IN RE: ARUNDHATI ROY, [AIR 2002 SC 1357].

Facts of the case

 This case concerns a Suo-moto contempt petition (that is, a petition initiated by the
Court on its own motion) against the Respondent, Arundhati Roy, a Booker-prize
winning author.
 During the course of a writ petition by grassroots-movement Narmada Bachao
Andolan, the Court addressed issues of environmental damage and displacement of
marginalized communities due to the development of a reservoir dam on the river
Narmada.
 Following a Supreme Court order that allowed for the height of the dam to be
increased, the Respondent wrote an article criticizing this decision. Subsequently,
protests were staged in front of the gates of the Supreme Court by Narmada Bachao
Andolan and the Respondent.
 This led to contempt proceedings based on a complaint lodged with the police.
During the proceedings, all Respondents denied the allegations concerning specific
slogans and banners and the proceedings were dropped.
 On the basis of the above averments, Suo moto contempt proceedings were initiated
against the Respondent for imputing motives to the Court.
 In her reply affidavit to the contempt notice, the author reiterated her stance and
stressed her continuous dissent against the decision of the Supreme Court. She further
noted that she believed this to be a matter of her right to express her opinions as a
citizen as well as a writer.

Issues Raised
i. Whether it would be permissible to initiate contempt proceedings for scandalizing the
court where the contents of an affidavit cause no contempt to any Judge personally
but the action tried to cast an injury to the public by creating a wrong impression in
the mind of the people regarding integrity, ability and fairness of the judiciary?
ii. Extent to which and circumstances in which fair criticism of Judge, court or its
functioning would be permissible under Article 19(1) (a) and (2)?
iii. Whether freedom of press is guaranteed separately from and is the same as freedom of
expression under Article 19(1)?
iv. How should the court deal with a case when a contemnor does not show any
repentance or remorse but persistently and consistently tried to justify the prima facie
contemptuous action and to frustrate the contempt proceedings?

Rules

 Section 2(c), The Contempt of Courts Act 1971

 Section 12, The Contempt of Courts Act 1971
 Section 14, The Contempt of Courts Act 1971
 Section 15, The Contempt of Courts Act 1971
 Indian Penal Code, 1860,
 Article 129, The Constitution of India 1950
 Article 19(1)(a), The Constitution of India 1949.

Analysis

The preliminary argument of the Respondents seeking recusal of the judges who issued
notice of contempt in the instant matter was rejected by the Court. The Court opined that
contempt proceedings were initiated for comments made against the integrity of the judicial
institution as a whole and not the judges in particular, who issued the notice. The decision of
denying recusal appears to be fallacious as it goes against the law laid down under Section 14
of the Act.

Principle of natural justice, due process requirement after the decision in Maneka Gandhi v.
UOI, and ordinary notions of justice demanded the judge to refuse to hear the matter and to
recuse from the Bench. There is a tendency to inherit bias in contempt proceedings initiated
by the court suo-motu, thus creating a scope pf injustice and violation of the cherished
freedoms of the contemnor.

The Court stated that freedoms of speech and expression guaranteed by the Constitution were
subject to reasonable restrictions imposed by law, one of these being the Contempt of Courts
Act which, amongst other objectives, was directed at maintaining the dignity and the integrity
of the courts and the judiciary. It dismissed as irrelevant the Respondent’s argument that the
issue of whether truth could be pleaded as a defence to contempt proceedings had to be
determined.

Contempt proceedings had been initiated against on the basis of the offending and
contemptuous part of the reply affidavit which made wild allegations against the court,
thereby scandalising its authority. There was no point or fact in those proceedings which
required to be defended by pleading the truth. The Court stated that the purpose of the
contempt proceedings was to maintain public confidence in the judicial system. In order to be
considered fair criticism, the Court said that the statement “must be made in good faith and in
the public interest, which is to be gauged by the surrounding circumstances including the
person responsible for the comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to be achieved.”

Further, the Court distinguished the instant case from that of P.N. Duda v. P. Shiv Shanker
where the SC considered criticisms of judiciary made by a person who used to be a part of
the Judiciary. Thus, liability in contempt cases will differ depending upon the person who
makes criticism of the judicial system. Such a view is highly skewed, discriminating between
two categories of the citizens and violating right to equality guaranteed under Art. 14 of the
Constitution.

The Court also relied on decisions in Dr. D.C. Saxena v. Hon’ble Chief Justice of India
(1996), In Re: S. Mulgaonkar (1978), and E.M Sanakran Namboodripad v. T. Narayanan
Nambiar. (1970) The Court considered that the Respondent’s statement was not based on any
understanding of the law or the judicial system. Her statements alleging the judiciary’s
willingness to issue notice on “an absurd, despicable, entirely unsubstantiated petition” whilst
exhibiting a lack of willingness to entertain a case concerning “national security and
corruption in the highest places” and its intention to silence criticism along with her lack of
remorse, made it difficult “to shrug off or to hold the [unsubstantiated] accusations made as
comments of [an] outspoken ordinary man”.

This verdict of the Court reflects that exercising of fundamental rights would require formal
learning and can be a prerogative of few elites well versed with the legal conundrums thus,
making the right illusory. Further, the observation of the SC to the effect that the law
"punishes the archer as soon as the arrow is shot no matter if it misses to hit the target"
reflects another anomaly in the law (as interpreted) to the requirement of mens rea in a charge
of contempt. The Court ultimately found the Respondent guilty of criminal contempt and
sentenced her to “symbolic” imprisonment of one day and imposed a fine of Rs. 2000 with
the proviso that if she failed to pay the fine, she would be imprisoned for three months.

