Contempt by an Advocate, and the Two Jurisdictions That Bite

What a court can still do about the advocate

Three things, and knowing them is what makes an answer complete rather than merely negative.

Punish the contempt. Simple imprisonment up to six months, a fine up to two thousand rupees, or both, under section 12(1), subject to the apology proviso and to section 13(a), which forbids a sentence unless the contempt substantially interferes with the due course of justice.

Refer the matter to the Bar Council. Making a statutory authority perform its duty according to law is, in the Court's own words, unexceptionable. The State Bar Council may then act under section 35(1) on a complaint or otherwise.

Refuse audience until the contempt is purged. This is the point students find surprising and it is the most examinable thing in the chapter.

Pravin C. Shah: the right to practise is not the right of audience

Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041, (2001) 8 SCC 650, decided 9 October 2001 by K.T. Thomas and S.N. Variava JJ.

Facts. An advocate who had been punished for contempt of court sought to resume appearing in courts. The question was whether a court may refuse to permit an advocate convicted of contempt to appear before it until he has purged himself of the contempt, and whether such a rule trespasses on the Bar Council's disciplinary jurisdiction.

Held. The right to practise and the right of audience are not the same thing. A court has power to regulate who may appear before it, and a rule framed by the High Court refusing audience to an advocate found guilty of contempt until he purges the contempt was upheld. Purging is by conduct showing genuine remorse, not by the mere expiry of the sentence.

Why it does not offend Supreme Court Bar Association. Because the court is not suspending his licence; his name remains on the roll and he remains an advocate. It is regulating its own proceedings, which is a power the Advocates Act itself preserves: section 34(1) empowers the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practise in it and in the courts subordinate to it.

So the two cases sit together: the Bar Council controls the roll; the court controls its own courtroom.

Mahipal Singh Rana: the modern statement

Mahipal Singh Rana v. State of Uttar Pradesh, AIR 2016 SC 3302, (2016) 8 SCC 335, decided 5 July 2016 by Anil R. Dave, Kurian Joseph and Adarsh Kumar Goel JJ, judgment by Dave J.

Facts. An advocate was convicted of criminal contempt of a civil court for intimidating and threatening a Civil Judge. The appeal raised both the contempt conviction and what should follow for his practice.

Held. The contempt conviction was upheld. The Court considered the interaction between a contempt conviction and the disciplinary jurisdiction of the Bar Councils, and dealt with the consequences for the advocate's right to practise within the framework of the Advocates Act rather than by assuming the power struck down in Supreme Court Bar Association.

It is the case to cite for the proposition that the 1998 boundary is still being worked out, and that the modern approach is to route the consequence for practice through the statutory scheme.

Section 24A and a contempt conviction

A neat point that is easy marks.

Section 24A of the Advocates Act disqualifies from enrolment a person convicted of an offence involving moral turpitude, with the disqualification ceasing two years after release.

A contempt conviction is not within section 24A on its face, because contempt under the Contempt of Courts Act is not ordinarily an offence involving moral turpitude, and in any event section 24A governs admission to the roll, not an advocate already on it.

So the consequence of a contempt conviction for an enrolled advocate runs through section 35, not section 24A. Chapter [Disqualification for Enrolment: Section 24A and the Two-Year Rule] sets out the distinction.

The advocate's own duties in the courtroom

The rules that keep an advocate out of contempt are the ones in Section I of the Bar Council rules, taught in chapter [Duty to the Court: Rules 1 to 10].

Rule 1: conduct himself with dignity and self-respect, and not be servile; and where there is proper ground for serious complaint against a judicial officer, it is his right and duty to submit the grievance to the proper authorities. Read with section 6 of the Contempt Act, a statement made in good faith about a subordinate judge to the High Court is not contempt, which is what makes rule 1 workable.

Rule 2: a respectful attitude, the dignity of judicial office being essential for the survival of a free community.

Rule 4: restrain the client, refuse to act if he persists, and use restrained language in correspondence, pleadings and argument.

In Re: Sanjiv Datta, (1995) 3 SCC 619, contains the Court's statement of the standards the profession is expected to maintain, and is the passage to quote on why more is expected of an advocate than of a member of the public.

Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275, is the modern case on what happens when an advocate falls below them and then apologises: an apology is not a weapon of defence to purge a guilty conscience, and must be sincere and offered at the earliest opportunity.

A worked example

An advocate, refused an adjournment, tells a High Court judge in open court that he is corrupt, and then telephones the judge's residence that evening to repeat it.

Contempt? Yes. The courtroom remark is criminal contempt under section 2(c)(i), scandalising and lowering the authority of the court, and it is in the face of the court, so the procedure is section 14: the Court may detain him and shall, before rising that day or as soon as possible, inform him in writing of the charge, hear him, and make an order. The telephone call is not in the face of the court, so proceedings for it would follow section 15.

