# R. MUTHUKRISHNAN v. THE REGISTRAR GENERAL OF THE HIGH COURT OF JUDICATURE AT MADRAS

- **Citation:** [2019] 1 S.C.R. 589
- **Court:** Supreme Court of India
- **Decided:** 2019-01-28
- **Bench:** Arun Mishra, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-muthukrishnan-v-the-registrar-general-of-the-high-court-of-judicature-at-33419
- **Pages:** 82

## Headnote

Rules of High Court of Madras, 1970:
rr. 14A, 14B, 14C and 14D (as inserted by amendment in
2016) - Empowerment of High Court to debar an advocate from
practicing - Validity of - Held: High Court Rules have been framed
in exercise of powers conferred u/s. 34 of Advocates Act - Section
34 does not confer power to frame rules to debar a lawyer for
professional misconduct - It is apparent from the provisions and
the scheme of the Advocates Act that the Act never intended to confer
disciplinary powers upon the High Court or Supreme Court except
to the extent dealing with an appeal u/s. 38 of Advocates Act - It is
the Bar Councils of States and Bar Council of India which have the
power to discipline the lawyers and maintain nobility of the
profession under Advocates Act - The High Court has the power to
debar the advocate under the Contempt of Courts Act - Even when
the Disciplinary Committee of the Bar Council is not as effective as
it should be, the very purpose of disciplinary control by Bar Council
cannot be permitted to be frustrated - Such failure on the part of
Bar Council can be supervised by the Court - Therefore, the
impugned rules could not have been framed u/s. 34 of Advocates
Act - The impugned rules clearly impinge upon the independence
of the Bar - Exercise of disciplinary control by the High Court, by
inserting the impugned rules would amount to usurpation of the
power of Bar Council conferred under Advocates Act - Advocates
Act, 1961 - s.34 - Constitution of India - Arts. 14 and 19.
Allowing the petition, the Court
HELD: 1. The Advocates Act, 1961 has been enacted to
amend and consolidate the law relating to the legal practitioners
[2019] 1 S.C.R. 589
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and to provide for the constitution of the Bar Council and an All
India Bar. The independence of the Bar and autonomy of the Bar
Council has been ensured statutorily in order to preserve the
very democracy itself and to ensure that judiciary remains strong.
There cannot be existence of a strong judicial system without an
independent Bar. [Paras 13, 14] [604-C, D, E]
2. It is basically the lawyers who bring the cause to the
Court, are supposed to protect the rights of individuals of equality
and freedom as constitutionally envisaged and to ensure that the
country is governed by the rule of law. Considering the
significance of the Bar in maintaining the rule of law, right to be
treated equally and enforcement of various other fundamental
rights, and to ensure that various institutions work within their
parameters, its independence becomes imperative and cannot
be compromised. [Para 16][604-G-H; 605-A]
3. The Bar is an integral part of the judicial administration.
In order to ensure that judiciary remains an effective tool, it is
absolutely necessary that Bar and Bench maintain dignity and
decorum of each other. The mutual reverence is absolutely
necessary. It is the joint responsibility of the Bar and the Bench
to ensure that equal justice is imparted to all. Independent Bar
and independent Bench form the backbone of the democracy.
Equal and even-handed justice is the hallmark of the judicial
system. The protection of the basic structure of the Constitution
and of rights is possible by the firmness of Bar and Bench and by
proper discharge of their duties and responsibilities. [Paras 18,
19 and 21][605-D-F, H; 606-B]
4. For a value-driven framework, it is necessary that
perspective is corrected in an ethical and morally sound
perspective. The perception of ambulance chasers, money
guzzlers and black sheep should not be presumptive. Such public
perception about the lawyers undermines the credibility of the
legal profession, all the evils from the system have to be totally
weeded out. [Para 27][607-E-F]
5. The legislature has reposed faith in the autonomy of the
Bar while enacting Advocates Act and it provides for autonomous
Bar Councils at the State and Central level. The ethical standard
of the legal pr

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R. MUTHUKRISHNAN
v.
THE REGISTRAR GENERAL OF THE
HIGH COURT OF JUDICATURE AT MADRAS
(Writ Petition (C) No. 612 of 2016)
JANUARY 28, 2019
[ARUN MISHRA AND VINEET SARAN, JJ.]