Conclusion

The higher Judiciary's powers to punish for contempt are a moody jurisdiction which is often
indifferently and indiscriminately applied. The Contempt of Courts Act, 1971 defines
criminal contempt as that which ‘scandalizes the court’ or ‘prejudices judicial proceedings’
without providing any explanation of these key terms. There are few restraints on the exercise
of this power and more often than not, it is likely to be exercised arbitrarily.

The Court has more than once failed to realize that the authority of the court which is
imposed by penalties under contempt powers can procure submission, but not respect. A
more relaxed system will reflect greater confidence on the part of the judiciary, and may find
inspiration from the famous quote of Chief Justice Marshall of the US Supreme Court,
“Power of judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for
contempt, but in the trust, confidence and faith in the common man.”
 A.S. MOHAMMED RAFI V. STATE OF TAMIL NADU, [ (2011) 1 SCC 688]

Facts of the case

A resolution was passed by the Coimbatore Bar Association exhorting its members not to
defend the policemen who were the accused in a particular criminal case. The resolution was
challenged before the Madras High Court. The Madras High Court made some observations
about the Coimbatore Bar Association in its judgment. A civil appeal was filed before the
Supreme Court seeking to quash the observations made against it.

While granting the plea of the Coimbatore Bar Association in Civil Appeal No. 10304-10308
of 2010 that the observations made against it in the impugned judgment of the High Court of
the Madras should be quashed, the Supreme Court also considered the validity and propriety
of the resolution passes by the Bar Association.

Issues Raised

i. Whether professional standards and ethics require advocates to defend all accused
persons.

ii. Whether the resolution passed by the Bar Association not to defend accused
policemen in criminal cases violates the right to be defended under Article 22(1)
of the Constitution

Rule

 Article 22(1), The Constitution of India 1950

 Article 142, The Constitution of India 1950

Analysis
The legality of the Bar Association resolution that none of its members will appear for an
accused came up for consideration in this case. It has been noticed that several Bar
Associations have passed resolutions in the past as follows

 That they will not defend a particular person or persons in a particular case.
  When there are clashes between the policemen and lawyers, that no one will defend
the policeman in the criminal case.
 That they will not defend a person who is alleged to be a terrorist or a person accused
of a brutal or heinous crime or involved in a rape case.

There is ample evidence to show that Indian Lawyers have never shirked their responsibility
on the ground that they would become either unpopular or it is personally dangerous for him
to defend such persons. It was noticed that in spite of such high traditions established by Bar,
several instances have occurred about the refusal to defend certain accused persons like

a. The revolutionaries in Bengal during British rule were defended by lawyers.

b. Indian communists were defended in the Meerut conspiracy case.
c. Razakars of Hyderabad were defended
d. Sheikh Abdullah and his co-accused were defended.
e. Alleged assasins of Mahatma Gandhi and Indira Gandhi were defended.
f. Dr. Binayak Sen has been defended, and
g. Bhulabhai Desai defended the accused in INA trials in Red Fort at Delhi
(1945 to 1946).

The Constitution of India and Rules framed by Bar Council of India imposed a duty on the
lawyers to defend the causes and not to refuse to accept briefs. The Constitutional provisions
guarantees that no person arrested shall be detained in custody without being informed, as
soon as may be the ground of his arrest and shall not be denied the right to consult and be
defended by a legal practitioner of his choice. The rules framed by the Bar Council of India
provides that an advocate is bound to accept any brief in Courts or tribunals before any other
authorities in or before which he proposes to practice at a fee consistent with his standing at
the Bar and the nature of the case.

Conclusion
Thus, the Court held that professional ethics requires that a lawyer cannot refuse a brief,
provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence,
the action of any Bar Association in passing such a resolution that none of its members will
appear for a particular accused, whether on the ground that he is a policeman or on the
ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the
Constitution, the Statute and professional ethics.
It is against the great traditions of the Bar which has always stood up for defending persons
accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. The
Court declared that all such resolutions of Bar Associations in India are null and void and the
right-minded lawyers should ignore and defy such resolutions if they want democracy and
rule of law to be upheld in this country. Thus, a resolution of the Bar, that no member of the
Bar will appear for a particular accused, is against all norms of the Constitution, the statute
and professional ethics.

It is also against great traditions of the Bar which took cases where persons were accused of
treason and other serious offences. Democracy and the rule of law can be maintained only by
providing access to justice through legal profession and no person shall be denied of the right
to be defended by a lawyer. The Supreme Court’s decision upholding the right of a person to
be defended by a lawyer and corresponding duty of the lawyer to defend strengthen, not only
the cause of legal profession but also strengthens the rule of law and democracy in the
Country
 R K ANAND V. REGISTRAR, DELHI HIGH COURT, [(2009) 8 SCC 106]

Facts of the case

 The present appeal is a fall out from a criminal trial arising from a hit and run
accident in which a car travelling at reckless speed crashed through a police check
post and crushed to death six people, including three policemen.
 Facing the trial, as the main accused, was Sanjeev Nanda coming from a very wealthy
business family. It was in this background that a well-known English language news
channel called New Delhi Television (NDTV) telecast a programme on May 30, 2007
in which one Sunil Kulkarni was shown meeting with IU Khan, the Special Public
Prosecutor and RK Anand, the Senior Defence Counsel (and two others) and
negotiating for his sell out in favour of the defence for a very high price.
 Shocked by the programme the Delhi High Court suo-motu initiated a proceeding
(Writ Petition (Criminal) No.796 of 2007). It called for from the news channel all the
materials on which the telecast was based and after examining those materials issued
show cause notices to RK Anand, IU Khan and Bhagwan Sharma, an associate
advocate with RK Anand why they should not be convicted and punished for
committing criminal contempt of court as defined under section 2 (c) of the Contempt
of Courts Act, 1971.
 The High Court held that RK Anand’s and IU Khan’s acts squarely fell within the
definition of contempt under clauses (ii) & (iii) of section 2(c) of the Contempt of
Courts Act. It, accordingly, held them guilty of committing contempt of Court vide
judgment and order dated August 21, 2008 and in exercise of power under Article 215
of the Constitution of India prohibited them, by way of punishment, from appearing in
the Delhi High Court and the courts subordinate to it for a period of four months from
the date of the judgment.
 It also held that RK Anand and IU Khan had forfeited their right to be designated as
Senior Advocates and recommended to the Full Court to divest them of the honour. In
addition to this the High Court also sentenced them to fine of rupees two thousand
each.
  Thus, these two appeals by RK Anand and IU Khan respectively are filed under
section 19 (1) of the Contempt of Courts Act against the judgment and order passed
by the Delhi High Court

