INTRODUCTION

We have observed in our history as to how humanity has struggled with those aspects of our
values and beliefs that concern the morality of our conduct – what is right and what is wrong,
what is good and as to what is bad, actable and unacceptable to the society at large.

The profession of law is the only profession which is generally described as a learned and
noble profession by the entire world. The profession in turn carries a lot of responsibilities
both inside and outside it, which no person carrying on any other profession has to shoulder.
It is a great controlling and unifying institution which places upon each his duties, gives to
each his rights and enforces from each obligation. The role of the lawyer is very central to the
very vital organ of the state that is the Judiciary. On the stage of administration of justice, his
contribution is of immense importance. The lawyers as the social thinker have to play a
special role for the solidarity, unity, integrity, welfare and good of the society. A profession
which is performing such an essential service to the society must also be expected to conduct
itself to come up to the expectations of the society. His professional conduct must be above
board. A deviance on the part of the individual members of the legal profession has a bearing
on the interest, lives and condition of the life of the members of the society. Hence, the
society has an interest in the manner of regulation of the deviations, deviances and
delinquencies in the profession conduct of this profession.

WHAT DO ETHICS MEAN?

The word is derived from the Greek word that is “Ethos” which means custom or a habitual
mode of conduct. Ethics in easy term refers to moral science. It is the branch of philosophy
which is only concerned with human character and conduct.

Ethics also refer to systematic general science of right and wrong conduct of an individual,
and morals or morality which refers to the actual patterns of conduct and direct working rules
of moral action. Ethics can be said to be the study of human actions in respect of they being
right or wrong actions of individuals and social groups with which we are now concerned is
the one belonging to the profession of law.
LEGAL ETHICS AND PROFESSIONAL ETHICS
The expressional “legal ethics” is made up of noun “ethics” qualified by the adjective that is
“legal”. Ethics is broadly a sense of duty. In other words, it is the sum of aggregate of the
rules of right living. The term “legal” refers to “according to law”. “Legal ethics” is that
branch of moral science which lays down certain duties for observance which an advocate
owes to the society; to the Court; to the profession; to his opponent; to his clients and himself.
Legal ethics has their source from tradition. On regular practice after some generations, they
become usages, from usages to customs and from customs to statutory rules that is etiquette.

Generally speaking, legal ethics denotes that body of principles by which the conduct of
members of legal profession is controlled, more specifically and practically considered. More
specifically and practically considered, legal ethics may be defined as that branch of moral
science which treats of duties which an attorney – at – law owes to his clients, to the courts,
to the bar, and to the public.

DUTIES OF LAWYERS
The Indian Bar Council has framed a Charter of Standards of Professional Conduct and
Etiquette, containing broadly five types of duties to be observed by the advocates:

It is vital that every advocate on the role of a Bar Council follows the standards strictly. As a
member of the bar, a certain code of conduct is expected from an advocate as the public
views him with a sense of trust which he should try to fulfil at all times. The ideals expected
from lawyers are high especially in society where more than half of the protection of their
own rights.

DUTY TO LAW
Persons into the profession of law by swearing that they shall faithfully show allegiance,
loyalty and respect to their country and its laws, and render by all means, assistance to its
enforcement. Lawyers shall not either involve themselves or advise their clients for the
violation of the laws. When a lawyer advises the client to do something which involves the
breach of any law, such a lawyer becomes equally involved in that client`s guilt, as if it is
done by him. No plea of privilege to advise the client will be available to the lawyer in such
cases. Therefore, no lawyer is privilege to advise the client will be available to the lawyer in
such cases. Therefore, no lawyer is privileged to assist in a breach of the law either for his
own sake, or for the private interest of the client. Strictly speaking, a reputable lawyer is not
even entitled to adopt the dishonourable attitude of finding out any loopholes of the law in
order to defeat in statute and advise the clients how to avoid any burden resulting there from.

Re Vinay Chandra Mishra Air 1995 Sc 2348

In this case an advocate was found guilty of criminal contempt of Court and he was sentenced
to undergo simple imprisonment for a period of six years and suspended from practising as an
advocate for a period of three years. The punishment of imprisonment was suspended for a
period of four years and was to be activated in case of his conviction for any other offence of
contempt of Court within the said period.

The Advocates Act, 1961 has nothing to do with the contempt jurisdiction of the Court, and
the Contempt of Courts Act, 1971 being a statute cannot denude the, restrict or limit the
powers of this Court to take action for contempt under Article 129.

