reason is obvious, viz., that society accepts free
speech and expression and also puts limits on the right of the
majority. Interest of the people involved in the acts of
expressions should be looked at not only from the perspective
of the speaker but also the place at which he speaks, the
scenario, the audience, the reaction of the publication, the
purpose of the speech and the place and the forum in which
the citizen exercises his freedom of speech and expression.
The state has legitimate interest, therefore, to regulate the
freedom of speech and expression. The state has legitimate
interest, therefore, to regulate the freedom of speech and
expression which liberty represents the limits of the duty of
restraint on speech or expression not to utter defamatory or
libelous speech or expression. There is a co-relative duty not
to interfere with the liberty of others. each is entitled to
dignity of person and of reputation. No body has a right to
denigrate other's right to person or reputation. Therefore,
freedom of speech and expression is tolerated so long as it is
not malicious or libelous so that all attempts to foster and
ensue orderly and peaceful public discussion or public good
should result from free speech in the market place. If such
105
speech or expression was untrue and so reckless as to its truth,

the speaker or the author does not get protection of the
constitutional right.
Freedom of speech and expression, therefore, would be
subject to Articles 19 [2],129 and 215 of the Constitution, in
relation to contempt of court, defamation or incitement to an
offence etc. Article 3 read with Article 19 of the Universal
Declaration of Human Rights grants to everyone liberty and
right to freedom of opinion and expression. Article 19 of the
International Covenant on Civil and political Rights, 1966 to
which India is a signatory and had ratified, provides that
everyone shall have the right to freedom of expression, to
receive and impart information and ideas of all kinds but
clause [3] thereof imposes corresponding duty on the exercise
of the right and responsibilities. It may therefore, be subject to
certain restrictions but these shall only be such as are provided
by law and are necessary for the respect of life and reputations
of others for the protection of national security or public order
or of public health or moral. it would thus be seen that liberty
of speech and expression guaranteed by Article 19[1] (a)
brings within its ambit, the corresponding duty and
responsibility and puts limitations on the exercise of that
liberty.
A citizen is entitled to bring to the notice of the public at large
the infirmities from which any institution including judiciary
suffers from. Indeed , the right to offer healthy and
106
constructive criticism which is fair in spirit must be left

unimpaired in the interest of the institution itself. Critics are
instruments of reform but not those actuated by malice but
those who are inspired by public weal. Bona fide criticism of
any system or institution including judiciary is aimed at
inducing the administration of the system or institution to look
inward and improve its public image. Courts, the
instrumentalities of the state are subject to the Constitution
and the laws and are not above criticism. Healthy and
constructive criticism are tools to augment its forensic tools
for improving its functions. A harmonious blend and balanced
existence of free speech and fearless justice counsel that law
ought to be astute to criticism. Healthy and constructive
criticism are tools to augment its forensic tools for improving
its functions. A harmonious blend and balanced existence of
free speech and fearless justice counsel that law ought to be
astute to criticism. Constructive public criticism even if it
slightly oversteps its limits thus has fruitful play in preserving
democratic health of public institutions. Section 5 of the Act
accords protection to such fair criticism and saves from
contempt of court. The best way to sustain the dignity and
respect for the office of judge is to deserve respect from the
public at large by fearlessness and objectivity of the approach
to the issues arising for decision, quality of the judgment,
restraint, dignity and decorum a judge observes in judicial
conduct off and on the bench and rectitude.
107
In P.N. Duda vs. P. Shiv Shankar [AIR 1988 SC 1208] this

court had held that administration of justice and judges are
open to public criticism and public scrutiny. Judges have their
accountability to the society and their accountability must be
judged by the conscience and oath to their office, i.e., to
defend and uphold the Constitution and the laws without fear
and favour. Thus the judges must do, in the light given to
them to determine, what is right. Any criticism about judicial
system or the judges which hampers the administration of
justice or which erodes the faith in the objective approach of
the judges and brings administration of justice to ridicule must
be prevented. The contempt of court proceedings arise out of
that attempt. Judgments can be criticised. Motives to the
judges need not be attributed. It brings the administration of
justice into disrepute. Faith in the administration of justice is
one of the pillars on which democratic institution functions
and sustains. In the free market place of ideas criticism about
the judicial system or judges should be welcome so long as
such criticism about the judicial system or judges should be
welcome so long as such criticism does not impair or hamper
the administration of justice. This is how the courts should
exercise the powers vested in them and judges to punish a
person for an alleged contempt by taking notice of the
contempt suo motu or at the behest of the litigant or a lawyer.
In that case the speech of the Law Minister in a Seminar
organised by the Bar Council and the offending portions
therein were held not contemptuous and punishable under the
108
Act. In a democracy judges and courts alike are, therefore,

subject to criticism and if reasonable argument or criticism in
respectful language and tempered with moderation is offered
against any judicial act as contrary to law or public good no
court would treat criticism as a contempt of court.
Advocacy touches and asserts the primary value of freedom of
expression. It is a practical manifestation of the principle of
freedom of speech which holds so dear in a democracy of
ability to express freely. Freedom of expression produces the
benefit of the truth to emerge. It aids the revelation of the
mistakes or bias or at times even corruption it assists stability
by tempered articulation of grievances and by promoting
peaceful resolution of conflicts. Freedom of expression in
arguments encourages the development of judicial dignity,
forensic skills of advocacy and enables protection of
fraternity., equality and justice. It plays its part in helping to
secure the protection of other fundamental human rights.
Legal procedure illuminates how free speech of expression
constitutes one of the most essential foundations
of democratic society. Freedom of expression, therefore, is
one of the basic conditions for the progress of advocacy and
for the development of every man including legal fraternity
practising the profession of law. Freedom of expression,
therefore, is vital to the maintenance of free society. It is
essential to the rule of law and liberty of the Citizens. The
advocate or the party appearing in person, therefore, is given
109
liberty of expression. As stated hereinbefore, they equally owe

countervailing duty to maintain dignity, decorum and order in
the court proceedings or judicial process. The liberty of free
expression is not to be confounded or confused with licence to
make unfounded allegations against any institution, much less
the judiciary.
In E.M.S. Namboodiripad v. T. Narayanan Nambiar [1971) 1
SCR 697] a Bench of three judges had held that the law of
contempt stems from the right of a held that the law of
contempt stems from the right of a court to punish, by
imprisonment or fine, persons guilty of words or acts which
obstruct or tend to obstruct the administration of justice. This
right is exercised in India by all courts when contempt is
committed in facie curiae by the superior courts on their own
behalf or on behalf or courts subordinate to them, even if
committed outside the Courts.
Scandalising the judges or courts tends to bring the authority
and administration o flaw into disrespect and disregard and
tantamounts to contempt. All acts which bring the court into
disrepute or disrespect or which offend its dignity or its
majesty or challenge its authority, constitute contempt
committed in respect of single judge or single court or in
certain circumstances committed in respect of the whole of
the judiciary or judicial system. Therein the criticism by the
chief Minister who described judiciary as an instrument of
oppression an d the judges as guided and dominated by class
110
hatred, class interest and class prejudices etc. was held to be

an attack upon judges calculated to give rise to a sense of
disrespect an distrust of all judicial decisions. It was held that
such criticism of authority of the law and law courts
constituted contempt court and the Chief Minister was found
guilty thereof. The contempt of court evolved in common law
jurisprudence was codified in the form of the Act. Section 2
[c] defines " criminal contempt" which has been extracted
earlier. In A.M. Bhattacjarkee's case [supra] relied on by the
petitioner himself, a Bench of the two judges considered the
said definition and held that scandalising the court would
mean any act done or writing published which is calculated to
bring the court or judges into contempt or to lower its
authority or to interfere with the due course of justice or the
legal process of the court. In para 30, it was stated that
scandalising the court is a convenient way of describing a
publication which, although it does not relate to any specific
case either past or pending or any specific judge, is a
scurrilous attack on the judiciary as a whole, which although
it does not relate to any specific case either past or pending or
any specific judge, is a calculated to undermine the authority
of the courts and public confidence in the administration of
justice. Contempt of court is to keep the blaze of glory around
the judiciary and to deter people from attempting to render
justice contemptible in the eyes of the public. A liable upon a
court is a reflection upon the sovereign people themselves.
The contemnor conveys to the people that the administration
111
of justice is weak or in corrupt hands. The fountain of justice

is tainted. Secondly, the judgments that stream out of that foul
fountain is impure and contaminated. In Halsbury's Laws of
England [4th Edn.] Vol. 9 para 27 at page 21 on the topic
"Scandalising the Court " it is stated that scurrilous abuse of a
judge or court, or attacks on t he personal character of a judge,
are punishable contempts. The punishment is inflicted, not for
the purpose of protecting either the court as a whole or the
individual judge of the court from a repetition of the attack,
but of protecting the public, and especially those who either
voluntarily or by compulsion are subject subject to the
jurisdiction of the court, from the mischief they will incur if
the authority of the tribunal is undermined or impaired. In
consequence, the court has regarded with particular
seriousness allegations of partiality or bias on the part of a
judge or a court. On the other hand, criticism of a judge's
conduct or of the conduct of a court, even if strongly worded,
is not a contempt provided that the criticism is fair, temperate
and made in good faith, and is not directed to the personal
character of a judge or to the impartiality of a judge or court.
Therefore, it is of necessity to regulate the judicial process
free from fouling the fountain of justice to ward off the people
from undermining the confidence of the public in the purity of
fountain of justice and due administration. Justice thereby
remains pure, untainted and unimpeded. The punishment for
contempt, therefore, is not for the purpose of protecting or
112
vindicating either the dignity of the court as a whole or an

