2001 INSC 0795
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vlink=purple leftmargin=50> div class=Section1> p align=center style='text-
align:center'>b>SUPREME COURT OF INDIA/b>/p> p align=center style='text-
align:center'>PRAVIN C. SHAHbr> br> Vs.br> br> K.A. MOHD. ALI amp; ANR.br> br>
09/10/2001br> br> (K.T.Thomas, S.N.Variava)/p> p align=center style='text-align:center'>Appeal
(civil) 3050 of 2000/p> p>b>JUDGMENT/b>/p> p>THOMAS, J. We thought that the question
involved in this appeal would generate much interest to the legal profession and hence we issued
notices to the Bar Council of India as well as the State Bar Council concerned. But the Bar Council
of India did not respond to the notice. We therefore requested Mr. Dushyant A. Dave, Senior
Advocate, to help us as amicus curiae. The learned senior counsel did a commendable job to help us
by projecting a wide screen focussing on the full profiles of the subject with his usual felicity. We
are beholden to him. When an advocate was punished for contempt of court can he appear thereafter
as a counsel in the courts, unless he purges himself of such contempt? If he cannot, then what is the
way he can purge himself of such contempt. That question has now come to be determined by the
Supreme Court. This matter concerns an advocate practising mostly in the courts situated within
Ernakulam District of Kerala State. He was hauled up for contempt of court on two successive
occasions. We wish to skip the facts in both the said cases which resulted in his being hauled up for
such contempt as those facts have no direct bearing on the question sought to be decided now. (The
detailed facts leading to the said proceedings have been narrated in the two decisions of the High
Court of Kerala reported in C.N. Presannan vs. K.A. Mohammed Ali 1991 Criminal Law Journal
2194 and 1991 Criminal Law Journal 2205). Nonetheless it is necessary to state that the High Court
of Kerala found the respondent-advocate guilty of criminal contempt in both cases and convicted
him under Section 12 of the Contempt of Courts Act, 1971, and sentenced him in one case to a fine
of Rs.10,000/- (to be credited, if realised, to the funds of Kerala Legal Aid Board). In the second
case he was sentenced to pay a fine of Rs.2,000/-. Though he challenged the conviction and
sentence imposed on him by the High Court, he did not succeed in the Supreme Court except getting
the fine of Rs.2,000/- in one case deleted. The apology tendered by him in this Court was not
accepted, for which a two Judge Bench made the following observation: We regretfully will not be
able to accept his apology at this belated juncture, but would rather admonish the appellant for his
conduct under our plenary powers under the constitution, which we do hereby. /p> p>The above
conviction and sentence and refusal to accept the apology tendered on his behalf did not create any
ripple in him, so far as his resolve to continue to appear and conduct cases in the courts was
concerned. The present appellant (who represents an association Lalan Road Residents Association,
Cochin) brought to the notice of the Bar Council of Kerala that the delinquent advocate continued to
conduct cases before the courts in Ernakulam District in spite of the conviction and sentence. /p>
p>The Bar Council of Kerala thereupon initiated disciplinary proceedings against the respondent-
advocate and finally imposed a punishment on him debarring him from acting or pleading in any
court till he gets himself purged of the contempt of court by an order of the appropriate court. The
respondent-advocate challenged the order of the State Bar Council in an appeal filed before the Bar
Council of India. By the impugned order the Bar Council of India set aside the interdict imposed on
him. This appeal, in challenge of the aforesaid order of the Bar Council of India, is preferred by the
same person at whose instance the State Bar Council initiated action against the respondent-
advocate. /p> p>While imposing the interdict on the advocate the Disciplinary Committee of the
Bar Council of the State took into account Rule 11 of the Rules framed by the High Court of Kerala
under Section 34(1) of the Advocates Act, 1961, regarding conditions and practice of Advocates
(hereinafter referred to as the Rules). Rule 11 reads thus: No advocate who has been found guilty of
contempt of Court shall be permitted to appear, act or plead in any Court unless he has purged
himself of the contempt. /p> p>The above rule shows that it was not necessary for the Disciplinary
Committee of the Bar Council to impose the said interdict as a punishment for misconduct. Even if
the Bar Council had not passed proceedings (which the Disciplinary Committee of the Bar Council
of India has since set aside as per the impugned order) the delinquent advocate would have been
under the disability contained in Rule 11 quoted above. It is a self-operating rule for which only one
stipulation need be satisfied i.e. the advocate concerned should have been found guilty of contempt
of court. The termini of the period of operation of the interdict is indicated by the next stipulation
