1.

1 INTRODUCTION

The Legal Profession plays an important role in the administration of Justice. The Lawyers
are considered to be the centre of the administration of justice. Lawyers are the one who are
related to the parties, they listen to the party and collect all the relevant legal materials
relating to the case and argue the case in court, thus helping the Judge to arrive at the correct
and fair judgment. Without the assistance of the lawyers it would be a superhuman task for
the Judge to come at the satisfactory judgment. Justice P.N. Sapru has stated that,
‘justification for the existence to the counsel is that each side to the controversy should be in
a position to present its case before an impartial tribunal in the best and most effective
manner possible.’

1.2 Law in ancient India

In ancient India it was a mandate that King should decide the cases according to law. The law
which was there earlier included many facets and spectrums which included the injunctions
or mandates given in Shastras, smritis, customs, rajdarma, rule of conduct, modes of
livelihood, regulation that governs the society, elementary backdrop of labour law, sense of
morality, doctrine of proportionality, etc. The laws, to some extent, inherently included
morality from within and imposition from higher authorities. It is said that maintenance of
Rule of Law in modern society is sine qua non for the survival of democracy. With the
passage of time the law has undergone many changes required according to the change in the
society. Long back, De Tocqueville stated that-: “The profession of law is the only
aristocratic element which can be amalgamated without violence with the natural elements of
democracy, and which can be advantageously and permanently combined with them”. As this
profession has gained the nobility, no one on this earth can contradict that the lawyers are
responsible in the growth of law and make the courts as protector and guarantor of the
indefensible rights of the citizens. The lawyers thus have an obligation to see that the rule of
law is maintained and all its objectives are secured.

1.3 Meaning

Professional Ethics may be defined as,

A code of conduct, written or unwritten, for regulating the behaviour of a practicing lawyer
towards himself, his client, his adversary in law and towards the court.

1
Thus, ethics of legal profession means the body of rules and practice which determine the
professional conduct of the members of a bar. When the person joins the legal profession and
starts practicing, his relation with men in general is governed by general rules of law but his
conduct as advocate is governed by the especial rules of profession ethics of the Bar. The
main object of the ethics of the legal profession is to maintain the dignity of the legal
profession and the friendly relation between the Bench and the Bar.

Professional Ethics is also known as legal ethics. “Legal Ethics is that branch of moral
science which deals with the duties which a member of the legal profession owes to the
public, the Court, to his professional brethren and to his clients. [Ethics] is a study of the
meaning and application of judgments of Good, bad, right, wrong, etc. and every evaluation
of law involves an ethical Judgment.”

The description of Legal Ethics already clarifies that legal ethics is one of the branch of moral
science. Etymological origin of the words moral and ethics appear to be same. The word
moral comes from Latin Word mos (plural mores) meaning thereby “Custom or way of life.”
The related term Ethics is derived from the Greek word ethos meaning “Custom” or
“Character”. Thus both the words moral and ethics are mostly synonymous and refer to a type
of behavior practices by a group which tends to become customary. But there is a slight
difference in the two that moral or morality ordinarily refers to the conduct itself, while ethics
or ethical suggests the study of moral conduct or the system of code which is to be followed.

The Oxford Companion to Law explains the professional ethics as “the standards of right and
honourable conducts which should be observed by members of learned professions in their
dealings one with another and in protecting the interests and handling the affairs of their
clients.”

1.4 ETHICS OF LEGAL PROFESSION

A legal practitioner is under triple obligation-: An obligation to his clients to be faithful to

them till the last, an obligation to the profession not to besmirch its name by anything done
by him, and an obligation to the court to be and to remain a dependable part of the machinery
through which justice is administered. The scope of legal ethics is beyond the treatise of
evidence or witnesses to be presented before the court. In examining these witnesses the
advocate should not forget that he is not mere the counsel of the client but also the officer of
the court. In this way there are some of the duties thereinafter which the advocate should
follow, like, professional courtesy, co-operation, equal consideration to all members of the
2
profession, encourage junior brethren, should stand up for its dignity and privileges whenever
there is occasion for it, he should expose corrupt or dishonest conduct in the profession. In
the words of Chief Justice Marshall has observed;

“the fundamental aim of Legal Ethics is to maintain the honour and dignity of the Law
Profession, to secure a spirit of friendly co-operation between the Bench and the Bar in the
promotion of highest standards of justice, to establish honourable and fair dealings of the
counsel with his client opponent and witnesses; to establish a spirit of brotherhood in the Bar
itself ; and to secure that lawyers discharge their responsibilities to the community generally.”

1.5 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
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 honourable and fair dealings of the counsel with his client,
opponent and witness, to establish a spirit of brotherhood with bar.