Issues Raised

i. Whether the conviction of the two appellants for committing criminal contempt of
court is justified and sustainable?
ii. Whether the procedure adopted y the High Court in the contempt proceedings was fair
and reasonable, causing no prejudice to the two appellants?
iii. Whether it was open to the High Court to prohibit the appellants from appearing
before the High Court and the courts sub-ordinate to it for a specified period as one of
the punishments for criminal contempt of court?
iv. Whether the role of NDTV was justified in carrying out sting operations and
telecasting the programme based on the sting materials in regard to a criminal trial
that was going on before the court.

Rule

 Section 19(1), Contempt of Courts Act 1971

 Section 2(c), Contempt of Courts Act 1971
 Section 2(c)(ii), Contempt of Courts Act 1971
 Section 2(c)(iii), Contempt of Courts Act 1971

Analysis

Contempt of Court

The Standard of Proof in Contempt of Court Proceedings is one of the striking issues in the in
the present case. The manner in which the Court decided whether the charge of criminal
contempt had been established or not, the standard applied was not different from the
precedent case law. The approach of the Court was in consonance with the law laid down in a
range of cases from In Re Vinay Mishra1 to Daroga Singh and Ors. v. B.K. Pandey.2 The
Court spelt it out clearly that here is a difference between the manner of proof in a contempt
proceeding and that in a criminal trial.

2
While the standard of proof in both was said to be the same, namely, that of proving a fact
“beyond reasonable doubt”, the manner of proof in both was contended to be different. The
settled position of law was noted to be that proceeding of contempt of court was sui generis.
The provisions of the Criminal Procedure Code and the Indian Evidence Act were not
applicable in such a proceeding. Instead, the principles of natural justice were said to apply.
The absence of a fixed procedure to be followed in these types of trials has led to the
following shortcomings in the manner in which the contempt of court proceedings are
conducted.

In this regard, the lacunae which can be identified from a reading of R.K. Anand v.
Registrar, Delhi High Court are: Firstly, the opportunity to cross-examine the witnesses is
very rarely given to the person charged with criminal contempt. In the case of Daroga Singh
and Ors., it was noted that one of the reasons for denying the opportunity to cross-examine is
the need to decide the case expeditiously. R.K. Anand’s request to cross-examine Poonam
Agarwal was turned down by the High Court. But the point to be noted is to what extent
should interests of expediency be given priority to interests of fairness and uncovering the
truth.

Further, the reasoning behind denial of the opportunity to cross examine was that what had
transpired between the parties were already there on the micro-chips and the CDs. It was
stated that no statement by Poonam Agarwal would change this state of affairs. But the point
to be noted is that it was the reliability of these CDs that was being questioned by RK Anand
in the first place.

Secondly, IU Khan was let off the hook on the ground that the tape, containing his recording,
submitted to the Court was incomplete and hence its veracity was not adequately established.
However, it doesn’t seem that the veracity of RK Anand’s sting tape was proved either.
Attempts to do so were struck down by the Court.

Thirdly, the judgment states that RK Anand did not deny the recording, which was
broadcasted by the news channel, in the first instance. This fact seems to have weighed
against him, especially since, as is mentioned in the judgment, that IU Khan had, right at the
beginning, claimed that the recording had been doctored. However, the fact of the matter is
that the judges should not have referred to statements made by the persons, in interviews to
television channels, in the first place. Such observations do not have any place in the
judgment. These faux pas which have been pointed out would not have taken place at all if
the Criminal Procedure Code and the Indian Evidence Act procedural standards had been
followed

Role of the Media

Several issues emerge from the RK Anand which need to be scrutinized. One of the questions
posed by Singhvi J. to the lawyers concerned was whether it was appropriate for the media to
air the tapes during court proceedings of the BMW case? Does it adversely affect or prejudice
the parties involved? At a broader level does this vitiate fair trial? Several issues emerge from
the RK Anand which need to be scrutinized. It is important to conduct such scrutiny in light
of recent incidents and practical considerations.

The question posed by J. Singhvi to the lawyers concerned was whether it was appropriate for
the media to air the tapes during court proceedings of the BMW case? Does it adversely
affect or prejudice the parties involved? At a broader level does this vitiate fair trial? The
present judgment explains that trial by media takes place where the impact of television or
newspaper coverage on a person’s reputation creates a widespread perception of guilt
regardless of any verdict in a court of law.

In such cases the media has tried and found the person guilty and thus adjudicated upon the
very issue pending before the court and this makes a fair trial virtually impossible regardless
of the its result. In this case, an important issue which came up before the Court was whether
NDTV was guilty of criminal contempt under the Contempt of Courts Act? The Court held
that this case fell squarely under the defence under the new S. 13(b) of the Act which
provides that justification by truth and public interest put together form a defence.