i.e. the contemnor purges himself of the contempt. The inhibition will therefore start operating when
the first stipulation is satisfied, and it would continue to function until the second stipulation is
fulfilled. The latter condition would remain eluded until the delinquent advocate himself initiates
steps towards that end. /p> p>Regarding the first condition there is no difficulty whatsoever in the
present case because it is an admitted fact that respondent-advocate has been found guilty of
contempt of court by the High Court of Kerala in two cases successively. For the operation of the
interdict contained in Rule 11 it is not even necessary that the advocate should have been sentenced
to any punishment after finding him guilty. The difficulty arises in respect of the second condition
mentioned above. /p> p>The Disciplinary Committee of the Bar Council of India seems to have
approached the question from a wrong angle by posing the following question: The fundamental
question arising for consideration in this appeal is whether Rule 11 of the Rules framed by the
Honourable High Court of Kerala under Section 34(1) of the Advocates Act, 1961, is binding on the
Disciplinary Committee of the State Bar Council and if not whether the Disciplinary Committee was
justified in ordering that on account of the disqualification under Rule 11 the appellant could not be
allowed to appear, act or plead till he gets himself purged of the contempt by an order of the
appropriate court. /p> p>There is no question of Rule 11 being binding on the Disciplinary
Committee or any other organ of the Bar Council. There is nothing in the said rule which would
involve the Bar Council in any manner. But there is nothing wrong for the Bar Council informing a
delinquent advocate of the existence of a bar contained in Rule 11 and remind him of his liability to
abide by it. Hence the question formulated by the Disciplinary Committee of the Bar Council of
India, as aforequoted, was unnecessary and fallacious. /p> p>In the impugned order the Disciplinary
Committee rightly stated that the exercise of the disciplinary powers over the advocates is
exclusively vested with the Bar Council and this power cannot be taken away by the High Court
either by a judicial order or by making a rule. This is precisely the legal position adumbrated by the
Constitution Bench of this Court in Supreme Court Bar Association vs. Union of India and anr.
{1998 (4) SCC 409} In fact the relevant portions of the said decision have been quoted in the
impugned order in extenso. But having informed themselves of the correct legal position regarding
the powers of the Bar Council the members of the Disciplinary Committee of the Bar Council of
India embarked on a very erroneous concept when it observed the following: But to say that an
advocate who had been found guilty of contempt of court shall not be permitted to appear, act or
plead in a court unless he has purged himself of the contempt would amount to usurpation of powers
of Bar Council. /p> p>After examining Rule 11 of the Rules the Disciplinary Committee of the Bar
Council of India held that there cannot be an automatic deprivation of the right of an advocate to
appear, act or plead in a court, since such a course would be unfair and even violative of the
fundamental rights guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution of India. In the
end the Disciplinary Committee of the Bar Council of India made an unwarranted proposition on a
misplaced apprehension as follows: The independence and autonomy of the Bar Council cannot be
surrendered to the provisions contained in Rule 11 of the Rules made by High Court of Kerala under
S.34(1) of the Advocates Act. /p> p>By giving expression to such a proposition the Bar Council of
India has obviously overlooked the legal position laid down by the Constitution Bench in Supreme
Court Bar Association vs. Union of India (supra). In paragraph 57 of the decision the Bench said
thus: In a given case, an advocate found guilty of committing contempt of court may also be guilty
of committing professional misconduct, depending upon the gravity or nature of his contumacious
conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by
following separate and distinct procedures. The power to punish an advocate by suspending his
licence or by removal of his name from the roll of the State Bar Council for proven professional
misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961,
while the jurisdiction to punish him for committing contempt of court vests exclusively in the
courts. /p> p>Thereafter in paragraph 80, the Constitution Bench said the following: In a given case
it may be possible, for this Court or the High Court, to prevent the contemnor advocate to appear
before it till he purges himself of the contempt but that is much different from suspending or
revoking his licence or debarring him to practise as an advocate. 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. The withdrawal of that privilege, however,
does not amount to suspending or revoking his licence to practice as an advocate in other courts or