1.6 Areas of application

1) Conflict of interest: A lawyer is at times faced with the question of whether to represent
two or more clients whose interest’s conflict. Quite aside from his ethical obligations, the
legal systems of the world generally prohibit a lawyer from representing a client whose
interest’s conflict with those of another, unless both consent.

2) Confidential Communication: In Anglo-American countries judicial decisions, legislation,

and legal ethics generally forbid a lawyer to testify about confidential communications

3
between himself and his client unless the client consents. Provisions regarding confidentiality
are also found in such diverse legal systems as those of Japan, Germany, and Russia. In
countries in which the attorney’s obligation to protect state interests is given relatively greater
emphasis, there may be a duty to disclose information when it is deemed to be to the state’s
advantage

3) Advertising and solicitation: Traditionally, advertising by lawyers was forbidden almost

everywhere. It was a long-standing principle of legal ethics in Anglo-American countries that
an attorney must not seek professional employment through advertising or solicitation, direct
or indirect. The reasons commonly given were that seeking employment through these means
lowers the tone of the profession, that it leads to extravagant claims by attorneys and to
unrealistic expectations on the part of clients, and that it is inconsistent with the professional
relationship that should exist between attorney and client. A more basic reason appears to
have been the social necessity of restraining the motive of personal gain and of stressing the
objective of service.

4) Fees: In principle, attorneys are ethically enjoined to keep their fees reasonable, neither too
high nor too low. Attempts to control fees have included the passage of general statutes
designed to regulate compensation for legal services of all sorts, as in Germany; the
imposition of fees by courts in contentious matters, as in England and Wales; and the
establishment of advisory fee schedules by the legal profession, as in Canada, France, Spain,
and Japan. In the United States, local bar association sometimes enforced minimum fee
schedules through disciplinary proceedings; however, the U.S. Supreme Court held in 1975
that such practices violated antitrust laws.

5) Criminal cases: Both the prosecution and the defence of criminal cases raise special ethical
issues. The prosecutor represents the state, and the state has an interest not only in convicting
the guilty but also in acquitting the innocent. The prosecutor also has an ethical and,
inconsiderable measure, a legal duty to disclose to the defence any information known to him
and unknown to the defence that might exonerate the defendant or mitigate the punishment.
He must not employ trial tactics that may lead to unfair convictions, nor should he prosecute
merely to enhance his political prospects.

6) Globalization: Although economic globalization has contributed in important ways to the

worldwide growth of the legal profession, it has also created the potential for conflict
between different ethical traditions. In Europe, for example, standards of confidentiality for

4
in-house counsel differ from those observed by independent attorneys, a fact that has created
difficulties for some U.S.-trained lawyers working for European firms. In China the rapidly
increasing market for legal services has attracted legal professionals from democratic
countries, which generally do not share the Chinese conception of an attorney’s public
obligations. It is likely that these kinds of challenges will be intensified by the continuing
liberalization of the international legal market and by the development of technologies that
enable lawyers to give advice from their offices to clients in distant and very different
jurisdictions.

1.7 Conclusion

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 Write that article, isn’t
it? Simply put, professional ethics for lawyers in India lay down a set of guidelines, which
defines their conduct in the profession that is highly competitive and dynamic. Indian law
requires lawyers to observe professional ethics to uphold the dignity of the profession. People
are surprised when they hear that lawyers are expected to follow professional ethics and that
they are accountable for dishonest, irresponsible and unprofessional behaviour. 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 is 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 enrol themselves as advocates upon graduation.

2.1 Introduction

The advocate in his legal carrier has been made accountable. Section 35 of the Advocates Act
states that, where on receipt of a complaint or otherwise a State Bar Council has reason to
5
believe that any advocate on its roll has been guilty of professional or other misconduct, it
shall refer the case for disposal to its disciplinary committee can punish the advocates for the
professional or other misconduct. Where on receipt of complaint or otherwise the Bar
Council of India has reason to believe that any advocate whose name is not entered on any
State Roll has been guilty of professional or other misconduct, it shall refer the case for
disposal to its disciplinary committee. This committee can punish the advocate for such
misconduct. The ‘professional or other misconduct’ includes the breach of duties specified by
the rules made by the Bar Council of India. The breach of duty has, thus, been made
punishable. The order of the disciplinary committee of the State Bar Council may be
challenged in appeal before the Bar Council of India and the order of the disciplinary
committee of the Bar Council of India may be challenged in appeal before the Supreme
Court.
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. 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 lays down the standards of
professional conduct and etiquette. These rules specify the duties of an advocate to the Court,
client, opponent and colleagues, etc.