The Court also accepted Shri Salve’s compelling argument that NDTV was in fact trying to
prevent the advocates’ attempt to interfere in the course of justice. It exposed erring lawyers.
Further, the stings had nothing to do with the accused, Sanjeev Nanda. It did not conjecture
about the culpability of the accused which is what the Court thought the standard is.
However, it is interesting to note at this point that there were television interventions even in
December 2007 when the Anand contempt case was before the Delhi High Court.

Professional misconduct vis-à-vis Criminal Contempt of Court

Khan’s behaviour was held to be professional misconduct whereas Anand was charged with
criminal contempt of court. While Anand was given a period of eight weeks from the date of
service of notice for filing his show-cause as to why punishment awarded to him should not
be enhanced, Khan’s case was directed back to the Delhi High Court for consideration and he
had no prior notice as to the action of the SC.

In the case In re Vinay Mishra3 , the SC held that under Article 142 of the Constitution the
jurisdiction and powers of the Supreme Court which are supplementary in nature and are
provided to do complete justice in any manner, are independent of the jurisdiction and
powers of the Supreme Court under Article 129 which cannot be trammelled in any manner
by any statutory provision including any provisions of the Advocates Act, 1961 or the
Contempt of Courts Act, 1971. The implication of this case was that the SC was vesting in
itself the power to try cases of professional misconduct by advocates which was actually
vested in the Bar Council as per Section 35 of the Advocates Act, 1961.

Fortunately, this decision was overruled in Supreme Court Bar Association v. Union of India
where it was held that the SC must not exceed its jurisdiction and it must act with restraint
while exercising its powers under Article 142. Thus, it was unacceptable for the Court to
"take over" the role of the statutory bodies or other organs of the State and "perform" their
functions. While the Bar Council is considering cases relating to professional misconduct, it
follows a fixed procedure where a Disciplinary Committee is set up, the advocate is allowed
to defend himself and most importantly an appeal to the decision of the Committee lies with
the SC.

This procedure as contrasted with the contempt proceedings seems much fairer as the
advocate is allowed one appeal. It is surprising that Criminal Contempt of Court which is a
graver offence does not have either a fixed procedure or a process of appeal. With reference
to the case, if IU Khan is dissatisfied with the decision of the Del HC, then it is highly
unlikely that his appeal will be successful since the Supreme Court has already pre-judged the
matter.

Conclusion

3
The present BMW's Case precisely revolves around winning over and influencing the star
witness, Sunil Kulkarni. The two appellants, defence counsel as well as special public
prosecutor, were caught through live conversation in a sting operation conducted by Poonam
Agarwal, a journalist of NDTV. Entire recordings in both the stings were accepted. R.K.
Anand and IU Khan both were prohibited by way of punishment, from appearing in Delhi
High Court and all the courts subordinate to if, for a period of four months from the date of
judgment and a fine of Rs. 2000 too was imposed.

In the event of appeals against the above judgment of the Delhi Court, the appeal by RK
Anand was dismissed by the Supreme Court, subject to the notice of enhancement of
punishment. He was allowed eight weeks’ time from the date of service of notice for filing
his show-cause. In case of I.U. Khan, he was supposed to know about the ongoing game plan
that was afoot for subversion of the Trial. His omission to inform about the same to
prosecution and the court, as per the Delhi High Court was likely to have a very serious
impact on the trial and thus formed a case of professional misconduct.

But, as per the Supreme Court, on the basis of materials on record the charges of criminal
contempt cannot be held to be satisfactorily established against him. The appeal filed by I.U.
Khan was therefore allowed and his conviction for criminal contempt was set aside. The
period of four month's prohibition from appearing in Delhi High Court and the courts sub-
ordinate to it was already over by then, however, the punishment of fine given to him by the
High Court was set aside. The Supreme Court further held that the Full Court of the Delhi
High Court may still consider whether or not to continue the honour of Senior Advocate
conferred on him in light of the findings recorded in this judgment.

Further, in order to avoid any such controversies in future all the High Courts that have so far
not framed rules under Section 34 of the Advocates Act are directed to frame the rules
without any further delay. While appreciating the TV channel’s exposure of a renowned
criminal lawyer’s crime of bribing a witness, the apex court declined to regulate media in the
interest of an autonomous judiciary and a free media.

I would like to conclude by quoting J. Singhvi, "What appeared in the telecast was
outrageous and tended to confirm the cynical but widely held belief that in this country the
rich and the mighty enjoyed some kind of corrupt and extra-constitutional immunity that put
them beyond the reach of the criminal justice system." The Apex court termed this sting as
opening of another chapter in trial. NDTV has sufficiently documented the entire episode,
which is essential to nail criminals. Their half-an-hour program on delays in the trial inspired
witness Kulkarni to work with TV channel to expose prosecution-defence nexus.

PANDURANG DATTARAYA KHANDEKAR V. BAR COUNCIL OF

MAHARASHTRA, BOMBAY, AIR 1984 SC 110

Facts of the Case

The complainants alleged various acts of professional misconduct against the appellant and
Agavane. According to them, the appellant and Agavane sometimes impersonated as other
advocates for whom the briefs were meant and at times, they directly approached the clients
and adopted questionable methods charging exorbitant fees. The State Bar Council referred to
four specific charges relating to them, two of impersonation as A.D. Ghospurkar and N.L.
Thatte and depriving these gentlemen of the briefs meant for them. The State Bar Council
held that these two charges have not been substantiated and the Disciplinary Committee of
the Bar Council of India has not gone into them.

Both the Disciplinary Committee of the Bar Council of India and the State Bar Council
however found the appellant and Agavane to be guilty of giving improper legal advice and
held the charge of professional misconduct proved, but having regard to the fact that they
were junior members of the bar, the Disciplinary Committee of the Bar Council of India by
its order dated April 23, 1976 held both the appellant and A.N. Agavane guilty of
professional misconduct and directed that the appellant be suspended for a period of four
months from June 1, 1976 and Agavane for a period of two months there from.