individual judge of the court from attack on his personal
reputation but it was intended to protect the public who are
subject to the jurisdiction of the court and to prevent under
interference with the administration of justice. If the authority
of the court remains undermined or impeded the fountain of
justice gets sullied creating distrust and disbelief in the mind
of the litigant public or the right-thinking public at large for
the benefit of the people. Independence of the judiciary for
due course of administration of justice must be protected and
remain unimpaired. Scandalising the court, therefore, is a
convenient expression of scurrilous attack on the majesty of
justice calculated to undermine its authority and public
confidence in the administration of justice. The malicious or
slanderous publication inculcates in the mind of the people a
general disaffection and dissatisfaction on the judicial
determination and indisposes in their mind to obey them. If
the people's allegiance to the law is so fundamentally shaken
it is the most vital and most dangerous obstruction of justice
calling for urgent action. Action for contempt is not for the
protection of the judge as private individual but because they
are the channels by which justice is administered to the people
without fear or favor. As per the Third Schedule to the
Constitution oath or affirmation is taken by the judge that he
will duly and faithfully perform the duties of the office to the
best of his ability, knowledge and judgment without fear or
favour, affection or ill-will and will so uphold the Constitution
113
and the laws In accordance therewith, judges must always

remain impartial and should be known by all people to be
impartial. Should they be imputed with improper motives,
bias, corruption or partiality, people will lose faith in them.
The judge requires a degree of detachment and objectivity
which cannot be obtained, if judges constantly are required to
look over their shoulders for fear of harassment and abuse and
irresponsible demands for prosecution or resignation. The
whole administration of justice would suffer due to its
rippling effect. It is for this reason that scandalising the judges
was considered by the parliament to be contempt of a court
punishable with imprisonment or fine.
Scandalising the court, therefore, would mean hostile
criticism of judges as judges or judiciary. Any personal attack
upon a judge in connection with office he holds is dealt with
under law of libel or slender. Yet defamatory publication
concerning the judge as a judge brings the court or judges into
contempt, a serious impediment to justice and an inroad on
majesty of justice. Any caricature of a judge calculated to
lower the dignity of the court would destroy, undermine or
tend to undermine public confidence in the administration of
justice or majesty of justice. It would therefore, be
scandalising the judge as a judge, in other words, imputing
partiality, corruption, bias, improper motives to a judge is
scandalisation of the court and would be contempt of the
court. Even imputation of lack of impartiality or fairness to a
114
judge in the discharge of his official duties amounts to

contempt. The gravamen of the offence is that of lowering his
dignity or authority or an affront to majesty of justice. When
the contemnor challenges the authority of the court, he
interferes with the performance of duties of judge's office or
judicial process or administration of justice or generation or
production of tendency bringing the judge or judiciary into
contempt. Section 2 (c) of the Act, therefore, defines criminal
contempt the wider articulation that any publication, whether
by words, spoken or written, or by signs, or by visible
representations, or otherwise of any matter or the doing of any
other act whatsoever which scandalises or tends to scandalise,
or lowers or tends to lower the authority of any court; or
prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or interfere with, or
obstructs or tends to obstruct, the administration of justice in
any other manner, is a criminal contempt. Therefore, a
tendency to scandalise the Court or tendency to lower the
authority of the court or tendency to interfere with or tendency
to obstruct the administration of justice in any manner or
tendency to challenge the authority or majesty of justice,
would be a criminal contempt. The offending act apart, any
tendency if it may lead to or tends to lower the authority of
the court is a criminal contempt. Any conduct of the
contemnor which has the tendency or produces a tendency to
bring the judge or court into contempt or tends to lower the
authority of the court would also be contempt of the court.
115
It is true that in an indictable offence generally mens rea is an

essential ingredient and requires to be proved for convicting
the offender but for a criminal contempt as defined in Section
2 (c] any enumerated or any other act apart, to create
disaffection disbelief in the efficacy of judicial dispensation or
tendency to obstruct administration of justice or tendency to
lower the authority or majesty of law by any act of the parties,
constitutes criminal contempt. Thereby it excludes the proof
of mens rea. What is relevant is that the offending or affront
act produces interference with or tendency to interfere with
the courses of justice. At this stage, we would dispose of one
of the serious contentions repeatedly emphasised by the
petitioner that he had no personal gain to seek in the lies
except said to have been fired by public duty and has
professed respect for the Court. Those are neither relevant nor
a defence for the offence of contempt. What is material is the
effect of the offending act and not the act per se. In E.M.S.
Namboodiripad's case this court had held in paragraph 33 that
a law punishes not only acts which had in fact interfered with
the courts and administration of justice but also those which
have that tendency, that is to say, are likely to produce a
particular result. It was held that the likely effect of the words
must be seen and they clearly have effect of lowering the
prestige of the judges and courts in the eyes of people. Same
view was reiterated in Sambu Nath Jha vs. Kedar Prasad
Sinha [(1992(1) SCC 573 at 577]. As stated earlier, imputation
of corrupt or improper motives in judicial conduct would
116
impair the efficacy of judicial dispensation and due protection

of the liberties of the citizen or due administration of justice.
This paramount public interest is protected by the definition in
Section 2 [c] of the Act. It is, therefore, not necessary to
establish actual intention on the part of the contemnor to
interfere with the administration of justice. making reckless
allegations or vilification of the conduct of the court or the
judge would be contempt.
The question, therefore, to be considered is: whether the
imputations referred to hereinbefore have necessary tendency
to impinge or tendency to impede the public confidence in the
administration of justice or would create disbelief in the
efficacy of judicial administration or lower the authority or
interferes with majesty of Court? The court, therefore, is
required to consider whether the imputations made by a
contemnor are calculated to bring or have the effect of
bringing the court into contempt or casting aspersions on the
administration of justice tends to impede justice etc. The court
has to consider the nature of the imputations, the occasion of
making the imputations and whether the contemnor foresees
the possibility of his act and whether he was reckless as to
either the result or had foresight like any other fact in issue to
be inferred from the facts and circumstances emerging in the
case. The reason is obviously that the court does not sit to try
the conduct of a judge to whom the imputations are made. It
would not be open to the contemnor to bring forward evidence
117
or circumstances to justify or to show whether and how fairly

imputations were justified because the judge is not before the
Court. The defence justification to an imputation would not,
therefore, be available to the contemnor. The imputation of
improper motives or bias cannot be justified on the principle
of fair contempt.
In Ambard v. Attorney-General for Trinidad and Tobago
[1936 AC 322 at 335] Lord Atkin in his oft-quoted judgment
held that justice is not a cloistered virtue and must be allowed
to suffer the secutiny and respectfully, have been, though
outspoken comments of ordinary man". But in the same
judgment it was further pointed out that provided that
members of the public should abstain from imputing improper
motives to those taking part in the administration of justice
and are genuinely exercising a right of criticism and not acting
in malice or attempting to impair the administration of justice.
That was a case of criticism of the Court proceedings as is
saved by Section 5 of the Act. Law is not in any doubt that in
a free democracy everybody is entitled to express his honest
opinion about the correctness or legality of a judgment or
sentence or an order of a court but he should not overstep the
bounds. Though he is entitled to express that criticism
objectively and with detachment in a language dignified and
respectful tone with moderation, the liberty of expression
should not be a licence to violently make personal attack on a
judge. Subject to that, an honest criticism of the
118
administration of justice is welcome since justice is not a

cloistered virtue and is entitled to respectful scrutiny. Any
citizen is entitled to express his honest opinion about the
correctness of the judgment, order or sentence with dignified
and moderate language pointing out the error or defect or
illegality in the judgment, order or sentence. That is after the
event as post-mortem.
In Shri Baradakanta Mishra etc. v. The Registrar of Orissa
High Court & Anr. etc. [1974) 1 SCC 374], the appellant, a
District judge was suspended and a spate of litigation in that
behalf had ensued. When an order of suspension was set aside
by the Government, in exercise of his power under Article
235, the High Court further ordered suspension of him
pending enquiry of the allegations made against judges in a
memorandum and letters sent to the Governor in a vilificatory
criticism of the judges in their function on the administration
side. When contempt action was initiated, he challenged the
jurisdiction of the court and the competency to initiate action
for contempt on the specious plea that the acts done by the
High Court were on the administration side and were not
judicial actions. A three-Judge Bench had negatived the plea
and convicted the appellant under section 12 of the Act. When
the matter had come up before this court, a constitution Bench
considered the gravamen of the imputations and had held that
the allegations made against the court in the memo submitted
to the Governor constituted scurrilous allegations against the
119
High Court. Again some of the allegations made in the memo

of appeal and various communications to the Supreme Court
were held to constitute contempt of the Court and the
conviction was confirmed though sentence was reduced. This
Court held that imputation of improper motives, bias and
prejudice constitutes contempt under Section 2[c] of the Act.
In Special Reference No. 1 of 1964, popularly known as U.P.
Legislature's Warrant of Arrest of the Judges of the Allahabad
High Court and Keshav Singh Reference, a Bench of seven
judges of this Court observed that the power to punish for
contempt alleged must always be exercised cautiously, wisely
and with circumspection. The best way to sustain the dignity
and status of their [judges] office is to deserve respect from
the public at large by the quality of their judgments,
fearlessness and objectivity of their approach and buy the
restraint, dignity and decorum which they observe in their
judicial conduct. It would equally apply to the legislature.
Keeping the above perspective in view, the question emerges;
whether the imputations itemised hereinbefore constitute
contempt of the Court. At the cost for petition, we any
reiterate that in a democracy though every one is entitled to
express his honest opinion about the correctness or legality of
a judgment or an order or sentence, judges do require degree
of detachment and objectivity in judicial dispensation, they
being duty bound with the oath of office taken by them in
adjudicating the disputes brought before the court. The
120
objectivity or detachment cannot be obtained if the judges

