A

B

c

D

E

F

G

H

48

BAR

COUNCIL OF MAHARASHTRA

v.

M. V. DABHOLKAR ETC. ETC.

October 3, 1975

[\l. R. KRISHNA IYER, R. S. SARKARIA, A. C. GUPTA AND S. MURTAZA

FAZAL ALI, JJ.]

Advocates Act, 1961-S. 35(i) and r. 36 of the Rules made under the

Act-Scope of.

Profcssio11a/ co11duct-So/iciti11g Jl'Drk-lf a111ou11ts to misconduct-Disci­

plinary Committee of State Bar Council-D'i!fects in its w()'rki11g.

The rule of law cannot be built on the ruins of democracy. for where law

ends tyranny begins. If such be the keynote thought for the very survival

of

our Republic, the integral bond between the lawyer and the public

is un­

breakable. And the vital role of the lawyer depends upon his probity and

professional life-style.

Be it remembered that tbe central function of the legal

profession is to promote the administration

of justice. If the practice of law

is thus a public utility

of great implications and a monopoly is statutorily

granted by the nation,

it obligates.

the lawyer to observe scrupulously those

norms which make

him worthy of the confidence of the community in him as

a vehicle of justice-social justice. The Bar cannot behave

wit~ doubtful

scruples

or strive to thrive on litigation. Canons

or conduct cannot be cry•

stallised into rigid rules but felt by the collective conscience of the practi­

tioners as right. [55 F-H].

Justice cannot be attained without the stream being pellucid throughout

its course and that

is of

_great public concern, not merelv professional care. [50 F].

The respondents, who were lawyers practising in. criminal courts, were

charged with professional misconduct under

s. 35(1) of the Advocates Act,

1961.

in that they positioned themselves at the entrance to the Magistrates'

Courts, watchful

of the arrival of potential litigants and at sight, rushed

towards the clients in

an ugly scrimmage to snatch the briefs. to lay claim

to

the engagements even by physical fight to undercut fees, and by this un-'

edifying exhibition. sometimes carried even into the Bar Library, solicited

and secured work for themselves. The Bar Council of Maharashtra considered

the complaint received from the High Court against the lawyers and referred

the matter to its Disciplinary Committee for fu~ther probe. The Disciplinary

Committee

of the State Bar Council held the respondents guilty of professional

misconduct and

suspend·~d them from practising as advocates for a period

of three years. On appeal, the Disciplinar·y Committee of the Bar Council

of India held that under r. 36 of the rules framed under s. 49(c) of the AdvCJ'o'

cates Act. in order to be amenable to the disciplinary jurisdiction the advocates

must have

(i) solicited work (ii) from a particular person and (iii)

with

respect to a case. It held that unless the three elements were satisfied it could

not be said that an advocate had acted beyond the standard of professional con­

duct and etiquette. It. ther-efore, absolved all the respondents of the charge

of professional misconduct.

The State Bar Council has come in appeal to

this Court.

HELD : Rule 36 of the rules framed

·under s. 49 (c) of the Advocates

Act, fairly construed,· sets, out wholesome rules of professional. conducn and

the dis-section of the said rule, the way it has been done by the Disciplinary

Tribunal, disfigur~s it. (59 CJ.

( 1) The canons of ethics and propriety for the legal profession totally taboo

conduct

by way of'

solictiting, advertising. scrambling and other obnoxious

practices, subtle or clumsy_ for betterment of legal business. Law is no trade,

briefs

no merchandise and so the leaven of commercial competition or

procure­

ment should not vulgarise the legal profession •. [60 CJ.

' J

•

llAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J.) 49

(2) (a) The ;procedure adopted by the State Bar Council in referring the

cases to its Disciplinary Committee i~ in due compliance with s. 35 (1) of the

Advocates Act. (51 G--D].

(b) The contention that the resolution of the Bar Council did not ex facie

disclose that it had reason to believe that the advocates were guilty of profes­

sional misconduct had no merit. The reqµirement of "reason to believe"

cannot be converted into a formalised procedural road blocik, it being essen­

tially a barrier against frivolous enquiries. It is implicit in· the resoh1tion

of the Bar Council, when it says· that it has considered the complaint and

decided to refer the matter to the Disciplinary Committee, that it had reason

to believe as prescribed bl( the statute. [51 Dc-E].

(3) The State Tribunal has, from a processual angle, fallen far short of

norms. like proper numbering of witnesses and exhibits, indexing and avoidance

of mixing up of all cases together, default in examination of the respondents,

consideration separately

of

the Circumstances of each delinquent for convicting

and sentencing purposes. More attention to the specificity in recording evidence

against each deviant instead

of Jestimonial clubbing together

of all the res­

pondents, would have made the proceedings cl'~arer, fairer and in keeping

with court methodology. without over-judicialised formalities.

The

consolida­

tion of all cases and trying them all. jointly, although the charges were different

episodes, was obviously violative of fair trial.