Supreme Court Bar Association v. Union of India and Another.

Facts
In Re: Vinay Chandra Mishra, this Court found the Contemner, an advocate, guilty of
committing criminal contempt of Court for having interfered with and "obstructing the course
of justice by trying to threaten, overawe and overbear the court by using insulting,
disrespectful and threatening language".

Aggrieved by the direction that the contemner shall stand suspended from practising as an
advocate for a period of three years issued by the Supreme Court by invoking powers under
Articles 129 and 142 of the Indian Constitution, the Supreme Court Bar Association, through
its Honorary Secretary, filed a petition under Article 32 of the Constitution of India seeking
relief by way of issuing an appropriate writ, direction, or declaration, declaring that the
disciplinary committees of the Bar Councils set up under the Advocates Act, 1961, alone
have exclusive jurisdiction to inquire into and suspend or debar an advocate from practising
law for professional or other misconduct, arising out of punishment imposed for contempt of
court or otherwise and further declare that the Supreme Court of India or any High Court in
exercise of its inherent jurisdiction has no such original jurisdiction, power or authority in
that regard notwithstanding the contrary view held by this Hon'ble Court in In Re: Vinay
Chandra Mishra.

Issue For Consideration The petition was placed before a Constitutional Bench for passing
the appropriate direction, order or declaration. The bench identified a single question and had
to decide upon was whether the Supreme Court of India can while dealing with Contempt
Proceedings exercise power under Article 129 of the Constitution or under Article 129 read
with Article 142 of the Constitution or under Article 142 of the Constitution can debar a
practicing lawyer from carrying on his profession as a lawyer for any period whatsoever.
The petitioner's assailed the correctness of the findings in In Re:Vinay Mishra submitted that:

 Although the powers conferred on this Court by Article 142, though very wide in their
aptitude, can be exercised only to "do complete justice in any case or cause pending
before it "and since the issue of 'professional misconduct' is not the subject matter of
"any cause" pending before this court while dealing with a case of contempt of court,
it could not make any order either under Article 142 or 129 to suspend the license of
an advocate contemner, for which punishment, statutory provisions otherwise exist.

 The Supreme Court can neither create a "jurisdiction" nor create a "punishment" not
otherwise permitted by law and that since the power to punish an advocate (for
"professional misconduct") by suspending his license vests exclusively in a statutory
body constituted under the Advocates Act, this Court cannot assume that jurisdiction
under Article 142 or 129 or even under Section 38 of the Advocates Act, 1961.The
bench came to the conclusion that the Supreme Court under Article 129 and the High
Court under Article 215 of the Indian Constitution declaring them court of records has
the power to punish the for contempt of itself. The Court observed that Parliament is
competent to make law in relation to Contempt of Court. After analyzing Article 246
and entry 77 of List I of the VIIth Schedule and entry 14 of List III of the said
schedule it is evident that the legislature can make a law regarding the same, but
cannot take away contempt jurisdiction from the Courts which flows from the Courts
being deemed as Courts of record which embodies the power to punish for the
contempt of itself.

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. 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. Contempt proceedings are not brought about to restore the pride of
the Judge in who's Court or against whose order their was contempt.
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.

Rights and Duties of an Advocate

Rights of an Advocate:
Following are the rights that an Advocate in India has:

 Right of Practice:
The expression ‘right to practice’ in terms of the legal profession refers to an exclusive right given
to advocates to practice law before courts and tribunals. The right to practice is protected at two
levels and they are as follows:

o General Protection: Article 19(1)(g) of the Indian Constitution protects the

right of individuals to the practice of their choice.
o Specific Protection: Section 30 of the Advocates Act, 1961 states that a person
enrolled with the State Bar Councils has the right to practice before any court
or tribunal in India which also includes the Supreme Court. The Central
Government made this section effective recently through a notification.

 Right to Pre-audience:
Under Section 23 of the Advocates Act an advocate has the right to be heard first when he/she
says something in the court of law. Advocates also have the right to not be interrupted before
the completion of his statement.
  Exemption from arrest:
Section. 135 CPC guarantees all the advocates that they shall not be arrested in civil cases
except in the cases of contempt of court and criminal offences, while going to, attending for
some matter or returning from such a tribunal or court.

 Right to enter in any court:

Under section 30 of the Act, all the advocates are entitled to practice in any court or tribunal
in India. Therefore, even if they are not registered in that particular tribunal or court, they
have the right to enter it. An advocate can enter the court and sit on any of the seats to observe
the proceedings whether he has a case or not.