tribunals. /p> p>Rule 11 of the Rules is not a provision intended for the Disciplinary Committee of
the Bar Council of the State or the Bar Council of India. It is a matter entirely concerning the
dignity and the orderly functioning of the courts. The right of the advocate to practise envelopes a
lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in
the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he
can draft instruments, pleadings, affidavits or any other documents, he can participate in any
conference involving legal discussions etc. Rule 11 has nothing to do with all the acts done by an
advocate during his practice except his performance inside the court. Conduct in court is a matter
concerning the court and hence the Bar Council cannot claim that what should happen inside the
court could also be regulated by Bar Council in exercise of its disciplinary powers. The right to
practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a
specie. But the right to appear and conduct cases in the court is a matter on which the court must
have the major supervisory power. Hence the court cannot be divested of the control or supervision
of the court merely because it may involve the right of an advocate. /p> p>When the rules stipulate
that a person who committed contempt of court cannot have the unreserved right to continue to
appear and plead and conduct cases in the courts without any qualm or remorse, the Bar Council
cannot overrule such a regulation concerning the orderly conduct of court proceedings. Courts of
law are structured in such a design as to evoke respect and reverence to the majesty of law and
justice. The machinery for dispensation of justice according to law is operated by the court.
Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The
very sight of an advocate, who was found guilty of contempt of court on the previous hour, standing
in the court and arguing a case or cross-examining a witness on the same day, unaffected by the
contemptuous behaviour he hurled at the court, would erode the dignity of the court and even
corrode the majesty of it besides impairing the confidence of the public in the efficacy of the
institution of the courts. This necessitates vesting of power with the High Court to formulate rules
for regulating the proceedings inside the court including the conduct of advocates during such
proceedings. That power should not be confused with the right to practise law. While the Bar
Council can exercise control over the latter, the High Court should be in control of the former. /p>
p>In the above context it is useful to quote the following observations made by a Division Bench of
the Allahabad High Court in Prayag Das vs. Civil Judge, Bulandshahr and ors. (AIR 1974
Allahabad 133): The High Court has a power to regulate the appearance of advocates in courts. The
right to practise and the right to appear in courts are not synonymous. An advocate may carry on
chamber practice or even practise in courts in various other ways, e.g. drafting and filing of
pleadings and Vakalatnama for performing those acts. For that purpose his physical appearance in
courts may not at all be necessary. For the purpose of regulating his appearance in courts the High
Court should be the appropriate authority to make rules and on a proper construction of Section
34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for
regulating the appearance of Advocates and proceedings inside the courts. Obviously the High
Court is the only appropriate authority to be entrusted with this responsibility. /p> p>In our view,
the legal position has been correctly delineated in the above statements made by the Allahabad High
Court. The context for making those statements was that an advocate questioned the powers of the
High Court in making dress regulations for the advocates while appearing in courts. /p> p>Lord
Denning had observed as follows in Hadkinson vs. Hadkinson {1952 (2) All England Law Reports
567}: I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is
not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it
impedes the course of justice in the cause, by making it more difficult for the court to ascertain the
truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear
him until the impediment is removed or good reason is shown why it should not be removed. /p>
p>The observations can apply to the courts in India without any doubt and at the same time without
impeding the disciplinary powers vested in the Bar Councils under the Advocates Act. /p> p>We
have already pointed out that Rule 11 of the Rules is a self-operating provision. When the first
postulate of it is completed (that the advocate has been found guilty of contempt of court) his
authority to act or plead in any court stands snapped, though perhaps for the time being. If he does
such things without the express permission of the court he would again be guilty of contempt of
court besides such act being a misconduct falling within the purview of Section 34 of the Advocates
Act. The interdict as against him from appearing in court as a counsel would continue until such
