Case BriefsHigh Courts

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

 

Hot Off The PressNews

No fresh permissions/ renewal of permission shall be granted by the Reserve Bank/AD Category-I banks to any foreign law firm for the opening of Liaison Office in India, till the policy is reviewed based on, among others, final disposal of the matter by the Supreme Court in Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379

Supreme Court has while disposing of the case, held that Advocates enrolled under the Advocates Act, 1961 alone are entitled to practice law in India and that foreign law firms/companies or foreign lawyers cannot practice the profession of law in India.

As such, foreign law firms/companies or foreign lawyers or any other person resident outside India, are not permitted to establish any branch office, project office, liaison office or other place of business in India for the purpose of practicing legal profession. Accordingly, AD Category – I banks are directed not to grant any approval to any branch office, project office, liaison office or other place of business in India under FEMA for the purpose of practicing legal profession in India. Further, they shall bring to the notice of the Reserve Bank in case any such violation of the provisions of the Advocates Act comes to their notice.

All other provisions of the BO/LO/PO policy shall remain unchanged. AD Category – I banks may bring the contents of this circular to the notice of their constituents and customers.

Read the detailed Notification here: NOTIFICATION


Reserve Bank of India

[Press Release dt. 23-11-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka and Mohammad Nawaz, JJ., rejected the writ petitions contested by the members of the Bar.

The challenge in this group of petitions was essential to the notification and the decision-making process followed for designating eighteen Advocates as Senior Advocates. Different writ petitions were filed which were clubbed together due to the nature of the petitions. One of the petitioners who was an advocate practicing in the Court for 44 years had stated in his petition that in an earlier occasion when certain Advocates were designated, he had filed petitions challenging the earlier two notifications issued by which, sixteen Advocates were designated as Senior Advocates but they were dismissed after which he had filed Special Leave Petitions, again the petitions were dismissed but the Apex Court had granted liberty to him to intervene in the writ petition filed by Indira Jaising in the Supreme Court. In the instant petition, he had prayed for quashing the impugned notification and for issuing a writ of mandamus to the High Court of Karnataka to do the entire exercise afresh, based on the applications already received and to issue a writ of mandamus or any other appropriate writ directing the Government of India to frame the Rules in exercise of the powers conferred on it under sub-section (2) of Section 16 of the

Advocates Act, strictly in conformity with the objects and purposes of the Advocates Act. Basically, all the writ petitions contained the same prayer. Statement of objections were filed on behalf of the High Court of Karnataka and the Permanent Committee raising an objection that petitioner could not maintain a writ petition in the nature of public interest litigation for challenging the impugned notification.

The Court while rejecting the petitions explained that as per the guidelines of the Apex Court issued under Article 142 of the Constitution of India, the Permanent Committee is required to make overall assessment on the basis of the points-based formula and such overall assessment was to be placed before the Full Court and there was no dispute that the interviews/interactions were made with an individual candidates from 22nd or 23rd October, 2018 to 3-10-2018. Therefore, there is nothing wrong if all of them were ready with their individual overall assessment on the basis of the points based format by 11-11-2018. Also, they stated that three members of the Permanent Committee were highest constitutional functionaries who had long experience of doing judicial and administrative work. The 4th member being the Advocate General had also a very rich experience and standing in the profession of law and even the 5th member was a distinguished Senior Advocate having long experience at the Bar, thus there stands no reason to interfere with their decision making process following which no directions can be issued to Union of India to frame the Rules for designation of Senior Advocates. [T.N. Raghupathy v. Karnataka High Court, 2020 SCC OnLine Kar 93, decided on 31-01-2020]

Op EdsOP. ED.

Rule 13 of Chapter II of Part VI of the Bar Council of India Rules under the Advocates Act, 1961 specifically state that:

  1. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client’s interests.

Section 120 of the Evidence Act, 1872 only deals with who may testify as a witness and does not lay down any restriction or restraint on the advocate to be a witness in the case where he is acting as an advocate. A counsel for a party should not be his witness in the same case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness.

If, however, in the course of proceedings it is discovered that the advocate is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity. Failure to do the same would amount to professional misconduct under Section 35 of the Advocates Act, 1961. However, if the advocate knew or had reason to believe since the very beginning that he will be an important witness in the case, he has a choice either to appear as a witness or to appear as an advocate. Once he exercises the said choice and chooses to be an advocate in the case, then he cannot be examined as a witness on behalf of the opposite side by retiring from the suit at a subsequent stage.