 Right to meet accused in Jail:

An advocate can go to meet his client who is in jail as many times as he wants and there is no
bar on that. There is no restriction on the number of times they can meet the clients.

 Professional communication:
Under s. 126 of the Indian Evidence Act, the communication between a lawyer and his client
comes under professional communication. Such a communication shall not be revealed.

 Right of fee:
Under Rule 11 of Chapter 2 of part VI of Bar Council of India Rules, an advocate has a right
to take fees. This right is exercised according to his standing at the bar.

 Right with respect to Vakalatnama:

When a Vakalatnama gets signed in the name of the advocate, he gets entitled to exclusively
represent his client in that particular case An advocate also has the rights to file a
memorandum of appearance for an accused that he is no the lawyer for and also assist the
Public Prosecutor during a case.

Conduct/ Duties Of Advocate:

The Duties Of Advocate Towards To Court:
1) An advocate while presenting his case should conduct himself with dignity and self-
respect.
2) Respectful attitude must be maintained by the advocate. He has to keep in mind the
dignity of the judge.
3) An advocate should not, by any improper means should influence the decision given by
the court.
4) It is the duty of the advocate to prevent his client from resorting to unfair practices and
also the advocate himself should not do any of such acts.
 5) Dress code has to be maintained by the advocate while appearing before the court.
6) An advocate should not take up any case of his family members and relatives.
7) No bands or gowns had to be worn by the advocate in the public places. It is only limited
to the court premises.
8) An advocate cannot be as a surety for his client.
9) It is the duty of the advocate to cooperate with the bench in the court.
10) It is the duty of the advocate to perform his functions in such a manner that due to his
acts the honour, dignity and integrity of the courts shall not be affected.
11) An advocate should not laugh or speak loudly in the court room especially when the
proceedings are going on.
12) When an advocate accepts a brief, he should attend all adjournments properly. If he
has any other work in another court, he should first obtain the permission from the court
concerned. Particularly in criminal cases, it is the first and foremost duty of an advocate
to attend.
13) While the case is going on, the advocate cannot leave the court without court's
permission and without putting another man in charge, preferably his colleague or junior
or friend advocate.

Advocate's Duty To The Client:

It is the duty of the lawyer to take up the particular file and has to start making preparation
even if the client is present or not. Such preparation of the file has to take place with the
views that are already shared by his clients. The duty of the advocate is to never shrikes from
devoting time, not only in the interest of his client, but also to satisfy his own duty- conscious
nature which singles him out from his profession. The relationship between the advocate and
client is of two types. They are:

1. Contractual Relationship: It basically arises and ends only till the period of contract
exist. In India, the relationship between the advocate and his client arises primarily
from contractual obligations. A client chooses an advocate for his case depending
upon his professional success, with strong desire that he is the fit person to defend his
cause. After hearing the cause, the advocate decides whether to take the case or not. If
he wants to take up the case, he will offer the client with certain amount of fee.
2. Fiduciary Relationship: Fiduciary relationship is the relationship which never ends. If
a client approaches the advocate and discloses the confidential information of his life
 then this kind of information comes under fiduciary relationship which the advocate
has to keep it as a secret and not disclose it all his life.

Advocate's Duty To The Opponent Advocate:

An advocate and his opponent are like brothers in the profession but representing the
different interests of different clients. Clients are not permanent they come with the case and
leave, once the case is done but advocates adhere to the court and see each other or meet each
other frequently in the court. If an advocate quarrels with another, they cannot face each other
or work together happily. Their difference and grudge spoil the atmosphere. It also affects
their clients. If it creeps to the court, it spoils the administration of justice. In the court,
advocate is not the decision maker, judge is the decision maker.

Advocate's Duty During Cross Examination:

According to Sec 138 of Indian Evidence Act, 1872 the examination of witness by adverse
party is known as cross examination. It is the right of an advocate to cross-examine the
opponent party and his witnesses. The object of cross examination is that if cross examination
is conducted effectively and efficiently, it discovers the truth. When a fact is stated in
examination- in- chief and there is no cross examination on that point naturally it leads to the
inference that the other party accepts the truth of the statement.

Advocate's Duty To The Colleagues:

Section IV of Chapter II of Part VI of Br Council of India lays down the provisions about the
‘Advocate's duty to the colleagues. Rules 36 to 39 provides for advocate's duty to the court.
An Advocate cannot appear in a case where a memo is filed by the name of the other
advocate. To do so he has to first take consent from the advocate and in case if such consent
is not given then he has to apply to the court stating the reasons as to why he need consent.