Issues Raised

i. Is there a difference between the giving of improper legal advice and the giving of
wrong legal advice?
ii. Can Courts adjourn matters because lawyers are on strike?
 iii. Can Court interfere with the concurrent finding of fact?
Rules
 Section 38 of the Advocates Act, 1961
 Section 36B of the Advocates Act, 1961

Analysis

The Supreme Court held that it is the duty of all Courts to go on with matters on their boards
even in the absence of lawyers. In other words, Court must not be privy to strikes or calls for
boycotts. It was held that if a lawyer, holding a vakalatnama of a client, abstains from
attending Court due to a strike call, he shall be personally liable to pay costs which shall be in
addition to damages which he might have to pay his client for loss suffered by him. There is a
world of difference between the giving of improper legal advice and the giving of wrong
legal advice.

Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner
in the exercise of his profession does not amount to professional misconduct. In re A Vakil4,.
Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke [1889]5 and said that
Negligence by itself is not professional misconduct; into that offence there must enter the
element of moral delinquency.

The decision was followed by the Calcutta High Court in re An Advocate.6 The Court further
stated that under Section 38 of the Advocate’s Act 1961, this Court would not, as a general
rule, interfere with the concurrent finding of fact. by the Disciplinary Committee of the Bar
Council of India and the State Bar Council unless the finding is based on no evidence or it
proceeds on mere conjectures and surmises. Finding in such disciplinary proceedings must be
Sustained by a higher degree of proof than that required in civil suits, yet falling short of the
proof required to sustain a conviction in a criminal prosecution. There should be convincing
preponderance of evidence.

Conclusion

It is the solemn duty of the Bar Council of India and the State Bar Councils to frame proper
schemes for the training of the junior members of the bar, for entrusting of work to them, and
4
ILR [1925] 49 Mad. 523
5
33 Sol. Jour. 397
6
ILR [1935] 62 Cal. 158
for their proper guidance so that eventually we have new generation of efficiently trained
lawyers. It is regrettable that even after more than two decades that the Advocates Act was
brought on the Statute Book, neither the Bar Council of India nor the State Bar Councils have
taken any positive steps towards ameliorating the conditions of the members of the bar,
particularly of the junior members. It is pertinent to note that there is a thin line between
misconduct, negligence which can only be brought to conclusion only via precedents.

DR. D.C. SAXENA, CONTEMNOR V. HON’BLE CHIEF JUSTICE OF INDIA,

AIR 1996 SC 2481

FACTS OF THE CASE

The petitioner made wild allegations against the then chief justice, A.H. Ahmadi, in a second
writ petition, after losing his first one, filed against the then Congress president, P.V.
Narasimha Rao, for allegedly avoiding to pay his dues to the exchequer. The petitioner
imputed that Chief Justice Ahmadi had allowed the President to avoid payment of dues
treating him as a class by himself, and that the CJI should not be allowed to take judicial
immunity, and was liable to criminal prosecution

ISSUES RAISED

i. Whether imputation put by the Contemnor on the Chief Justice of India amount to
Contempt of the court.

RULE
 Article 129, the Constitution of India 1950
 Section 2(c), The Contempt of Courts Act, 1971
 Section 4, The Contempt of Courts Act, 1971

ANALYSIS
The question before the court in the resent case was whether the aforesaid imputations put on
the Hon’ble Chief Justice of India by the Contemnor were scurrilous attack intended to
scandalise the Court as per section 2(c) of the Contempt of Courts Act, 1971 and if the same
impede due administration of Justice. Words are the skin of the language and the 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 vigour. The question in such cases are as to
what extent the Petitioner was entitled to the freedom of those expressions guaranteed under
Article 19(1)(a) of the Constitution and further if the averments were found scandalous,
whether he would get absolved by operation of Article 19(1)(a).

The Hon’ble court in this case took suo-motu action under Article 129 of the Constitution and
the word 'contempt' has not been defined by making rules, it would be enough to fall back
upon the definition of "criminal contempt" defined under Section 2(c) of the Act: "criminal
contempt" means the publication (whether by words, spoken or written, or by signs, or by
visible representations, or otherwise) of any matter of the doing of any other act whatsoever
which-

a) scandalises or tends to scandalise, or lowers or tends to lower the authority of any

court; or
b) prejudices, or interferes or tends to interfere with, the due course of any judicial
proceedings; or
c) interferes, or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

The Court in this regard referred to the scope of the Freedom of speech and expression as
guaranteed under article 19. Such freedom encompasses that 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 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.

The Hon’ble Supreme Court in P.N. Duda v. P. Shiv Shankci7 taking into consideration the
right of fair criticism of the judiciary 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

7
and uphold the Constitution and the laws without fear and favour. However, in E.M.S.
Namboodiripad v. T. Narayanan Nambiar8, it was held by the Supreme Court that the
freedom of speech and expression as guaranteed under Article 19 does not protect a person
from Scandalising the judges or courts as the same tends to bring the authority and
administration of law into disrespect and disregard and tantamount 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. In the context of section 2(c) of the Contempt of Courts Act, Scandalising
the court 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. In
this regard the nature of the imputations, the occasion of making the imputations and whether
the contemnor could foresee the possibility of his act and whether he was reckless as to either
the result or had foresight like any oilier fact in issue to be inferred from the facts and
circumstances emerging in the case are to be considered in line with the same.