Rules of High Court of Madras, 1970:
rr. 14A, 14B, 14C and 14D (as inserted by amendment in
2016) - Empowerment of High Court to debar an advocate from
practicing - Validity of - Held: High Court Rules have been framed
in exercise of powers conferred u/s. 34 of Advocates Act - Section
34 does not confer power to frame rules to debar a lawyer for
professional misconduct - It is apparent from the provisions and
the scheme of the Advocates Act that the Act never intended to confer
disciplinary powers upon the High Court or Supreme Court except
to the extent dealing with an appeal u/s. 38 of Advocates Act - It is
the Bar Councils of States and Bar Council of India which have the
power to discipline the lawyers and maintain nobility of the
profession under Advocates Act - The High Court has the power to
debar the advocate under the Contempt of Courts Act - Even when
the Disciplinary Committee of the Bar Council is not as effective as
it should be, the very purpose of disciplinary control by Bar Council
cannot be permitted to be frustrated - Such failure on the part of
Bar Council can be supervised by the Court - Therefore, the
impugned rules could not have been framed u/s. 34 of Advocates
Act - The impugned rules clearly impinge upon the independence
of the Bar - Exercise of disciplinary control by the High Court, by
inserting the impugned rules would amount to usurpation of the
power of Bar Council conferred under Advocates Act - Advocates
Act, 1961 - s.34 - Constitution of India - Arts. 14 and 19.
Allowing the petition, the Court
HELD: 1. The Advocates Act, 1961 has been enacted to
amend and consolidate the law relating to the legal practitioners
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and to provide for the constitution of the Bar Council and an All
India Bar. The independence of the Bar and autonomy of the Bar
Council has been ensured statutorily in order to preserve the
very democracy itself and to ensure that judiciary remains strong.
There cannot be existence of a strong judicial system without an
independent Bar. [Paras 13, 14] [604-C, D, E]
2. It is basically the lawyers who bring the cause to the
Court, are supposed to protect the rights of individuals of equality
and freedom as constitutionally envisaged and to ensure that the
country is governed by the rule of law. Considering the
significance of the Bar in maintaining the rule of law, right to be
treated equally and enforcement of various other fundamental
rights, and to ensure that various institutions work within their
parameters, its independence becomes imperative and cannot
be compromised. [Para 16][604-G-H; 605-A]
3. The Bar is an integral part of the judicial administration.
In order to ensure that judiciary remains an effective tool, it is
absolutely necessary that Bar and Bench maintain dignity and
decorum of each other. The mutual reverence is absolutely
necessary. It is the joint responsibility of the Bar and the Bench
to ensure that equal justice is imparted to all. Independent Bar
and independent Bench form the backbone of the democracy.
Equal and even-handed justice is the hallmark of the judicial
system. The protection of the basic structure of the Constitution
and of rights is possible by the firmness of Bar and Bench and by
proper discharge of their duties and responsibilities. [Paras 18,
19 and 21][605-D-F, H; 606-B]
4. For a value-driven framework, it is necessary that
perspective is corrected in an ethical and morally sound
perspective. The perception of ambulance chasers, money
guzzlers and black sheep should not be presumptive. Such public
perception about the lawyers undermines the credibility of the
legal profession, all the evils from the system have to be totally
weeded out. [Para 27][607-E-F]
5. The legislature has reposed faith in the autonomy of the
Bar while enacting Advocates Act and it provides for autonomous
Bar Councils at the State and Central level. The ethical standard
of the legal profession and legal education has been assigned to
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the Bar Council. It has to maintain the dignity of the legal
profession and independence of Bar. The disciplinary control
has been assigned to the Disciplinary Committees of the Bar
Councils of various States and Bar Council of India and an appeal
lies to this Court under section 38 of the Act. The Bar Association
must be self-governing is globally recognised. [Paras 31, 32][608E-G]
6. A bar association is generally deemed to be independent
when it is mostly free from external influence and can withstand
pressure from external sources on matters such as the regulation
of the profession, disbarment proceedings and the right of lawyers
to join the association. Judicial independence ensures that
lawyers are able to carry out their duties in a free and secure
environment and an independent judiciary also acts as a check
on the independence of lawyers and vice versa. [Para 36][616B-C]
7. The Bar Council has the power to discipline lawyers and
maintain nobility of profession and that power imposes great
responsibility. The Court has the power of contempt and that
lethal power too accompanies with greater responsibility.
Contempt is a weapon like Brahmasatra to be used sparingly to
remain effective. At the same time, a Judge has to guard the
dignity of the Court and take action in contempt and in case of
necessity to impose appropriate exemplary punishment too. A
lawyer is supposed to be governed by professional ethics,
professional etiquette and professional ethos which are a habitual
mode of conduct. He has to perform himself with elegance,
dignity, and decency. He has to bear himself at all times and
observe himself in a manner befitting as an officer of the Court.
He is a privileged member of the community and a gentleman.