It is against the etiquette of the Bar that a member of the profession should give evidence in the case in which he is engaged as counsel and no self-respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution. However, a practitioner, who is acting on behalf of one of the parties and conducting litigation for him is debarred under Section 126 of the Evidence Act, 1872 to disclose the communications made to him without the express consent of his client.

If, however, a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate who has been called as witness by the other side, and if, notwithstanding the court’s expression of its opinion, the advocate refuses to withdraw, in such a case, the court has inherent jurisdiction to require the advocate to withdraw. Nevertheless, a counsel is not incompetent to give evidence whether the facts to which he testifies occurred before or after his retainer. It should be noted that merely because the name of an advocate appears in the list of witnesses of opposite party, his vakalatnama does not automatically get relinquished.

However, recently in Kokkanda B. Poondacha v. K.D. Ganapathi[1] the Supreme Court has held that one of the parties in a suit cannot cite the advocate representing the other side as a witness in the list without indicating the purpose for the same. This will ensure that the other side is not deprived of the services of the advocate on frivolous grounds.

Conclusion

Therefore, in light of the above, an advocate can appear as witness in certain instances. However, it should be noted that an accused is entitled to be defended by a counsel of his choice and the prosecution cannot fetter that choice merely by serving subpoena on the advocate to appear as a witness. Furthermore, the Court is also bound to see that the due administration of justice is not, in any way, embarrassed by permitting the advocate to appear as witness.

 

* Associate, Khaitan & Co., New Delhi, email – susanah.naushad@khaitanco.com

[1]  (2011) 12 SCC 600.

Case BriefsSupreme Court

Supreme Court: In a crucial verdict, the bench of AK Goel and UU Lalit, JJ held that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in nonlitigation side.

The Court explained:

“practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also.”

“Fly in and fly out” basis:

  • Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’.
  • In case of a dispute whether a foreign lawyer was limiting himself to “fly in and fly out” on casual basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India.
  • Bar Council of India or Union of India will be at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable even to such cases.

Bar on conducting arbitration in India:

  • There is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
  • If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act. However, they will be governed by code of conduct applicable to the legal profession in India.
  • Bar Council of India or the Union of India are at liberty to frame rules in this regard.

Services provided by BPO Companies:

  • BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive.
  • If their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation

The Court was hearing the appeal arising from the Judgment of Madras High Court in A.K. Balaji v. Government of India, 2012 SCC OnLine Mad 723 : AIR 2012 Mad 124 and Bombay High Court in Lawyers Collective v. Bar Council of India, 2009 SCC OnLine Bom 2028 : 2010 (2) Mah LJ 726 on the issue of whether foreign law firms/lawyers are permitted to practice in India. [Bar Council of India v. A.K. Balaji, 2018 SCC OnLine SC 214, decided on 13.03.2018]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time, the Court held that the legislature never intended a complaint made against an Advocate either from the perspective of the complainant or from the delinquent to be transferred to BCI, again to be sent back. It was held that BCI, while exercising original jurisdiction on transfer of a complaint, cannot exercise the appellate jurisdiction.

The Court, however, took note of the fact that on many occasions disciplinary authority of the State Bar Council does not dispose of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. Looking down upon such practice, the Court said that once a complaint is made by a litigant, it has to follow a definite procedure and is required to be dealt with as per the command of the Act to conclude the disciplinary proceeding within a period of one year from the date of receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council. Not to do something what one is required to do, tantamount to irresponsibility and the prestige of an institution or a statutory body inheres in carrying out the responsibility.

The bench of Dipak Misra and A.M. Khanwilkar, JJ, hence, directed the State Bar Councils to take a periodical stock of cases in each meeting with regard to the progress of the Disciplinary Committee, find out the cause of delay and guide themselves to act with expediency so that the Council, as a statutory body, does its duty as commanded under the Act. [Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, 2017 SCC OnLine SC 351, decided on 06.04.2017]

Case BriefsHigh Courts

Madhya Pradesh High Court: Recently, an application was made under Section 482 CrPC against the order in which the plea of applicants under Section 311 CrPC for recalling witnesses who were already examined and re-examined. The reason given by the applicant was that the counsel who was earlier engaged by the applicants could not put several questions on the material aspects, therefore, they had to change their counsel and because of the inability of their earlier counsel, they pleaded that they were being denied the fair trial. The applicants also took a plea under Section 138 of the Evidence Act which talks about the order of examination of witnesses and re-examination.

