# BAR COUNCIL OF MAHARASHTRA v. M. V. DABHOLKAR ETC. ETC

- **Citation:** [1976] 2 S.C.R. 48
- **Court:** Supreme Court of India
- **Decided:** 1975-10-03
- **Bench:** \l. R. KRISHNA IYER, R. S. Sarkaria, A. C. Gupta, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bar-council-of-maharashtra-v-m-v-dabholkar-etc-etc-6865
- **Pages:** 14

## Headnote

Advocates Act, 1961-S. 35(i) and r. 36 of the Rules made under
the
Act-Scope of.
Profcssio11a/ co11duct-So/iciti11g Jl'Drk-lf a111ou11ts to misconduct-Disciplinary Committee of State Bar Council-D'i!fects in its w()'rki11g.
The rule of law cannot be built on the ruins of democracy. for where law
ends tyranny begins. If such be the keynote thought for the very survival
of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and
professional life-style.
Be it remembered that tbe central function of the legal
profession is to promote the administration of justice. If the practice of law
is thus a public utility of great implications and a monopoly is statutorily
granted by the nation, it obligates. the lawyer to observe scrupulously those
norms which make him worthy of the confidence of the community in him as
a vehicle of justice-social justice. The Bar cannot behave
wit~ doubtful
scruples or strive to thrive on litigation. Canons or conduct cannot be cry•
stallised into rigid rules but felt by the collective conscience of the practitioners as right. [55 F-H].
Justice cannot be attained without the stream being pellucid throughout
its course and that is of _great public concern, not merelv professional care. [50 F].
The respondents, who were lawyers practising in. criminal courts, were
charged with professional misconduct under s.
35(1)
of the
Advocates Act,
1961. in that they positioned themselves at the entrance to the Magistrates'
Courts, watchful of the arrival of potential litigants and at
sight,
rushed
towards the clients in an ugly scrimmage to snatch the briefs. to lay claim
to the engagements even by physical fight to undercut fees, and by this un-'
edifying exhibition. sometimes carried even into the Bar Library, solicited
and secured work for themselves.
The Bar Council of Maharashtra considered
the complaint received from the High Court against the lawyers and referred
the matter to its Disciplinary Committee for fu~ther probe. The Disciplinary
Committee of the State Bar Council held the respondents guilty of professional
misconduct and suspend·~d them
from practising as
advocates for a period
of three years.
On appeal, the Disciplinar·y Committee of the Bar Council
of India held that under r. 36 of the rules framed under s. 49(c) of the AdvCJ'o'
cates Act. in order to be amenable to the disciplinary jurisdiction the advocates
must have (i) solicited work (ii) from a particular person and (iii)
with
respect to a case. It held that unless the three elements were satisfied it could
not be said that an advocate had acted beyond the standard of professional conduct and etiquette.
It. ther-efore, absolved all the respondents of the charge
of professional misconduct. The State Bar Council has come in appeal to
this Court.
HELD : Rule 36 of the rules framed ·under s. 49 (c) of the Advocates
Act, fairly construed,· sets, out wholesome rules of professional. conducn
and
the dis-section of the said rule, the way it has been done by the Disciplinary
Tribunal, disfigur~s it. (59 CJ.
( 1) The canons of ethics and propriety for the legal profession totally taboo
conduct by way of' solictiting, advertising. scrambling and other obnoxious
practices, subtle or clumsy_ for betterment of legal business.
Law is no trade,
briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarise the legal profession •. [60 CJ.
' J
•
llAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J.)
49
(2) (a) The ;procedure adopted by the State Bar Council in referring the
cases to its Disciplinary Committee i~ in due compliance with s. 35 (1) of the
Advocates Act. (51 G--D].
(b) The contention that the resolution of the Bar Council did not ex facie
disclose that it had reason to believe that the advocates were guilty of professional misconduct had no merit. The reqμirement of "reason
to
believe"
cannot be converted into a formalised proced

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48
BAR COUNCIL OF MAHARASHTRA
v.
M. V. DABHOLKAR ETC. ETC.
October 3, 1975
[\l. R. KRISHNA IYER, R. S. SARKARIA, A. C. GUPTA AND S. MURTAZA
FAZAL ALI, JJ.]
Advocates Act, 1961-S. 35(i) and r. 36 of the Rules made under
the
Act-Scope of.
Profcssio11a/ co11duct-So/iciti11g Jl'Drk-lf a111ou11ts to misconduct-Disciplinary Committee of State Bar Council-D'i!fects in its w()'rki11g.
The rule of law cannot be built on the ruins of democracy. for where law
ends tyranny begins. If such be the keynote thought for the very survival
of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and
professional life-style.