2.2 Lawyers-Client relationship

(a) A Client is free to withdraw his brief from the lawyers at any time
(b) Client's right to have the Service of advocate at relevant time in the court.
(c) Duty of an advocate to return papers/documents on demand of the Client.
(d) An advocate cannot delegate his duties to some other advocate without the consent of the
Client.
(e) Advocate as trustee of the clients’ money.
(f) Misappropriation of Court fee taken from client is a grave misconduct.
(g) Advocate not purchasing the property relating to litigation or accept share in actionable
Claims.

6
(h) Advocate should maintain strict confidentiality.
(i) Advocate not to withdraw from engagement and liable to return money in excess of fees
eased or no work done.
(j) An advocate owes to the client complete fidelity to his interest.

2.2.1 Fiduciary nature of relationship between an advocate and his Client

1. An Advocate is bound to accept any brief in the Courts or Tribunals or before any
other authority in or before which he proposes to practice at a fee consistent with his
standing at the Bar and the nature of the case. Special circumstances may justify his
refusal to accept a particular brief.
2. An Advocate shall not ordinarily withdraw from engagements, once accepted, without
sufficient cause and unless reasonable and sufficient notice is given to the client.
Upon his withdrawal from a case, he shall refund such part of the fee as has not been
earned.
3. An Advocate should not accept a brief or appear in a case in which he has reasonto
believe that he will be a witness, and if being engaged in a case, it becomes apparent
that he is a witness on a material question of fact, he should not continue to appear as
an Advocate if he can retire without jeopardizing his client’s interests.
4. An Advocate shall, at the commencement of his engagement and during the
continuance thereof, make all such full and frank disclosures 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.
5. It shall be the duty of an Advocate, fearlessly to uphold the interests of his client by
all fair and honorable means without regard to any unpleasant consequences to
himself or any other. He shall defend a person accused of a crime regardless of his
personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to
the law which requires that no man should be convicted without adequate evidence.
6. An Advocate appearing for the prosecution of a criminal trial shall so conduct the
prosecution that it does not lead to conviction of the innocent. The suppression of
material capable of establishing the innocence of the accused shall be scrupulously
avoided.

7
7. An Advocate shall not, directly or indirectly, commit a breach of the obligations
imposed by Section 126 of Indian Evidence Act.
8. An Advocate shall not at any time, be a party to fomenting of litigation.
9. An Advocate shall not act on the instructions of any person other than his client or his
authorized agent.
10. An Advocate shall not stipulate for a fee contingent on the results of litigation or
agree to share the proceeds thereof.
11. An Advocate shall not buy or traffic in or stipulate for or agree to receive any share or
interest in any actionable claim. Nothing in this rule shall apply to stock, shares and
debentures or governmental securities, or to any instruments which16are, for the time
being, by law or custom, negotiable or to any mercantile document of title to goods.
12. An Advocate shall not, directly or indirectly, bid for or purchase, either in his own
name or in any name, for his own benefit or for the benefit of any other person, any
property sold in the execution of a decree or order in any suit, appeal or other
proceeding in which he has I any way professionally engaged.
13. An Advocate shall not adjust fee payable to him by his clients against his own
personal liability to the client, which liability does not arise in the course of his
employment as an Advocate.
14. An Advocate shall not do anything whereby he abuses or takes advantages of the
confidence reposed in him by his client.
15. An Advocate should keep account of his clients money entrusted to him, and the
accounts should show the amounts received from the client or on his behalf, the
expenses incurred for him and the debits made on account of fees with respective
dates and all other necessary particulars.
16. Where moneys are received from or on account of a client, the entries in the accounts
should contain a reference as to whether the amounts have been received for fees or
expenses, and during the course of the proceedings, no Advocate shall, except with
the consent in writing of the client concerned, be at liberty to divert any portion of
expenses toward fees.
17. 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.
18. After the termination of the proceeding, the Advocate shall be at liberty to appropriate
toward the settled fee due to him any sum remaining unexpended out of the normal

8
 paid or sent to him for expenses, or any amount that has come into his hands in that
proceedings.
19. Where the fees has been left unsettled, the Advocate shall be entitled to deduct, out of
any moneys of the client remaining in his hands, at the termination of the proceedings
for which he has been engaged, the fee payable under the rules of the Court, in force
for the time being, or by then settled and the balance, if any, shall be refunded to the
client.
20. A copy of the client’s account shall be furnished to him on demand provided the
necessary copying charge is paid.
21. An Advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.
22. An Advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such clients.
Explanations-: An Advocate shall not be held guilty for the breach of this rule, if in the
course a pending suit or proceeding, and without any arrangement with the client in respect
for the same, the Advocate feels compelled by reason of the rule of the court to make the
payment to the Court on account of the client for the progress of the suit or proceeding.
23. An Advocate, who has, at any time, advised in connection with the institution of the
suit, appeal or other matter or has drawn pleadings or acted for a party, shall not act,
appear or plead for the opposite party.