He has to be honest, courageous, eloquent, industrious, witty
and judgmental. [Para 40][618-G-H; 619-A-B]
8. It is apparent from the provisions and scheme of the
Advocates Act that the Act has never intended to confer the
disciplinary powers upon the High Court or upon this Court
except to the extent dealing with an appeal under Section 38 of
Advocates Act. Section 34 of Advocates Act clearly enables the
High Courts to prescribe conditions to practice. There can be
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certain conditions on right to practice and appear in a case which
can be imposed by the High Court under Section 34 such as filing
fresh vakalatnama, superseding the previous one that has to be
done as per the High Court Rules, if any such provision has been
made by the High Court. Section 34 contained in chapter IV of
the Act intends to regulate the practice of the advocate in the
High Court and subordinate courts. It does not empower it to
frame the rules for disciplinary control. Within the purview of
section 34 of the Act, a dress can also be prescribed for an
appearance in the Court. The High Court is free to frame the
rules for designation of the Senior Advocates and also the rules
on similar pattern as framed by this Court for Advocates on
Record. [Paras 44, 45 and 51][627-G; 622-F-H; 623-A-B]
9. There is no room for taking out the procession in the
Court premises, slogan raising in the Courts, use of
loudspeakers, use of intemperate language with the Judges or
to create any kind of disturbance in the peaceful, respectful and
dignified functioning of the Court. The instances of abject
misbehavior of the advocates in the premises of the High Court
of Madras resulting into requisitioning of CISF to maintain safety
and majesty of the Court and rule of law. The acts complained of
are not only contemptuous but also tantamount to gross
professional misconduct. In case such state of affairs continue
and Bar Councils fail to discharge duties the Court shall have to
supervise its functioning and to pass appropriate permissible
orders. Independence of Bar and Bench both are supreme, there
has to be balance inter se. [Paras 28, 29][608-A-B, C-D, E-G]
10. The grave situation created in the High Court of Madras
as well as at its Madurai Bench, which compelled the High Court
to take action on the judicial side to ensure the modicum of
security. The High Court had to order the security of the Court
to be undertaken by CISF. In this regard, orders were passed in
Suo Moto Writ Petition by the High Court of Madras. There is no
doubt about it that the incidents pointed out were grim and stern
action was required against the erring advocates as they belied
the entire nobility of the lawyer's profession. The High Court
could have taken action under Contempt of Courts Act for
aforesaid misconduct. [Paras 66, 70][664-F-G; 666-F; 665-B]
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11. The High Court has overstretched and exceeded its
power even in the situation which was so grim which appears to
have compelled it to take such a measure. In fact, its powers are
much more in Contempt of Courts Act to deal with such situation
court need not look for Bar Council to act. It can take action,
punish for Contempt of Courts Act in case it involves misconduct
done in Court/proceedings. Circumstances may be grim, but the
autonomy of the Bar in the disciplinary matters cannot be taken
over by the Courts. It has other more efficient tools to maintain
the decorum of Court. In case power is given to the Court even
if complaints lodged by a lawyer to the higher administrative
authorities as to the behaviour of the Judges may be correct then
also he may be punished by initiating disciplinary proceedings as
permitted to be done in impugned Rules 14 A to D that would be
making the Bar too sycophant and fearful which would not be
conducive for fair administration of justice. Fair criticism of
judgment and its analysis is permissible. Lawyers' fearlessness
in court, independence, uprightness, honesty, equality are the
virtues which cannot be sacrificed. [Para 77][669-H; 670-A-C]
12. It is also true that the disciplinary committee of the Bar
Councils has failed to deliver the good. It is seen that the
disciplinary control of the Bar Council is not as effective as it
should be. It is high time that the Bar Council, as well as various
State Bar Councils should take stock of the situation and improve
the functioning of the disciplinary side. It is absolutely necessary
to maintain the independence of the Bar and if the cleaning
process is not done by the Bar itself, its independence is in danger.