Be it remembered that tbe central function of the legal
profession is to promote the administration of justice. If the practice of law
is thus a public utility of great implications and a monopoly is statutorily
granted by the nation, it obligates. the lawyer to observe scrupulously those
norms which make him worthy of the confidence of the community in him as
a vehicle of justice-social justice. The Bar cannot behave
wit~ doubtful
scruples or strive to thrive on litigation. Canons or conduct cannot be cry•
stallised into rigid rules but felt by the collective conscience of the practitioners as right. [55 F-H].
Justice cannot be attained without the stream being pellucid throughout
its course and that is of _great public concern, not merelv professional care. [50 F].
The respondents, who were lawyers practising in. criminal courts, were
charged with professional misconduct under s.
35(1)
of the
Advocates Act,
1961. in that they positioned themselves at the entrance to the Magistrates'
Courts, watchful of the arrival of potential litigants and at
sight,
rushed
towards the clients in an ugly scrimmage to snatch the briefs. to lay claim
to the engagements even by physical fight to undercut fees, and by this un-'
edifying exhibition. sometimes carried even into the Bar Library, solicited
and secured work for themselves.
The Bar Council of Maharashtra considered
the complaint received from the High Court against the lawyers and referred
the matter to its Disciplinary Committee for fu~ther probe. The Disciplinary
Committee of the State Bar Council held the respondents guilty of professional
misconduct and suspend·~d them
from practising as
advocates for a period
of three years.
On appeal, the Disciplinar·y Committee of the Bar Council
of India held that under r. 36 of the rules framed under s. 49(c) of the AdvCJ'o'
cates Act. in order to be amenable to the disciplinary jurisdiction the advocates
must have (i) solicited work (ii) from a particular person and (iii)
with
respect to a case. It held that unless the three elements were satisfied it could
not be said that an advocate had acted beyond the standard of professional conduct and etiquette.
It. ther-efore, absolved all the respondents of the charge
of professional misconduct. The State Bar Council has come in appeal to
this Court.
HELD : Rule 36 of the rules framed ·under s. 49 (c) of the Advocates
Act, fairly construed,· sets, out wholesome rules of professional. conducn
and
the dis-section of the said rule, the way it has been done by the Disciplinary
Tribunal, disfigur~s it. (59 CJ.
( 1) The canons of ethics and propriety for the legal profession totally taboo
conduct by way of' solictiting, advertising. scrambling and other obnoxious
practices, subtle or clumsy_ for betterment of legal business.
Law is no trade,
briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarise the legal profession •. [60 CJ.
' J
•
llAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J.)
49
(2) (a) The ;procedure adopted by the State Bar Council in referring the
cases to its Disciplinary Committee i~ in due compliance with s. 35 (1) of the
Advocates Act. (51 G--D].
(b) The contention that the resolution of the Bar Council did not ex facie
disclose that it had reason to believe that the advocates were guilty of professional misconduct had no merit. The reqμirement of "reason
to
believe"
cannot be converted into a formalised procedural road blocik, it being
essentially a barrier against frivolous enquiries. It is implicit in· the resoh1tion
of the Bar Council, when it says· that it has considered the complaint and
decided to refer the matter to the Disciplinary Committee, that it had reason
to believe as prescribed bl( the statute. [51 Dc-E].
(3) The State Tribunal has, from a processual angle, fallen far short of
norms. like proper numbering of witnesses and exhibits, indexing and avoidance
of mixing up of all cases together, default in examination of the respondents,
consideration separately of the Circumstances of each delinquent for convicting
and sentencing purposes.
More attention to the specificity in recording evidence
against each deviant instead of Jestimonial clubbing together of all the respondents, would have made the proceedings cl'~arer, fairer and in keeping
with court methodology. without over-judicialised formalities.
The consolidation of all cases and trying them all. jointly, although the charges were different
episodes, was obviously violative of fair trial. [59 D'-FJ.
(4)(a) The profound regret of these cases lies not only ·in the appellate
Disciplinary Tribunal's subversive view of the Jaw of professional conduct that
attempted solicitation by snatching briefs and catching clients i5 of no ethical
moment, or contravention of the relevant provisions, but also in the naive
innocence of fair and speedy procedure displayed by the State Disciplinary
Tribunal in clubbing together various charges levelled against the advocates
in one common trial, mixing up the evide!]ce against many, recording omnibus testimony slipshodly,
not maintaining a record of each day's proceedings,
examining witnesses in the absence of son1c respondents. taking. eight years to
finish a trial involving depositions of four witn'esses and omission to consider
the evidence against each alleged delinquent individtially in the semi-penal proceeding>. True, a statutory Tribunal may ordinarily regulate
its
procedure
without too much rigidity, subject to the rules of natural justice, but largescale disregard of well-known norm, of fair process makes one wonder whether
some at least of the respondents had not been handicapped and whether justice
may not b'e a casualty if the Tribunaj is not alerted about its processual responsibilities. [52 B-DJ.
(b) The Appellate Tribunal was wholly wrong in applying r. 36 which
was promulgated crnly in 1965 while the alle;;;ed misconduct to&k place earlier.