have constantly to look over their shoulders for fear of
harassment and abuse and irresponsible demands for
prosecution, resignation or to refrain from discharging their
duties pending further action. Cognisant to this tendency;, the
founding fathers of the Constitution engrafted Articles 121
and 211 of the constitution and prohibited the parliament and
the legislatures to discuss on the floor of the House the
conduct of any judge of the Supreme Court or the High Court
in the discharge of his duties except upon a motion for
presenting address to the president praying for the removal of
a judge under Article 124[4] of the Constitution in accordance
with the procedure prescribed under the judges [Inquiry] Act,
1968 and the Rules made thereunder. In A.M. Bhattacharjee's
case on which great reliance was placed by the petitioner
emphasising the rectitude on the part of a judge, this Court
laid the rule for the advocates to adhere to a code of conduct
in seeking redressal on the perceived aberration of the conduct
of a judge otherwise than in accordance with the procedure
prescribed in Article 124 [4] of the Constitution. The respect
for and the dignity of the court thereby was protected from
scurrilous attack on the judge or the court. if the forum of the
judicial process is allowed to mount scurrilous attack on a
judge, the question arises whether the forum of the judicial
process of vilification of the judges or imputations to the
judges in the pleadings presented to the court would give
liberty of freedom of expression to an advocate or a light of
121
the above discussion, we have little doubt to conclude that

when an advocate or a party appearing before the court
requires to conduct himself in a manner befitting to the
dignity and decorum of the court, he cannot have a free
licence to indulge in writing in the pleadings the scurrilous
accusations or scandalisation against the judge or the court. If
the reputation and dignity of the judge, who decides the case
are allowed to be prescribed in the pleadings, the respect for
the court would quickly disappear and independence of the of
the judiciary would be a thing of the past.
In Re: Roshan Lal Ahuja [(1993) Supp. 4 SCC 446] when the
contemnor-petitioner's countless unsuccessful attempts
against his order of removal from service became abortive and
in spite of this Court granting at one stage compensation of a
sum of Rs.30,000/- he had indulged in the pleadings with
scurrilous accusations on judges who granted compensation
and not reinstatement. It was held by a three- judge Bench that
the contemnor had permitted himself the liberty of using
language in the documents and pleadings which not only had
the effect of scandalising and lowering the authority of the
court in relation to judicial matters but also had the effect of
substantial interference with an obstructing the administration
of justice. The unfounded and unwarranted aspersions on the
judges of this Court had the tendency to undermine the
authority of the court and would create distrust in the public
mind as to the capacity of the judges of this Court to met out
122
fearless justice. Accordingly, he was convicted and sentenced

to under go imprisonment for a period of four months and to
pay a fine of Rs.1,000/- and in default, to undergo sentence
for a further period of 15 days.
In L.D. Jaikwal v. State of U.P. [1984) 3 SCC 405], the
conduct of an advocate in using abusive language in pleadings
and vilification of a judge was held to constitute contempt
under Section 2 [c] (i) of the Act and his sentence under
Section 12 of the Act was upheld. In Re: Shri S. Mulgaokar
[(1978) 3 SCC 497] the conduct of a senior advocate in
publishing a pamphlet imputing improper motives to the
Magistrate who decided his case was held to constitute
substantial interference with the due administration of justice.
His conviction was accordingly upheld though sentence was
reduced. In K.A. Mohammed Ali v. C.N. Prasannan [(1994)
Supp. 3 SCC 509] while arguing the case, the counsel raised
his voice unusually high to the annoyance of the Magistrate
and used derogatory language against the Magistrate before
whom he conducted the trial of an accused. His conviction
and sentence for contempt was accordingly upheld.
In Gillers "Regulation of Lawyers - Problems of Law and
Ethics" [Third Edition - 1992] at page 747 it was pointed out
that in spite of first Amendment protection of free speech,
lawyers who committed contempt of the court were punished
by American court even if they were advocating their clients
interest at that time. The lawyer's behavior threatens the
123
dignity and authority of the Courts was held to constitute

contempt of the court.
In Charan Lal Sahu v. Union of India & Anr. [(1988) 3 SCC
255], in a petition under Article 32 of the Constitution the
advocate indulged in mud-slinging against advocates and this
Court. It was held that those allegations were likely to lower
the prestige of this Court. This Court accordingly held that he
committed contempt in drawing up the petition and directed to
initiate proceedings against him for overstepping the limits in
particular of self-restraint. It would, thus, be seen that when
the first writ petition was dismissed by this Court, as a
responsible citizen, the petitioner would have kept quite.
When the result animated by the petitioner was not achieved,
he embittered to foul at the process of this Court and
emboldened to file the second writ petition with imputation
made against this Court, in particular targeting the Chief
justice of India, Justice A.M. Ahmadi. As stated hereinbefore
and need not be reiterated once over that it is the duty of the
Court to hear and decide any matter posted for admission.
Therefore, there is nothing improper for the first Court
presided over by the Chief Justice of India to hear and decide
the matter. When it came up for admission, the Court appears
to have been persuaded to ascertain the correctness of the
allegations made in the writ petition. This Court obviously
before issuing notice had sent for and directed the solicitor
General to obtain the information from the Government as to
124
the correctness of the allegations made before deciding

whether the Court would exercise its prerogative power under
Article 32 to issue directions as sought for. In furtherance
thereof, the Solicitor General admittedly placed before the
Court the record. On perusal thereof, the first Court the
record. On perusal thereof, the first Court had declined to
exercise the power as enumerated and obviously stated by the
petitioner that the exercise of the power under Article 32 was
not appropriate since the Government in the Defence
Department could recover from the Prime Minister's
Secretariat or from the Congress Party, as the case may be, all
the arrears, if any, due and payable by the respective entities.
It is not obligatory for this court to give reasons for dismissing
the writ petition. Day in and day out in countless cases, while
refusing to interfere with the orders this Court dismisses the
petitions be it filed under Article 32 or 136 of the Constitution
in limine. It is also seen that though the case was adjourned
for two weeks, no doubt, it was not posted on that day but it
was listed some time thereafter. In the proceedings of the
Court recorded by the staff, it was recorded that the Solicitor
General or in personal capacity obviously acted as amicus on
behalf of the court. Being the Solicitor General for India, he
was directed to have consultation with Government
Departments and to obtain needed information. In appropriate
cases this procedure is usually adopted by the Court.
Recording of the proceedings by the court generally is not
noted by the Court. Is it improper for the Chief justice to hear
125
the case? Was the dismissal totally unjust and unfair for not
recording the reasons? The petitioner obviously with half-
baked knowledge in law mixed up the language as "improper
for Chief justice of India to hear it". "Dismissal of the
"grouse" of the petitioner was totally unjust, unfair, arbitrary
and unlawful flagrant violation of mandate of Article 14"
"Violation of the sacred oath of office " and to "declare justice
A.M. Ahmadi unfit to hold the office as Chief Justice of
India". When these imputations were pointed out to the
petitioner by three-Judge Bench presided over by brother
Verma, J. while dismissing the second writ petition, to be
scandalous and reckless, he had stated that he "stood by"
those allegations. He reiterated the same with justification in
his preliminary submissions. He has stated that the
accusations made were truthful and "carefully" worded. In
this backdrop scenario, the effect of these imputations is
obviously reckless apart from scandalising this Court, in
particular the Chief Justice of India and was intended to foul
the process of the Court or lower or at any rate tends to lower
the authority of the Court in the estimate of the public and
tends to undermine the efficacy of he judicial process. It
would, therefore, be clear that the accusations are gross
contempt. At the height of it, he stated that since the first writ
petition was not disposed of by a bench of not less than five
judges, the writ petition was not dismissed in the eye of law
and the order of dismissal is non est and it is "not decided and
disposed of constitutionally". This assertion of the petitioner
126
flies in the face of the judicial finality of the order of this

Court and the assertion tends to question the authority of the
court. It creates tendency to obstruct the administration of
justice and, therefore, it would be an outrageous criminal
contempt.
Omission to record reasons, according to the petitioner, is
violative of the principles of natural justice. The Chief justice
of India has committed impropriety in deciding the matter. As
stated earlier, the decision is that of the Bench on behalf of the
Court and the Chief justice, being the senior-most among the
members constituting the bench, had spoken on behalf of the
Bench. Therefore, the attribution of improper motives
scandalises the efficacy of judicial adjudication and per se
contumaciously lowers or at any rate tends to lower the
dignity or authority of the Court. The prayer for prosecution
of the Chief justice, though sought in Item 14 (a) and (d) to be
withdrawn, which would be of no consequence, is, therefore,
unbelievably outrageous contempt.
These findings dispose of Items 1,3,5,9 and 14(a) which
remain not even amended by the contemnor.
As regards other imputations, it may be stated at this stage, as
rightly pointed out by the learned solicitor general, that what
we are required to consider is the effect of the imputations
made by the contemnor in the second writ petition and not
what he sought to amend some of he averments attributing
127
imputations to this Court and the effect thereof. By his own

admission, they are "strindent" and "pungent". They are
"truthful" and were "carefully" stated by him. Even the
amended averments did not advance the contemnor's stand.
On the other hand, they compound perpetration of
contumacious conduct recklessly made by the contemnor in
the second writ petition. It item 4, the contemnor attributed
that "justice Ahmadi "ultimately" dismissed the petition
observing that the Government of India was capable of
realising the dues from Shri Rao (which it had not done in two
years) and without recording reasons for dismissing the
petition. So much for the vaunted adherence to the twin
principles of the "transparency and accountability". It would
be seen that insinuations that emerge from these words in writ
petitions together with the phrase that CJI browbeated him ex
facie scandalise the Court and tend to lower the authority of
the Court. As seen, the insinuations tend to bring the court
into contempt in the estimate of the general public and that the
court lacked fairness, objectivity and dismissed the writ
petition for known reasons. it also tends to interfere with the
administration of justice and that the court should give
reasons last the order be believed to be shrouded with
suspicion. Therefore, it is ex facie contumacious. The
contemnor seeks to justify his averments under Section 4 of
the Act as fair and accurate report of the judicial proceedings
and that, therefore, they are not contempt. Even in his
modified statement, for his statement that the chief justice of
128
India browbeated him in dismissing the writ petition, he stated