The corrupt, unwanted, unethical element has no place in Bar. If
nobility of the profession is destroyed, Bar can never remain
independent. Independence is constituted by the observance of
certain ideals and if those ideals are lost, the independence would
only remain on paper, not in real sense. [Para 71][666-G-H; 667A-B]
13. If the repository of the faith in the Bar fails to discharge
their statutory duties effectively, no doubt about it that the same
can be and has to be supervised by the Courts. The obligatory
duties of Bar Council have found statutory expression in
Advocates Act and the rules framed thereunder with respect to
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disciplinary control and cannot be permitted to become statutory
mockery, such non-performance or delayed performance of such
duties is impermissible. The Bar Council is duty bound to protect
Bar itself by taking steps against black sheeps and cannot bely
expectation of Bar in general and spoil its image. The very
purpose of disciplinary control by Bar Council cannot be permitted
to be frustrated. In such an exigency, in a case where the Bar
Council is not taking appropriate action against the advocate, it
would be open to the High Court to entertain the writ petition
and to issue appropriate directions to the Bar Council to take
action in accordance with the law in the discharge of duties
enjoined upon it. But at the same time, the High Court and even
this Court cannot take upon itself the disciplinary control as
envisaged under the Advocates Act. [Para 72][667-C-E]
14. Contempt of court is a weapon which has to be used
sparingly as more is power, same requires more responsibility
but it does not mean that the court has fear of taking action and
its repercussions. The hallmark of the court is to provide equal
and even-handed justice and to give an opportunity to each of
the system to ensure that it improves upon. Unfortunately, some
advocates feel that they are above the Bar Council due to its
inaction and they are the only champion of the causes. The hunger
for cheap publicity is increasing which is not permitted by the
noble ideals cherished by the great doyens of the bar, they have
set by their conduct what should be in fact the professional
etiquettes and ethics which are not capable of being defined in a
narrow compass. [Para 74][668-C-D]
15. It has become very common to the members of the Bar
to go to the press/media to criticize the judges in person and to
commit sheer contempt by attributing political colours to the
judgments. It is nothing less than an act of contempt of gravest
form. Whenever any political matter comes to the Court and is
decided, either way, political insinuations are attributed by
unscrupulous persons/advocates. Such acts are nothing, but an
act of denigrating the judiciary itself and destroys the faith of the
common man which he reposes in the judicial system. In case of
genuine grievance against any judge, the appropriate process is
to lodge a complaint to the concerned higher authorities who can
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take care of the situation and it is impermissible to malign the
system itself by attributing political motives and by making false
allegations against the judicial system and its functionaries.
Judges who are attacked are not supposed to go to press or media
to ventilate their point of view. [Para 73][667-G-H; 668-A-B]
16. The statutory rules prohibit advocates from advertising
and in fact to cater to the press/media, distorted versions of the
court proceedings is sheer misconduct and contempt of court
which has become very common. It is making it more difficult to
render justice in a fair, impartial and fearless manner though the
situation is demoralizing that something has to be done by all
concerned to revamp the image of Bar. It is not open to wash
dirty linen in public and enter in accusation/debates, which tactics
are being adopted by unscrupulous elements to influence the
judgments and even to deny justice with ulterior motives. It is
for the Bar Council and the senior members of the Bar who have
never forgotten their responsibility to rise to the occasion to
maintain the independence of the Bar which is so supreme and is
absolutely necessary for the welfare of this country and the vibrant
democracy. [Para 74][668-E-G]
17. The separation of powers made by the forefathers, who
framed the Constitution, ensured independent functioning. If
things are permitted to be settled by resorting to the
unscrupulous means and institution is maligned by creating
pressure of any kind, the very independence of the system would
be endangered. Cases cannot be decided by media trial. Bar and
Bench in order to protect independence have their own inbuilt
machinery for redressal of grievance if any and they are supposed
to settle their grievances in accordance therewith only. No
outside interference is permissible. Considering the nobility,
independence, dignity which is enjoined and the faith which is
reposed by the common man of the country in the judiciary, it is
absolutely necessary that there is no maligning of the system.
Mutual respect and reverence are the only way out. For the
protection of democratic values and to ensure that the rule of law
prevails in the country, no one can be permitted to destroy the
independence of the system from within or from outside. [Para
75][668-G-H; 669-A-C]
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18. Soul searching is absolutely necessary and the blame
game and maligning must stop forthwith. Confidence and
reverence and positive thinking is the only way. It is pious hope
that the Bar Council would improve upon the function of its
disciplinary committees so as to make the system more
accountable, publish performance audit on the disciplinary side
of various bar councils. The same should be made public. It is
basically not for the Court to control the Bar. It is the statutory
duty of Bar to make it more noble and also to protect the Judges
and the legal system, not to destroy the Bar itself by inaction and
the system which is important pillar of democracy. [Para 76][669E-F, G]
19. By amending the High Court Rules, 1970, the High
Court of Madras has inserted impugned Rules 14(A) to 14(D).
The rules have been framed in exercise of the power conferred
under Section 34 of the Advocates Act. Section 34 of the Act
does not confer such a power to frame rules to debar lawyer for
professional misconduct. The amendment made by providing Rule
14(A)(vii) to (xii) is not authorized under the Advocate Act. The
High Court has no power to exercise the disciplinary control. It
would amount to usurpation of the power of Bar Council conferred
under Advocates Act. However, the High Court may punish
advocate for contempt and then debar him from practicing for
such specified period as may be permissible in accordance with
law, but without exercising contempt jurisdiction by way of
disciplinary control no punishment can be imposed. As such
impugned rules could not have been framed within the purview
of Section 34. Provisions clearly impinge upon the independence
of the Bar and encroach upon the exclusive power conferred upon
the Bar Council of the State and the Bar Council of India under
the Advocates Act. The amendment made to the Rules 14(A) to
14(D) have to be held to be ultra vires the power of the High
Court. [Para 52][627-H; 628-A-D]
Supreme Court Bar Association v. Union of India &
Anr (1998) 4 SCC 409 : [1998] 2 SCR 795; Bar Council
of Maharashtra v. M.V. Dabholkar & Ors. (1975) 2
SCC 702 : [1976] 1 SCR 306 - followed
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Ex-Capt. Harish Uppal v. Union of India (2003) 2 SCC
45 : [2002] 5 Suppl. SCR 186; Mahipal Singh Rana v.