Misconduct? Yes, independently. Rule 1 and rule 2 are breached, and rule 3 forbids private communications with a judge relating to a pending case absolutely. The State Bar Council may act under section 35(1) on a complaint or otherwise.

Can the High Court suspend his practice as punishment for the contempt? No. Supreme Court Bar Association v. Union of India, and the reasoning applies to a High Court under Article 215 as to the Supreme Court under Article 129.

Can it refuse to hear him until he purges the contempt? Yes, under a rule made under section 34(1) of the Advocates Act, on Pravin C. Shah, because the right of audience is not the right to practise, and purging requires conduct showing genuine remorse.

What should the court do about his practice? Refer the matter to the State Bar Council, which may reprimand, suspend or remove under section 35(3), with appeals under sections 37 and 38.

He apologises the next morning, fully and unreservedly. The proviso to section 12(1) allows discharge or remission on an apology made to the satisfaction of the Court, and by the Explanation an apology is not to be rejected merely because it is qualified or conditional if made bona fide. On Vishram Singh Raghubanshi the qualities that matter are sincerity and earliness, both present here.

He does not apologise, and the remark was muttered and heard by nobody. Section 13(a) forbids a sentence unless the contempt substantially interferes, or tends substantially to interfere, with the due course of justice.

What beginners get wrong

The two proceedings are not alternatives. Both can run.

A court cannot suspend an advocate's licence as a contempt punishment.

But it can refuse him audience, which is a different thing.

Purging is not the expiry of the sentence. It is conduct showing genuine remorse.

Section 24A does not apply to an enrolled advocate. His conviction is dealt with under section 35.

An apology must be early and sincere, not a fallback after losing the argument.

Quick revision

• One act, two jurisdictions: contempt under Articles 129 and 215 and the Contempt of Courts Act, tried by the court; misconduct under section 35 of the Advocates Act, tried by a disciplinary committee. Neither bars the other.
• Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895: a court cannot debar an advocate from practice as a punishment for contempt; the disciplinary jurisdiction is the Bar Councils', and the Court may not take over and perform a statutory body's functions. It overtook the suspension of practice ordered in In Re: Vinay Chandra Mishra.
• Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041: the right to practise and the right of audience are not the same; a High Court rule refusing audience until the contempt is purged was upheld; purging is by conduct showing genuine remorse, not the expiry of the sentence. The rule-making power is section 34(1) of the Advocates Act.
• Mahipal Singh Rana v. State of Uttar Pradesh, AIR 2016 SC 3302: contempt conviction for intimidating and threatening a Civil Judge upheld; the consequences for practice dealt with within the framework of the Advocates Act.
• Section 24A governs enrolment and moral turpitude; an enrolled advocate's conviction runs through section 35.
• The rules that keep an advocate clear: rules 1, 2, 3 and 4, with section 6 of the Contempt Act protecting a good faith complaint about a subordinate judge made to the High Court.
• In Re: Sanjiv Datta on the standards expected; Vishram Singh Raghubanshi on apologies.

Test yourself

1. Can the same conduct be both contempt and professional misconduct? Yes. They are separate jurisdictions with different sources, forums, purposes and punishments, and neither proceeding excludes the other. A court may fine the advocate for contempt while a disciplinary committee suspends him for misconduct on the same facts.

2. May a court punish an advocate's contempt by suspending his practice? No. In Supreme Court Bar Association v. Union of India a Constitution Bench held that the Court cannot, in exercise of Article 129 read with Article 142, debar a practising lawyer from his profession as a punishment for contempt, the disciplinary jurisdiction being conferred by the Advocates Act on the Bar Councils.

3. May a court refuse to hear an advocate convicted of contempt? Yes. In Pravin C. Shah v. K.A. Mohd. Ali the Supreme Court upheld a High Court rule refusing audience to such an advocate until he purged the contempt, holding that the right to practise and the right of audience are not the same thing and that a court may regulate who appears before it.

4. What is the source of that rule-making power? Section 34(1) of the Advocates Act, which empowers the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate to it.

5. How is a contempt purged? By conduct showing genuine remorse, not by the mere expiry of the sentence, on Pravin C. Shah. Relatedly, Vishram Singh Raghubanshi holds that an apology is not a weapon of defence to purge a guilty conscience and must be sincere and offered at the earliest opportunity.

6. Does a contempt conviction disqualify an advocate under section 24A? No. Section 24A governs admission to the roll and applies to a person applying for enrolment, on conviction for an offence involving moral turpitude. An advocate already on the roll is dealt with under section 35 as having been guilty of professional or other misconduct.