time as he purges himself of the contempt. /p> p>Now we have to consider the crucial question -
How can a contemnor purge himself of the contempt? According to the Disciplinary Committee of
the Bar Council of India, purging oneself of contempt can be done by apologising to the court. The
said opinion of the Bar Council of India can be seen from the following portion of the impugned
order: Purging oneself of contempt can be only by regretting or apologising in the case of a
completed action of criminal contempt. If it is a case of civil contempt, by subsequent compliance
with the orders or directions the contempt can be purged off. There is no procedural provision in
law to get purged of contempt by an order of an appropriate court. /p> p>Purging is a process by
which an undesirable element is expelled either from ones own self or from a society. It is a
cleansing process. Purge is a word which acquired implications first in theological connotations. In
the case of a sin, purging of such sin is made through the expression of sincere remorse coupled
with doing the penance required. In the case of a guilt, purging means to get himself cleared of the
guilt. The concept of purgatory was evolved from the word purge, which is a state of suffering after
this life in which those souls, who depart this life with their deadly sins, are purified and render fit
to enter into heaven where nothing defiled enters. (vide Words and Phrases, Permanent Edn.,
Vol.35A, page 307). In Blacks Law Dictionary the word purge is given the following meaning: To
cleanse; to clear or exonerate from some charge or imputation of guilt, or from a contempt. It is
preposterous to suggest that if the convicted person undergoes punishment or if he tenders the fine
amount imposed on him the purge would be completed. /p> p>We are told that a learned single
Judge of the Allahabad High Court has expressed a view that purging process would be completed
when the contemnor undergoes the penalty (vide Dr. Madan Gopal Gupta vs. The Agra University
and ors., AIR 1974 Allahabad 39). This is what the learned single Judge said about it: In my opinion
a party in contempt purged its contempt by obeying the orders of the court or by undergoing the
penalty imposed by the court. /p> p>Obeying the orders of the court would be a mode by which one
can make the purging process in a substantial manner when it is a civil contempt. Even for such a
civil contempt the purging process would not be treated as completed merely by the contemnor
undergoing the penalty imposed on him unless he has obeyed the order of the court or he has
undone the wrong. If that is the position in regard to civil contempt the position regarding criminal
contempt must be stronger. Section 2 of the Contempt of Courts Act categorises contempt of court
into two categories. The first category is civil contempt which is the willful disobedience of the
order of the court including breach of an undertaking given to the court. But criminal contempt
includes doing any act whatsoever which tends to scandalise or lowers the authority of any court, or
tends to interfere with the due course of a judicial proceeding or interferes with, or obstructs the
administration of justice in any other manner. /p> p>We cannot therefore approve the view that
merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of
purging himself of the contempt, particularly in a case where the contemnor is convicted of criminal
contempt. The danger in giving accord to the said view of the learned single Judge in the afore-cited
decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to
commit contempt in the same court, and then again pay the fine and persist with his contemptuous
conduct. There must be something more to be done to get oneself purged of the contempt when it is
a case of criminal contempt. /p> p>The Disciplinary Committee of the Bar Council of India
highlighted the absence of any mode of purging oneself of the guilt in any of the Rules as a reason
for not following the interdict contained in Rule 11. Merely because the Rules did not prescribe the
mode of purging oneself of the guilt it does not mean that one cannot purge the guilt at all. The first
thing to be done in that direction when a contemnor is found guilty of a criminal contempt is to
implant or infuse in his own mind real remorse about his conduct which the court found to have
amounted to contempt of court. Next step is to seek pardon from the court concerned for what he
did on the ground that he really and genuinely repented and that he has resolved not to commit any
such act in future. It is not enough that he tenders an apology. The apology tendered should impress
the court to be genuine and sincere. If the court, on being impressed of his genuineness, accepts the
apology then it could be said that the contemnor has purged himself of the guilt. /p> p>This Court
has held in M.Y. Shareef and anr. vs. Honble Judges of the Nagpur High Court and ors. (AIR 1955
SC 19) that an apology is not a weapon of defence to purge the guilty of their offence, nor is it
intended to operate as a universal panacea, but it is intended to be evidence of real contriteness.