2.3 Duty to Opponent

1. An Advocate shall not in any way communicate or negotiate upon the subject-matter
of controversy with any party represented by an Advocate except throughthat
Advocate.
2. An Advocate shall do his best to carry out all legitimate promises made to theopposite
party even though not reduced to writing or enforceable under the rulesof the Court.

2.4 Duty of Colleagues

1. An Advocate shall not solicit work or advertise, either directly or indirectly, whether
by circulars, advertisements, touts, personal communications, interviews not
warranted by personal relations, furnishing or inspiring newspaper comments or
producing his photograph to be published in connection with cases in which he has
been engaged or concerned.

9
 2. An Advocate shall not permit his professional services or his name to be used in aid
of, or to make possible, the unauthorized practice of law by any agency.
3. An Advocate shall not accept a fee less than the fee taxable under the rules when the
client is able to pay the same.
4. An Advocate shall not enter appearance in any case in which there is already a vakalat
or memo of appeara2nce filed by an Advocate engaged for a party except with his
consent; in case such consent is not produced, he shall apply to Court stating reasons
why the said consent should not be produced and he shall appear only after obtaining
the permission of the Court.

2.5 Duty to Court

As set out we have distilled a lawyer's duty to the court to three key duties:
(A) to use tactics that are legal, honest and respectful to courts and tribunals;
(B) to act with integrity and professionalism while maintaining his or her overarching
responsibility to ensure civil conduct; and
(C) to educate clients about the court processes in the interest of promoting the public's
confidence in the administration of justice. Below is a discussion of these three duties.
1. An Advocate shall, during the presentation of his case and while otherwise acting before a
Court, conduct himself with dignity and self- respect. He shall not be servile and whenever
there is proper ground for serious complaint against a judicial officer, it shall be his rights and
duties to submit his grievance to proper authorities.
2. An Advocate shall maintain towards the Courts a respectful attitude, bearing in mind that
the dignity of the judicial office is essential for the survival of free community.
3. An Advocate shall not influence the decision of a Court by any illegal or improper means.
Private communications with a Judge relating to a pending case are forbidden.
4. An Advocate shall use his best efforts to restrain and prevent his client from resorting to
sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or
parties which the Advocates himself ought not to do.
An Advocate shall refuse to represent the client who persists in such improper conduct.
5. An Advocate shall appear in Court at all times only in the prescribed dates, 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 Act, if the sole or any member thereof is

10
related to the Advocate as father, grandfather, son, grandson, uncle, brother, nephew, first
cousin, uncle, aunt, husband, wife, mother, daughter, sister, niece, father-in-law, mother-in-
law, son-in-law, brother-in-law, daughter in-law or sister-in-law.
7. An Advocate shall not wear band or gown in public places other than in Courts except on
such ceremonial occasions and at such places as the Bar Council of India or the Court may
prescribe.
8. An Advocate shall not appear in or before any Court or Tribunal or any other authority for
or against an organization or an institution, society or corporation, if he is a member of the
Executive Committee of such organization or institution or society or corporation.
Provided that this rule shall not supply to such a member appearing as “amicus
curiae” or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar
Association.
9. An Advocate should not act or plead in the any matter in which he himself is peculiarly
interested.

3.1 Introduction

The Bar and Bench play an important role in the administration of justice. The judges
administer the law with the assistance of the lawyers. The lawyers are officers of the court.
They are expected to assist the court in the administration of justice. Actually lawyers collect
materials relating to the case and thereby assist the court in arriving at a correct judgment.
The legal profession has been created not for private gain but for public good. It is a branch
of the administration of justice; it is a partner with the judiciary in the administration of
justice. Since the lawyers are officers of the court, they are required to maintain towards the

11
court respectful attitude bearing in mind that the dignity of the judicial office is essential for
the survival of the society.

3.2 Duties of Bar towards the Bench

It may be noted that good behavior of lawyers goes a long way in their attempt to acquire
justice from the court for their clients. Not only the scholarship of a lawyer plays an
important role in achieving success in the court rather his good conduct also helps and plays
effectively in this direction. The statements of the lawyers influence the court, so they are
under moral and legal obligation to be sober, fair and cordial in their dealings with the court.
It does not mean that the lawyers have to surrender to the improper behavior of the judge.
The lawyers have legal right to object the improper behavior of the judge and they are
entitled to enlighten their grievances to the higher authorities of the court. Thus, while the
lawyers have to maintain the dignity and decorum of the court, they have not to do or behave
as such, which may bring down the reputation of the court in the mind of the litigants as well
as general public of the society. In this context, the Bar Council of India has framed certain
rules for observance by the lawyers towards the court, their colleagues and clients.