Bench Bar Relationship

Introduction
Workplace: Courts in India consist of two parts-

1. The place where the judges sit is called a Bench

2. The place where the Advocate sit is called a Bar.
So the term ‘Bench’ refers to the judges and the ‘Bar’ refers to the Advocates.

Bar-Bench relation means the cordial relation between the judges and the Advocates.

The faith in the judiciary of the general public and speedy justice mainly depends on the
cordial relationship between the judges and the Advocates.

Relation between Bar and Bench: Administration of Justice

The important role of the Bar and Bench is to render Administration of justice

In the Administration of justice, the role of Advocates is also equally important just like the
judges. Therefore, rendering justice is their joint responsibility.

Without the help of Advocates, it is very difficult for the judges to arrive at a correct decision
in a dispute. There require a cordial relationship between the Advocates and the Judges.

The Bar (Advocates) and Bench (Judges) play an important role in the administration of
justice. The judges administer the law with the assistance of the lawyers whereas Lawyers are
the officers of the Court, they guide the court to reach justice.

The obligation of Bar and Bench

As the officers of the court, the lawyers are required to maintain a respectful attitude toward
the court. Moreover, bearing in mind that the dignity of the judicial office is essential for the
survival of society.

Lapses in fulfilling Obligation by Bar and Bench

The Lapses caused by Bar

Lapses occur from both sides, which tend to stiffen their relationship. Statements of lawyers
influence the court. So they are under a moral and legal obligation to be fair and cordial in
their dealings with the court.
It does not mean that the lawyers have to surrender to the improper behaviour of the judge.
The lawyers also have the legal right to object to the improper behaviour of the judge. They
are entitled to enlighten their grievances to the higher authorities of the court.

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 the general public of the society.

Lapses by Bench

It is also sometimes the non-patient behaviour of the judge towards the lawyers which causes
problems in the administration of justice. It is the behaviour of the judge with the lawyers,
which makes the atmosphere of the court quite cordial.

Their relationship is quite delicate. On the one hand, it is important to allow an advocate to be
firm and resolute in the pursuit of his case. On the other, the judge must maintain his
authority in the court.

A Judge should not be over-sensitive to the remarks made against him. The Bench has to
respect and safeguard the privileges of the Bar.

Role of Bar and bench in Strengthening Relations for the

administration of justice.
Judges have the primary responsibility to protect and preserve the independence of the
judiciary. Moreover, a Judge should be honest and morally upright. He should have personal
and intellectual integrity. His character and conduct should be praiseworthy.

Judges should not make any unwarranted comments in the open court about the Advocate’s
lack of knowledge of the law. They should not ask any Advocate to leave the court, without
sufficient reasons. Similarly, they should not ask any Advocate not to come to his court
hereafter.

He should demonstrate respect for the legal system and for those who serve it, including
judges and public officials. As a public citizen, a lawyer should also seek improvement of the
law, access to the legal system, the administration of justice and the quality of service
rendered by the legal profession.
Role of Bar in the administration of Justice
He should cultivate knowledge of the law beyond its use for clients, employ that knowledge
in the reform of the law and work to strengthen legal education. Further, strive for the
public’s understanding of and confidence in the rule of law and the justice system. All
difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to
the legal system and to the lawyer’s own interest in remaining an ethical person while earning
a satisfactory living.

The profession has a responsibility to assure that its regulations are conceived in the public
interest and not in furtherance of the self-interested concerns of the bar. So the major role of
the bar for the proper administration of justice and cordial relation with the bench are as
follow:

 Every lawyer is responsible for observance of the Rules of Professional Conduct.

 They should give due respect to the judges and they must avoid speaking ill of the
judges and the judiciary.
 They should help the judges in the trial of the cases by presenting the relevant law in
the correct and clear manner.
 They should never act in such a way as to irritate the judges.
 If the judges pronounce a wrong order, they should not criticize the judges. They
should also try to set right the wrong order through appeal.
 For getting favourable orders they should not give pressure or influence on the judges.
 If the judge’s behaviour is irritating and disrespectful to the Advocates should not
enter into a direct confrontation with the judge.
 Through the Bar Association, the matter should be discussed with the judge in his
chamber and shall request to avoid such misbehaviour.