[59

D'-FJ.

(4)(a) The profound regret of these cases lies not only ·in the appellate

Disciplinary Tribunal's subversive view of the Jaw

of professional conduct that

attempted solicitation by snatching briefs and catching clients

i5 of no ethical

moment,

or contravention of the relevant provisions, but also in the naive

innocence

of fair and speedy procedure displayed by the State Disciplinary

Tribunal in clubbing together various charges levelled against the advocates

in one common trial, mixing up the

evide!]ce against many, recording omni­

bus testimony slipshodly, not maintaining a record of each day's proceedings,

examining witnesses in the absence of son1c respondents. taking. eight years to

finish a trial involving depositions of four witn'esses and omission to consider

the evidence against each alleged delinquent individtially in the semi-penal pro­

ceeding>. True, a statutory Tribunal may ordinarily regulate its procedure

without

too much rigidity, subject to the rules of natural justice, but large­

scale disregard of well-known

norm, of fair process makes one wonder whether

some

at least of the respondents had not been handicapped and whether justice

may not

b'e a casualty if the Tribunaj is not alerted about its processual respon­

sibilities. [52 B-DJ.

(b) The Appellate Tribunal was wholly wrong in applying r. 36 which

was promulgated crnly in 1965 while the alle;;;ed misconduct to&k place earlier.

What this Tribunal forgot was

that the legal profession in

India has been with

us even before the British and coming to decades

of this century, the

provi­

sions of s. 35 of the Advocates Act, s. 10 of the Bar Councils Act and· other

enactments regulating the conduct of legal practitioner& have not turned on the

splitting

up of the text of

apy rule but on the broad canons. of ethics and high

tone of behaviour well-established by case law and long accepted bv the soul

of the bar. Professional ethics were

born with the organised bar, even as

moral norms arose with civilised society. The exercise in

discovoring the

three elements of

r. 36 was as unserviceable as it was supererogatory. [59

G-l-Ll.

(c) It is a misfortune that a disciplinary body of a dimensionally g:eat

and growing public utility professi·on has lost its vision, blinkered by r. 36 (as

.

1

• misconstrued and trisected bv it.) [60 G].

('.IVJL APPELLATE JURISDICTION: Civil Appeal Nos. 1461 tc

1468 of 1974.

From the Judgment and .Order dated the 14th April, 1974, of

the Disciplinary Committee of the Bar Council of India New Delhi

in D.C. Appeals Nos. 15 to 19 and 21, 22 and 25 of 1973.

B

c

D

F

G

A

B

50 SUPREME COURT REPORTS. [I 976] 2 S.C.R.

V. S. Desai, Vimal Dave, Miss Kai/ash Mehta for the Appdlants.

Respondents app~ared in prson in CAs. 1461 and 1467-1468.

Sakuddi11 F. Bootwala and Mrs. Urmi/a Sirur for Respondents in

CAs. 1462-1464.

V. N.

Gonpu/e for Respondent in C.A. 1465.

D. V. Patel and Mrs. K. Hingorani for the Bar Council of India.

S. K. Sinha for the Bihar State Bar Council.

The Judgment of the Court was dclievcrecl by

KRISHNA ~YER, _J.-These. appeals have filled us as much with deep

c sorrow as with pamccl. surprise. The story ot th.: alleged 'professional

misconduct' and. the msensitivity ol', the disciplinary authority to

aberrant pro!'ess10nal conduct have been the source of our distress

as

we will presently explain, after unfurling

the factual canvas first. '

The first chapter of the litigation in this Court related to the stand­

i11g of the State Bar Council to app~al to this Court, under s.38 of the

D Advocates Act, 1961 (the Act, for short) against appca'late decision

of _the Disciplinary Tribunal appointed by the Bar Council of India.

This Court upheld the competence to appeal, thus leading us to the

present stage of disposing of the eight cases on merits. ·

The epileptic episodes.:___what other epithet can adequately express

the solicitation circus dramatised by the witnesses as practised by the

E panel of advocate-respondents before us ?-make us blush in the nar­

ration. For, after all, do we not all together belong to the 'inner re­

public of l{cnchcr and bar'? The putative delinquents arc lawyers prac­

tising in the criminal courts in Bombay City. Their profession or:fains

ia high levd of ethics as much in the mea!ls as in the e11ds. Justice

\cannot be attained without the stream being pellucid throug'1ou: its

course and that 'is of great public concern, not merely professional care.

F Briefly expressed, these practitioners, according to testimony recorded

by the State Disciplinary Tribunal, positioned themselves at the en­

trance to the Magistrates' Courts, watchful of the arrival of potential

litigants.

At sight, they rushed towards the clients in an ugly scrim­

mage to snatch the briefs, to lay claim to the engagements even by

physical

fight, to undercut fees, and by this unedifying exhibition, some­

times carried even into the

Bar Library, solicited and secured work for

G themselves.