What this Tribunal forgot was that the legal profession in India has been with
us even before the British and coming to decades of this century, the provisions of s. 35 of the Advocates Act, s. 10 of the Bar Councils Act and· other
enactments regulating the conduct of legal practitioner& have not turned on the
splitting up of the text of apy rule but on the broad canons. of ethics and high
tone of behaviour well-established by case law and long accepted bv the soul
of the bar. Professional ethics were born with the organised bar, even as
moral norms arose with civilised society.
The
exercise
in
discovoring
the
three elements of r. 36 was as unserviceable as it was supererogatory. [59 G-l-Ll.
(c) It is a misfortune that a disciplinary body of a dimensionally g:eat
and growing public utility professi·on has lost its vision, blinkered by r. 36 (as
. 1•
misconstrued and trisected bv it.) [60 G].
('.IVJL APPELLATE JURISDICTION: Civil Appeal
Nos.
1461
tc
1468 of 1974.
From the Judgment and .Order dated the 14th April, 1974, of
the Disciplinary Committee of the Bar Council of India New Delhi
in D.C. Appeals Nos. 15 to 19 and 21, 22 and 25 of 1973.
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SUPREME COURT REPORTS.
[I 976] 2 S.C.R.
V. S. Desai, Vimal Dave, Miss Kai/ash Mehta for the Appdlants.
Respondents app~ared in prson in CAs. 1461 and 1467-1468.
Sakuddi11 F. Bootwala and Mrs. Urmi/a Sirur for Respondents in
CAs. 1462-1464.
V. N. Gonpu/e for Respondent in C.A. 1465.
D. V. Patel and Mrs. K. Hingorani for the Bar Council of India.
S. K. Sinha for the Bihar State Bar Council.
The Judgment of the Court was dclievcrecl by
KRISHNA ~YER, _J.-These. appeals have filled us as much with deep
c
sorrow as with pamccl. surprise.
The story ot th.: alleged 'professional
misconduct' and. the msensitivity ol',
the disciplinary
authority
to
aberrant pro!'ess10nal conduct have been the source of our distress
as we will presently explain, after unfurling the factual canvas first. '
The first chapter of the litigation in this Court related to the standi11g of the State Bar Council to app~al to this Court, under s.38 of the
D
Advocates Act, 1961 (the Act, for short) against appca'late decision
of _the Disciplinary Tribunal appointed by the Bar Council of India.
This Court upheld the competence to appeal, thus leading us to the
present stage of disposing of the eight cases on merits.
·
The epileptic episodes.:___what other epithet can adequately express
the solicitation circus dramatised by the witnesses as practised by the
E
panel of advocate-respondents before us ?-make us blush in the narration.
For, after all, do we not all together belong to the 'inner republic of l{cnchcr and bar'? The putative delinquents arc lawyers practising in the criminal courts in Bombay City. Their profession or:fains
ia high levd of ethics as much in the mea!ls as in the e11ds.
Justice
\cannot be attained without the stream being pellucid throug'1ou: its
course and that 'is of great public concern, not merely professional care.
F
Briefly expressed, these practitioners, according to testimony recorded
by the State Disciplinary Tribunal, positioned themselves at the entrance to the Magistrates' Courts, watchful of the arrival of potential
litigants.
At sight, they rushed towards the clients in an ugly scrimmage to snatch the briefs, to lay claim to the engagements even by
physical fight, to undercut fees, and by this unedifying exhibition, sometimes carried even into the Bar Library, solicited and secured work for
G
themselves.
If these charges were true, any
member of the
Bar
with elementary ethics in his bosom would be outraged at his brethren's
conduct and yet, in rev.ersal of the State Disciplinary Conunillce's finding, the appellate Tribunal at the national level appears to have ,ei:1tered a verdict, based on a three point formula, that this conduct, even
if true, was after all an attempt to solicit practice and did not cross
the borderline of misconduct? The Bar Council of the State of MahaH
rashtra (the appellant before us) and the Bar Council of India which
is a party respondent, have expressed consternation at this view of the
law of professional misconduct and we share this alarm.
Were this
view right, it is difficult to call the legal profession noble.
Were this
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BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J.)
51
understanding of deviant behaviour sound, there is little to distinguish
'between railway porters and legal practitioners although we do not
mean to hurt the former and have mentioned a past practice, to drive .
home our present poillit? We do not wish to dilate further on the evidence in so far as it concerns each of the respondent-advocates in view
of certain developments which we will presently notice.
There are
eight cases but we are relieved from dissecting the evidence against
most of them for reasons which we will hopefully and shortly state.
The Bar Council of Maharashtra, by its resolution No. 29 dated
August 8, 1964 considered the complaint received from the High Court
against one Kelawala and 15 other Advocates among whom are those
charged with professional
misconduct and covered by the
present
appeals, under s.35 ( 1) of the Act, and presumably having reason to
believe that the professional misconduct alleged required a further
probe referred the case to its disciplinary committee.