the "discerned reluctance" on the part of the presiding judge.
In other words, his revised imputation compounds the
commission of flagrant contempt by substituting the word
"discerned reluctance" on the part of the presiding judge. In
other words, his revised imputation compounds the
commission of flagrant contempt by substituting the word
"browbeat" with the words "discerned reluctance". In other
words, he attributed motives to the Court for dismissal of the
first writ petition. It would, thus, be clear that the contemnor
animated to impute motives to the chief Justice of India in the
discharge of his constitutional duty of deciding a case. When
his grouse stated by the petitioner emphasis supplied] against
sri P.V. Narasimha Rao was not redressed exercising the
power under Article 32 a result which he wanted, the
petitioner contumaciously attributed motives to the Court, in
particular to the presiding officer of the Court, the Chief
Justice of India and thereby he scandalised the court in the
estimate of the general public. We fail to appreciate the stand
of the petitioner that Section 4 bails him out and purges from
contempt. It would be applicable only to publication of the
report of a judicial proceedings fairly and with accuracy to
outside the world. There is a distinction between expression in
pleading and publication of he report of the judicial
proceedings or an order without malice as fair and constrictive
criticism to the readers. As stated earlier, fair criticism of the
judicial proceedings outside the pleadings of the Court is a
129
democratic feature so as to enable the court to look inward

into the correctness of the proceedings fn the legality of the
orders of the orders of the Court by the Court itself for
introspection. But a party has a duty and responsibility to
plead as a part of the averments or the prayer in the relevant
portion with language befitting with the dignity of the Court
and the judicial process and not in self-abuse of the freedom
of expression given under Article 19 [1] (a). abuse of the
process of the court is a self-evidence. As such Article 19(2)
creates an embargo on the freedom of the expression and
excludes from its operation the power of contempt of Court
under the Act. This Court being court of record, power of this
Court under Article 129 is independent and is not subject to
Article 19[1] (a), Ex abundanti cautela, Article 19[2] excludes
the operation of Articles 19 [1] when speech or expression is
trapped in contempt of court or tends to trench into it. When
the contempt of court is committed by a litigant, the freedom
of expression being contemptuous becomes punishable under
Article 129 of eh Constitution de horse the power under
Section 12 of the Act. Item 7 relates to the imputation that the
Chief justice of India gets no judicial protection unlike the
president of India for being prosecuted even while Chief
justice A.M. Ahmadi holds office as Chief justice of India and
is accordingly liable to prosecution. This bravado not only
impinges upon the protection given by Article 124[4] of the
Constitution and under relevant provisions of the protection of
officials Act ex facie it is an outrageous tendency to lower the
130
authority of the Court and interference with judicial

administration. The assertion of the petitioner that this is a
constitutional conundrum required to be decided by a
constitution Bench of this Court highlights contumacious
conduct of the contemnor.
In item 8 he attributes that this Court "willfully" and
"advertently" [emphasis supplied] violated fundamental rights
of the contemnor and of other people in not granting relief of
direction to Sri P.V. Narasimha Rao to pay the alleged dues.
The word "advertently" was carefully used by the petitioner
and the word "willfully" was employed for refusal of the
relief. They do emphasise the emphatic tone of he language
and the motive of he contemnor and attribute motives to this
court that the relief sought for in the first writ petition
"advertently" was not granted and was "wilfully" declined and
thereby the Chief Justice Ahmadi lost constitutional
protection of not being prosecuted. This accusation is a
culmination of the contumacious conduct of wanton
scandalisation of the Court and reckless denigration. In his
amended petition, her further aggravates the contempt stating
that the dismissal of the petition by the first court sent wrong
signals to the entire judiciary of which justice Ahmadi is the
head as chief justice of India. The scurrilous attack, therefore,
is not only on Justice Ahmadi as a judge but also as the Chief
Justice of India and also as head of the institution of the whole
131
country. Thereby he designedly and deliberately allowed

himself being brought within ex facie criminal contempt.
Item 9 relates to the accusation "what are the legal
consequences of the violation of oath of office by justice
Ahmadi". He states in his preliminary submissions that it a
constitutional question required to be decided by a
constitution Bench. As stated earlier, every question raised
need not necessarily be decided unless the case cannot be
disposed of without deciding the question for granting or
refusing to grant the relief. The oath of office taken by a judge
of this Court is not that he should allow every case or dismiss
every case but only to uphold the constitution and the laws
and to administer justice in accordance therewith in tune with
the oath of his office. The protection of Articles 124 [4],
121,211, the judicial officers protection act and the judges
(protection) Act is to ensure independence to the judiciary.
Threat to judicial process is a challenge to the authority of the
court or majesty of justice. It would be ex-facie contumacious
conduct.
In item 10 again, the petitioner attributes that justice Ahmadi
as Chief justice of India and as a judge of this court
deliberately and willfully failed to perform his duties and
stultified the performance of fundamental duties by the
petitioner. This imputation is the consequence of the dismissal
of he first writ petition. Thereby, he seeks stripping of
citizenship of justice Ahmadi. It is an unbelievable outrageous
132
affront to the majesty of justice on the part of the contemnor

and scandalisation of this Court. It tends to lower the dignity
and authority of the Court and also sows seeds for persons
with similar propensity to undermine the authority of the
Court or the judiciary as a whole; he crossed all boundaries of
recklessness and indulged in wild accusations. He sought
justification in his preliminary submissions that it being a
question of law, it does not amount to personal imputation or
insinuation. In spite of this Court pointing it out to be
scandalous, when the second writ petition was dismissed and
his persistence that he stood by those allegations, it does not
lie in his mouth to contend either in his preliminary
submissions or his modified form that the dismissal of the
first writ petition amounts to failure to perform fundamental
duties by the CJI and, therefore, it would further compound
the contempt.
In imputation 11, the petitioner attributed to the chief Justice
of India that he had allowed his so to practise in the supreme
Court and to stay with him in his official residence etc. The
petitioner sought justification to the said imputation from
reports said to have been published in the "India Today" and
"The Times of India" by a lady senior advocate of this Court.
But he petitioner has not placed on record the said material.
Therefore, we do not have the advantage to verify their
contents or correctness or otherwise of the statements said to
have been published therein. When we pointed out to the
133
petitioner whether he had made any independent enquiry, he

had reiterated that he relied upon those statements. In other
words, by implication, he admitted that he did not make any
independent enquiry into the alleged misuse of official facility
by the Chief Justice of India in permitting his son to practise
in this Court or to reside in his official residence along with
him. For the said imputation he said that Justice Ahmadi, the
Chief justice of India is liable to be prosecuted under the
prevention of Corruption Act and he seeks as a justification
the ratio decidendi of Veeraswami's case. it is seen that
Veeraswami's case has no application whatsoever. As stated
earlier, Article 124 (4) of he constitution read with the Judges
[Inquiry] Act prescribes the procedure to take action against a
judge of the Supreme Court or of the High Court for proved
misbehavior or incapacity. As laid down in Bhattacharjee's
case, Bar Association of the concerned Court was given
liberty to place any material of the aberration of the conduct
of a judge before the CJI for redressal as per the "in-house"
procedure laid down therein. For proved misbehavior, the
address by each house of parliament to the president for
removal of a Judge pursuant to a finding of proved
misbehavior or incapacity under the judges (Inquiry) Act by a
resolution of not less than two-third of the members of the
House and voting by two-third of the House present and an
order of removal therein by the president of India is
culmination. In Bhattacharjee's case, this Court also laid down
that no other authority or person has power to conduct any
134
enquiry against the conduct of a judge. Articles 121 and 211

prohibit discussion, in the parliament or in the Legislature of a
State, or the conduct of judge of the Supreme Court or High
Court respectively. Therefore, when the constitution prohibits
the discussion of the conduct of a Judge, by implication, no
one has power to accuse a judge of his misbehavior or
incapacity except and in accordance with the procedure
prescribed in the Constitution and the Judges [Inquiry] act or
as per the procedure laid down in Bhattacharjee's case.
Irrelevancy of the accusations apart, the prayer for
prosecution of the Chief Justice of India under the prevention
of Corruption Act is an assault on majesty of justice, affront to
authority of law, the gravest contumacious conduct and
scurrilous scandalisation of the Court.
Item 12 of the accusation relates to the payment of litigation
cost incurred by the contemnor in both The writ petitions and
the loss said to have been caused to the public exchequer by
non-payment by Sri P.V. Narasimha Rao, from personal
pocket of Justice Ahmadi as a Chief Justice for dismissal of
the Writ petition. He stated in his preliminary submission that
when loss was caused by a public servant in his official
capacity to the public exchequer due to his dereliction of duty
and under the law it was recoverable from pay or pension of
the public servant, on the same analogy Chief justice of India
should be liable to make good the loss incurred by him and by
the State due to non-payment by Sri P.V. Narasimha Rao. The
135
implication is that by judicial act, if a presiding Judge

dismisses a petition, he is liable to bear personally not only
the costs incurred by the litigant but also the resultant loss to
the state with interest payable thereon. This imputation is a
deliberate interference with the judicial process and tends to
lower the authority of the Court spreading the virus to repeat
by drum beats of similar reckless imputations against the
judiciary at every forum down to the lower rank of the
judiciary spreading rippling effect on independence of the
judiciary, authority of the Court and wanton interference with
judicial process. It must be held to he a depraved
contumacious conduct.
Item 13 relates to the interference with the judicial
management of the Court and the duty of a Judge. When an
accusation is made against the presiding judge, by
implication, until the matter is decided, the presiding officer
has to desist from discharging the judicial duties by his
proceeding on leave and the senior-most puisne judge would
assume the office of the Chief Justice. This is a deliberate
interference in the judicial management tending to son
disaffecting in the efficacy of dispensation of justice. The
further accusation that the Chief Justice of India should not
constitute a Bench of the Judges appointed during his tenure
so that "he (CJI)" "may not directly or indirectly or indirectly
influence any of the Judges hearing the matter". It would,
thus, be in unequivocal loud expression that the contemnor
136
attributed motives to the CJI that the judges appointed during