If these charges were true, any member of the Bar

with elementary ethics in his bosom would

be outraged at his brethren's

conduct and yet, in rev.ersal of the State Disciplinary Conunillce's find­

ing, the appellate Tribunal at the national level appears to have ,ei:1-

tered a verdict, based on a three point formula, that this conduct, even

if true, was after all an attempt to solicit practice and did not cross

the borderline of misconduct?

The Bar Council of the

State of Maha-

H rashtra (the appellant before

us) and the Bar Council of India which

is a party respondent, have expressed consternation

at this view of the

law of professional misconduct and we share this alarm. Were this

view right, it

is difficult to call the legal profession noble. Were this

,.

....

J

)

..

•

BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J.) 51

understanding of deviant behaviour sound, there is little to distinguish

'between railway porters and legal practitioners although we do not

mean to hurt the former and have mentioned a past practice,

to drive .

home our present

poillit? We do not wish to dilate further on the evi­

dence in

so far as it concerns each of the respondent-advocates in view

of certain developments which we will presently notice. There are

eight cases

but we are relieved from dissecting the evidence against

most of them for reasons which we will hopefully and shortly state.

The Bar Council of Maharashtra, by its resolution No. 29 dated

August 8, 1964 considered the complaint received from the High Court

against one Kelawala and

15 other Advocates among whom are those

charged with professional misconduct and covered by the present

appeals, under s.35 ( 1) of the Act, and presumably having reason to

believe that the professional misconduct alleged required a further

probe referred the case to its disciplinary committee. This procedure

is in due compliance with s.35 ( 1)

of' the Act and, although the res­

pondent in C.A. 1467

/74 (A. K. Doshi) has c.ontended that the

resolution of the

Bar Council does not ex facie disclose that it had

reason to

believe that the advocates involved were guilty of professional

misconduct,

we

see no merit in it. The requirement of 'reason to be­

lieve' cannot be converted into a formalised procedural road block,

it

being essentially a barrier against frivolous enquiries. It is implici't in

the resolution

of the Bar Council, when it says that it bas considered

the complaint and decided

to refer the matter to the disciplinary com­

mittee,

tMt it bad reason to believe, as prescribed by the statute.

Such blanket reference to the disciplinary body, so far as we are

concerned, related to the respondent in C.A. 14161/74 (Dbabolkar),

C.A. 1462/74 (Bhagtani), C.A. 1463/74 (Talati), C.A. 1464/74

(Kelawala), C.A. 1465/74 (Dixit), C.A. 1466/74 (Mandalia), C.A.

1467 /74 (Doshi) and C.A. 1468/74 (Raisinghani). All the cases

were tried together

as a unified proceeding and disposed of by a com­mon judgment by the Disciplinary Committee, a methodology condu­

cive to confusion and prejudice

as we will explain later in this

judg­

ment. The respondents in the various appeals before us were found

guilty 'of conduct which seriously lowers the reputation

of the Bar in

the eyes of the public'

arid they were suspended from practising as

Advocates for a period of three years. Appeals were carried to· the

Bar Council of India: and,, in accordance with the statutory provision,

they were referred to the Disciplinary Committee appointed by it under

s. 37(2) of the Act. The Appellate Disciplinary Committee heard the

appeals and absolved them of professional misconduct. Aggrieved

by this verdict of reversal, the Bar Council of Maharashtra. bas aonealP.d

to this Court. The initial hurdle of locus standi has been surmounted,

as stated earlier, we have been addressed arguments on the merits hy

Shri V. S. Desai on behalf of the appellant. He bas canvassed the

correctness of the finding

of fact in each case. although with

varvin~

degrees of diffidence, but turned bis forensic fusillade on the somewhat

startling concept of professional misconduct adopted by that discipli­

nary Tribunal.

A

B

c

D

E

F

G

H

A

B

c

D

E

F

G

H

52

SUPREME COURT REPORTS [1976] 2 S.C.R.

We will proceed to deal with each appeal separately so far as the

factual foundat10n for the charges is co!)cerned but discuss the legal

question later as it affects not

Il1erely the advocates ranged as respon­

dents but the Bar in India and the public in the country. The pro­

found regret of these cases lies not only in the appellate disciplinary

tribunal's subversive view of the law of professional conduct. that

attempted solicitation by snatching

briefs. and catching clients is

of no ethical moment, or contravention of the relevant

provis10ns, but

also in the naive innocence

of fair and speedy procedure displayed by

the

State Disciplinary Tribunal in clubbing together various charges

levelled against

16 advocates in one common trial, mixing up the evi­

dence against many,

recording omnibus testimony slipshodly, not

maintaining a record of each day's proceedings, examining witnesses in

the absence

of some respondents, taking eight years to finish a trial

involving depositions

of four witnesses and the crowning piece, omis­

sion to consider the evidence against each alleged delinquent indivi­

dually in the semi-penal proceedings. True, a statutory tribunal may

ordinarily regulate its procedure without too much rigidity, subject to

the rules

of natural .iustice, but large-scale

disregatt! of well-known

norm of fair process makes us wonder whether some at least of the

respondents have not been handicapped and whether justice

may not

b~

a casualty if the tribunal is not alerted about its processual responsibi-.

lities.