3.3 Duties of Bench towards the Bar

On the other hand, the behavior of the judge towards the lawyers also plays an important role
in the due administration of justice. It is the behavior of the judge with the lawyers, which
makes the atmosphere of the court quite cordial and congenial. A judge has to be impartial in
his dealings with advocates. The judge should not only be free from bias or interest in any
case rather he should not be guided by the obstinacy and snobbery in his conduct with
advocates. It is so because the life, liberty, reputation and property of the citizens are greatly
influenced by the decision of the judge. The judge has to play a very temperate and sober role
in the dispensation of justice to the society, which he can fulfill by observing sober, cordial
and impartial behavior, towards the lawyers at large.

3.4 Inter relationship between Bench and Bar

It is pertinent to note that the relationship between the advocate and judge is quite delicate.
On the one hand, it is important to allow an advocate to be firm and resolute in the pursuance
of his case while on the other, the judge must maintain his authority in the court. Of course,
an advocate should avoid rule, insolent or insulting behavior but a judge should not be over-
sensitive to the remarks made against him.

12
The second important duty of a judge towards the Bar is to respect and safeguard its
privileges. The counsel has a right to insist for a courteous and patient hearing from a judge
till he is respectfully and relevantly arguing his case before him. This right of the counsel
deserves due respect from the Judge.

The third important duty which a judge owes to the council is patient hearing of the case. The
judge has no business to form a forehand opinion before the case is heard by him.

The last but not the least duty which a judge owes to the counsels is to avoid confrontation
with the lawyers in the process of argument and examination of witnesses. The judge should
not' interrupt the counsel till he is arguing relevantly and purposefully. Till the lawyer is
presenting his case in an orderly way, there should be patient hearing and co-operation from
the side of the judge, as otherwise it would lead to miscarriage of justice.

3.5 Case laws defining relationship between Bar and Bench

The opinion of our Supreme Court in the context of Bench- Bar Relations has been clearly
laid down in P.D. Gupta v. Ram Murti and Others1 as follows:

"A lawyer owes a duty to be fair not only to his client but also to the court as well as to the
opposite party in the conduct of the case. Administration of justice is a stream which has to be
kept pure and clean. It has to be kept unpolluted. Administration of justice is not something
which concerns the Bench only. It concerns the Bar as well. The Bar is the principal ground
for recruiting judges. Nobody should be able to raise a finger about the conduct of a lawyer.
Actually judges and lawyers are complementary to each other. The primary duty of the
lawyer is to inform the court as to the law and facts of the case and to aid the court to do
justice by arriving at the correct conclusions. Good and strong advocacy by the counsel is
necessary for the good administration of justice. Consequently, the counsel must have
freedom to present his case fully and properly and should not be interrupted by the judges
unless the interruption is necessary."

In Mahant Hakumat Rai v. Emperor2 the Lahore High Court had held that "Without failing
in respect to Bench, it is the duty of the members of the Bar to assert their just rights to be
heard by the tribunal before which they are practicing. They should be fearless and
independent in the discharge of their duties, and would be perfectly right in protesting against
irregular procedure on the part of any judge; and if the advocate is improperly checked or
found fault with, he should vindicate the independence of the Bar. He would be perfectly
13
justified in insisting on getting a proper hearing and he would be perfectly right to object to
any interruption with the course of his argument such as to disturb him in doing his duty to
his client. Plenary powers vested in the Presiding Officer of the Court, apart from the fact that
they have rarely been used against members of the legal profession so far, should only be
used to vindicate the honor of the court or to satisfy the necessities of public justice and not
as a matter of course." It may, however, be noted that the presence of professional etiquette
coupled with recognition by judiciary of the importance of an independent Bar, will work
together to minimize the possibility of confrontation between the Bench and the Bar.

INTRODUCTION

This case deals with the question of suo motu action of contempt. In order to understand the
concept, it is relevant to refer Section 2(c) of the Act which defines criminal contempt as:

"(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-

(i) scandalizes or tends to scandalize, of lowers or tends to lower the authority of, any court;
or
14
(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 other manner."

Giving false evidence by filing false affidavit is an evil which must be effectively curbed with
a strong hand. Prosecution should be ordered when it is considered expedient in the interest
of justice to punish the delinquent, but there must be a prima facie case of "deliberate
falsehood" on a matter of substance and the court should be satisfied that there is a reasonable
foundation for the charge.