State of U.P. (2016) 8 SCC 335 - distinguished.
R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC
106 : [2009] 11 SCR 1026 - relied on.
Pravin C. Shah v. K. A. Mohd. Ali (2001) 8 SCC 650 :
[2001] 3 Suppl. SCR 675; Bar Council of India v.
High Court of Kerala (2004) 6 SCC 311 : [2004] 1
Suppl. SCR 649; Mohit Chaudhary, Advocate, In re,
(2017) 16 SCC 78 : [2017] 8 SCR 764; In reference:
Vinay Chandra Mishra (1995) 2 SCC 584 : [1995]
2 SCR 638; Bar Council of India v. High Court of
Kerala (2004) 6 SCC 311 : [2004] 1 Suppl. SCR 649
- referred to.
Case Law Reference
[1998] 2 SCR 795
followed
Para 4
[2001] 3 Suppl. SCR 675
referred to
Para 5
[2002] 5 Suppl. SCR 186
distinguished Para 6
[2004] 1 Suppl. SCR 649
referred to
Para 6
[2017] 8 SCR 764
referred to
Para 8
(2016) 8 SCC 335
distinguished Para 9
[1995] 2 SCR 638
referred to
Para 53
[1976] 1 SCR 306
followed
Para 54
[2009) 11 SCR 1026
relied on
Para 60
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
612 of 2016.
Under Article 32 of the Constitution of India.
Petitioner-in-person.
Mohan Parasaran, Sr. Adv., Nikhil Nayyar, N. Sai Vinod,
Dhananjay Baijal, Divyanshu Rai Naveen Hegde, Advs. for the
Respondent.
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The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. The petitioner, who is an Advocate, has
filed the petition under Article 32 of the Constitution of India, questioning
the vires of amended Rules 14-A, 14-B, 14-C and 14-D of the Rules of
High Court of Madras, 1970 made by the High Court of Madras under
section 34(1) of the Advocates' Act, 1961 (hereinafter referred to as,
'the Advocates' Act').
2. The High Court has inserted Rule 14A in the Rules of High
Court of Madras, 1970 empowering the High Court to debar an Advocate
from practicing. The High Court has been empowered to take action
under Rule 14-B where any misconduct referred to under Rule 14-A is
committed by an Advocate before the High Court then the High Court
can debar him from appearing before the High Court and all subordinate
courts. Under Rule 14-B(v) the Principal District Judge has been
empowered to initiate action against the Advocate concerned and debar
him from appearing before any court within such District. In case
misconduct is committed before any subordinate court, the concerned
court shall submit a report to the Principal District Judge and in that
case, the Principal District Judge shall have the power to take appropriate
action. The procedure to be followed has been provided in the newly
inserted Rule 14-C and pending inquiry, there is power conferred by
way of Rule 14-D to pass an interim order prohibiting the Advocate
concerned from appearing before the High Court or the subordinate
courts. The amended provisions of Rule 14A, 14B, 14C and 14D are
extracted hereunder:
 "14-A: Power to Debar:
(vii) An Advocate who is found to have accepted money in the
name of a Judge or on the pretext of influencing him; or
(viii) An Advocate who is found to have tampered with the Court
record or Court order; or
(ix) An Advocate who browbeats and/or abuses a Judge or Judicial
Officer; or
(x) An Advocate who is found to have sent or spread unfounded
and unsubstantiated allegations/petitions against a Judicial Officer
or a Judge to the Superior Court; or
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(xi) An Advocate who actively participates in a procession inside
the Court campus and/or involves in gherao inside the Court Hall
or holds placard inside the Court Hall; or
(xii) An Advocate who appears in the Court under the influence
of liquor;
shall be debarred from appearing before the High Court or
Subordinate Courts permanently or for such period as the Court
may think fit and the Registrar 28 General shall thereupon report
the said fact to the Bar Council of Tamil Nadu.
14-B: Power to take action:-
(iv) Where any such misconduct referred to under Rule 14-A is
committed by an Advocate before the High Court, the High Court
shall have the power to initiate action against the Advocate
concerned and debar him from appearing before the High Court
and all Subordinate Courts.