We have some observations to make about the Tribunals at the State and at the appellate levels in the further stages of this judgment.

However,

we find it convenient to dispose of the appeals on the

evi­

denoe, on the assumption that if, in fact, there have bc·~n snatching and

fighting and like soliCitation exercises indulged in by any of the respon­

dents, such conduct is in gross breach of professional behaviour and

invites punishment.

{

A case-by-case disposal is desirable and so we begin with Dabholkar

(respondent in C.A. 1461/74) who appeared in person to plead

in

defence. The evidence against him is far from satisfactory and suffers

from generalised imputation of misconduct against a group

oJ' guilty

lawyers.

To dissect and pick out is an erroneous process, except

where individualised activities are clearly

deposed to. Moreover, the

only witness who implicates him swears :

'I have not seen him actually

snatching away the papers. I did not hear

(he talk Mr. Dabholkar had

with the persons'. Moreover, he

was a senior public prosecutor.

\Ve

also record the fact that he expressed distress as the arguments moved

on. Apart from the weak and mixed evidence against him, there

is

the circumstance that he is around 68 years old. With a ring of truth

he submitted that he was too old

to continue his practice in the

pro-·

fession and had resolved to retire into the sequeMered vale "of life. He

frankly admitted that, even apart from the evidence,

if there were any

sins of the past, he would not pursue the path of professional impro­

priety hereafter having dPcided virtuallv to step out

of the Bar. except

for a limited purnose.

He had iust four

ca<es left with him which he

desirnrl to complete, having received fees. He further represented that

he did not intend to accent anv new briefs or aooear in anv Court

except to the little extent that tlie Bombay Paints & Allied Products

..

'

'

)

BAR COVNCIL v. M. v. DABHOLKAR (Krishna Iyer, !.) 53

Limited (Chembur, Bombay), a large company which. occasionally

engaged him in small cases chose to brief him.

We are inclined to take

him at his word, particularly because he

has-put himself out of harm's

way by a clear assurance about his future plans. On the evidence,

we exonerate him from prqfessional misconduct and otherwise w;:;

record his solemn statement to the Court.

Shri Bhagthani, respondent in C.A. 1462/74, has not engaged

counsel. nor appeared in person, but

as we examined the evidence,

assisted by Shri Desai,

we found precious little against him. That

extinguishes the charge. No need, therefore, arises for punishing him

or reversing the appellate Tribunal's acquittal.

The

responldent in C.A. 1463/74 is Talati. He has been found

'not guilty'

in appeal but, as we perused the evidence, it became fairly

clear that some acts of misconduct had been made out, although the

evidence suffered from omnibus implication. His .counsel, Mr. Zakiuddin F. Bootwala, however made a submission which has moved

us into showing some consideration for this respondent. Shri Zaki

represented that his client had stood the vexatious misfortune of a

long, protracted, litigation before the

two tribunals.

anld a later round

in this Court when the question of

locus standi of the

State Bar Coun­

cil was· gone into. He was in poor circumstances and had suffered con­

siderably on this score. Further, he has given an undertaking expres­

sing unqualified regret for his deviant behaviour and has prayed for the

clemency of the Court, promising to turn a

new leaf of proper profes­

sional conduct,

if he were permitted to practice. Taking note of the

compassionate conspectus of

circull_!stances attendant on his case and

in

view of the tender of unconditional regret which expiates, in part,

his guilt, we allow the appeal, but

reduce the period of suspension

inflicted by way of punishment by the Maharashtra Tribunal from

three years to a period up to December 31, this year ( 197 5) . In short,

we find him guilty

aad reluctantly restore the verdict of the original

tribunal, but reduce the punishment to suspension from practice,

as

aforesaid.

The respondent in C.A. 1464/74

is Kelawala. His counsel, Mr.

Zaki, submitted that this practitioner had become purblind and

was

ready to give an undertaking to the Court that he would no longer

practice in the profession.

While there is sonie evidence against him,

an overall view of the testimony does not persualde us to take a serious

view of the case against him. Moreover, being old and n·earcblind

and having undertaken to withdraw from the profession for ever, it is

but fair that he spends the evening years left to him without the stigma

of gross misconduct. In this view, we do not disturb the finding of

the Disciplinary Committee of the Bar Council of

Tndia, hut record the

undertaking

filed by Shri Zaki that his client

Kelawala will not practice

the profession of law any longer.

The resoondent

in C.A. 1465/74 is Dixit for whom Shri Gannule

appeared. Shri Desai, for the appellant, toak us through the evidence

A

B

c

D

E

F

G

·H

A

B

c

D

E

F

G

H

54 SUPREME COURT REPORTS (1976] 2 S.C.R.

against this lawyer but fairly agreed that the evidence was, by any

standard,, madequate to brmg home the guilty of misconduci. We.

readily hold him rightly absolved from profes~jonal misconduct.