In a series of decisions, the Court held that the enquiry/contempt proceedings should be
initiated by the court in exceptional circumstances where the court is of the opinion that
perjury has been committed by a party deliberately to have some beneficial order from the
court. There must be grounds of a nature higher than mere surmise or suspicion for initiating
such proceedings. There must be distinct evidence of the commission of an offence by such a
person as mere suspicion cannot bring home the charge of making false statement, more so,
the court has to determine as on facts whether it is expedient in the interest of justice to
enquire into offence which appears to have been committed.

The contempt proceedings being quasi criminal in nature, burden and standard of proof is the
same as required in criminal cases. The charges have to be framed as per the statutory rules
framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged
contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment
in contempt proceedings on mere probabilities, equally, the court cannot punish the alleged
contemnor without any foundation merely on conjectures and surmises. As observed above,
the contempt proceeding being quasi criminal in nature require strict adherence to the
procedure prescribed under the rules applicable in such proceedings.

In exercise of the powers conferred on the High Court under Articles 215 and 225 of the
Constitution of India and in terms of Section 23 of the Act, the Madras High Court Contempt
of Court Rules, 1975 (in short `the Rules') have been framed. The said Rules prescribe
procedure for initiating contempt and various steps to be adhered to. By drawing our attention
to the Rules, Mr. Ganguli, learned senior counsel for the appellant submitted that Rules 4 and
8 have not been complied with. By emphasizing the principles in paras 12 and 16 of the
15
decision of this Court in R.S. Sujatha vs. State of Karnataka & Ors., 2010 (12) Scale 556,
learned senior counsel submitted that the contempt proceedings being quasi criminal in nature
require strict adherence to the procedure prescribed under the rules applicable to such
proceedings. He also pointed out that while sending notice, relevant documents have not been
enclosed and the consent of Advocate General was not obtained for initiating contempt
proceedings against the appellant. Insofar as the documents referred to being certain orders of
the court, no serious objection was taken note of for not sending the same.

HISTORIAL BACKGROUND

Prior to the instance case there were many landmark judgments by the Hon’ble Supreme
Court which deals with the same questions.

The whole object of prescribing procedural mode of taking cognizance is to safeguard the
valuable time of the Court from being wasted by frivolous contempt petitions. In State of
Kerala vs. M.S. Mani & Ors.,1, this Court held that the requirement of obtaining prior consent
of the Advocate General in writing for initiating proceedings of criminal contempt is
mandatory and failure to obtain prior consent would render the motion non-maintainable. In
case, a party obtains consent subsequent to filing of the petition, it would not cure the initial
defect and thus, the petition would not become maintainable.

In Bal Thackrey vs. Harish Pimpalkhute & Anr.2, this Court held that in absence of the
consent of the Advocate General in respect of a criminal contempt filed by a party under
Section 15 of the Act, taking suo motu action for contempt without a prayer, was not
maintainable.

Further, In P.N. Duda vs. P. Shiv Shanker & Ors.3 in which the provisions of Section 15(1)(a)
and (b) of the Contempt of Courts Act, 1971, read with Explanation (a) and Rule 3(a),(b) and
(c) of the Contempt of Supreme Court Rules, 1975, had been considered in paragraphs 53 and
54 of the judgment. It was pointed out that a direction had been given by this Court that if any
information was lodged even in the form of a petition inviting this Court to take action under
the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one
of the persons named in Section 15 of the said Act, it should not be styled as a petition and
1
(2001) 8 SCC 82
2
AIR 2005 SC 396
3
[(1988) 3 SCC 167
16
should not be placed for admission on the judicial side. On the other hand, such a petition
was required to be placed before the Chief Justice for orders in Chambers and the Chief
Justice could decide, either by himself or in consultation with the other judges of the Court,
whether to take any cognizance of the information.