Role of the Bench

 Impartiality: Judges should act impartially. They should not act in favour of any
Advocate or a party to the dispute. 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 obstinacy and snobbery in his conduct with advocates.
  Avoidance of Interruptions: As far as possible, Judges must avoid interruptions while
the Advocate is examining witnesses and arguing the case.
 Unwarranted interference and adverse comments by the Judges may upset the
Advocates and thereby they may not be able to present the case properly. Interference
of a Judge may be limited to the following circumstances
o to prevent repetition and waste of time
o to check the relevancy
o to get clarifications
o to express the court’s view on a point and
o to promote speedy disposal of the case.
 Proper Interpretation: During the process of administration of justice, often the courts
have to interpret the Act, Rules, Codes, etc. In such cases, proper interpretation should
be given with the object of rendering complete justice to the parties.

Functions and Powers of State Bar Council

What is the Bar Council of India

The Bar Councils of India were established under the Advocates Act, 1961 based on the
recommendations of the All-India Bar Committee. These councils operate at both the national
and state levels. The State Bar Councils were established under Section 3 of the Act.

The Bar Council of India comprises members elected from each State Bar Council, the
Attorney General of India, and the Solicitor of India, who serve as members automatically.
The members of the State Bar Councils are elected for five years. The Council has the power
to choose its own Chairman and Vice-Chairman from among its members, and they serve for
two years.

The powers and functions of the Bar Council of India have been discussed below.

Powers of the Bar Council of India

The powers of the Bar Council of India are:
Admission as an Advocate

According to Section 20 of the Advocate Act, any advocate who had the right to practice in
the Supreme Court before the appointed day but was not listed in any state roll can express
their intention to the Bar Council.

They must do this within the prescribed time and using the prescribed form. Upon receiving
the application, the Bar Council of India will direct the respective state Bar Council to enter
the advocate’s name in the state roll without a fee.

Sending Copies of Rolls

Section 19 of the Advocate Act mandates that every State Bar Council must send an
authenticated copy of the advocate role, prepared for the first time under this Act, to the Bar
Council of India. Furthermore, any alterations or additions made to the roll must be promptly
communicated to the Bar Council of India.

Transfer of Name

Section 18 of the Advocate Act deals with transferring an advocate’s name from one State
Bar Council role to another. If an advocate wishes to transfer their name, they must apply to
the Bar Council of India.

Upon receiving the application, the Bar Council of India will direct the removal of the
advocate’s name from the first State Bar Council’s roll and its entry into the roll of the other
State Bar Council. No fee is required for this transfer.

Appointment of Committees and Staff Members

Section 9 empowers the Bar Council of India to appoint disciplinary committees, legal aid
committees, executive committees, legal education committees, and other necessary
committees.

Section 11 allows the Bar Council to appoint a secretary, accountant, and other staff members
as necessary. The secretary and accountant must possess the required qualifications. Having a
secretary is mandatory for the Bar Council.
Maintenance of Accounts

Under Section 12, the Bar Council of India must maintain books of accounts and other
relevant books in a prescribed format. Qualified auditors, similar to the auditing of company
accounts, must audit these accounts.

The Bar Council of India is also responsible for sending a copy of its accounts and the
auditors’ report to the Central Government. Furthermore, these accounts are published in the
Gazette of India.

Rules Making Power

The Bar Council of India can make rules under Section 15 of the Advocate Act. These rules
can cover various aspects such as the election of Bar Council members, the chairman and
vice-chairman, dispute resolution, filling of vacancies, powers and duties of the chairman and
vice-chairman, organisation of legal aid, meetings and conduct of the business of committees,
and management and investment of funds of the Bar Council.

General Power and Punishment for Misconduct

Section 49 of the Advocate Act grants the Bar Council of India general power to make rules
for discharging its functions under the Act. Additionally, Section 36 empowers the Bar
Council to punish advocates for professional or other misconduct. The Bar Council of India
can suspend advocates from practice, remove their names from the state roll, dismiss
complaints, or issue reprimands as it deems fit.

Appellate Power

Section 37 gives the Bar Council of India authority to hear appeals against the orders of
disciplinary committees. The disciplinary committee of the Bar Council of India must hear
any appeal.

Furthermore, Section 38 allows individuals aggrieved by the order passed by the Disciplinary
Committee of the Bar Council of India to file an appeal before the Supreme Court within 60
days.
Functions of the Bar Council of India
The functions of the Bar Council of India are:

Establishment of the Bar Council of India

Parliament established the Bar Council of India under the Advocates Act of 1961. Its main
responsibilities include regulating the legal profession and legal education in India.