. The respondent in C.A. 1466/74 is Mandalia. He did not appear

m person or through counsel. The reason is fairly obvious. The

eviaence

is so little that it is not possible nor proper to pick out with

precision and assurance any particular 'soliciting' act to infer guilt.

Shri Desai, for the appellant,

was fair enough to accede to this

posi­

tion. His exculpation cannot, therefore, be interfered with.

The only contesting respondent

is

Doshi-C.A. 1467 /74. He

contests his gmlt and pursues his plea with nghteous persistence

and challenges the evidence and its credibility projecting

his grievance

about processual improprieties.

We will consider both these facts of

his legitimate criticism despite

his cantankerous arguments which we

have

heard with forbearanc.e, remembering that a party arguing his

own case may, perhaps, not be able to discipline himself to observe

the minimal decorum that advorncy in Court obligates. The respo

1adent

displayed, as the proceedings in this Court ran on, his art of irritatiug

interruptions,

his exercises in popping up

and down heedless of the

Court's admonition, and his skill in rambling references to what was

not on record. The fine art of advocacy suffers mayhem when irre­

verant men indelicately brush with it. The State Tiibunal's records

reveal that Shri Doshi had not spared their patience

or sense of perti­

nence. Having said all this,

we are bound to examine the evidence

against him fairly. Such a scrutiny shows that the best witness

Shri

Shertukde, the President of the Bar Association and otherwise a res­

pected Member of the Bar, has not involved him in any malpractice.

Even Shri Pathare, th1:. only one to rope him in, merely gives omnibus

testimony ambivalent in places and unspecific about some, including

Doshi. There

is little else brought home with clarity against loqua­

cious Doshi.

To convict him out of the

vague, lips of Pathare may per­

haps be a credulous folly. The grouping of a nl]mber of advocates in

a sort of mass trial has prejudiced Shri Doshi, a consequence which

could and should have been avoided.

He had other grievances of

denial of fair opportunity which'

we could not

y,~rify for want of a daily

diary or order sheet.

We are satisfied by a perusal of the record that

this respondent has had an impressive background of social service.

commendable testimonials of

his legal skills from competent persons

and some law practice in various Courts and consultancy work for

social welfare institutions which are apt

to dissuade him from the dis­

reputable bouts in the 'pathological' area of the Esplanade

Police

Courts in Bombay. Even assuming that this overzealous gentleman had

exceeded the strict bounds of propriety,

we are not

satisfielcl that the

charge of professional misconduct, as laid. has been brought home to -

him. What we have observed about his conduct in this Court must

serve

as a sufficient admonition to wean him away from improper con­

duct.

We do not interfere with the exculpation secured by him before

the appellate Tribunal hopeful that he will canalize his urofessional

energies in a more disciplined way to be useful to himself and, more

•

'

'

)

I"

'

•

BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J:) 55

importantly, to his 'u'.1solicited' clientele. After all, even a sinner has A

a future and given better court manners and less turbulent beLicosity,

Shri Doshi appears to have a fair professional weather ahead in the

City.

We hold him unblemished so far as the vice of

solicitation is

concerned, but caution him to refine himself in advocacy.

Shri Raisinghani is the respondent in C.A. 1468/74. Shri V. · S.

Desai took us through the evidence agailist him and although he is 65 B ,

years old, ihe evidence shows that he has physically fought two rival

advocates in the course of snatching the briefs from clients, entering

the Esplanade criminal courts. One of these

fights resulted

ii.1 his

trousers being torn and the other assault by him was on

Mr. Mandalia.

one of the respondents in these appeals.

Shri Mandalia had filed a

complaint against Raisinghani but in the crimmal court they lived down

their earlier skirmish and compounded the case.

Be that as it may, C

we find that

Shri Raisinghani is not merely an old man but a refugee

from Pakistan who, leaving his properties there has migrated to Ahme­

dabad with his family. Apparently he is in penurious environs and

stay in the refugee colony in Bombay, incidentally attending to his

claims to the properties left behind in Pakistan and acquiring some

evacuee property in lieu of what he has lost. Staying in Kalyan

Refugee Camp this lawyer, afflicted with distress and dotage,

is also D

attending the Magistrate's C()urt to make a living. This commissera-

tive social mi)ieu may not absolve him of the misconduct which, we arc

satisfied, the testimony in the case, has established. Even so, Shree

Raisinghani has appeared in person and has given an undertaking

expressing remorse, praying to be shown clemency and assuring that,

economic pressure notwithstanding, he will not go anywhere near pro­

fessional pollution in the last years of his practice at the Bar.

We

are E

inclined to take a sympathetic view of his septuagenarian situation,

record his apology and assurance, restore the verdict of

guilt by the State Disciplinary Committee but reduce the punitive part of it to ;i

period of suspension until December 31, this year (1975).