NAME OF THE JUDGES

1. Altamas Kabir, J
2. Cyriac Joseph, J
3. H.L. Dattu, J.

FACTS OF THE CASE

 An application was filed by the Amicus Curiae, Mr. Harish N. Salve, learned Senior
Advocate, drawing the attention of the Court to certain statements made by
Respondent No.1, Shri Prashant Bhushan, Senior Advocate, which was reported in
Tehelka magazine, of which Shri Tarun J. Tejpal, the Respondent No.2, was the
Editor-in- Chief. The learned Amicus Curiae drew the attention of the Court to certain
statements which had been made by the Respondent No.1 in an interview given to Ms.
Shoma Chaudhury, wherein various statements were made alleging corruption in the
judiciary and, in particular, the higher judiciary, without any material in support
thereof.
 In the interview he went on to say that although he did not have any proof for his
allegations, half of the last 16 Chief Justices were corrupt. He also made a serious
imputation against the Hon'ble the Chief Justice of India, Justice S.H. Kapadia, as His
Lordship then was, alleging misdemeanor with regard to the hearing of a matter
involving a Company known as Sterlite, in which Justice Kapadia had certain shares,
deliberately omitting to mention that the said fact had been made known to the
Counsel appearing in the matter, who had categorically stated that they had no
objection whatsoever to the matter being heard by His Lordship.
 On 6th November, 2009, when the said facts were placed before the Bench presided
over by Hon'ble the Chief Justice, K.G. Balakrishnan, as His Lordship then was, in
which Justice Kapadia was also a member, directions were given to issue notice and
to post the matter before a three Judge Bench of which Justice Kapadia was not a
member. It should, however, be indicated that Justice Kapadia was not a party to the
aforesaid order that was passed. The matter was thereafter placed before us on

17
 19.01.2010 for consideration. On the said date, we requested Mr. Harish N. Salve,
learned Senior Advocate, to continue to assist the Court as Amicus Curiae in the
matter which was directed to be listed for further consideration as to whether on the
basis of the prayers made in the application, this Court should take suo motu
cognizance of the alleged contempt said to have been committed by the respondents
in the application which was numbered as Contempt Petition (Crl.) No.10 of 2009.

ISSUES RAISED

Whether the Court should take suo motu cognizance and proceed accordingly?

LAW INVOLVED

The law of contempt and suo moto cognizance was in question in the instant case

The provisions of Section 15 of the Contempt of Courts Act, 1971, but also in view of the
1975 Supreme Court Rules regarding proceedings for Contempt. The report published in
Issue No.35 of Volume 6 of Tehelka magazine dated 5th September, 2009, which comprised
the contents of the interview given by the Respondent No.1 to the Tehelka magazine, had
been placed before the Court on 6th November, 2009 and upon hearing the counsel present,
the Court directed the matter to be taken on board and directed notice to issue.

In relation to matters involving contempt of the Supreme Court, Rules have been framed by
the Supreme Court itself under powers vested in it under Section 23 4 of the Contempt of
Courts Act, 1971, read with Article 145 5 of the Constitution of India. The said Rules
4
Power of Supreme Court and High Courts to make rules.—The Supreme Court or, as the case may be, any High
Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its
procedure.
5
145. Rules of Court, etc

(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the
approval of the President, make rules for regulating generally the practice and procedure of the Court including
(a) rules as to the persons practising before the Court,
(b) rules as to the procedure for hearing appeals, and other matters pertaining to appeals including the time
within which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;
(cc) rules as to the proceedings in the Court under Article 139A;
(d) rules as to the entertainment of appeals under sub clause (c) of clause ( 1 ) of Article 134;
(e) any judgment pronounced or order made by the Court may be received and rules as to the conditions the
procedure for such review including the time within which applications to the Court for such review are to be
entered;
(f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in
respect of proceeding therein;
(g) rules as to the granting of bail;
18
described as the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975,
laid down the procedure to be followed in matters relating to taking of cognizance of criminal
contempt of the Supreme Court under Section 15 of the Contempt of Courts Act, 1971.
Further, submitted that Rule 3 of the aforesaid Rules enables the Court to take action in a case
of contempt other than the contempt committed in the face of the Court and provides as
follows:

"3. In case of contempt other than the contempt referred to in rule 2, the Court may take
action: -

(a) suo motu, or

(b) on a petition made by Attorney General, or Solicitor General, or

(c) on a petition made by any person, and in the case of a criminal contempt with the consent
in writing of the Attorney General or the Solicitor General."

Even Rule 6 of the aforesaid Rules had not been followed, as notices have not been issued to
the respondents in Form 1, as prescribed and the proceedings were, therefore, liable to be
discontinued on such ground as well.

JUDGEMENT

The issues involved in these proceedings have far greater ramifications and impact on
the administration of justice and the justice delivery system and the credibility of the
Supreme Court in the eyes of the general public than what was under consideration in either
Duda's case or Bal Thackrey's case (supra). In our view, even though suo motu cognizance
was taken in this case, this is one of those rare cases where, even if the cognizance is deemed
to have been taken in terms of Rule 3 (c) of the Rules to Regulate Proceedings for Contempt
of the Supreme Court, 1975, without the consent of the Attorney General or the Solicitor
General, the proceedings must be held to be maintainable.