Statutory Functions of the Bar Council of India

The Bar Council of India has various statutory functions outlined in Section 7 of the
Advocates Act, 1961:

1. Standards of Professional Conduct: It lays down the standards of professional conduct and
etiquette for advocates.

2. Disciplinary Procedure: It establishes the procedure to be followed by its disciplinary

committee and the disciplinary committees of each State Bar Council.

3. Advocates’ Rights and Interests: It safeguards advocates’ rights, privileges, and interests.

4. Law Reform: It promotes and supports law reform initiatives.

5. Handling Referred Matters: It deals with and resolves matters referred to by State Bar
Councils.

6. Legal Education: It promotes legal education and sets standards for legal education in
consultation with universities and State Bar Councils. It also visits and inspects universities
or directs State Bar Councils to do so.

7. Recognising Qualifications: It recognises universities whose law degrees qualify for

enrolment as an advocate. Foreign qualifications in law obtained outside India may also be
recognised reciprocally.

8. Seminars and Publications: It organises seminars and talks on legal topics by eminent
jurists and publishes journals and papers of legal interest.

9. Legal Aid: It organises legal aid for the underprivileged.

10. Management of Funds: It manages and invests the funds of the Bar Council.

11. Election of Members: It provides for the election of members who will run the Bar
Councils.

Establishment of Funds

The Bar Council of India can establish one or more funds according to prescribed procedures.
These funds may be used to organise welfare schemes, provide legal aid or advice, and
establish law libraries. The Bar Council can receive grants, donations, gifts, or benefactions
for these purposes.

Membership in International Legal Bodies

Under Section 7(a) of the Advocate Act, 1961, the Bar Council of India may become a
member of international legal bodies like the International Bar Association or International
Legal Aid Association. It can contribute funds and authorise participation in international
legal conferences or seminars.

Prohibition of Strikes and Boycotts

The Bar Council of India must uphold professional conduct and etiquette for advocates. It is
illegal and void for the Bar Council to pass resolutions instructing advocates not to participate
in legal aid programs or disrupt court proceedings.

Advocates who participate in strikes or boycotts can face disciplinary action by the concerned
State Bar Council. Advocates are obligated to ignore calls for strikes or boycotts.

Case: Bar Council of Maharashtra v. M.V Dabholkar and others

Facts:

In this case, the respondents were lawyers practising in the criminal courts. They were
charged with professional misconduct under Section 35(1) of the Advocates Act, 1961. It was
alleged that they engaged in unethical behaviour outside the Magistrate courts.

They would try to snatch briefs from potential litigants and even get involved in physical
fights. They also promised undercut fees to litigants to secure work for themselves.
The High Court brought this matter to the attention of the Bar Council of Maharashtra, which
considered the complaint and referred it to its Disciplinary Committee for further
investigation.

Held:

The court held that the Code of Ethics for advocates does not allow them to advertise or
engage in obnoxious practices like soliciting or scrambling. Therefore, the respondents were
found guilty of professional misconduct. As a penalty, they were suspended from practising
for three years..

Contempt

Introduction
According to the Oxford Dictionary, contempt is the state of being despised or dishonoured;
disgrace. Any conduct that tends to bring the authority and administration of law into
disrespect or disregard or to interfere with or prejudice parties or their witness during
litigation is considered to be contempt of court, says Oswald. Contempt is defined by
Halsbury, as consisting of words spoken or written which obstruct or tends to obstruct the
administration of justice.

Kinds of Contempt
Contempt of court are classified under three broad categories, according to Lord Hardwick:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.

However, in India, contempt is classified under two major categories:

1. Civil contempt
2. Criminal contempt
Civil Contempt
According to section 2(b) of the Contempt of Courts Act, 1971 civil contempt means wilful
disobedience to any judgement, decree, direction, order, writ or other process of a court or
wilful breach of an undertaking given to a court.

Thus, from the abovementioned definition it can be ascertained that there are two important
essentials to constitute civil contempt:

1. Disobedience of any judgement, decree, direction, order, writ or other process of a

court or an undertaking given to the court.
There should be disobedience of a valid order to constitute contempt of court. An
order includes all kinds of judgements, orders-final, preliminary, ex-parte, contempt
order. Disobedience of a decree, direction, writ or other process of a court, or an
undertaking given to the court, will also amount to contempt of court. It was held by
the Supreme Court, in the case of H.Puninder v. K. K. Sethi, that in absence of the
stay order in appeal or revision of higher court, the order appealed against should be
complied with, subject to any order passed at later stage, otherwise it is open for the
contempt court to proceed further on merit of the contempt case.