This procedure
is in due compliance with s.35 ( 1) of' the Act and, although the respondent in C.A. 1467 /74 (A. K. Doshi) has c.ontended that the
resolution of the Bar Council does not ex facie disclose that it had
reason to believe that the advocates involved were guilty of professional
misconduct, we see no merit in it.
The requirement of 'reason to believe' cannot be converted into a formalised procedural road block, it
being essentially a barrier against frivolous enquiries. It is implici't in
the resolution of the Bar Council, when it says that it bas considered
the complaint and decided to refer the matter to the disciplinary committee, tMt it bad reason to believe, as prescribed by the statute.
Such blanket reference to the disciplinary body, so far as we are
concerned, related to the respondent in C.A. 14161/74
(Dbabolkar),
C.A. 1462/74 (Bhagtani), C.A. 1463/74 (Talati), C.A.
1464/74
(Kelawala), C.A. 1465/74 (Dixit), C.A. 1466/74 (Mandalia), C.A.
1467 /74 (Doshi) and C.A. 1468/74 (Raisinghani). All the cases
were tried together as a unified proceeding and disposed of by a common judgment by the Disciplinary Committee, a methodology conducive to confusion and prejudice as we will explain later in this judgment.
The respondents in the various appeals before us were found
guilty 'of conduct which seriously lowers the reputation of the Bar in
the eyes of the public' arid they were suspended from practising as
Advocates for a period of three years.
Appeals were carried to· the
Bar Council of India: and,, in accordance with the statutory provision,
they were referred to the Disciplinary Committee appointed by it under
s. 37(2) of the Act.
The Appellate Disciplinary Committee heard the
appeals and absolved them of professional misconduct.
Aggrieved by
this verdict of reversal, the Bar Council of Maharashtra. bas aonealP.d
to this Court. The initial hurdle of locus standi has been surmounted,
as stated earlier, we have been addressed arguments on the merits hy
Shri V. S. Desai on behalf of the appellant.
He bas canvassed the
correctness of the finding of fact in each case. although with varvin~
degrees of diffidence, but turned bis forensic fusillade on the somewhat
startling concept of professional misconduct adopted by that disciplinary Tribunal.
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
We will proceed to deal with each appeal separately so far as the
factual foundat10n for the charges is co!)cerned but discuss the legal
question later as it affects not Il1erely the advocates ranged as respondents but the Bar in India and the public in the country.
The profound regret of these cases lies not only in the appellate disciplinary
tribunal's subversive view of the law of professional conduct. that
attempted solicitation by snatching briefs. and catching
clients
is
of no ethical moment, or contravention of the relevant provis10ns, but
also in the naive innocence of fair and speedy procedure displayed by
the State Disciplinary Tribunal in clubbing together various
charges
levelled against 16 advocates in one common trial, mixing up the evidence against many, recording omnibus testimony
slipshodly,
not
maintaining a record of each day's proceedings, examining witnesses in
the absence of some respondents, taking eight years to finish
a trial
involving depositions of four witnesses and the crowning piece, omission to consider the evidence against each alleged delinquent individually in the semi-penal proceedings. True, a statutory tribunal may
ordinarily regulate its procedure without too much rigidity, subject to
the rules of natural .iustice, but large-scale disregatt! of well-known
norm of fair process makes us wonder whether some at least of the
respondents have not been handicapped and whether justice may not b~
a casualty if the tribunal is not alerted about its processual responsibi- .
lities.
We have some observations to make about the Tribunals at the
State and at the appellate levels in the further stages of this judgment.
However, we find it convenient to dispose of the appeals on the evidenoe, on the assumption that if, in fact, there have bc·~n snatching and
fighting and like soliCitation exercises indulged in by any of the respondents, such conduct is in gross breach of professional behaviour and
invites punishment.
{
A case-by-case disposal is desirable and so we begin with Dabholkar
(respondent in C.A. 1461/74) who appeared in person to plead in
defence.
The evidence against him is far from satisfactory and suffers
from generalised imputation of misconduct against a group oJ'
guilty
lawyers.
To dissect and pick out is an erroneous process,
except
where individualised activities are clearly deposed to.
Moreover, the
only witness who implicates him swears : 'I have not seen him actually
snatching away the papers.
I did not hear (he talk Mr. Dabholkar had
with the persons'.
Moreover, he was a senior public prosecutor.
\Ve
also record the fact that he expressed distress as the arguments moved
on.
Apart from the weak and mixed evidence against him, there is
the circumstance that he is around 68 years old.
With a ring of truth
he submitted that he was too old to continue his practice in the pro-·
fession and had resolved to retire into the sequeMered vale "of life.