his tenure as Chief Justice are amenable to his influence in
judicial adjudication and would decide the causes by pressure
or influence directly or indirectly brought by the Chief Justice
of India. Equally, it is a corollary that these judges are
amenable to influence and thereby they do not decide the
cases posted before them legally and objectively. The Court is
subject to pressures and decides cases under influence. These
accusations are flagrantly outrageous to scandalise the Court.
Though the contemnor has sought leave to modify this
statement, ultimately, in his amended statement, he did not
touch upon this aspect of the matter. In other words, as stated
earlier, he stood by his averments calculatedly made. His
justification that justification that justice P.N.Bhagwati (as he
then was) decided first S.P. Gupta's case when allegations
against CJI Chandrachud were made has no application. In a
judicial proceedings taken by this Court, the office of the
chief Justice of India was directly involved in appointment of
additional judges or extension of their tenure as additional
Judges or their transfer. The Chief Justice of India reclused
himself from the Bench; resultantly, the senior-most puisne
judge came to preside over that Bench. Thus, the contemnor
has committed the contempt of this Court under Article 129 of
the Constitution.
The question then is: what punishment is to be awarded to the
contemnor? As pointed out earlier, the repeated assertions of
137
the petitioner that he has no personal gain in the litigation and

was actuated by the public duty and laid the petitions, bear no
relevance or a defence. It is already held that in a contempt
proceedings, the motive, in other words, the mens rea is not
relevant. What would be the effect of the act or conduct or
imputation is the relevant question for decision? It is true that
in an indictable offence under penal law generally mens rea is
an essential ingredient and the burden lies on the prosecution
to prove it affirmatively. In a contempt proceedings of
summary nature, the proof of mens rea is absolutely
unnecessary. What is material is the effect or the tendency of
the act, conduct or the publication of the words, written,
spoken or by signs or by visible representation or otherwise
and whether it scandalises or tends to scandalise or lowers or
tends to lower the authority of the court or prejudices or tends
to prejudice or interfere or tends to interfere with the due
course of any judicial proceedings or interferes or tends to
interfere with or obstruct the administration of justice in any
other manner. The tendency due to the publication, whether
by words written or spoken or by signs or by visible
representation or otherwise, of any matter or the doing of any
other act whatsoever is relevant and material.
It is already noted that while dismissing the second writ
petition, this Court has pointed out the scandalous nature of
accusations which found place in the second writ petition and
when the petitioner persisted for consideration of scandalous
138
accusations to lay proceedings against the Chief Justice of

India for prosecution and other reliefs referred to
hereinbefore, he reiterated that he would stand by those
accusations. Resultantly this Court was constrained to be into
merits and dismissed the petition and initiated suo motu
contempt proceedings and got the notice issued to him
pointing out specifically 14 items which constituted
scandalous and reckless litigations pleaded with
irresponsibility. He reiterated them in his preliminary
submissions with further justifications. He admitted that many
of them are strident and pungent. He modified some but, as
has been pointed out, by compounding further contempt. In
spite of the solicitor General pointing out the seriousness of
the accusations and the need for the petitioner to have further
consultation with a counsel of his choice the contemnor
remained unmoved. On April 15, 1996, when the matter came
up before this Bench for the first time after the service of
notice of the contempt and his filing the preliminary
submissions, the petitioner had orally stated that some legal
counsels in the Bar suggested to him that he should modify
the offending portions noted in the contempt notice. It would,
thus, be seen that he appears to have had consultation with
some advocates at the Bar and that he did not retract his steps.
He did not tender any unconditional apology, though this
Court is not bound to accept such an unconditional apology
for consideration. Considered from the totality of the facts and
circumstances, the gravest magnitude of the contumacious
139
conduct of the contemnor, we are left with no opinion but to

convict and sentence him to undergo simple imprisonment for
a period of three moths with a fine or Rs. 2,000/- payable in a
period of months and in case of defaulted, to undergo further
imprisonment for a period of one month.
The contempt petition is accordingly disposed of
140
CONTENTs
Writ Jurisdiction
1. What is Writ?
2. Importance of Writ
3. Type of Writ
4. Writ context to Indian Constitution

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Q. What is Writ?
Ans. The Indian Constitution empowers the Supreme Court to
issue writs for enforcement of any of the fundamental rights
conferred by Part III of Indian Constitution under Article 32.
Thus the power to issue writs is primarily a provision made to
make available the Right to Constitutional Remedies to every
citizen. The Right to Constitutional Remedies, as we know, is a
guarantor of all other fundamental rights available to the people
of India.
In addition to the above, the Constitution also provides for the
Parliament to confer on the Supreme Court power to issue writs,
for purposes other than those mentioned above.
Similarly High Courts in India are also empowered to issue writs
for the enforcement of any of the rights conferred by Part III and
for any other purpose.
Under the Indian legal system, jurisdiction to issue 'prerogative
writs' is given to the Supreme Court, and to the High Courts of
Judicature of all Indian states. Parts of the law relating to writs
are set forth in the Constitution of India. The Supreme Court, the
highest in the country, may issue writs under Article 32 of the
Constitution for enforcement of Fundamental Rights and under
Articles 139 for enforcement of rights other than Fundamental
Rights, while High Courts, the superior courts of the States, may
issue writs under Articles 226. The Constitution broadly provides
for five kinds of "prerogative" writs: habeas corpus, certiorari,
mandamus, quo warranto and prohibition. 3 | P a g e
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Importance of Writ
Article 226 of the constitution, confers the High Courts’ wide
powers to issue orders and writs to any person or authority.
Before a writ or an order is passed, the party approaching the
court has to establish that he has a right and that right is
illegally invaded or threatened. High court can issue writ and
directions, to any Government, authority or person even beyond
its territorial jurisdiction, if the cause of action partly arises
within its territorial jurisdiction.
Wherever questions of facts are involved normally High Court
does not exercise its power under article 226. Similarly, when an
alternative remedy is available to the Petitioner, the Courts do
not entertain petitions under Article 226. Also, when there is an
inordinate delay in approaching the court, the court may not give
relief acting under this article.
There are various types of Writs: – Habeas Corpus, Mandamus,
Prohibition, Quo Warranto and Certiorari. Supreme Court under
Article 32 of the Constitution can exercise similar powers.
The basic idea in conferring powers under Article 226 upon High
Court is to see that the rule of law is maintained in the society.
The executive Authorities are to be corrected whenever they
transgress the limits of their power and encroach upon the rights
of the citizen. Violations of human rights, natural rights etc., are
instances where the High Courts’ interfere using this powerful
article of the constitution. 4 | P a g e
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Type of Writ
There are five types of Writs - Habeas Corpus, Mandamus,
Prohibition, Certiorari and Quo warranto.
1. Habeas Corpus
"Habeas Corpus" is a Latin term which literally means "you may
have the body." The writ is issued to produce a person who has
been detained, whether in prison or in private custody, before a
court and to release him if such detention is found illegal.
The incalculable value of habeas corpus is that it enables the
immediate determination of the right of the appellant’s freedom”.
The writ of Habeas Corpus is a process for securing liberty to the
party for illegal and unjustifiable detention. It objects for
providing a prompt and effective remedy against illegal restraints.
The writ of Habeas Corpus can be filled by any person on behalf
of person detained or by the detained person himself. It is a
judicial order issued by Supreme Court or High Court through
which a person confined may secure his release. The writ of
Habeas Corpus can be filed by any person on behalf of the other
person. In Icchu Devi v. Union of India, the Supreme Court held
that in a case of writ of Habeas corpus there are no strict
observances of the rules of burden of proof. Even a post card by
any pro bono publico is satisfactory to galvanize the court into
examining the legality of detention. In A.D.M. Jabalpur v.
Shivakant Shukla, it was observed that “the writ of Habeas
Corpus is a process for securing the liberty of the subject by
affording an effective means of immediate relief from unlawful or
unjustifiable detention whether in prison or private custody. By it
the High Court and the judges of that court at the instance of a
subject aggrieved command the production of that subject and
inquire into the cause of his imprisonment. If there is no legal
justification for that detention, then the party is ordered to be
released.” 5 | P a g e
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It is an extraordinary remedy at law. Habeas corpus in Latin

means “May you have the body” is a writ (legal action) which
requires a person under arrest to be brought before a judge or
into court. This ensures that a prisoner can be released from
unlawful detention—that is, detention lacking sufficient cause or
evidence. The remedy can be sought by the prisoner or by
another person coming to the prisoner’s aid. This right originated
in the English legal system, and is now available in many
nations. These Writs are filed nearly everyday in nearly every
jurisdiction. 6 | P a g e
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2. Mandamus
Mandamus is a Latin word, which means "We Command".
Mandamus is an order from the Supreme Court or High Court to
a lower court or tribunal or public authority to perform a public
or statutory duty. This writ of command is
Issued by the Supreme Court or High court when any
government, court, corporation or any public authority has to do
a public duty but fails to do so.
Mandamus is a judicial remedy which is in the form of an order
from a superior court to any Government agency, court or public
authority to do or forbear from doing any specific act which that
body is obliged to do under the law. The writ of mandamus is
issued whenever the public authorities fail to perform the
statutory duties confirmed on them. Such writ is issued to
perform the duties as provided by the state under the statute or
forbear or restrain from doing any specific act. The first case
reported on the writ of mandamus was the Middle tone case in
1573 wherein a citizen’s franchise was restored. The writ of
mandamus can be issued if the public authority vested with
power abuses the power or acts mala fide to it. In Halsbury’s
Laws of England, it is mentioned that,
“As a general rule the order will not be granted unless the party
complained of has known what it was required to do, so that he
had the means of considering whether or not he should comply,
and it must be shown by evidence that there was a distinct
demand of that which the party seeking the mandamus desires to
enforce and that that demand was met by a refusal.”
A writ of mandamus is an order issued by a superior court to a
lower court or other entity commanding the lower court,
corporation or public authority to perform or not perform specific
acts. Rules applying to a mandamus include: The requested act
must be used as a judicial remedy. The act must conform to
statutorily-authorized provisions. The write must be judicially
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enforceable and protect a legal right. Three types of mandamus