To this, it was responded by the counsel from the State that although the free and fair trial is the cardinal principle of criminal jurisprudence, but the applicants had engaged the counsel of their own choice and the applicants were given full opportunity to cross examine the witnesses.

The Court went on to examine both the provisions relied upon by the applicants and their inter-connection. The Court observed that a reading of the provision shows that the expression ‘any’ has been used as a prefix to ‘court’, ‘inquiry’, ‘trial’, ‘other proceeding’, ‘person as a witness’, ‘person in attendance though not summoned as a witness’, and ‘person already examined’. It simply means all that is required to satisfy the court in relation to such evidence that it appears to the court to be essential for the just decision of the case. While Section 138 of the Evidence Act provides for the order of examination of witnesses in the Court. So, the re-examination will be conducted as per the order prescribed under Secion 138 at the desire of ‘any’ person referred to in Secion 311 CrPC and most importantly, at the satisfaction of the Court suggested by Section 311 CrPC that is, paramount for the just decision of the case. In all, the Court meant to convey that such power of allowing re-examination must be used sparingly as well as judiciously with utmost care and caution, only with the purpose of finding the truth or obtaining proper proof of such facts.

The Court citing  Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 explained as to when and under what circumstances such powers must be used. It was held in this case that but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses.

Another principle that the Court emphasised upon is that it’ll always be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. It even warned that justice will be prejudiced if a retrial is followed on every change of a counsel and would be detrimental to the interests of the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.

It even went on to deal with the possibility that if the counsel is physically or mentally unfit to deal with the case, the interests of justice would suffer badly. The Bench suggested that the Advocates Act and the other relevant rules be reviewed in order to ensure the fitness of the counsel in larger interest of the society and also to avoid such pleas as presented in the case before it. The Court persuaded that the Law Commission and the Bar Council of India must look into it. [Paijaram v. State of M.P., M.Cr.C. No.11624/2016, decided on 20.01.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the transparency in the process of designation of senior advocates was sought, the Court directed the matter to be listed in the month of February, 2017 for final hearing along with another related matter filed before the Delhi High Court.

A Writ Petition (C) No.6331 of 2016 titled National Lawyers’ Campaign for Judicial Transparency and Reforms & Anr. Vs. Bar Council of India was filed before the Delhi High Court challenging the constitutional validity of Sections 16 and 23(5) of the Advocates Act, 1961 which provide the statutory basis for designation of lawyers as senior advocates. Hence, the Court said that if the source of power for such designation is itself under challenge it would be more appropriate to hear the matters together by transferring the petition pending in the High Court to this Court.

The 3-judge bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswar Rao, JJ said that the issues touching designation of lawyers as per the prevalent procedure appears to be causing considerable dissatisfaction among a section of the bar which fact is evident from the large number of interventions made in these proceedings and an equally large number of solutions proposed at the bar for improvement of the system. [Indira Jaising v. Supreme Court of India, 2017 SCC OnLine SC 3, order dated 02.01.2017]

Case BriefsHigh Courts

Gujarat High Court: While dismissing an appeal filed by a respondent petitioner who applied for a certificate of practice to the Bar Council of Gujarat while simultaneously rendering services at a corporation, the Division Bench of R. Subhash Reddy, CJ and Vipul M. Pancholi, J said that an advocate who works as a full-time salaried employee of any person, government, firm, corporation or concern, is not entitled to grant of certificate of practice under the Advocates Act, 1961 in view of Rule 49 of the Bar Council of India Rules.

In the instant case, relief was granted previously by means of a writ petition in this Court by a Single Judge to the respondent-petitioner who, having cleared the Bar Council Examination claimed allotment of a temporary enrolment number in the Bar Council of Gujarat. Also, she contended that contractual arrangement of her service with the corporation could not be viewed as employment and it was her case that remuneration paid to her was not by way of salary, as such, there was no employee-employer relationship.

The Court, in view of the conditions of service contract of the corporation observed that the respondent-petitioner was a full-time salaried employee of the corporation, she is not entitled to practice as advocate so long as she continues in such employment and was barred under Rule 49 of the Rules. [Bar Council of Gujarat v. Jalpa Pradeepbhai Desai, 2016 SCC OnLine Guj 5080, decided on 25.12.2016]