He
frankly admitted that, even apart from the evidence, if there were any
sins of the past, he would not pursue the path of professional impropriety hereafter having dPcided virtuallv to step out of the Bar. except
for a limited purnose. He had iust four ca<es left with him which he
desirnrl to complete, having received fees.
He further represented that
he did not intend to accent anv new briefs or aooear in
anv Court
except to the little extent that tlie Bombay Paints & Allied Products
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BAR COVNCIL v. M. v. DABHOLKAR (Krishna Iyer, !.)
53
Limited (Chembur, Bombay), a large company which. occasionally
engaged him in small cases chose to brief him.
We are inclined to take
him at his word, particularly because he has- put himself out of harm's
way by a clear assurance about his future plans.
On the evidence,
we exonerate him from prqfessional misconduct and
otherwise
w;:;
record his solemn statement to the Court.
Shri Bhagthani, respondent in C.A. 1462/74, has not engaged
counsel. nor appeared in person, but as we examined the evidence,
assisted by Shri Desai, we found precious little against him.
That
extinguishes the charge. No need, therefore, arises for punishing him
or reversing the appellate Tribunal's acquittal.
The responldent in C.A. 1463/74 is Talati.
He has been found
'not guilty' in appeal but, as we perused the evidence, it became fairly
clear that some acts of misconduct had been made out, although
the
evidence suffered from
omnibus
implication.
His .counsel,
Mr.
Zakiuddin F. Bootwala, however made a submission which has moved
us into showing some consideration for this respondent.
Shri Zaki
represented that his client had stood the vexatious misfortune of a
long, protracted, litigation before the two tribunals. anld a later round
in this Court when the question of locus standi of the State Bar Council was· gone into.
He was in poor circumstances and had suffered considerably on this score.
Further, he has given an undertaking expressing unqualified regret for his deviant behaviour and has prayed for the
clemency of the Court, promising to turn a new leaf of proper professional conduct, if he were permitted to practice.
Taking note of the
compassionate conspectus of circull_!stances attendant on his case and
in view of the tender of unconditional regret which expiates, in part,
his guilt, we allow the appeal, but reduce the period of suspension
inflicted by way of punishment by the Maharashtra Tribunal from
three years to a period up to December 31, this year ( 197 5) . In short,
we find him guilty aad reluctantly restore the verdict of the original
tribunal, but reduce the punishment to suspension from practice, as
aforesaid.
The respondent in C.A. 1464/74 is Kelawala.
His counsel, Mr.
Zaki, submitted that this practitioner had become purblind and was
ready to give an undertaking to the Court that he would no longer
practice in the profession.
While there is sonie evidence against him,
an overall view of the testimony does not persualde us to take a serious
view of the case against him.
Moreover, being old and n·earcblind
and having undertaken to withdraw from the profession for ever, it is
but fair that he spends the evening years left to him without the stigma
of gross misconduct. In this view, we do not disturb the finding of
the Disciplinary Committee of the Bar Council of Tndia, hut record the
undertaking filed by Shri Zaki that his client Kelawala will not practice
the profession of law any longer.
The resoondent in C.A. 1465/74 is Dixit for whom Shri Gannule
appeared. Shri Desai, for the appellant, toak us through the evidence
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SUPREME COURT REPORTS
(1976] 2 S.C.R.
against this lawyer but fairly agreed that the evidence was,
by
any
standard,, madequate to brmg home the guilty of misconduci.
We.
readily hold him rightly absolved from profes~jonal misconduct.
.
The respondent in C.A. 1466/74 is Mandalia.
He did not appear
m person or through counsel.
The reason is fairly obvious.
The
eviaence is so little that it is not possible nor proper to pick out with
precision and assurance any particular 'soliciting' act to infer guilt.
Shri Desai, for the appellant, was fair enough to accede to this
position.
His exculpation cannot, therefore, be interfered with.
The only contesting respondent is
Doshi-C.A.
1467 /74.
He
contests his gmlt and pursues his plea with
nghteous
persistence
and challenges the evidence and its credibility projecting his grievance
about processual improprieties.
We will consider both these facts of
his legitimate criticism despite his cantankerous arguments which
we
have heard with forbearanc.e, remembering that a party arguing his
own case may, perhaps, not be able to discipline himself to observe
the minimal decorum that advorncy in Court obligates. The respo1adent
displayed, as the proceedings in this Court ran on, his art of irritatiug
interruptions, his exercises in popping up and down heedless of the
Court's admonition, and his skill in rambling references to what was
not on record.
The fine art of advocacy suffers mayhem when irreverant men indelicately brush with it.
The State Tiibunal's records
reveal that Shri Doshi had not spared their patience or sense of pertinence.
Having said all this, we are bound to examine the evidence
against him fairly.
Such a scrutiny shows that the best witness Shri
Shertukde, the President of the Bar Association and otherwise a respected Member of the Bar, has not involved him in any malpractice.