are utilized, depending upon the legal circumstances.
§ The alternative mandamus demands a defendant to appear
before court, perform an act or show cause for not having done
so.
§ The peremptory mandamus is used when a defendant fails to
comply with an alternative mandamus and which is an absolute
command for performance.
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§Third, the continuing mandamus requests an officer or

authority to perform its activities expeditiously for an indefinite
period of time in order to prevent a miscarriage of justice.
(Practical example is the case of the Kanchi Shankaracharya who

got entangled in a criminal case. Looks like the police froze the
accounts of the trust he runs and subsequently, the writ
mandamus was filed and upheld by the Chennai High Court.) 8 |
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3. Certiorari
Literally, Certiorari means to be certified. The writ of certiorari
can be issued by the Supreme Court or any High Court for
quashing the order already passed by an inferior court, tribunal
or quasi judicial authority.
It is a writ (order) of a higher court to a lower court to send all the
documents in a case to it so the higher court can review the lower
court’s decision. Appellate review of a case that is granted by the
issuance of certiorari is sometimes called an appeal, although
such review is at the discretion of the appellate court. A party,
the petitioner, files a petition for certiorari with the appellate
court after a judgment has been rendered against him in the
inferior court.
However, unlike a writ of prohibition, superior courts issue writs
of certiorari to review decisions which inferior courts have already
made. The writ of prohibition is the counterpart of the writ to
certiorari which too is issued against the action of an inferior
court. The difference between the two was explained by Justice
Venkatarama Ayyar of the Supreme Court in the following terms:
“When an inferior court takes up for hearing a matter over which
it has no jurisdiction, the person against whom the proceedings
are taken can move the superior court for a writ of prohibition
and on that an order will issue forbidding the inferior court from
continuing the proceedings.
On the other hand, if the court hears the cause or matter and
gives a decision, the party aggrieved would have to move the
superior court for a writ of certiorari and on that an order will be
made quashing the decision on the ground of want of
jurisdiction.” 9 | P a g e
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There are several conditions necessary for the issue of writ of

certiorari.
1. There should be court, tribunal or an officer having legal
authority to determine the question with a duty to act judicially.
2. Such a court, tribunal or officer must have passed an order

acting without jurisdiction or in excess of the judicial authority
vested by law in such court, tribunal or officer.
3. The order could also be against the principles of natural

justice or the order could contain an error of judgment in
appreciating the facts of the case.
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4. Prohibition
The Writ of prohibition means to forbid or to stop and it is
popularly known as 'Stay Order'. This writ is issued when a lower
court or a body tries to transgress the limits or powers vested in
it. The writ of prohibition is issued by any High
Court or the Supreme Court to any inferior court, or quasi
judicial body prohibiting the latter from continuing the
proceedings in a particular case, where it has no jurisdiction to
try. After the issue of this writ, proceedings in the lower court etc.
come to a stop.
The writ of Prohibition is issued by the court exercising the power
and authorities from continuing the proceedings as basically
such authority has no power or jurisdiction to decide the case.
Prohibition is an extra ordinary prerogative writ of a preventive
nature. The underlying principle is that ‘prevention is better than
cure .’ In East India Commercial Co. Ltd v. Collector of Customs ,
a writ of prohibition is an order directed to an inferior Tribunal
forbidding it from continuing with a proceeding therein on the
ground that the proceeding is without or in excess of jurisdiction
or contrary to the laws of the land, statutory or otherwise.
A writ of prohibition is issued primarily to prevent an inferior
court from exceeding its jurisdiction, or acting contrary to the
rule of natural justice, for example, to restrain a Judge from
hearing a case in which he is personally interested.
The term “inferior courts” comprehends special tribunals,
commissions, magistrates and officers who exercise judicial
powers, affecting the property or rights of the citizen and act in a
summary way or in a new course different from the common law.
It is well established that the writ lies only against a body
exercising public functions of a judicial or quasi- judicial
character and cannot in the nature of things be utilised to
restrain legislative powers. 11 | P a g e
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These Writs are issued as “alternative” or “peremptory.” An

alternative Writ directs the recipient to immediately act, or desist,
and “Show Cause” why the directive should not be made
permanent. A peremptory Writ directs the recipient to
immediately act, or desist, and “return” the Writ, with
certification of its compliance, within a certain time.
The writ can be issued only when the proceedings are pending in
a court if the proceeding has matured into decision, writ will not
lie.
Difference between Prohibition and Certiorari:
1. While the writ of prohibition is available during the pendency
of proceedings, the writ of certiorari can be resorted to only after
the order or decision has been announced.
2. Both the writs are issued against legal bodies.

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5. aThe Writ of Quo-Warranto

The word Quo-Warranto literally means "by what warrants?" or
"what is your authority"? It is a writ issued with a view to restrain
a person from holding a public office to which he is not entitled.
The writ requires the concerned person to explain to the Court by
what authority he holds the office. If a person has usurped a
public office, the Court may direct him not to carry out any
activities in the office or may announce the office to be vacant.
Thus High Court may issue a writ of quo-warranto if a person
holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto
1. The office must be public and it must be created by a statue or
by the constitution itself.
2. The office must be a substantive one and not merely the

function or employment of a servant at the will and during the
pleasure of another.
3. There must have been a contravention of the constitution or a

statute or statutory instrument, in appointing such person to
that office.
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Writ context to Indian Constitution

The makers of the Constitution have adopted the English
remedies in the Constitution under Articles 32 and 226. There
has been specifically made provisions in the Constitution which
empowers the Supreme Court and High Courts to issue writs in
the nature of Habeas Corpus, Mandamus, Prohibition, Quo
Warranto and Certiorari. The fundamental rights which are
inalienable sacrosanct in nature and character which were
conceived in national and public interest could be illusory if there
is no constitutional machinery provided for its enforcement.
Unless such constitutional remedies for its enforcement is not
provided the rights guaranteed by part III of the Constitution
cannot be ever implemented by the citizens. Article 32 contained
in Part III is itself a fundamental right given to the person under
the Constitution. Similarly Article 226 of the Constitution is
conferred on the High Courts to exercise its prerogative writs
which can be issued against any person or body of person
including the government. The distinction between the two
remedies is very negligible. The remedy under Article 32 is
confined to enforcement of fundamental rights whereas Article
226 is available not only against the enforcement of fundamental
rights but also for any other purpose. Thus the constitution
provides the discretionary remedies on the High Court and the
Supreme Court. In the absence of the provisions of such
remedies no one can enforce its rights given. Thus wherever there
is a right there must be a remedy for it. Thus it should satisfy the
maxim, ‘ubi jus ibi remedium.’
One of the principle makers of the constitution, Dr. Ambedkar
has given the prime importance to Article 32 among all other
articles from the Indian Constitution. He has referred that, “It is
the very soul of the Constitution and the very heart of it .”
In Devilal v. STO , it has been marked that,
“There can be no doubt that the Fundamental Rights, guaranteed
to the citizens are a significant feature of our Constitution and
154
the High Courts under Article 226 are bound to protect these
Fundamental Rights.” 14 | P a g e
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Justice Subbarao in the case of Basheshwar Nath v.