The Petitioner, a professor of English language in clear and unequivocal language

emphasised and reaffirmed that the averments against the Hon’ble CJI were "truthfully and
carefully" worded. It therefore was derived that the accusations made by the contemnor
petitioner were 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 as held by the court flew in the face of the judicial finality of
the order of this Court and the assertion questioned the authority of the court. It created
tendency to obstruct the administration of justice and, therefore, was considered to be
outrageous criminal contempt. The court while holding the above also held that while
dismissing the second writ petition, the Court had pointed out the scandalous nature of
accusations which found place in the second writ petition and when the petitioner persisted
for consideration of scandalous 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.

8
Resultantly, the Court was constrained to go 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. 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.

Later too after the matter came up before with 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 contempt by the petitioner was considered to be of the gravest magnitude
of the contumacious conduct. The Hon’ble Court convicted the Petitioner for the Contempt of
Court under Section 2(c) of the Act sentenced to undergo simple imprisonment for a period
of three months and to pay a fine in the sum of Rs. 2,000 (Rupees two thousand)

CONCLUSION

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.

However, when an advocate or a party appearing before the court requires to conduct himself
in a matter 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 judiciary would be a thing of the past. Hence, the Hon’ble Supreme
Court in the present case rightly convicted the contemnor for contempt of court and the
Hon’ble Chief Justice of India.

SANJAY KUMAR V. THE STATE OF BIHAR AND ANR., (2014) 9 SCC 203

FACTS

The Petitioner claimed to have been appointed by the private Respondent No. 2 in a fake

dental college as a Senior Lecturer for a period of one year and issued 12 post-dated cheques

for payment of his salary out of which 9 cheques had bounced. The complainant-Petitioner

sent legal notice to the Respondent No. 2 but without giving them sufficient time to file a

reply, filed a complaint before the Magistrate The private Respondent challenged the said

order by filing the petition before the High Court which has been allowed. Aggrieved, the

Petitioner approached the Court making the averment in the petition that accused persons had

been running a fake institution and offered the appointment to the Petitioner on certain terms

and in spite of working therein, he was not paid the salary. Hence, this petition.

ISSUES RAISED

1. Whether asking the Court to ignore pleadings is allowed?

2. Whether it is justified for an Advocate on Record to remain absent without intimating
the court about it?
 RULES

 Section 165 of the Indian Evidence Act, 1872

 Sections 406, 420 Indian Penal Code
 Section 138 of NI Act
 Section 482 of the Code of Criminal Procedure, 1973.

ANALYSIS

In the instant case the counsel appearing in the Court for the Petitioner designated himself
merely as a proxy counsel without revealing his name. The Advocate-on-record had No
courtesy to send a slip mentioning the name of the counsel who has to appear in the Court. In
Re: Rameshwar Prasad Goyal9, this Court had categorically held that in case the AOR does
not appear in the Court, his conduct may tantamount to criminal contempt of the Court.

The Court had issued a notice earlier to the Petitioner, to show cause that in case it was a fake
institution, what was the reason or rationale for the Petitioner to join and continue to serve
there for one year. In reply to the said show cause notice, the Petitioner submitted that such
pleadings be ignored and may not be considered for the purpose of disposal of the instant
petition. It is to be noted that the pleadings should be trite to the knowledge of parties and in a
case, person takes such misleading pleading, he can be refused not only any kind of
indulgence by the court but can also be tried for perjury. Whether such a pleading is relevant
or not is a matter to be decided by the Court and under Section 165 of the Indian Evidence
Act, 1872, Court has a right to ask the party even relevant or irrelevant questions and the
parties or their counsel cannot raise any objection to any such question.

CONCLUSION

9
(2014) 1 SCC 572
The petition was rightfully dismissed. In such a chaotic situation, any lawyer under the label
of ‘proxy counsel’, a phrase not traceable under the Advocates Act, 1961 or under the
Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the
Court under a false impression that he has a right to waste public time without any authority
to appear in the Court, either from the litigant or from the AOR, as in the instant case.

The AOR, with impunity was disdainful towards the order of this Court directing him to
appear in the Court. He had also not filed any appearance for the counsel who had appeared,
nor the said counsel disclosed his name. The Court takes serious note of the conduct of the
AOR, Shri Manu Shanker Mishra and warns him to behave in an appropriate manner
befitting the conduct of an advocate and an AOR otherwise this Court will not hesitate to take
action against him. His conduct will be under close watch of this Court.

IN RE: VINAY CHANDRA MISHRA, AIR 1995 SC 2348

FACTS

Allegations of contempt committed in the face of a High Court were made against a Senior
Counsel. He was asked by the Bench regarding the provision under which the impugned
order had been passed. He started shouting at the bench. He said would get the Judge
transferred or impeached and threatened by saying that he had “turned up many judges”. He
created a scene in the Court. He lost his temper and, according to the Judge, “except to abuse
him of mother and sister” the contemnor had insulted him like anything.

The contemnor was also President of the Bar and Chairman of the Bar Council of India. The
matter was referred by the Acting Chief Justice to the Supreme Court. The Supreme Court
took suo motu cognizance and issued a show cause notice to the contemnor. In his counter
and additional counter, a different version of the incident was put up by the contemnor. He
alleged that in fact it was the judge who had committed contempt of his own court. He filed
application for initiating proceedings against the Judge.

ISSUES

1. Whether Supreme Court can take cognizance of contempt of a High Court and initiate
suo motu proceedings against a contemnor?
 2. Whether a contemnor has a right to examine the Judge or Judges before whom
contempt was committed?
3. Whether it is necessary to summon the Judge for examination to verify the allegations
against the contemnor when the version of the contemnor is different?
4. Whether a junior member of the Bench is barred in any way by any convention or
otherwise, from putting questions to the Bar?

RULES

 Section 35 and Section 38 of the Advocates Act, 1961

 Contempt’s of Courts Act, 1971
 Article 129 and Article 142 of the Constitution of India.