Even Shri Pathare, th1:. only one to rope him in, merely gives omnibus
testimony ambivalent in places and unspecific about some,
including
Doshi.
There is little else brought home with clarity against loquacious Doshi. To convict him out of the vague, lips of Pathare may perhaps be a credulous folly.
The grouping of a nl]mber of advocates in
a sort of mass trial has prejudiced Shri Doshi, a consequence which
could and should have been avoided.
He had other grievances of
denial of fair opportunity which' we could not y,~rify for want of a daily
diary or order sheet.
We are satisfied by a perusal of the record that
this respondent has had an impressive background of social
service.
commendable testimonials of his legal skills from competent persons
and some law practice in various Courts and consultancy work for
social welfare institutions which are apt to dissuade him from the disreputable bouts in the 'pathological' area of the Esplanade
Police
Courts in Bombay. Even assuming that this overzealous gentleman had
exceeded the strict bounds of propriety, we are not satisfielcl that the
charge of professional misconduct, as laid. has been brought home to -
him.
What we have observed about his conduct in this Court must
serve as a sufficient admonition to wean him away from improper conduct.
We do not interfere with the exculpation secured by him before
the appellate Tribunal hopeful that he will canalize his urofessional
energies in a more disciplined way to be useful to himself and, more
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BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J:)
55
importantly, to his 'u'.1solicited' clientele.
After all, even a sinner has
A
a future and given better court manners and less turbulent beLicosity,
Shri Doshi appears to have a fair professional weather ahead in the
City.
We hold him unblemished so far as the vice of solicitation is
concerned, but caution him to refine himself in advocacy.
Shri Raisinghani is the respondent in C.A. 1468/74. Shri V. · S.
Desai took us through the evidence agailist him and although he is 65
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years old, ihe evidence shows that he has physically fought two rival
advocates in the course of snatching the briefs from clients, entering
the Esplanade criminal courts.
One of these fights resulted
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his
trousers being torn and the other assault by him was on Mr. Mandalia.
one of the respondents in these appeals. Shri Mandalia had filed a
complaint against Raisinghani but in the crimmal court they lived down
their earlier skirmish and compounded the case.
Be that as it may,
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we find that Shri Raisinghani is not merely an old man but a refugee
from Pakistan who, leaving his properties there has migrated to Ahmedabad with his family.
Apparently he is in penurious environs and
stay in the refugee colony in Bombay, incidentally attending to his
claims to the properties left behind in Pakistan and acquiring some
evacuee property in lieu of what he has lost.
Staying in Kalyan
Refugee Camp this lawyer, afflicted with distress and dotage, is also
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attending the Magistrate's C()urt to make a living.
This commisserative social mi)ieu may not absolve him of the misconduct which, we arc
satisfied, the testimony in the case, has established.
Even so, Shree
Raisinghani has appeared in person and has given an undertaking
expressing remorse, praying to be shown clemency and assuring that,
economic pressure notwithstanding, he will not go anywhere near professional pollution in the last years of his practice at the Bar.
We are
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inclined to take a sympathetic view of his septuagenarian situation,
record his apology and assurance, restore the verdict of guilt by the
State Disciplinary Committee but reduce the punitive part of it to
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period of suspension until December 31, this year (1975).
Now to the legal issue bearing on canons of professional conduct.
The rule of law cannot be built on the ruins of democracy, for where
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law ends tyranny begins. If such be the keynote thought for the very
survival of our Republic, the integral bond between the lawyer and the
public is unbreakable.
And. ilie Vital role of the lawyer depends upon
his probity and professional life-style. Be it remembered that the central function of the legal profession is to promote the administration of
Justice. If the practice of law is _thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates
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the lawyer to observe scrupulously those noqns
which
make him
worthy of ilie confidence of the community in him as a vehicle of
justice-social justice.
The Bar cannot behave with doubtful
scru~
plcs or strive to thrive on litigation.
Canons of conduct cannot be
crystallised into rigid rules but felt by the collective conscience of the
practitioners as right :
-
"It must be a conscience alive to the proprieties and the
improprieties incident to the discharge of a sacred public
-L 1276 SCI/75
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SUPREME COURT REPORTS
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trust. It must be a conscience governed by the rejection of
self-interest and selfish ambition. It must be a conscience
propelled by a consuming desire to play a leading role in the
fair and impartial admini:itration of ju§tice, to the end that
public confidence may be kept undiminished at all times in
the belief that we shall ·always seek truth :.!_nd justice in the
pres((rvation of the rnle of law.
It must be a conscience,
not shaped by rigid rules of doubtful validity, but answerable
only to a moral code which woulli drive irre_sponsible judges
from the profession.
Without such a
conscience,
there
should be no judge(!) "-and, we may add, no lawyer.
Such is the high standard set for professional conduct as expounded by
courts in this country and .elsewhere.
