The post is in continuation of our previous post here and here. This post is Part 2 of a series on the subject of Standards of Professional Conduct and Etiquette. The post has been contributed by Adv. Adeel Ahmed. He may be reached at email@example.com.
The Advocates’ “Duty to Court” II
In continuation of the earlier discussion, Ethics demands an advocate is expected to be righteous in her/his professional endeavours. ‘Professional Misconduct’ is something which every practising advocate should be mindful of. An advocate shall not only not try and influence the decision of a court by any illegal or improper means, but also an advocate shall use (her)his best efforts to restrain and prevent (her)his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocates (her)himself ought not to do. An advocate shall not consider (her)himself a mere mouth-piece of the client and shall exercise (her)his own judgment in the use of restrained language in correspondence, avoiding scandalous attacks in pleadings, and using intemperate language during arguments in court.
A misdemeanor may invite Contempt. The advocate is at all times expected to be courteous to the Court, and more importantly to the Judge who is the fulcrum of justice. That in the now famous case of In Re Vinay Chandra Mishra where the Hon’ble Supreme Court had taken suo moto cognizance of criminal contempt, in facie of the grave professional misconduct by a Senior Advocate. The catch in the case was that in case an advocate was found guilty of Contempt, the Hon’ble Court could suo moto initiate disciplinary proceedings against the contemnor advocate. This would mean to include that without commencing disciplinary proceedings, as envisaged under the Advocates Act, the Hon’ble Court would itself decide and punish the contemnor advocate without following or adhering to any due process of law or procedure, thus widening the scope of action within the gamut of the Contempt of Courts Act, 1971.
However, the Hon’ble Apex Court in Supreme Court Bar Association Vs. Union of India overruled the case of In Re Vinay Chandra Mishra and recognized the Bar Council’s power to try and punish all those guilty of professional misconduct. The Court opined that power to punish in matters of contempt of Court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether the advocate is also guilty of professional misconduct in a summary manner giving a go by to the procedure prescribed under the Advocates Act, 1961.
But, recently in Mahipal Singh Rana Vs State of Uttar Pradesh, the Hon’ble Apex Court has further expounded on the aforesaid cases, and has held that the Supreme Court and the High Court can prevent the contemnor advocate from appearing before it or other Courts till (s)he purges (her)himself of the contempt which is to be differentiated from suspending/revoking the license/debarring him to practice. Further, the Court held that the bar under Sec.24-A of the Advocates Act, 1961 should be allowed to operate post enrolment and since there is no amendment, the bar is to operate only for two years in terms of the statutory provision.
Thus, the legal position as of the date on the issue of initiating disciplinary action against Contemptuous advocates is that the Supreme Court and the High Courts are themselves the authority to commence and punish the actions of advocates, in terms of professional misconduct as well, if found to be guilty of ‘Contempt of Court’. Therefore, the Courts have taken strict notice of ‘Court-bashing’, as commonly quoted, and as recently observed by The Himachal Pradesh High Court, which has sentenced a lawyer to one-month imprisonment for his contemptuous comment against judges on his Facebook page. The Hon’ble Court held – ‘None can be permitted to intimidate or terrorize Judges by making scandalous unwarranted and baseless imputations against them in the discharge of their judicial functions so as to secure orders which the litigant “wants”.’
(1995) 2 SCC 584
(1998) 4 SCC 409
2016 (8) SCC 335
 [24A. Disqualification for enrolment.—
(1) No person shall be admitted as an advocate on a State roll—
(a) if he is convicted of an offence involving moral turpitude;
(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955); 2[(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude. Explanation.—In this clause, the expression “State” shall have the meaning assigned to it under Article 12 of the Constitution:] Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his 3[release or dismissal or, as the case may be, removal].
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).]
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