Significance of ‘suo motu’ action under S. 35 of Advocates Act | Synoptic report of  Madras HC decision on power and mechanism of Bar Council to take action against erring Advocates

Madras High Court: M. Dhandapani, J., expressed that:

“…advocates are not above law and, in fact, it is the advocates who have to give more respect to the law, as it is their bread and butter.”

“Court should not be a mute spectator to the legal gimmicks…”

Factual Matrix

Respondent Police had registered a case wherein 2nd petitioner was stopped by police officials on duty while she was proceeding in her car. Her car was stopped as the lockdown was imposed and on query she responded that she had come out for the purpose of purchasing medicines, however, respondent 2 informed that she had stated that she came out for purchasing fish.

It was also stated that she had no valid pass for going out during the lockdown period.

In light of the above incident, a challan of Rs 500 was issued

Crux of the matter

The whole melee started on the issuance of challan, after which 2nd petitioner started quarrelling with police officials.

Overall scene that has led to the present matter was that, petitioner 1 claimed and proclaimed that she was an advocate, used filthy, abusive and unparliamentary language, used derogatory words and castigated the police officials on duty and in fact threatened them that they will be stripped off their uniforms, if they tried to intervene and cause any hindrance to the movement of the petitioners.

Police officials were smeared all over with mud by 1st petitioner. Hence, for total violation of lockdown guidelines and non-adherence to the provisions of the Disaster Management Act and violation of the provisions of the Penal Code, petitioners were slapped with by filing of the above complaint and further leading to registration of case.

In Court’s earlier order, Bar Council of Tamil Nadu was directed to file a status report as to the mechanism that was in place for taking action against those unruly advocates, who cast a slur by their act, demeaning the whole legal profession without bothering about the impact of their acts on the disciplined and law-abiding members of the legal fraternity.

As per the status report, a mechanism was envisaged under Section 35 of the Advocates Act for proceeding against a member of the Bar for unprofessional conduct or other misconduct. However, the said provision spoke only about the complaint received on which action is initiated by the Bar Council.

Though, from the status report it was not clear as to the suo motu powers of the Bar Council in dealing with such instances, where the unprofessional act comes to the knowledge of the Bar Council, though not on the basis of a complaint, in which case, the matters such as the present one goes unnoticed, though it was in the public domain and reached the ears and eyes of the public through the visual media.

Sine the status report was silent, it led to the inference that generally no action was taken against such persons, if there was no complaint before the Bar Council.

It is also not clear whether the Bar Council has deliberated on this aspect of initiation of suo motu action against such unruly members of the Bar, who damage and stature and sanctity of the institution and also the members associated with the said institution.

Police personnel | Frontline Workers

It is to be pointed out that the police personnel has been one of the frontline workers in trying to curb the spread of the deadly virus by maintaining the lockdown guidelines imposed by the Government from time to time since March, 2020 and it is further to be pointed out that the pandemic is not yet over and caution has been given about the on-coming of the 3rd and 4th wave, which are predicted to have a still more detrimental impact on the human race.

Police personnels have not only been working overtime but also working with least concern for their family and themselves and have been dedicating their lives to the cause of humanity. In such a scenario, the least expected of the general public and also the intellectual group of legal professionals that they should be given the minimum basic respect and courtesy while handing them.

Advocates Stature

Advocate because of his avocation and his social-minded acts, rise up the pedestal and in fact that was the reason law gave them the stature to question even the police. But that stature should be used in a legal and lawful manner without maligning the reputation and position of any individual person or any official of the Government.

Further, it was elaborated that,

Usage of the position of advocate for other than just causes is nothing but an act of corrupt nature, which requires to be cut down by the sword held in the hands of the statue of Justice.

The doyens of the Bar, more especially the Madras Bar, have held aloft the rule of law for centuries together and Madras Bar is always looked upon with awe and admiration.

 A very significant observation made by the Court was that, nowadays, a few members, just to enrich themselves and for their selfish cause, throw to the winds the larger interest of the legal fraternity and cause irreparable damage to the other members of the legal profession by their acts, as has been done in the present case. 

Bench noted that 1st petitioner indulged in the above-stated act in Infront of her daughter 2nd petitioner who was said to be a 4th-year student. In such a backdrop, it is more expected of the 1st petitioner to teach the 2nd petitioner the ethics for following the rule of law, as otherwise, her act as in the present case, would engrave upon the mind of the 2nd petitioner, which would not be a welcome sign to the legal profession.