Commissioner, Income Tax stated that,
“A large majority of people are socially poor educationally
backward and politically yet not conscious of their rights, cannot
be pitted against the state or the institution or they cannot be
put on equal status with the state or large organisations. The
people are requires to be protected from themselves. It is
therefore the duty of the court to protect their rights and
interests. Fundamental rights are therefore transcendental in
nature and created and enacted in national and public interest
and therefore they cannot be waived.”
In Daryao v. State of U.P., it was held that the right to obtain a writ must
equally be a fundamental right when a petitioner presents the case. Thus, it
cannot merely be considered as an individual’s right to move the Supreme
Court but it is also the duty and responsibility of the Supreme Court to protect
the fundamental rights.
PROFESSIONAL ETHICS & BAR-‐BENCH RELATIONS
TOPIC – Admission, Enrolment & Rights of Advocates
Section 24 of Advocates Act, 1961 lays down the categories of persons who are eligible
being admitted as advocates on the State roll. The persons applying for such admission
has to fulfil certain conditions briefed below:
a) Citizen of India – Sec 24(1)(a) of the Act provides that the person concerned should
be a citizen of India. Even the nationals of other country are permitted to practice
law in our country and may be admitted as an advocate on a State roll; if citizens of
India, duly qualified, are permitted to practice law in that other country. The person
desiring to practice law in India as such has to fulfil the other conditions as well as
156
have been laid down in Advocates Act, 1961.
b) Age -‐ Sec 24(1)(b) of the Act provides that the person concerned should have
completed the age of 21 years.
c) Degree of Law -‐ Sec 24(1)(c) of the Act provides that the person should have
obtained the degree in law -‐(i) before the 12th day of March, 1967, from any University in
the territory of India; or
(ii) before the 15th August, 1947, from any University in any area which was comprised
before that date within India as defined by the Government of India Act, 1935; or
(iii) after the 12th day of March, 1967, save as provided in sub-‐clause (iiia), after
undergoing a three year course of study in law from any University in India which is
(iiia) after undergoing a course of study in law, the duration of which is not less than
two academic years commencing from the academic year 1967-‐68 or any earlier
academic year from any University in India which is recognised for the purposes of this
Act by the Bar Council of India; or
(iv) in any other case, from any University outside the territory of India, if the degree is
recognised for the purposes of this Act by the Bar Council of India or; he is barrister
and is called to the Bar on or before the 31st day of December, 1976 or has passed the
article clerks examination or any other examination specified by the High Court at
Bombay or Calcutta for enrolment as an attorney of that High Court; or has obtained
157
such other foreign qualification in law as is recognised by the Bar Council of India for
the purpose of admission as an advocate under this Act;
d) Fulfilment of Other Conditions -‐ Sec 24(1)(e) of the Act provides that the person
concerned should fulfil such other conditions as may be specified in the rules made
by the State Bar Council;
e) Payment of Stamp Duty -‐ Sec 24(1)(f) of the Act states that the person concerned
has to pay in respect of the enrolment, stamp duty, if any, chargeable under the
Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee of Rs. 600/-‐ (Rupees Six
Hundred Only) payable to the State Bar Council and Rs. 150/-‐ (Rupees One
Hundred Fifty Only) to the Bar Council of India, by way of a bank draft drawn in
favour of that Council:
Provided that where such person is a member of the Schedule Castes or the
Schedule Tribes and produces a certificate to that effect from such authority as may
be prescribed, the enrolment fee payable by him to the State Bar Council shall be
Rs.100/-‐ (Rupees One Hundred Only) and Rs. 25/-‐ (Rupees Twenty Five Only) to
the Bar Council of India.
The Bar Council may prescribe the qualifications for the purpose of admission as an
advocate on a State roll in addition to qualifications provided under Section 24(1)(c) but it
would not mean that such qualification would go counter to the section as mentioned
above. The Advocates Act, 1961 expressly authorises the Bar Council of India to add such
158
other conditions by making appropriate rules.
The provisions of Section 24(1)(f) of the Act fixes enrolment fee which is not
unconstitutional. The Bar Council of India is entitled to charge enrolment fee within the
limits determined by the Parliament. There is no constitutional vice in fixing the enrolment
fee to the extent it has been fixed by Parliament under the Act. The Bar Council, in the
instant case, was not permitted to recover such renewal fee from Advocates. It could
recover renewal fee only when authorised by an Act of Parliament.
According to Sec 25 of the Advocates Act, 1961, the application for admission as an
advocate shall be made to the State Bar Council within whose jurisdiction the applicant
wishes to practice.
Reference of application to Enrolment Committee: Sec 26(1) of the said Act contains
the provision that a State Bar Council shall refer every application for admission as an
advocate to its enrolment committee, and subject to the provisions of sub-‐sections (2) and
(3) and to any direction that may be given in writing by the State Bar Council in this behalf,
such committee shall dispose of the application in the prescribed manner:
Provided that the Bar Council of India may, if satisfied, either on a reference made to it in
heard.
Refusal of Application: Sec 26(2) Where the enrolment committee of a State Bar Council
159
proposes to refuse any such application, it shall refer the application for opinion to the Bar
Council of India and every such reference shall be accompanied by a statement of the
grounds in support of the refusal of the application.
Disposal of Application in conformity with Opinion of Bar Council of India: Sec 26(3)
The enrolment committee of a State Bar Council shall dispose of any application referred
to the Bar Council of India under subsection (2) in conformity with the opinion of the Bar
Council of India.
Communication of Refusal: Sec 26(4) Where the enrolment committee of a State Bar
Council has refused any application for admission as an advocate on its roll, the State Bar
Council shall, as soon as may be, send intimation to all other State Bar Councils about
such refusal stating the name, address and qualifications of the person whose application
was refused and the grounds for the refusal.
Disqualifications for Enrolment: (Sec 24A) of the Advocates Act, 1961 lays down
certain conditions, the existence of which may disqualify a person from being enrolled as
an advocate as below –
(a) The person concerned should not be convicted of an offence involving moral
turpitude;
(b) The person concerned should not be convicted of an offence under the
provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);
(c) The person concerned should not be dismissed or removed from employment or
office under the State on any charge involving moral turpitude.
160
Provided that the disqualification for enrolment as aforesaid shall cease to have effect after
a period of 2 years has elapsed since his release or dismissal or, as the case may be,
removal.
The legislature, even at that stage does not appear to have thought of introducing a
statutory amendment to impose any ceiling limit based on the introduction of an upper age
to operate as a disqualifying factor against a person from getting enrolled into the State
rolls.
In the case of Sampath Kumar J Versus Bar Council of India (1995) before Madras
High Court,
Facts: The rule which was the effect of putting an axe on the right of a person, who
otherwise eligible to be enrolled as an advocate has the consequence of substance,
prescribing disqualification. The prescription of an upper age with ceiling limit of 45 years
per se operates, as a permanent disqualification for a person otherwise entitled to get
enrolled as an advocate.
Held that: It may not be permissible for the Bar Council of India to superimpose a further
qualification by putting an upper age limit so as to disqualify or render ineligible a person,
though otherwise qualified from being enrolled merely on grounds of having reached a
particular maximum age limit prescribed under rules.
As per (Sec 26A) of the Advocates Act, 1961, a State Bar Council may remove from the
State roll the name of any advocate who is dead or from whom a request has been
received to that effect.
161
Enrolment of an Advocate: As per the (Section 22) of the Advocates Act, 1961, the
State Bar Council issues a certificate of enrolment. It is to be issued in the prescribed form
to every person whose name is entered in the State roll of advocates.
If there is any change in the place of permanent address of the advocate the same is to be
intimated to the State Bar Council within 90 days of such change. The enrolment as an
advocate cannot be denied to a law graduate, merely because he/she had undertaken
some other course of instruction during the time when he/she was studying in law classes
for a law degree.
It has been held by the Hon’ble Supreme Court of India in case reported in 1973, that Uttar
Pradesh State Legislature is competent to legislate and impose stamp duty on the
certificate of enrolment under (Sec 22) to be issued by the State Bar Council of Uttar
Pradesh.
Classes of Advocates: As per the Sec 16(1) of the Advocates Act, 1961, there are two
classes of advocates, namely Senior Advocates and Other Advocates. Sec 16(2) states
that, if the Supreme Court or a High Court is of the opinion that a particular advocate
possesses ability, standing at the Bar or special knowledge or experience in law, and if the
advocate concerned consents so, he/she may be designated as Senior Advocate.
Certain restrictions for Senior Advocates: According to Sec 16(3) of the Advocates Act,
1961 the Bar Council of India may prescribe certain restrictions in the matter of practice of
senior advocates. They are as below –
Ø An advocate who has been designated as senior advocate cannot file a
162
vakalatnama or act in any Court or Tribunal or before any person or authority as laid
down in Section 30 of the said Act.
Ø The senior advocate cannot directly appear before the Court or Tribunal or before
any person or authority mentioned in Section 30 of the said Act. He can appear only
through an advocate in Part-‐II of the State roll.
Ø The senior advocate can neither accept instructions to draft pleading or affidavits,
advice, on evidence, nor he can do any drafting work of an analogous kind in any
Court or Tribunal or before any person or authority as mentioned in Section 30, nor
can he undertake conveyance work of any kind.
Ø A senior advocate is free to make concessions or give undertaking in the course of
argument on behalf of his clients provided there are instructions from junior
advocate.
Ø A senior advocate is not free to directly accept from any client any brief instructions
for the purpose of appearing before any Court or Tribunal or before any person or
other authority in India.
Ø The advocate who has acted as a junior advocate in a given case cannot after his
becoming a senior advocate advises on grounds of appeal in a Court of appeal or in
the Supreme Court or an advocate in Part-‐II of the State roll.
Ø A senior advocate may in recognition of the services rendered by an advocate in
Part-‐II of the State roll appearing in any matter pay him a fee which he considers
reasonable.
163
Maintaining Roll of Advocates: Section 17(1) of the Advocates Act, 1961 states that the
Bar Council of every State has to prepare and maintain a roll of advocates where in the
names and addresses of the following persons are entered –
(a) all persons who were entered as advocates on the roll of any High Court under the
Indian Bar Councils Act, 1926 (38 of 1926), immediately before the appointed day
including persons, being citizens of India, who before the 15th day of August, 1947, were
enrolled as advocates under the said Act in any area which before the said date was
comprised within India as defined in the Government of India Act, 1935, and who at any
time express an intention in the prescribed manner to practise within the jurisdiction of the
Bar Council;
(b) all other persons who are admitted to be advocates on the roll of the State Bar Council
under this Act on or after the appointed day.
According to Sec 17(2) of the said Act, this roll of advocates is divided into 2 parts. The
first part is meant for the names of senior advocates and the second part is meant for the
names of other advocates.
According to Sec 17(4) of the said Act specifically provides that no person shall be
enrolled as advocate on the roll of more than one State Bar Councils.
The rules as regards to preparation and maintenance of the State roll are mentioned in
Chapter I of Part V of the Bar Council of India Rules as below –
1 (a) The Council may, from time to time, give directions as to the manner in which
the State Council shall prepare and maintain the rolls under Section 17 of the Act.
164
(b) The copies of the State rolls to be sent under Section 19 of the Act shall be in
Forms ‘B-‐1’ & ‘B-‐2’ and shall contain such further details as the Council may
specify.
2 Particulars of transfers under Sec 18 of the Act, cancellations directed under the
proviso to Sec 26(1) of the Act, punishments imposed by an order under Chapter V,
particulars as to result of appeals and relevant decisions of the Courts, and such other
matters which the Council may specifically direct, shall be noted in the said rolls.
3 Save as otherwise directed by the Council; no other particulars shall be entered in
the said rolls.
4 Every page of the roll shall bear the signature or a facsimile thereof, of the Secretary
or other person authorised by the State Council.
5 Authenticated copies of any additions or alterations made in the roll shall be sent to
the Council without delay.
Transfer of Name from One State Roll to another State Roll: According to Sec 18(1) of
Advocates Act, 1961, where the name of any person whose name is entered as an
advocate on the roll of any State Bar Council may make an application in the prescribed
form to the Bar Council of India for the transfer of his name from the roll of that State Bar
Council to the roll of any other State Bar Council and, on receipt of any such application
the Bar Council of India shall direct that the name of such person shall without the
entered in the roll of the other State Bar Council and the State Bar Councils concerned
165
shall comply with such direction.
Provided that where any such application for transfer is made by a person against whom
any disciplinary proceeding is pending or where the Bar Council of India is of the view that
the application for transfer has not been made bonafide, and that the transfer should not
be made, the Bar Council of India may, after giving the person making the application an
opportunity of making a representation in this behalf, reject the application.
According to Sec 18(2) of Advocates Act, 1961, the transfer of name in no way affects the
seniority of the advocate, as the concerned advocate shall retain the same seniority in the
latter roll to which he was entitled in the former roll. It is to be noted that the advocate
applying has not to pay the fee of any kind for transferring of his name from one State roll
to another State roll.
The language of Sec 19 of the Advocates Act, 1961 lays down that every State Bar
Council shall send to the Bar Council of India an authenticated copy of the roll of
advocates prepared by it for the first time under this Act and shall also thereafter
communicate to the Bar Council of India all alterations in and any additions to such roll, as
The provision of Sec 20(1) of the said Act lays down that every advocate who was entitled
as of right to practise in the Supreme Court immediately before the appointed day and
whose name is not entered in any State roll may, within the prescribed time, express his
intention in the prescribed form to the Bar Council of India for the entry of his name in the
roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that
166
the name of such advocate shall, without payment of any fee, be entered in the roll of that
State Bar Council, and the State Bar Council concerned shall comply with such direction.
According to Sec 20(2) of the said Act, any entry in the State roll made in compliance with
the direction of the Bar Council of India is to be made in order of seniority. If an advocate
as is referred to in Sec 20 of the Advocates Act, 1961, omits or fails to express his
intention within the prescribed time, his/her name shall be entered in the roll of the State
Bar Council of India.
Advocates only recognised class of person entitled to practice law: The provisions of
Sec 29 of the Advocates Act, 1961, lays down that “subject to the provisions of this Act
and any rules made there under, there shall, as from the appointed day, be only one class
of persons, entitled to practice the profession law, namely advocates.
Right of Advocates to Practise: As per Sec 30, an advocate whose name is entered in
the State roll becomes entitled as of right to practise throughout the territories to which this
Act extends –
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any authority or person before whom such advocate is by or under any
law for the time being in force entitled to practise.
Appearance of Non-‐Advocate: Under Sec 32 of the Advocates Act, 1961 a discretionary
power is given to the Court to permit appearance to any non-‐advocate for a party. Sec 32
restricts the power of the Court to permit any non-‐advocate only to appear on behalf of the
167
party in any particular case.
In the instant case, the petitioner had not filed the petition in public interest and did not
disclose the circumstances which prevented the affected persons from approaching the
Court. In discharge of his professional obligations, the petitioner-‐advocate is not obliged to
file the writ petition on behalf of the clients. No circumstances were mentioned in the
petition which allegedly incapacitated the affected person from filing the writ petition. Sec
30 of the Advocates Act, 196 only entitles an advocate to practise the profession of law
and not to substitute himself in his own name, being not a part of the professional
obligation of the Advocate; the High Court was justified in dismissing the writ petition
holding that the petitioner-‐advocate had no locus standi.
Right to advocacy is a Statutory Right: It appears from the provisions of Secs 29 & 30
that the advocates have been conferred right to practise not only in all Courts including the
Supreme Court but also before any Tribunal or person legally authorised to take evidence
and also before any other authority or person before whom such advocate is by or under
any law for the time being entitled to practice. Therefore, the right of an advocate to
practise profession of law is statutory right and not a fundamental right.
A private person who is not an advocate and not a pleader enrolled, cannot be permitted
to argue and plead the case for a third party/person on the basis of attorney unless
permitted under special circumstances by the Court.
Power of Court to permit appearance of an individual: As regards the entitlement of an
individual to appear before the Court in a given case, Sec 32 of the Advocates Act, 1961
168
lays down that it is within the power of the Court, authority or person to permit any person
to appear before it or him in a particular case. The provisions confer a monopoly right of
pleading and practising law only on the enrolled advocates. A private person who is not an
advocate cannot or has no right to argue for a party. He/she must get the prior permission
of the Court for which motion must come from the party itself. It is open to the Court to
grant or withhold or withdraw permission in its discretion.
Right to Practise is different from Right of Appearance: Right to practise is different
from the right of appearance in a particular case. The right to practise is a right given to the
advocate to practise the profession of law before all Courts, Tribunals, authorities etc. The
right of appearance in a particular case depends upon the permission granted by the Court
under Sec 32 of the Advocates Act, 1961 which is an exception to the right of practise by
the advocates.
Permission once granted to appear may be withdrawn:
In the case of Harishankar Rastogi Versus Giridhari Sharma (1978)
Hon’ble Supreme Court held that a private person, who is not an advocate, has no right to
barge into the Court and claim to argue for a party. He must get the prior permission of the
Court, for which the motion must come from the party himself. It is open to the Court to
grant or withhold the permission in its discretion. In fact, the court may even after grant of
permission, withdraw it halfway through if the representative proves himself reprehensible.
The antecedents, the relationship, the reason for requisitioning the services of the private
person and a variety of the other circumstances must be gathered before the grant or
169
refusal of permission.
Advocates alone entitled to Practise: As per Sec 33 of Advocates Act, 1961 it is clear in
language laying down that “except as otherwise provided in this Act or in any other law for
the time being in force, no person shall on or after the appointed day, be entitled to
practise in any Court or before any authority or person unless he/she is enrolled as an
advocate under the said Act”.
A recognised representative cannot claim to appear as of right. Previous permission of
Court is necessary. There is no warrant whatsoever to place a recognised agent holding a
general power of attorney to take proceedings in Courts in the same position as an
advocate to whom a vakalatnama has been given.
The legal capacity of an advocate to practise the profession of law in Court and his
competency to act in Court for his client are not derived from any contract but from his
legally recognised status as an advocate. On account of his status, his duties are threefold
– to the client, to the Court, and to the public.
The expression “practise” clearly contemplates practising as a profession for gain. That
neither precludes a party in person in Court to argue his own case or appoint an agent
who is acceptable to the Court to present his cases other than a lawyer. Prohibition is to
practise as a profession and not for mere appearance in an isolated case.
The right of the advocates to practise in all Courts including Supreme Court as of right is
always subject to the rule making power of the High Court laying down conditions subject
to which an advocate shall be permitted to practise in the High Courts and the Courts
170
subordinate thereto.
171