Ahmadi, J (as the learned Chief Justice then was) in M.B. Sanghi, Advocate vs. High Court of
Punjab and Haryana and ors. {1991(3) SCC 600}, while considering an apology tendered by an
advocate in a contempt proceeding has stated thus: /p> p>And here is a member of the profession
who has repeated his performance presumably because he was let off lightly on the first occasion.
Soft justice is not the answer not that the High Court has been harsh with him what I mean is he
cannot be let off on an apology which is far from sincere. His apology was hollow, there was no
remorse no regret it was only a device to escape the rigour of the law. What he said in his affidavit
was that he had not uttered the words attributed to him by the learned Judge; in other words the
learned judge was lying adding insult to injury and yet if the court finds him guilty (he contested the
matter tooth and nail) his unqualified apology may be accepted. This is no apology, it is merely a
device to escape. /p> p>A four Judge Bench of this Court in Mulk Raj vs. State of Punjab {1972 (3)
SCC 839} made the following observations which would throw considerable light on the question
before us: Apology is an act of contrition. Unless apology is offered at the earliest opportunity and
in good grace apology is aborn of penitence. If apology is offered at a time when the contemnor
finds that the court is going to impose punishment it ceases to be an apology and it becomes an act
of a cringing coward. The High Court was right in not taking any notice of the appellants expression
of apology without any further word. The High Court correctly said that acceptance of apology in
the case would amount to allow the offender to go away with impunity after having committed
gross contempt. /p> p>Thus a mere statement made by a contemnor before court that he apologises
is hardly enough to amount to purging himself of the contempt. The court must be satisfied of the
genuineness of the apology. If the court is so satisfied and on its basis accepts the apology as
genuine the court has to make an order holding that the contemnor has purged himself of the
contempt. Till such an order is passed by the court the delinquent advocate would continue to be
under the spell of the interdict contained in Rule 11 of the Rules. /p> p>Shri Sadrul Anam, learned
counsel for the respondent- advocate submitted first, that the respondent has in fact apologised
before this Court through the counsel engaged by him, and second is that when this Court observed
that this course should set everything at rest it should be treated as the acknowledgement made by
this Court that the contemnor has purged himself of the guilt. /p> p>We are unable to accept either
of the said contentions. The observation that this course should set everything at rest in the
judgment of this Court cannot be treated as anything beyond the scope of the plea made by the
respondent in that case. That apart, this Court was certainly disinclined to accept the apology so
tendered in this Court which is clearly manifested from the outright repudiation of that apology
when this Court said thus: We regretfully will not be able to accept his apology at this belated
juncture, but would rather admonish the appellant for his conduct under our plenary powers under
the constitution, which we do hereby. /p> p>The respondent-advocate continued to appear in all the
courts where he was earlier appearing even after he was convicted by the High Court for criminal
contempt without being objected by any court. This is obviously on account of the fact that
presiding officers of the court were not informed of what happened. We, therefore, direct that in
future, whenever an advocate is convicted by the High Court for contempt of court, the Registrar of
that High Court shall intimate the fact to all the courts within the jurisdiction of that High Court so
that presiding officers of all courts would get the information that the particular advocate is under
the spell of the interdict contained in Rule 11 of the Rules until he purges himself of the contempt.
/p> p>It is still open to the respondent-advocate to purge himself of the contempt in the manner
indicated above. But until that process is completed respondent-advocate cannot act or plead in any
court situated within the domain of the Kerala High Court, including the subordinate courts
thereunder. The Registrar of the High Court of Kerala shall intimate all the courts about this
interdict as against the respondent-advocate. /p> p>This appeal is disposed of accordingly. /p>
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