Role of advocates and contempt of court

THE UNSEEMLY controversy about the age of the Chief Justice of India raised by some members of the Bar at Chennai and the conduct of an advocate resulting in suo motu contempt proceedings in the Madras High Court, warrants a study on the role of advocates who take oath to uphold the provisions of the Constitution while getting enrolled as members of the Bar and also regarding some of the important provisions of the Contempt of Courts Act in the interest of the public, for upholding the majesty of law and the dignity of the noble profession. Any advocate should know that the President of India is the highest authority to decide on the age of the judges and there cannot be further arguments over the same.

The Advocates Act 1961 has repealed a host of enactments including Indian Bar Council Act. When the new Bar Council of India came into existence, it framed rules called the Bar Council of India rules as empowered by the Advocates Act. Such rules contain a provision specifically prohibiting an advocate from adjusting the fees payable to him by a client against his own personal liability to the client. As a rule, an advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client (vide Rule 24). Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section used the expression ``misconduct professional or otherwise''. The word ``misconduct'' is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct (2001(1) L.W. 284). Members of legal fraternity are guardians of the rights of the individual and society at large (1997(1) L.W. 297).

The relationship between advocate and client is based only on confidence and trust. If an advocate is allowed to give advice to one party and appear for the opposite party in court the confidence reposed in him will be lost and his conduct will amount to prostitution of the profession. Counsel appearing for one party is not expected to please both his party and the opposite party and if he does so, it will amount to professional misconduct and breach of trust.

The Supreme Court in the decision in All India Judges Association vs. Union of India (AIR 1992 SC 165) has observed that the administration of justice and the part to be played by the advocates in the system must be looked into from the point of view of litigant public and the right to life and liberty guaranteed under Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution. The Supreme Court and various landmark decisions upheld the legal profession as a noble profession.

The law is the embodiment of everything that is excellent and the members of the Bar who have a vast reservoir of wisdom, strength and courage are its torchbearers. Krishna Iyer. J., in the Bar Council of India vs. M.V. Dabholkar (AIR 1976 SC 242) observed that the vital role of the lawyer depends upon his probity and professional lifestyle. The central function of the legal profession is to promote the administration of justice. As monopoly to legal profession has been statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of confidence of the community in him as a vehicle of social justice. ``Law is not trade, nor briefs merchandise.'' Law is universally described as an `honourable' profession and is distinguished by its rules of ethics without which advocacy would degenerate into a trade or mere sordid pursuit for livelihood and accumulation of wealth.

Flimsy grounds

An unfortunate trend we see nowadays is that advocates indiscriminately indulging in boycotting courts on various grounds causing disruption in court work and difficulties to the clients. In most cases the reasons for such boycott are flimsy like an advocate being beaten by police, want of proper posting of judges in courts, demand for new courts, etc. There are several other methods to achieve the purpose instead of boycotting courts. The Supreme Court has come down heavily on such practice: ``We may further add that the litigant, who suffers entirely on account of his advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in a situation like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such a direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must be only for his innocent client, such a claim is repugnant to any principle of fair play and canon of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.'' Per R. P. Sethi, J (concurring): With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provision of the Advocates Act (2001(1)L.W.61).

Just like individuals, corporations and other companies are also liable to action of contempt. Likewise officers, agents and others who act for a corporation or company and who knowingly violate or disobey an injunction against the corporation or companies are punishable for contempt even though the injunction is only against the corporation or company.

It is a recognised principle that an apology to purge a contempt should be sincere, penitent and unqualified and acceptable in the circumstances of the case. If the apology is a mere ruse to escape punishment it cannot be accepted (1996(1)L.W. 639).

As regards the punishment, that punishment in one matter cannot be the guiding factor for punishment in another. Punishment has a co-relation with facts and in each case where punishment is imposed, it must be the resultant effect of the acts complained of - more serious the violation, more severe is the punishment - and that has been the accepted norm in matters though however within the prescribed limits.

The court has a duty to protect the interest of the public in the due administration of justice. It is hence entrusted with the powers to punish for contempt of court, not only to protect the rights of the public, but also to protect the dignity of the court against insult or injury. The purpose of contempt jurisdiction is to uphold the majesty and dignity of law courts in the minds of the public. In essence, the law of contempt is the protector of the seat of justice more than a person or judge sitting in that seat (2000(3)L.W.448).

Not personal protection

So far as the suo motu proceedings are concerned, the object of such proceedings is not to afford protection to judges personally from imputation to which they may be exposed as individuals: it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any other party, the authority of the court is lowered and the sense of confidence, which the people have in the administration of justice, is weakened. It has been held in Dhananjay Sharma vs. State of Haryana (AIR 1955 S.C. 1795) as follows: ``Any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. Filing of false affidavits or making false statements on oath in courts aims at striking blow at the rule of law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institution because the very structure of an ordered life is put at stake.

``The pure fountain of justice shall have to remain unsullied, and that is the purpose for initiation of contempt proceedings. The object of discipline, enforced by courts, in case of contempt, is not to vindicate the dignity of the court, but to prevent undue interference with the administration of justice. The High Court, as a court of record, possessed inherent powers and jurisdiction, which is a special one, not arising or derived from Contempt of Courts Act.

``Of late, throughout the country certain sad events are taking place, which tend to affect the administration of justice. Not only individuals, but self proclaimed groups as well as members of the Bar and law enforcing agencies, appear to be responsible for putting spokes in the wheels of administration of justice. Whosoever may be responsible will have to face the consequences, for always the majesty of justice will proclaim itself. We have reached a stage when steps have to be taken to fortify the laws for otherwise force is bound to get justified. Erosion of well- cherished values cannot be allowed.

``Law is supreme and it is intended for the welfare of the people. The Bar had its own tradition, in the part, and it was respected not only for its professional excellence, but also for its participation in all public activity intended for the welfare of the community. Of late, there have been numerous instances where members of the Bar have not followed the code of conduct expected of them, be it inside the court halls or outside it, either in relation with the client or even with any member of the public. It will be no answer to state that there has been deterioration in all professions for the legal profession not only safeguards the rights of several other professions, but is also called upon to perform the professional work, after mastering the nuances in every other profession for those who seek justice from courts belong to a variety of professions. Needless to add that it must be the reason why the legal profession stands kept on the pinnacle. It may be the right of any member of the Bar, in his personal life, to have his own political affiliation, but when it comes to court proceedings politics cannot be introduced into it. Similarly the law enforcing agency, the police force, which is expected to do its duty fearlessly cannot dubiously fall a prey in the machination from extraneous power mongering forces in performance of their onerous tasks. It is quite possible to visualise that quite often spokes are put in the wheels of investigation, by agencies extraneous, but a policeman should have the will power to go ahead with his rightful work, ignoring the possible pinpricks. It was the duty of the lawyers to protect the dignity and decorum of the judiciary. If lawyers fail in their duty, the faith of the people in the Judiciary will be undermined to a large extent. it is said that lawyers are the custodians of civilisation. Lawyers have to discharge their duty with dignity, decorum and discipline.

``However it would be imperative to remind ourselves that self- regulation alone would retrieve the profession from lost social respect and enable the members of the profession to keep the law as a useful instrument of social order'' (1996 Writ L.R. 57).

In the light of the above observation, I fervently hope that the members of the Bar will realise their duties and responsibilities and desist from identifying with their clients.

C. LAKSHMI NARAIN

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