K - 710 PROFESSIONAL ETHICS by Mr. Lokendra Singh PDF

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K - 710 PROFESSIONAL ETHICS by Mr. Lokendra Singh PDF

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JANHIT COLLEGE OF LAW

Legal Ethics & Significance

• Most ethical decisions have multiple alternatives.

• Most ethical decisions have mixed outcomes.

• Most ethical decisions have uncertain consequences.

• Most ethical decisions have personal implications.

ETHICS OF LEGAL PROFESSION

standards of professional conduct and etiquette and exercises disciplinary

in accordance with the provisions of this act.

be discussed as follow-­‐

it should be submitted to proper authority.

or parties which the advocate himself ought not to do.

and his appearance shall always be presentable.

advocate as father, nephew, grandfather, son, grandson, uncle, brother,

first cousin, husband, mother, wife, daughter, sister, niece, sister-­‐in-­‐law,

mother-­‐in-­‐law, and father-­‐in-­‐law.

organization, institution, society, or corporation.

some pecuniary interest.

Duty towards Client

explained as follow

once accepted without sufficient cause and unless reasonable and

sufficient notice given to the client.

judgment in either engaging him or continuing the engagement.

unpleasant consequences to himself or to any other.

conviction of an innocent.

other proceeding in which he was professionally engaged.

on demand provided the necessary charges are paid.

converted into loans.

of an advocate to the opponent.

except through that advocate.

sponsored by the respective State Bar Council.

suspending the right of the advocate to practice.

passed under rule 42 and 43.

time to time.

qualify for enrolment under the Advocates Act, 1961

obligation, as an advocate owes to the society.

Legal Profession in India

The Mayor’s Courts, established in the three presidency towns,

The Supreme Court of Judicature was established by a Royal

Thus, the establishment of the Supreme Court brought recognition,

The charters empowered the Court to approve, admit and enrol

properly admitted and enrolled from practising in the Court. The

In contrast to the Courts in the presidency towns, the legal

In 1862, the High Courts started by the Crown were established at

rules for the qualifications of proper persons, advocates, vakils and

The High Courts of the three presidency towns had an original

However, in Madras the vakils started practice since 1866. In 1874,

The Advocates Act, 1961 was a step to further this very

PROFESSIONAL ETHICS & BAR-­‐BENCH RELATIONS

TOPIC – Admission, Enrolment & Rights of Advocates

has to fulfil certain conditions briefed below:

have been laid down in Advocates Act, 1961.

completed the age of 21 years.

Act by the Bar Council of India; or

by the State Bar Council;

favour of that Council:

the Bar Council of India.

other conditions by making appropriate rules.

wishes to practice.

grounds in support of the refusal of the application.

Council of India.

was refused and the grounds for the refusal.

an advocate as below –

be discussed as follow-‐

first cousin, husband, mother, wife, daughter, sister, niece, sister-‐in-‐law,

mother-‐in-‐law, and father-‐in-‐law.

PROFESSIONAL ETHICS & BAR-‐BENCH RELATIONS

through an advocate in Part-‐II of the State roll.

holding that the petitioner-‐advocate had no locus standi.

Section 23 Right of pre-‐audience

23-‐5 Subject as aforesaid-‐

24-‐1 (a) He is a citizen of India:

24-‐1 (c) He has obtained a degree in law-‐