2. The Disobedience or breach must be willful, deliberate and intentional.

Mere disobedience or breach of the court’s order by the person is not sufficient to
constitute civil contempt. Such a disobedience or breach must be willful, deliberate
and intentional. In order to exercise its power to punish the contemnor the court has to
be satisfied beyond reasonable doubt that the contemnor has willfully, deliberately
and intentionally violated the court’s order.

Criminal Contempt
According to section 2(c) of The Contempt of Courts Act, 1971, criminal contempt means the
publication (whether by word, 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, or lowers or tends to lower the authority of, any
court, or
ii. Prejudices or interferes or tends to interfere with the due course of any judicial
proceeding, or
 iii. Interferes or tends to interfere with, or obstruct or tends to obstruct, the administration
of justice in any other manner.

Thus, from the abovementioned definition it can be ascertained that there are four important
essentials to constitute criminal contempt:

1. Publication of any matter.

The word publication has been given a very wide meaning so far as contempt of court is
concerned. It includes words (spoken/written), signs and visible representation. It also
includes the publication of any material in the newspaper and magazines, the broadcasting
of any material on the radio and exhibition of anything in cinemas, theaters and television.

2. Scandalizing or lowering the authority of the court.

Scandalizing might manifest itself in various ways but in substance, it is an attack on
individual judges in particular or the court as a whole, with or without reference to a
particular case, by casting unwarranted and defamatory aspersions upon the character or
the ability of the judges. Such conduct is punished as criminal contempt for the reason that
it tends to create distrust in the minds of common people and thereby shatters confidence
of the people in the judiciary.

3. Prejudice or interference with the due course of any judicial proceeding.

Any publication which prejudices or interferes with the due course of any judicial
proceeding would amount to criminal contempt of court. Media trial or trial by newspaper
is not considered proper because it effects the fairness of trial and is likely to cause
interference with the administration of justice.

4. Interference/Obstruction with the administration of justice in any other manner.

The publication or doing of any act which interferes or obstructs or tend to interfere and
obstruct in the administration of justice in any other manner, would amount to criminal
contempt of court. This clause is a residuary clause, covering those cases of criminal
contempt which are not expressly covered by section 2(c) of the Contempt of Court Act.

Defences In Civil Contempt

A person charged with civil contempt of court can take the following defences-
No knowledge of order
The general principle is that a person cannot be held guilty of contempt in respect of an order
of which he claims to be unaware. Law casts a duty upon a successful party to serve the
certified copy of the order on the other side either personally or by registered speed post.
Notwithstanding the fact that the order has been passed in presence of both the parties or their
counsels.

Disobedience or breach was not willful

It can be pleaded that although disobedience or breach of the order has taken place but it was
due to accidental, administrative or other reasons beyond the control of the party concerned.
This plea can be successful only when the order has been complied with and a reasonable
explanation has been given for non- compliance thereof.

Order disobeyed is vague or ambiguous

If the order passed by court is vague or ambiguous or its not specific or complete, it would be
a defence in the contempt or alleged contemnor can raise a plea in defence that the order
whose contempt is alleged cannot be complied with as the same is impossible. In case of
R.N.Ramaul vs. State of Himanchal Pradesh the Supreme Court directed the respondent
corporation to restore the promotion of the petitioner in service from a particular date.

Order involves more than on reasonable interpretation.

If the order whose contempt is alleged involves more than one reasonable and rational
interpretation and the respondent adopts one of them and acts in accordance with one such
interpretation, he cannot be held liable for contempt of court. However, this defence is
available only when a bonafide question of interpretation arises. The intention of bonafide
interpretation can be gathered from the fact that the order has been complied with by
adopting one such interpretation. In case of T.M.A. Pai Foundation vs. State of Karnataka it
was held that this defence won’t be allowed if a doubt about the order has been deliberately
created when actually there is no doubt at all.

Compliance of the order is impossible.

In proceedings for civil contempt, it would be a valid defense that the compliance of the order
is impossible. However, the cases of impossibility must be distinguished from the cases of
mere difficulty. In case of Amar Singh v. K.P.Geetakrishnan, the court granted certain
pensioner benefits to a large number of retired employees with effect from a particular back
date. The plea of impossibility was taken on the ground that the implementation of the order
would result in heavy financial burden on the exchequer. However, the plea of impossibility
was rejected by the court with the observation that although it’s difficult to comply with the
order but it’s not impossible to comply and therefore, it should be complied with.