ANALYSIS

The Court in In Re: Vinay Mishra misconstrued Article 129 read with 142 and robbed the Bar
to of all powers to try and punish those for professional misconduct. It even assumed
jurisdiction when Section 38 of the Advocates Act, 1961 explicitly provides only appellate
jurisdiction to the Apex Court. The Court punished Shri Mishra by suspending him thus the
petition arose in the 1998 case, Supreme Court Bar Association v. Union of India. The
Court overruled the Mishra case and recognized the Bar Council’s power to try and punish all
those guilty of professional misconduct. The Supreme Court is vested with the right to punish
those guilty of contempt of Court under Article 129 read with Article 142 of the Constitution
of India.

The power to punish contemners is also vested with the High Court’s under Article 215 of
the Constitution and the Contempt of Courts Act, 1971 also governs the punishments given
by the High Court. This act in no way controls the jurisdiction of the Apex Court. Contempt
proceedings are not brought about to restore the pride of the Judge in who’s Court or against
whose order there was contempt.

CONCLUSION
It is well settled that contempt proceedings are brought about to protect the majesty of law
and uphold the judiciary’s position, the central pillar in Indian democracy, among the public
and give them reason to keep their faith in the administration of justice. In the Mishra case
the Court instead of protecting the image of the Judiciary, the upholder of the law, knowingly
or un-knowingly, tried to restore the pride of the Judge by suspending the advocate Mishra
who might have been influenced by his high position in the Bar, and felt that appropriate
punishment might not be meted out to him.

Association case the court took a very objective view and taking the help of law and
construing it in the right way came to the conclusion that the power to punish for any
professional misconduct rests with the Bar, whereas to punish for contempt only it has
jurisdiction for itself and subordinate courts. No statute can take contempt jurisdiction away
from the Supreme as well as the High Court.

NORATANMAL CHOURARIA V. M.R. MURLI & ANR. CITATION,

AIR 2004 SC 2440

FACTS
The relationship between the appellant and respondent is that of landlord and tenant. A rent
control proceeding was initiated by the Respondents against the Appellant. During the
pendency of the proceeding before the Small causes Court, the Appellant alleged misconduct
(battery) by the Respondent during three occasions dated 8.10.1993, 26.10.1993 and
1.03.1995. The appellant filed a complaint before the Bar Council of Tamil Nadu to initiate
proceedings against the respondent which was later transferred to the Bar Council of India.
The said committee was prima facie of the view that the factum of occurrence of the said
incidents were not reliable and moreover the first respondent appeared in the rent control
proceeding not in the capacity of an advocate but as a litigant. Hence the present Appeal.

ISSUE RAISED

1. Whether the acts of the Respondent constitute professional or other misconduct

RULES
 Section 35, Advocates Act 1961

ANALYSIS

The Disciplinary Committee of the Bar Council of India observed that the factum of
occurrence of the said incidents are not reliable as the acts of omission and commission on
the part of the respondents, no criminal proceeding was initiated by filing a complaint
petition by the appellant. No charge-sheet had also been filed by the police in relation to the
occurrence dated 26.10.1993 where for an FIR had been lodged.

It was further accepted that the first respondent had not been appearing in the
aforementioned rent control proceedings as an advocate but as a party in person. Having
regard to the fact that till the date of passing of the impugned order neither the appellant
herein produced any document to substantiate any follow up action on his part in respect of
complaint filed by him before the police authority, nor did he file any private complaint.
Based on the above observations, the Committee held that there was no prima facie evidence
to incriminate the respondent for misconduct.

The Counsel for the Appellant argued that under section 35 of the Advocate’s Act, 1961,
proceedings can be initiated for committing any misconduct which is not only confined to
professional misconduct and referred to various cases including D and Advocate of the
Supreme Court31 with respect to the same. However, the Respondent argued that the
allegations made by the Appellant were false and the appellant was harassing the Respondent
by filling false cases. The Court in the present case held that misconduct under section 35 of
the Advocate’s Act, 1961 envisages breach of discipline although it would not be possible to
lay down exhaustively as to what would constitute misconduct and indiscipline, thereby
giving a wide scope to the meaning of misconduct.

CONLCUSION

The Court attempted to provide a definition for misconduct in the present case. However, the
court did not delve into the question of whether the acts of the respondent constitute
misconduct. It merely decided this case on facts and did not find it relevant to go into the
merits to examine whether the conduct for the respondent was misconduct.
 RADHA MOHAN LAL V. RAJASTHAN HIGH COURT (JAIPUR BENCH),

AIR 2003 SC 1467

FACTS
A civil suit was filed by the Appellant and four others in representative capacity before the
High Court of Rajasthan (Jaipur bench). During the course of hearing of the arguments in the
revision petition of the suit, the observations made by the Judge led to around fifty senior
citizens representing to the Chief Justice that the Petition should be heard by some other
judge. In lieu of this, an application was submitted before the Chief Justice. The averments in
the application led to initiation of proceeding for Contempt of court against the Appellant and
his Counsel. The High Court found guilty the appellant and his counsel guilty of contempt of
court and sentenced them for imprisonment. Hence the present appeal.

ISSUE RAISED

Whether Contempt proceedings be initiated against lawyers for expressing lack of confidence
and faith in particular judge.

RULE
 Section 2 (c)(i), Contempt of Court Act 1971

ANALYSIS

The Supreme Court in the Criminal Appeal upheld the order of the High Court. However, the
appellant rendered an unconditional apology for the allegations made by him against the
Justice of the Rajasthan High Court. The Court accepted the apology as an evidence as real
contrite as per the Court’s earlier decision in M.Y. Shareef v. The Hon’ble Judges of the
High Court of Nagpur10 and set aside the punishment of simple imprisonment as also the fine
imposed but still holding the appellant guilty.