These background observations will serve to size-up the grave misapprehension of the law of professional ethics by the tribunal appointed by the Bar Council of India. The disciplinary body,
acquitting
everyone on non-violation of bounds of propriety argued :
"Rule 36 (of the Bar Council of l]ldia on Standards of
Professional Conduct and Etiquett·e) is as follows:
An Advocate shall not solicit work or advertise either
directly, or indirectly whether by circular, advertisements,
touts, personal communications, intervie~s not warranted
by personal relations, furnishing newspaper comments or
procuring his photograph to be published in connection
with cases in which he has been engaged or .concemed .. "
Hence in order to be amendable to disciplinary jurisdiction,
the Advocates must have (1) solicited work (2) from a particular person (3) with respect to a case.
Unless all
the
three elements are satisfied, it cannot be said that an Advocate
has acted beyond the standard of professional conduct and
etiquette. It has been stated that the conduct of the Advocate
concerned did not conform to the highest standards of the
legal profession.
It is not that everybody must conform to
the hi~hest standards of the legal profession. It is enou~
if an Advocate conforms to the standards of professional conduct and etiquette as referr_ed to in the rules."
*
*
*
*
*
"He (witness Mantri) says further that 7
Advocates
who are personally nresent today I have seen each of them
standinllJ either on the irround floor, near the ·lift or on the
first floor either near the lift or in the lobbies of the
(1) Hastings, Hon. John S .• "Judicial Ethics as it Relates to Participation in MoneyMalcing Activities"-Conferencc on Judicial Ethics, p. 8, The School of Law,
University of Chicago (1964).
,,
•
...
..
BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, I.)
Esplanade Court and trying to solicit work from the persons
coming to the Esplanade Court.
This mere
attempt
to
solicit is rwthing."
*
*
*
57
"In order to be within the mischief of rule 36, not merely
canvassing is enough, but canvassing must be for a case with
the person who had not till then engaged a lawy,er.
There
is nothing to show either of these things : none of the persons ·
who might fiave been subjectec! to these solicitations as they
are. stated, have been examined to ·prove the case.
Hence
this evidence does not establish anything within rule 36." ...
All that is necessary for us to see is wb_etoher the three items
referred to have been complied with and we find that they
have not been complied with because we do not know what
was the nature of the communication, we. do not koow in
connection with which case the solicitation took place and
with whom the conversation took place. Hence Mr. Shertukade's evidence is not sufficient for the purpose of taking
any disciplinary action under rub 36.
*
*
*
"Mr. Krishnarao V. Pathumdi is the first witness in this
case (case of Raisinghani). He says: "I had seen Kelawala,
Mr. Baria; Mr .. Raisinghani, Mr. Bhagtani approaching the
people visiting the Court and soliciting work from
them".
This we have already stated is far below the requirement
required to be proved under rule 36 .... He says that he had
seen Mr. Raisinghani approaching people
and
soliciting
work.
He did not ascertain the names of the persons who
approached because it was not his busin~ss. But as stated.
above, this evidence does not establish the three elements
required to be proved under rule 36 because we do not know
what was the personal communication between him and the
persons solicited.
We do not know whether it related to a
case or not." .... Then the next witness is Mr. Sitaram
Gajanan Shertukade. In cross-examination by Mr.
Raisinghani he says : "I have seen Mr. Raisinghani accosting
people.
I have seen Mr .. Raisinghani snatching the papers
from the hands of the litigating public. I have seen this more .
than 10 times. The litigating public from whom the papers
were snatched did not say anything that there was a fight between Mr. Raisinghani and other lawver over the papers which
were snatched.
I did not contact those persons from whom
the paoers were snatched 1.ior talked to them so he was
not concerned with this. Therefore his evidence cannot be
sufficient."
(Emphasis, ours)
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We may, illustratively, quote an excerpt from the evidence of the
Bar Association President and one-time Bar Council Member Shri
Shertukade to show the injury to the profile of the profession the curious view of the disciplinary tribunal has inflicted :
"I have seen Mr. Raisinghani accosting people. I have
seen Mr. Raisinghani snatching the papers from the hands of
litigating public_
I have seen this more than 10 times ...
There was a fight between Mr. Rasinghani and Mr. Baria.
l
made oral complaint to the C.P.M.
I do not remember who
was _present at that time.
In that fight Mr.
Raisinghani's
pant was torn. . . There was assault by Mr. Raisinghani on
Mr. Mandalia and I had advised Mr. Mandalia to
file
a
complaint against Mr. Raisinghani.
Mr. Mandalia did file
a case against Mr. Raisinghani but it was compounded."
How cail a disciplinary auth9rity, aware of its accountability to the
Indian Bar, functioning as the stern monitor holding the punitive mace
to preserve professional purity and promote public commitment and
appreciative of what is disgraceful, dishonourable
and
unbecoming
judged by the standards of conduct set for this noble calling and deviations damaging to its public image, find its way to hold such horrendous misbehaviour as snatching, catching, fighting, and under-cutting as
not outraging the canons of conduct without exposing itself to the
charge of dereliction of public duty on the trisection of r. 36 and blind
to the 'law for lawyers'?