Thus, on prima facie satisfaction that there were sufficient grounds for taking action on its
own motion, the Court initiated suo motu action by directing issue of notice to the

(h) rules as to stay of proceedings;

(i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or
vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause ( 1 ) of Article 317

19
Respondents. Hence, the present contempt proceeding was initiated by the Court on its own
motion and it is not covered by clauses (a), (b) and (c) of sub- section (1) of Section 15 of the
Contempt of courts Act, 1971 or clauses (b) and (c) of Rule 3 of the Rules to Regulate
Proceedings for Contempt of the Supreme Court, 1975. On the other hand, the present
proceeding is covered by clause (a) of rule 3 of the said Rules. Merely because the
information regarding the allegedly contemptuous statements made by Respondent No.1 and
published by Respondent No.2 was furnished to the Court by the learned Amicus Curiae, the
proceeding cannot lose its nature or character as a suo motu proceeding. The learned Amicus
Curiae was entitled to place the information in his possession before the court and request the
court to take action. The petition filed by him constituted nothing more than a mode of laying
the relevant information before the court for such action as the court may deem fit. No
proceedings can commence until and unless the court considers the information before it and
decides to initiate proceedings. If the court considers the information placed before it and
initiates proceedings by directing notice to issue to the alleged contemnors the action taken
comes within the ambit of Rule 3(a) of the Rules to Regulate Proceedings for Contempt of
the Supreme Court, 1975.Hence, the objections raised by the Respondents against the
maintainability of the present proceedings are without any basis. the court therefore, hold
these proceedings to be maintainable and direct that the matter be placed for hearing on
merits.

ANALAYSIS

The Supreme Court the Court has considered the earlier judgments and held that in a rare
case, even if the cognizance is deemed to have been taken in terms of Rule 3(c) of the Rules
to Regulate Proceedings for Contempt of the Supreme Court, 1975, without the consent of the
Attorney General or the Solicitor General, the proceedings must be held to be maintainable in
view of the fact that the issues involved in the proceedings had far reaching greater
ramifications and impact on the administration of justice and on the justice delivery system
and the credibility of the court in the eyes of general public.

It is clear from the recent decision of this Court in Prashant Bhushan's case that if the issue
involved in the proceedings had greater impact on the administration of justice and on the

20
justice delivery system, the court is competent to go into the contempt proceedings even
without the consent of the Advocate General as the case may be.

CONCLUSION

We have already pointed out that while dealing with criminal contempt in terms of Section
2(c) of the Act, strict procedures are to be adhered. In a series of decisions, this Court has
held that jurisdiction to initiate proceedings for contempt as also the jurisdiction to punish for
contempt are discretionary with the court. Contempt generally and criminal contempt
certainly is a matter between the court and the alleged contemnor. No one can compel or
demand as of right initiation of proceedings for contempt. The person filing an application or
petition before the court does not become a complainant or petitioner in the proceedings. He
is just an informer or relator. His duty ends with the facts being brought to the notice of the
court. It is thereafter for the court to act on such information or not. [Vide Om Prakash
Jaiswal vs. D.K. Mittal, (2000) 3 SCC 171] Further Section 15 of the Act as well as the
Madras High Court Contempt of Court Rules insist that, particularly, for initiation of criminal
contempt, consent of the Advocate General is required. Any deviation from the prescribed
Rules should not be accepted or condoned lightly and must be deemed to be fatal to the
proceedings taken to initiate action for contempt. In the present case, the above provisions
have not been strictly adhered to and even the notice issued by the then Division Bench
merely sought for explanation from the appellant about the allegations made by Respondent
No. 1.

21
 BIBLIOGRAPHY

CASE CITED
 Om Prakash Jaiswal vs. D.K. Mittal, (2000) 3 SCC 171]
 Bal Thackrey vs. Harish Pimpalkhute & Anr., AIR 2005 SC 396 –
 State of Kerala vs. M.S. Mani & Ors., (2001) 8 SCC 82
 R.S. Sujatha vs. State of Karnataka & Ors., 2010 (12) Scale 556
 Muthu Karuppan vs Parithi Ilamvazhuthi & Anr

BOOKS REFERRED

 Madhavi Goradia Diva ,Facets of Media Law,2nd Edition ,Eastern Book

Company,:2012
 Dr Durga Das Basu, Law of the Press : Edition: Fifth 2010
 M.P. Jain, Indian Constitutional Law, 5th Edition, Wadhwa Publication, 2009.

 V. Dicey, Law of Constitution, 10th ed., Universal Law Publication, New Delhi, 2012

22
 Durga Das Basu, Constitution of India, 8th ed., Lexis Nexis Butterworth Wadhwa,
Nagpur, 2009

 V. N. Shukla, Constitution of India, 11th ed., Eastern Book Company, Lucknow, 2008

23