(v) Where any such misconduct referred to under Rule 14-A is
committed by an Advocate before the Court of Principal District
Judge, the Principal District Judge shall have the power to initiate
action against the Advocate concerned and debar him from
appearing before any Court within such District.
(vi) Where any such misconduct referred to under Rule 14-A is
committed by an Advocate before any subordinate court, the Court
concerned shall submit a report to the Principal District Court
within whose jurisdiction it is situate and on receipt of such report,
the Principal District Judge shall have the power to initiate action
against the Advocate concerned and debar him from appearing
before any Court within such District.
14-C: Procedure to be followed:-
The High Court or the Court of Principal District Judge, as the
case may be, shall, before making an order under Rule 14-A,
issue to such Advocate a summon returnable before it, requiring
the Advocate to appear and show cause against the matters
alleged in the summons and the summons shall if practicable, be
served personally upon him.
R. MUTHUKRISHNAN v. REGISTRAR GENERAL OF THE
HIGH COURT OF JUDICATURE AT MADRAS [ARUN MISHRA, J.]
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14-D: Power to pass Interim Order:-
The High Court or the Court of Principal District Judge may, before
making the Final Order under Rule 14-C, pass an interim order
prohibiting the Advocate concerned from appearing before the
High Court or Subordinate Courts, as the case may be, in
appropriate cases, as it may deem fit, pending inquiry."
3. Rule 14-A provides that an Advocate who is found to have
accepted money in the name of a Judge or on the pretext of influencing
him; or who has tampered with the court record or court order; or
browbeats and/or abuses a Judge or judicial officer; or is responsible for
sending or spreading unfounded and unsubstantiated allegations/petitions
against a judicial officer or a Judge to the superior court; or actively
participates in a procession inside the court campus and/or involves in
gherao inside the court hall, or holds placard inside the court hall or
appears in the court under the influence of liquor, the courts have been
empowered to pass an interim order of suspension pending enquiry, and
ultimately to debar him from appearing in the High Court and all other
subordinate courts, as the case may be.
4. The aforesaid amended Rule 14-A to 14-D came into force
with effect from the date of its publication in the Gazette on 25.5.2016.
Petitioner has questioned the vires of amended Rules 14A to D on the
ground of being violative of Articles 14 and 19(1)(g) of the Constitution
of India, as also sections 30, 34(1), 35 and 49(1)(c) of the Advocates'
Act, as the power to debar for such misconduct has been conferred
upon the Bar Council of Tamil Nadu and Puducherry and the High Court
could not have framed such rules within ken of section 34(1) of the
Advocates Act. The High Court could have framed rules as to the
'conditions subject to which an advocate shall be permitted to practice
in the High Court and the courts subordinate thereto'. Debarment by
way of disciplinary measure is outside the purview of section 34(1) of
the Act. The Bar Council enrolls Advocates and the power to debar for
misconduct lies with the Bar Council. The effort is to confer the unbridled
power of control over the Advocates which is against the rule of law.
Misconduct has been defined under section 35 of the Advocates Act.
Reliance has been placed on a Constitution Bench decision of this Court
in Supreme Court Bar Association v. Union of India & Anr. (1998) 4
SCC 409.
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5. The High Court of Judicature at Madras in its counter affidavit
has pointed out that the rules are kept in abeyance for the time being and
the Review Committee is yet to take a decision in the matter of reviewing
the rules. In the reply filed the High Court has justified the amendment
made to the rules on the ground that they have been framed in compliance
with the directions issued by this Court in R.K. Anand v. Registrar,
Delhi High Court (2009) 8 SCC 106 in which this Court has directed
the High Courts to frame rules under section 34 of the Advocates Act
and to frame the rules for having Advocates-on-Record based on the
pattern of this Court. It has been further pointed out that the conduct
and appearance of an advocate inside the court premises are within the
jurisdiction of a court to regulate. The High Court has relied upon the
decision in Pravin C. Shah v. K. A. Mohd. Ali (2001) 8 SCC 650 in
which vires of similar rule was upheld as such the rules framed debarring
the advocates for misconduct in court are thus permissible.
6. The High Court has also relied upon the decision in Ex-Capt.
Harish Uppal v. Union of India (2003) 2 SCC 45 to contend that court
has the power to debar advocates on being found guilty of contempt
and/or unprofessional or unbecoming conduct, from appearing before
the courts. The High Court has referred to the decision in Bar Council
of India v. High Court of Kerala (2004) 6 SCC 311.
7. The High Court has contended that the rules have been framed
within the framework of the directions issued by this Court and in exercise
of the power conferred under section 34(1) of the Advocates Act.