The order has been passed without jurisdiction.

If the order whose contempt is alleged, has been passed by a court which had no jurisdiction
to pass it, the disobedience or violation would not amount to contempt of court for the reason
that the order passed without jurisdiction is a void order and binds nobody. In case of Krishna
Devi Malchand V. Bombay Environmental Action Group, the Supreme Court clarified the
legal position and held that if the order is void, it cannot be ignored by the party aggrieved by
it. The litigating party cannot assume the role of Appellate or Provisional authority in order to
say that the order is not binding upon them.

Defences Against Criminal Contempt

Innocent publication and distribution of matter.
S.3 deals with this defence. If a criminal contempt is initiated against a person on the ground
that he is responsible for publication or for distribution of publication which prejudices or
interferes with the pending proceedings, the contemner may take the following steps:

a) he may plead under S. 3(1) that at the time of publication, he had no reasonable
ground for believing that the proceeding was pending.
b) he may plead under S.3(2) that at the time of publication, no such proceeding was
pending.
c) he may plead under S.3(3) that at the time of distribution of publication, he had no
reasonable ground for believing that the matter (published or distributed by him)
contained or was likely to contain any material which interfered or obstructed the
pending proceeding or administration of justice.

Procedure To Be Adopted In Contempt Proceedings

Section 14 of the contempt of court act deals with the procedure of contempt in the face of
the court of record whereas section 15 deals with the procedure in cases other than in the face
of court of record. This is also known as constructive contempt. Article 129 provides that the
Supreme Court and article 215 provides that every High Court shall be a court of record and
shall have all the powers of such court including to punish for its contempt. These court of
records have inherent power to punish for contempt and therefore these court of records can
deal with such matter summarily and can adopt their own procedure.

Procedure To Be Adopted In Cases of Contempt In The Face of The

Court
Section 14 deals with contempt in the face of the Supreme Court and High Courts and it
provides that whenever it appears to the Supreme Court and the High Courts that a person
appears to have committed contempt in its presence or hearing the court may cause such
person to be detained in custody.

And shall at any time before the rising of the court on the same day or as early as possible,
thereafter:

1) Cause him to be informed in writing of the contempt with which he is charged.

2) Afford him an opportunity to make his defence in respect of the charge.
3) After taking such evidence as may be offered by such person and after hearing him
proceed either forthwith or after adjournment to determine the matter of the charge.
4) Make such order for the punishment or discharge of such person as may be necessary.

Procedure of Criminal Contempt Committed Outside The Court

Criminal Contempt committed outside the Court, in other words, other than in the face of the
Court, is known as Constitutive Contempt. Section 15(1) deals with cognizance of criminal
contempt by courts of record whereas Section 15(2) deals with criminal contempt of sub-
ordinate courts.

Bar On Private Persons

Section 15 bars the private individuals to file without consent of the Advocate General. The
purpose of barring a private person from filing contempt procedure without the consent of
Attorney General is to save the court's time from being wasted in frivolous complaints.

Conclusion
Anything that curtails or impairs the freedom of limits of the judicial proceedings. Any
conduct that tends to bring the authority and administration of Law into disrespect or
disregard or to interfere with or prejudice parties or their witnesses during litigation.
Consisting of words spoken or written which obstruct or tend to obstruct the administration of
justice. Publishing words which tend to bring the administration of Justice into contempt, to
prejudice the fair trial of any cause or matter which is the subject of Civil or Criminal
proceeding or in any way to obstruct the cause of Justice.

An apology shall not be rejected merely on the ground that it is qualified or conditional if the
accused makes it bonafidely.

Section 12 deals with the punishment for contempt of court. It provides as follows: Section
12(1)- Save as otherwise expressly provided in this Act or in any other law, a contempt of
court may be punished with simple imprisonment for a term which may extent to 6 months or
a fine which may extend upto rupees 2000 or both.

Provided that, the accused (of contempt) may be discharged or the punishment awarded may
be remitted on apology being made to the court's satisfaction.

However, in short contempt can be said to be an act or omission which interferes or tends to
interfere in the administration of justice. To constitute contempt, it’s not necessary that there
has been actual interference in the administration of justice. If the act complained of, tends to
interfere or attempts to interfere in the administration of justice, may be taken as contempt.
The expression 'administration of justice' is to be used in a very wide sense. It is not confined
to the judicial function of the judge but includes all functions of judges- administrative,
adjudicatory and any other function necessary for the administration of justice