It has been universally understood, wherever there is an organised
bar assisting in administering justice, tpat an attorney, solicitor, barrister or advocate will be suspended or disbarred for soliciting legal business.
And the 'snatching' species of solicitation are more revolting
than 'ambulance chasing', advertising and the like. If the learned profession is not a money-making trade or a scramble for porterage but a
branch of the administration of justice, the view of the appellate disciplinary tribunal is ir(defensible and deleterious.
We, as a
legal
fraternity, mQst and shall live up to the second and live down the first,
by observance of high standards and dedication to the dynamic rule of
law in a developing country.
It is unfortunate that the Maharashtra tribunal has slurred
over
vital procedural guidelines.
Professional misconduct prescribed
by
s. 35 of the Act has to be understood in the setting of a calling to which
Lincoln, Gandhi, Lenin and a galaxy of great men belonged. The high
moral tone and the considerable public -service the bar is
associated
with and its key role in the developmental and dispute-processing activities and, above all, in the building up of a just society and constitutional order, has earned for it a monopoly to practise law and an autonomy to regulate its own internal discipline.
This heavy public trust
should not be forfeited by legalising or licensing fights
for
briefs,
affrays in the rush towards clients, under-cutting and wrangling among
members.
Indeed, we were scandalized when one of the respondents
cited a decision under the Suppression of Immoral Traffic Act to prove
..
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BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J.)
59
what is 'solici_ting'.
The odious attempt to equate by implication the
standards for the two professions was given up after we severely frowned on it.
But the disciplinary tribunal's view that an attempt to solicit
did 'Jot matter, that professional misconduct rested solely on r. 36 of
the rules framed under s. 49{c) and that r. 36 was made up of three .
components, shows how an orientation course in canons of conduct
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and etiquette in the socio-ethical setting of the lawyer, the public and
B.
professional responsibility may be an educative asset to disciplinary
tribunals and Bar Councils which appoint tribunals and regulate professional conduct by rules.
Cicero called the Jaw 'a noble prokssion',
but Frederick the Great described lawyers as 'leeches'.
We agree that
r. 36, fairly construed, sets out wholesome rules of professional conduct although the canons of ethics ~xisted even prior to r. 36 and the
dissection of the said rule, the way it has been done by the disciplinary
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tribunal, disfigures it.
It is also clear that r. 36 is not the onlv nidus
of professional ethics.
Indeed, the State tribunal has, from a processual angle, fallen far
short of norms like proper numqering of witnesses and exhibits, indexing and avoidance of mixing up of all cases together, default in examiD
nation of the respondents consideration, separately, of the circumstances of each delinquent for convicting and sentencing purposes. More
attention to the specificity in recording evidence against each deviant
instead of testimonial clubbing togethi:r of all the respondents, would
have made the. proceedings clearer, fairer and in keeping with court
methodology, without over~judicialised formalities.
Indeed. the consolidation of 16 cases and trying them all jointly although the charges
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were different episodes, were obviously violative of fair trial.
And
8 years for an eaquiry so simple and brief: We express the hope that
improvement of this branch of law relating to disciplinary proceedings
will receive better attention from the Bar Council and the tribunal
members. Wh•at prophylactic prescription can ensure fundamentally
fair hearing or due process better than by choosing persons of sense
and sensibility familiar with the basics of trial procedure and conscienF
tious about avoidance of prejudice and delay? Rules may regulate,
but men apply them.
Both are important.
The appellate disciplinary tribunal was wholly wronfl in
applying
r. 36 which was promulgated only in 1965 while the alleged misconduct took place earlier.
What this tribunal forgot
was
that the
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legal profession in India has been with us even before the British and
coming to decades of this centnry, the provisions of r. 35 of the Advocates Act s. 10 of the Bar Councils Act and other enactments regulating the conduct of legal practitioners have not turned on the splitting
up of the text of any rule but on the broad canons of ethics and high
tone of behaviour well-established by case-law and long accepted by-the
soul of the bar. Professional ethics were born with the organised bar,
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even as moral norms arose with civilised society.
The exercise in discovering the 'three elements' of r. 36 was as unserviceable as it was
supererogatory.
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The ruling in In the matter of 'P' an Advocate(!); In re : Shri M.
Advocate of Supreme Court of India(2); In the matter of an Advocate(3); Govt. Pleader v. Siddick(4 ) were cited before us and no judge,
nor lawyer will be in doubt, even without study of case-law, that
snatching briefs by standing at the door of the court house and infighting for this purpose is too dishonourable, disgraceful and unbecoming to be approved even {or other professions.
Imagine two
or three medical men manhantlling a patient to claim him as a client !
The law has suffered.