The case of the advocate who represented the appellant in the suit and contempt proceedings
was however different. The Court observed that that counsel who sign applications or
pleadings containing matter scandalizing the Court without reasonably satisfying themselves
about the prima facie existence of adequate grounds therefor, with a view to prevent or delay
the course of justice, are themselves guilty of contempt of Court, and that it is no duty of a
counsel to his client to take any interest in such applications; on the other hand, his duty is to
advise his client for refraining from making allegations of this nature in such applications.

CONCLUSION

The essence of democracy is free speech. The right to free speech can be curtailed under
Article 19(2) when it constitutes contempt of court. The public should have the freedom to
criticize the judiciary. However, at the same time the dignity of the judiciary should also be
preserved. Blanket restrictions on expressing the displeasure of the judiciary does not serve
the purpose of a deliberative democracy. Hence there is a need to balance freedom of speech
on one hand and the dignity of judiciary on the other. Such blanket restriction as held in this
case does not serve the purpose of balancing the rights of an individual and the dignity of
judiciary.

10
1955 CriLJ 133.
 RE RAMESHWAR PRASAD GOYAL, AIR 2014 SC 850

FACTS
It is a suo-motu contempt proceedings initiated against Advocate on Record (AOR),
Rameshwar Prasad Goyal. In the instant case, Goyal filed an application for restoration of an
appeal which was earlier dismissed by the Court, as none appeared to press the appeal. The
Court was of the view that the facts contained in the restoration application were not correct
and the counsel appearing for the applicant was not able to clarify the same. The Court
passed over the matter and asked the counsel appearing to call the AOR, Goyal, who would
be able to explain the factual controversy. Goyal never turned up before the Court to explain
the facts.

It was pointed out that Goyal had filed extremely large number of cases in the Supreme Court
but never appeared in the Court. In view of the refusal of the AOR to come to the Court, the
Court dismissed the application and issued a show cause notice to Goyal, as to why his name
should not be removed from the register of Advocates-On-Record. In response to the same,
Goyal had filed his reply tendering an absolute and unconditional apology and gave an
undertaking that he would not repeat such a mistake again in future. He had also given many
reasons for not appearing in the Court but none of them had impressed the Court
 ISSUE RAISED

Whether in cases, the non-appearance of AOR in the court will tantamount to contempt of the
court.

RULE

 The Constitution of India 1950

ANALYSIS

An advocate being an officer of the court has a duty to ensure smooth functioning of the
Court. He has to revive the person in distress and cannot exploit the helplessness of innocent
litigants. If the AOR does not discharge his responsibility in a responsible manner because he
does not appear whenever the matter is listed or does not take any interest in conducting the
case, it would amount to not playing any role whatsoever. In such a fact-situation, lending
signatures for consideration would amount to misconduct of his duty towards court. In case
the AOR is only lending his signatures without taking any responsibility for conduct of a
case, the very purpose of having the institution of AORs stands defeated.

This Court in Supreme Court Bar Association v. U.O.I. & Anr. 11, observed: “In a case of
contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-
Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw
his privilege to practice as an Advocate-on-Record because that privilege is conferred by this
Court and the power to grant the privilege includes the power to revoke or suspend it.

Thus, it is evident that this Court is competent to proceed against an AOR suo-motu, without
any complaint from any person, if prima facie it is of the opinion that an AOR is guilty of
misconduct or of conduct unbecoming of an AOR. In fact, Supreme Court has conferred a
privilege upon the AOR to carry out certain responsibilities and failure to carry out the same
would definitely tantamount to unbecoming conduct of an AOR, if not misconduct.

If a lawyer refuses to attend the court, it is not only unprofessional but also unbecoming of a
lawyer disentitling him to continue to appear in Court. 12 In Lt. Col. S.J. Chaudhary v. State
(Delhi Admn.)13, this Court held that it is the duty of every advocate who accepts a brief to
11
AIR 1998 SC 1895
12
Ex Capt. Harish Uppal v. UOI & Anr, AIR 2003 SC 739
13
AIR 1984 SC 618
attend the trial and this duty cannot be overstressed. It was further reminded by the Court that
“having accepted the brief, he will be committing a breach of his professional duty, if he so
fails to attend.” This Court has depreciated the practice of name lending in Tahil Ram
Issardas Sadarangani & Ors. v. Ramchand Issardas Sadarangani & Anr. 14, wherein the
High Court had dealt with a case of a firm of advocates merely lending its name and did not
take further responsibility to plead or act.

Such an arrangement most unfortunate and contrary to the duty and obligation of a counsel
towards the clients as well as to the court. In this case the AOR's conduct is reprehensible and
not worth pardoning, however, considering the fact and circumstances involved herein, the
Supreme Court censured his conduct and warned him not to behave in future in such manner
and to appear in court in all the cases wherever he has entered appearance. The court will
examine his conduct for one year from now and if no improvement is found, it may initiate
the proceedings again. With these observations, the matter was closed for the time being.

CONCLUSION

The AoR in the present case has converted this noble profession into a profession of cheating.
An AoR, whom the litigant has never briefed or engaged, has lent his signature for a petty
amount with a clear understanding that he would not take any responsibility for any act in any
of the proceedings in the Registry or the court in the matter.

The advocate, who has been obliged by such an AoR, must be going inside the Registry in an
unauthorised manner and must be appearing in the court directly or engaging a senior
advocate without any knowledge/ authorization of the AoR. An AoR is the source of lawful
recognition through whom the litigant is represented and therefore, he cannot deviate from
the norms prescribed under the rules. Lawyers must remember that they are equal partners
with judges in the administration of justice. If lawyers do not perform their function properly,
it would be destructive of democracy and the rule of law

14
AIR 1993 SC 1182