Now to the legal issue bearing on canons of professional conduct.

The rule of law cannot be built on the ruins

of democracy, for where F

law ends tyranny begins.

If such be the keynote

thought for the very

survival of our Republic, the integral bond between the lawyer and the

public

is unbreakable. And.

ilie Vital role of the lawyer depends upon

his probity and professional life-style. Be it remembered that the cen-

tral function of the legal profession

is to promote the administration of

Justice. If the practice of law is _thus a public utility of great implica-

tions and a monopoly

is statutorily granted by the nation, it obligates G the lawyer to observe scrupulously those noqns which make him

worthy of ilie confidence of the community in him as a vehicle of

justice-social justice. The Bar cannot behave with doubtful scru~

plcs or strive to thrive on litigation. Canons of conduct cannot be

crystallised into rigid rules but felt by the collective conscience of the

practitioners as right : -

"It must be a conscience alive to the proprieties and the

improprieties incident to the discharge of a sacred public

-L

1276 SCI/75

H

A

B

c

D

E

G

H

56

SUPREME COURT REPORTS [1976] 2 S.C.R.

trust. It must be a conscience governed by the rejection of

self-interest and selfish ambition.

It must be a conscience

propelled by a consuming desire to play a leading role

in the

fair and impartial

admini:itration of ju§tice, to the end that

public confidence may be kept undiminished

at all

times in

the belief that we shall ·always seek truth :.!_nd justice in the

pres((rvation of the rnle of law. It must be a conscience,

not shaped by rigid rules of doubtful validity,

but answerable

only to a moral code which

woulli drive irre_sponsible judges

from the profession. Without such a conscience, there

should be no judge(!) "-and, we may add, no lawyer.

Such is the high standard set for professional conduct

as expounded by

courts in this country and .elsewhere.

These background observations will serve to size-up the grave

mis­

apprehension of the law of professional ethics by the tribunal appoint­

ed by the

Bar Council of India. The disciplinary body, acquitting

everyone on

non-violation of bounds of propriety argued :

"Rule 36 (of the Bar Council of l]ldia on Standards of

Professional Conduct and Etiquett·e) is as follows:

An Advocate shall not solicit work or advertise either

directly, or indirectly whether by circular, advertisements,

touts, personal communications, intervie~s not warranted

by personal relations, furnishing newspaper comments

or

procuring his photograph to be published in connection

with cases

in which he has been engaged or

.concemed .. "

Hence in order to be amendable to disciplinary jurisdiction,

the Advocates must have

(1) solicited work (2) from a par­

ticular person

(3) with respect to a case. Unless all the

three elements are satisfied, it cannot be said that an Advocate

has acted beyond the standard of professional conduct and

etiquette.

It has been stated that the conduct of the Advocate

concerned did not conform

to the

highest standards of the

legal profession.

It is not that everybody must conform to

the

hi~hest standards of the legal profession. It is enou~

if an Advocate conforms to the standards of professional con­

duct and etiquette as referr_ed to in the rules."

* * * * *

"He (witness Mantri) says further that 7 Advocates

who are personally nresent today I have seen each

of them standinllJ either on the irround floor, near the ·lift or on the

first floor either near the lift or in the lobbies of the

(1) Hastings, Hon. John S .• "Judicial Ethics as it Relates to Participation in Money­

Malcing Activities"-Conferencc on Judicial Ethics, p. 8, The School of Law,

University of Chicago (1964).

,,

•

...

I

. ,:

...

..

BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, I.)

Esplanade Court and trying to solicit work from the persons

coming to the Esplanade Court. This mere attempt to

solicit

is

rwthing."

* * *

57

"In order to be within the mischief of rule 36, not merely

canvassing is enough, but canvassing must be for a case with

the person who had not till then engaged a lawy,er. There

is nothing

to show either of these things : none of the persons

·

who might fiave been subjectec! to these solicitations as they

are. stated, have been examined to ·prove the case. Hence

this evidence

does not establish anything within rule

36." ...

All that is necessary for us to see is wb_etoher the three items

referred to have been complied with and

we find that they

have not been complied with because

we do not know what

was the nature of the communication, we. do not

koow in

connection with which case the solicitation took place and

with whom the conversation took place. Hence Mr. Sher­

tukade's evidence is not sufficient for the purpose of taking

any disciplinary action under rub 36.

* * *

"Mr. Krishnarao V. Pathumdi is the first witness in this

case (case of Raisinghani). He says: "I had seen Kelawala,

Mr. Baria; Mr

.. Raisinghani, Mr. Bhagtani approaching the

people visiting the Court and

soliciting work from

them".