Pursuant to the directions issued in R.K. Anand's case (supra), the matter
was placed before the High Court's Rule Committee on 17.3.2010. The
Committee consisting of Judges, Members of the Bar Council and
members of the Bar was formed, and the minutes were approved by the
Full Court on 23.9.2010. Thereafter the Chief Justice of the High Court
of Madras on 2.9.2014 constituted a Committee consisting of two Judges,
the Chairman of Bar Council of Tamil Nadu & Puducherry, Advocate
General of the High Court, President, Madras Bar Association, President,
Madras High Court Advocates' Association, and the President of Women
Lawyers' Association to finalise the Rules.
8. The High Court has further contended in the reply that the
Director, Government of India, Ministry of Home Affairs vide
communication dated 31.5.2007 enclosed a copy of the 'Guidelines' and
informed the Chief Secretaries of the State Governments to review and
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strengthen the security arrangements for the High Courts and District/
subordinate courts in the country to avoid any untoward incident. The
High Court has further contended that there have been numerous
instances of abject misbehaviour by the advocates within the premises
of the High Court of Madras in the year 2015. The advocates have
rendered the functioning of the court utterly impossible by resorting to
activities like holding protests and waving placards inside the court halls,
raising slogans and marching down the corridors of the court. Some
advocates had resorted to using hand-held microphones to disrupt the
proceedings of the Madurai Bench and even invaded the chambers of
the Judges. There were two incidents when there were bomb hoaxes
where clock-like devices were smuggled into the court premises and
placed in certain areas. The Judges of the High Court were feeling
totally insecure. Even CISF had to be employed. Thus, there was an
urgent need to maintain the safety and majesty of the court and rule of
law. After various meetings, the Rules were framed and notified. Order
4 Rule 10 of the Supreme Court Rules, 2013 is similar to Rules which
have been framed. In Mohit Chaudhary, Advocate, In re, (2017) 16
SCC 78, this Court had suspended the contemnor from practicing as an
Advocate on Record for a period of one month.
9. In Mahipal Singh Rana v. State of U.P. (2016) 8 SCC 335,
the court has observed that the Bar Council of India might require
restructuring on the lines of other regulatory professional bodies, and
had requested the Law Commission to prepare a report. An Advisory
Committee was constituted by the Bar Council of India. A Sub-Committee
on 'Strikes, Boycotts & Abstaining from Court Works' was also
constituted. Law Commission had finalized and published Report No.266
dated 23.3.2017 and has taken note of the rules framed by the Madras
High Court. Court has a right to regulate the conduct of the advocates
and the appearance inside the court. As such it is not a fit case to exercise
extraordinary jurisdiction and a prayer has been made to dismiss the
writ petition.
10. The petitioner in person has urged that rules are ultra vires
and impermissible to be framed within scope of section 34(1) of the
Advocates Act. They take away the independence of the Bar and run
contrary to the Constitution Bench decision of this Court in Supreme
Court Bar Association v. Union of India (supra).
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11. Shri Mohan Parasaran, learned senior counsel appearing on
behalf of the High Court, has contended that the rules have been framed
within the ambit of section 34(1) and in tune with the directions issued
by this Court in R.K. Anand v. Registrar, Delhi High Court (supra).
He has also referred to various other decisions. It was submitted that
under section 34 of the Advocates Act, the High Court is empowered to
frame rules to debar the advocate in case of unprofessional and/or
unbecoming conduct of an advocate. Advocates have no right to go on
strike or give a call of boycott, not even on a token strike, as has been
observed in Ex.-Capt. Harish Uppal (supra). It was also observed that
the court may now have to frame specific rules debarring advocates,
guilty of contempt and/or unprofessional or unbecoming conduct, from
appearing before the courts. Advocates appear in court subject to such
conditions as are laid down by the court, and practice outside court shall
be subject to the conditions laid down by the Bar Council of India. He
has also relied upon Bar Council of India v. High Court of Kerala
(2004) 6 SCC 311 in which the validity of Rule 11 of the Rules framed
by the High Court of Kerala came up for consideration. Learned senior
counsel has also referred to the provisions contained in Order IV Rule
10 of the Supreme Court Rules, 2013 framed by this Court with respect
to debarring an Advocate on Record who is guilty of misconduct or of
conduct unbecoming of an Advocate-on-Record, an order may be passed
to remove his name from the register of Advocates on Record either
permanently or for such period as the court may think fit. This Court has
punished an advocate on record and has debarred him for a period of
one month in the case of Mohit Chaudhary, Advocate (supra). The
High Court has framed the rules to preserve the dignity of the court and
protect rule of law. Considering the prevailing situation, it was necessary
to bring order in the premises of the High Court. Thus framing of rules
became necessary. The Bar Council of India and the State Bar Council
have failed to fulfil the duties enjoined upon them. Therefore, it became
incumbent upon the High Court to act as observed in Mahipal Singh
Rana (supra) by this Court.