High Court expressed that if it allowed such mindset to go unnoticed, it would be a great injustice that this Court would be doing to the legal profession and also to the genuine, dignified and respectful legal professionals, who respect this profession and the robes they wear and would also be sending a wrong signal to send 2nd petitioner who is slowly climbing up the ladder to enter the legal profession.

In view of the above discussion, Court did not grant anticipatory bail to the 1st petitioner.

With regard to 2nd petitioner, Court stated that mere quarrelling with the police officials cannot be said to be a wrongful act, which would attract the penal provisions pressed into service by the respondents against 2nd petitioner and any view taken to the contra would be negating the rights guaranteed to the citizens under the Constitution.

Law Enforcement Agency and their role

The law enforcing agency is manned by persons, who have experience in dealing with criminals and not each and every individual, who commits a mistake should be branded as a criminal by bringing the individual within the four corners of the penal code.

Unnecessary infliction of charges of this nature on every individual would only make the individual look into the loopholes of the system and try to wriggle out of the same after committing mistakes, which should be avoided at all costs.

Hence, Bench stated that respondents shall ponder dropping of all the charges made against 2nd petitioner as there was no substance in the said charges.

Bar Councils’ Mechanism to deal with erring Advocates

Law has given the legal professional privilege and status, but the said privilege is to be used sparingly and only for upholding the majesty of law and following the rule of law. It is not given for the purpose of maligning the rule of law and demeaning the other members of the Bar to the benefit of the individual.

Any infraction by this Court in not safeguarding the interest of the legal profession would be a doom for the entire judiciary and the legal fraternity as a whole.

 Bar Council in its report submitted that it takes action only when it receives any complaint against any erring advocate.  However, what this Court was more bothered about was the fact that not all unprofessional conduct or other misconducts lead to a complaint being written by the Bar Council.

Any unprofessional conduct of a member of the legal profession, coming to the knowledge of the Bar Council through the visual media for which no complaint emanates from any quarter, can the Bar Council allow that instance to go unnoticed for the mere reason that the Advocates Act does not envisage suo motu action?

Court feels that it is high time the Bar Council enforces Section 35 of the Advocates Act, which gives it power and authority to initiate action suo motu on the incidents, which comes to its knowledge through the digital/print media, for which there is no complaint given by any individual.

In view of the above discussions, 2nd petitioner deserves anticipatory bail while dismissing the petitioner insofar as 1st petitioner.

Another issue that the Court dealt was a WhatsApp audio which was circulated by one R. Krishnamurthi, a member of the Bar who circulated the audio on social networking platforms attributing mala fides to the Bench.

advocate has further stated that I should recuse from hearing the case any further and has also attributed dishonesty and also stated that I am taking a lopsided view in favour of the law enforcing agency. Though I have called only for certain particulars, the advocate has gone on to make allegations that I have taken a biased view and I am leaning towards the law enforcing agency and has even casted aspersions against me openly in the social networking domain

Adding to the above, Bench also noted that the advocate imputed allegations against the Judiciary in falling to take any action against the law enforcing agency for very many irregularities committed by them during the pandemic situation, which are not in consonance with law.

The act of the advocate is very much contumacious and attracts initiation of criminal contempt proceedings. The whole audio paints a very gloomy picture and without any material aspersions are attributed against the Bench.

It was noted that the said Krishnamoorthy was a total stranger to the proceedings, yet he had made derogatory statements in the social media against the judicial functions of the Bench, including seeking Judge’s recusal, which was nothing but interference with the administration of justice.

Hence, High Court held that the act of aforesaid advocate attracted Section 2(c) of the Contempt of Courts Act.

This Court would not fall prey to such acts perpetrated by gossip mongers and unscrupulous elements, with a view to scuttle the judicial process and make the judiciary dance to their tunes.

Bench directed Registry to issue notice regarding initiation of Suo Motu Criminal Contempt proceedings against the said R. Krishnamoorthy as provided for under Section 14 of the Contempt of Courts Act and, thereafter, place the matter before the Hon’ble Chief Justice for being listed before the appropriate Bench for hearing. [Tanuja Rajan v. State, 2021 SCC OnLine Mad 2242, decided on 18-06-2021]


Advocates before the Court:

For Petitioners: Ms. A.Louisal Ramesh

For Respondent : Mr. A.Gopinath, GA (Crl. Side) for R-1 Mr. Haja Mohideen Gisthi for R-2


Madras HC | Is there any mechanism to take action against members of legal fraternity for their misbehaviour with officials on duty? Bar council of Tamil Nadu to respond

 

One comment

  • It is a good step and a lesson for erring advocates.

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