This we have already stated is far below the requirement

required to be proved under rule

36 .... He says that he had

seen Mr. Raisinghani approaching people and

soliciting

work. He did not ascertain the names of the persons who

approached because it

was not his

busin~ss. But as stated.

above, this evidence does not establish the

three elements

required to be proved under rule 36 because we do not know

what

was the personal communication between him and

the

persons solicited. We do not know whether it related to a

case or not." .... Then the next witness is Mr. Sitaram

Gajanan Shertukade. In cross-examination by Mr. Rai­

singhani he

says :

"I have seen Mr. Raisinghani accosting

people.

I have seen Mr ..

Raisinghani snatching the papers

from the hands of the litigating public. I have seen this more .

than 10 times. The litigating public from whom the papers

were snatched did not say anything that there was a fight bet­

ween Mr. Raisinghani and other lawver over the papers which

were snatched. I did not contact those persons from whom

the paoers were snatched

1.ior talked to them so he was

not concerned with this. Therefore his evidence cannot be

sufficient." (Emphasis, ours)

A

B

c

D

E

F

G

H

A

B

c

D

E

F

G

H

58

SUPREMJ; COURT REPORTS [1976] 2 s.c.R.

We may, illustratively, quote an excerpt from the evidence of the

Bar Association President and one-time Bar Council Member Shri

Shertukade to show the injury to the profile of the profession the curi­

ous view of the disciplinary tribunal has inflicted :

"I have seen Mr. Raisinghani accosting people. I have

seen

Mr. Raisinghani snatching the papers from the hands of

litigating public_ I have seen this more than

10 times ...

There was a fight between Mr. Rasinghani and Mr. Baria. l

made oral complaint to the C.P.M. I do not remember who

was

_present at that time. In that fight Mr. Raisinghani's

pant was torn. . . There was assault by Mr. Raisinghani on

Mr. Mandalia and I had advised Mr. Mandalia to file a

complaint against Mr. Raisinghani. Mr. Mandalia did

file

a case against Mr. Raisinghani but it was

compounded."

How cail a disciplinary auth9rity, aware of its accountability to the

Indian Bar, functioning as the stern monitor holding the punitive mace

to preserve professional purity and promote public commitment and

appreciative

of what is disgraceful, dishonourable and unbecoming

judged by the standards

of conduct set for this noble calling and devia­

tions damaging

to its public image, find its way to hold such horren­

dous misbehaviour as snatching, catching, fighting,

and under-cutting as

not outraging the canons of conduct without exposing itself to the

charge of dereliction of public duty on the trisection of r. 36 and

blind

to the 'law for lawyers'?

It has been universally understood, wherever there is an organised

bar assisting in administering justice, tpat an attorney, solicitor, barris­

ter

or advocate will be suspended or disbarred for soliciting legal busi­

ness.

And the 'snatching' species of solicitation are more revolting

than 'ambulance chasing',

advertising and the like. If the learned pro­

fession

is not a money-making

trade or a scramble for porterage but a

branch of the administration of justice, the view of the appellate dis­

ciplinary tribunal is ir(defensible and deleterious. We, as a legal

fraternity, mQst and shall live up to the second and live down the first,

by observance

of high standards and dedication to the dynamic

rule of

law in a developing country.

It is unfortunate that the Maharashtra tribunal has slurred over

vital procedural guidelines. Professional misconduct prescribed by

s. 35 of

the Act has to be understood in the setting of a calling to which

Lincoln, Gandhi,

Lenin and a galaxy of great men belonged. The high

moral tone

and the considerable public -service the bar is associated

with

and its key role in the developmental and dispute-processing acti­

vities and, above all, in the building

up of

a just society and constitu­

tional order, has earned for it a monopoly to practise law and an auto­

nomy to regulate its own internal discipline. This heavy public trust

should not be forfeited by legalising or licensing fights for briefs,

affrays

in the rush towards clients, under-cutting and wrangling among

members. Indeed, we were scandalized when one of the respondents

cited a decision under the Suppression

of Immoral Traffic Act to prove

...

'1 .

-

r

l

l

~·

(

BAR COUNCIL v. M. v. DABHOLKAR (Krishna Iyer, J.) 59

what is 'solici_ting'. The odious attempt to equate by implication the

standards for the two professions was given up after

we severely

frown­

ed on it. But the disciplinary tribunal's view that an attempt to solicit

did 'Jot matter, that professional misconduct rested solely on r. 36 of

the rules framed under

s. 49{c) and that r.

36 was made up of three .

components, shows how an orientation course in canons of conduct

A

and etiquette in the socio-ethical setting of the lawyer, the public and B.

professional responsibility may be an educative asset to disciplinary

tribunals and Bar Councils which appoint tribunals and regulate pro­

fessional conduct by rules. Cicero called the Jaw 'a noble prokssion',

but Frederick the Great described lawyers as 'leeches'. We agree that

r. 36, fairly construed, sets out wholesome rules of professional con-

duct although the canons of ethics ~xisted even prior to r. 36 and the

dissection of the said rule, the way it has been done by the disciplinary C

tribunal, disfigures it. It

is also clear that r. 36 is not the onlv nidus

of professional ethics.