12. This Court has issued a notice on the petition on 9.10.2017
and on 4.9.2018. The Court observed that prima facie the rules framed
by the High Court appear to be encroaching on the disciplinary power of
the Bar Council. As the time was prayed by the High Court to submit
the report of the Review Committee, time was granted. In spite of the
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same, the Review Committee has not considered the matter, considering
the importance of the matter and the stand taken justifying the rules. We
have heard the same on merits and have also taken into consideration
the detailed written submissions filed on behalf of the High Court.
13. The Advocates Act has been enacted pursuant to the
recommendations of the All India Bar Committee made in 1953 after
taking into account the recommendations of the Law Commission on
the subject of the reforms of judicial administration. The main features
of the Bill for the enactment of the Act include the creation of autonomous
Bar Council, one for the whole of India and one for each State. The Act
has been enacted to amend and consolidate the law relating to the legal
practitioners and to provide for the constitution of the Bar Council and
an All India Bar.
14. The legal profession cannot be equated with any other
traditional professions. It is not commercial in nature and is a noble one
considering the nature of duties to be performed and its impact on the
society.The independence of the Bar and autonomy of the Bar Council
has been ensured statutorily in order to preserve the very democracy
itself and to ensure that judiciary remains strong. Where Bar has not
performed the duty independently and has become a sycophant that
ultimately results in the denigrating of the judicial system and judiciary
itself. There cannot be existence of a strong judicial system without an
independent Bar.
15. It cannot be gainsaid that lawyers have contributed in the
struggle for independence of the nation. They have helped in the framing
of the Constitution of India and have helped the Courts in evolving
jurisprudence by doing hard labor and research work. The nobility of
the legal system is to be ensured at all costs so that the Constitution
remains vibrant and to expand its interpretation so as to meet new
challenges.
16. It is basically the lawyers who bring the cause to the Court
are supposed to protect the rights of individuals of equality and freedom
as constitutionally envisaged and to ensure the country is governed by
the rule of law. Considering the significance of the Bar in maintaining
the rule of law, right to be treated equally and enforcement of various
other fundamental rights, and to ensure that various institutions work
within their parameters, its independence becomes imperative and cannot
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be compromised. The lawyers are supposed to be fearless and
independent in the protection of rights of litigants. What lawyers are
supposed to protect, is the legal system and procedure of law of deciding
the cases.
17. Role of Bar in the legal system is significant. The bar is
supposed to be the spokesperson for the judiciary as Judges do not speak.
People listen to the great lawyers and people are inspired by their thoughts.
They are remembered and quoted with reverence. It is the duty of the
Bar to protect honest judges and not to ruin their reputation and at the
same time to ensure that corrupt judges are not spared. However,
lawyers cannot go to the streets or go on strike except when democracy
itself is in danger and the entire judicial system is at stake. In order to
improve the system, they have to take recourse to the legally available
methods by lodging complaint against corrupt judges to the appropriate
administrative authorities and not to level such allegation in the public.
The corruption is intolerable in the judiciary.
18. The Bar is an integral part of the judicial administration. In
order to ensure that judiciary remains an effective tool, it is absolutely
necessary that Bar and Bench maintain dignity and decorum of each
other. The mutual reverence is absolutely necessary. The Judges are to
be respected by the Bar, they have in-turn equally to respect the Bar,
observance of mutual dignity, decorum of both is necessary and above
all they have to maintain self-respect too.
19. It is the joint responsibility of the Bar and the Bench to ensure
that equal justice is imparted to all and that nobody is deprived of justice
due to economic reasons or social backwardness. The judgment rendered
by a Judge is based upon the dint of hard work and quality of the arguments
that are advanced before him by the lawyers. There is no room for
arrogance either for a lawyer or for a Judge.
20. There is a fine balance between the Bar and the Bench that
has to be maintained as the independence of the Judges and judiciary is
supreme. The independence of the Bar is on equal footing, it cannot be
ignored and compromised and if lawyers have the fear of the judiciary
or from elsewhere, that is not conducive to the effectiveness of judiciary
itself, that would be self-destructive.
21. Independent Bar and independent Bench form the backbone
of the democracy. In order to preserve the very independence, the
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observance of constitutional values, mutual reverence and self-respect
are absolutely necessary. Bar and Bench are complementary to each
other. Without active cooperation of the Bar and the Bench, it is not
possible to preserve the rule of law and its dignity. Equal and evenhanded justice is the hallmark of the judicial system.