Indeed, the State tribunal

has, from a processual angle, fallen far

short of norms like proper numqering of witnesses and exhibits, index-

ing and avoidance of mixing up of all cases together, default in exami-D

nation of the respondents consideration, separately, of the circums­

tances of each delinquent for convicting and sentencing purposes. More

attention to the specificity in recording evidence against each deviant

instead of testimonial clubbing togethi:r of all the respondents, would

have made

the. proceedings clearer, fairer and in keeping with court

methodology, without

over~judicialised formalities. Indeed. the con-

solidation of 16 cases and trying them all jointly although the charges E

were different episodes,

were obviously violative of fair trial. And

8 years for an eaquiry so simple and brief: We express the hope that

improvement of this branch of law relating to disciplinary proceedings

will receive better attention from the Bar Council and the tribunal

members.

Wh•at prophylactic prescription can ensure fundamentally

fair hearing

or due process better than by choosing persons of sense

and sensibility familiar with

the basics of trial procedure and conscien-F

tious about avoidance of prejudice and delay? Rules may regulate,

but men apply them. Both are important.

The appellate disciplinary tribunal

was wholly

wronfl in applying

r. 36 which was promulgated only in 1965 while the alleged miscon-

duct took place earlier. What this tribunal forgot was that the G

legal profession in India has been with us even before the British and

coming

to decades of this

centnry, the provisions of r. 35 of the Advo­

cates Act s. 10 of the Bar Councils Act and other enactments regulat-

ing the conduct of legal practitioners have not turned on the splitting

up of the text of any rule but on the broad canons of ethics and high

tone of behaviour well-established by case-law and long accepted by-the

soul of the bar. Professional ethics were born with the organised bar, H

even

as moral norms arose with civilised society. The exercise in

dis­

covering the 'three elements' of r. 36 was as unserviceable as it was

supererogatory.

A

B

c

D

60 SUPREME COURT REPORTS [1976] 2 s.c.R.

The ruling in In the matter of 'P' an Advocate(!); In re : Shri M.

Advocate of Supreme Court of India(

2

); In the matter of an Advo­

cate(3); Govt. Pleader v. Siddick(

4

)

were cited before us and no judge,

nor lawyer

will be in doubt, even without study of case-law, that

snatching briefs by standing at the door of the court house and in­

fighting for this purpose is too dishonourable, disgraceful and un­

becoming to be approved even {or other professions. Imagine two

or three medical men manhantlling a patient to claim him as a client !

The law has suffered. at the hands of the appellate tribunal. Lest

there should be lingering doubts. we hold that the canons

of ethics and

propriety for the legal profession totally taboo conduct by way of soli­

citing, advertising, scrambling and

-other obnoxious practices, subtle or

clumsy, for betterment of legal business. Law is no trade, briefs uo

merchandise and so the leaven of commercial competition

or procure­

ment should

not vulgarise the legal profession.

Canon· 27 of Profes­

sional Ethics of the American Bar Association states :

"It is unprofessional to solicit professional employment

by circulars, advertisements, through touters

or by personal

communications

or interviews not warranted by personal

relations."

We wish to put beyond cavil the new call to the lawyer in the ecoc

E nomic ortler. In the days ahead, legal aid to the poor and the weak.

public interest litigation and other rule-of-law responsibilities will

demand a whole new ra.!lge of responses from the bar or organised

social groups with lawyer members. Indeed, the hope of democracy

is the dynamism

of the

new frontiersmen of the law in this developing

area and what we have observed against solicitation and alleged proftt-

F making vices arc distant from such free service to the community in

the jural sector as part of the profession's tryst with the · People of

India.

G

H

It is a misfortune that a disciplinary body of a dimensionally great

and growing public utility profession has lost its vision, blinkered by

r.

36 (as misconstrued and trisected by

iO. For the practice of Law

with expanding activist horizons, professional ethics cannot be contain­

ed in a

Bar Council rule nor in

tr~ditional cant in the books but in new

canons or conscience which will command the members of the calling

of justice to obey rules of morality and utility, clear in the crystallized

case-law and concrete when tested on the qualms of high norms-

(1) (1964) 1 S. C.R. 697.

(3)

I. L. R. 63 Cal. 869.

(2) (1956)

S. C. R. 811.

(4)

31 Born. L. R. 625.

•

/

•

BAR COUNCIL v. M. v. DABHOLKAR (Krishna lyer, !.) 61

simple enough in given situations, though involved when expressed m

a single sentence. We but touch upon this call to the calling

of law,

as more is not necessary in the facts of these cases.

A

The law has thus been set right, the delinquents identified and

dealt with, based on individualised deserts and the appeals are

dis-B

posed of in the trust that standards and sanctions befitting the national

Bar

_will be maintained in such dignified and deterrent a manner that

public confidence

i~1 this arm of the justice-system is neither shaken

nor shocked.

Parties will bear their costs throughout.

P.B.R.