http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

CASE NO.:

Appeal (civil) 3050 of 2000

PETITIONER:

PRAVIN C. SHAH

Vs.

RESPONDENT:

K.A. MOHD. ALI & ANR.

DATE OF JUDGMENT: 09/10/2001

BENCH:

K.T.Thomas, S.N.Variava

JUDGMENT:

THOMAS, J.

We thought that the question involved in this appeal

would generate much interest to the legal profession and

hence we issued notices to the Bar Council of India as well

as the State Bar Council concerned. But the Bar Council of

India did not respond to the notice. We therefore requested

Mr. Dushyant A. Dave, Senior Advocate, to help us as amicus

curiae. The learned senior counsel did a commendable job to

help us by projecting a wide screen focussing on the full

profiles of the subject with his usual felicity. We are

beholden to him.

When an advocate was punished for contempt of court

can he appear thereafter as a counsel in the courts, unless

he purges himself of such contempt? If he cannot, then what

is the way he can purge himself of such contempt. That

question has now come to be determined by the Supreme

Court.

This matter concerns an advocate practising mostly in

the courts situated within Ernakulam District of Kerala

State. He was hauled up for contempt of court on two

successive occasions. We wish to skip the facts in both

the said cases which resulted in his being hauled up for

such contempt as those facts have no direct bearing on the

question sought to be decided now. (The detailed facts

leading to the said proceedings have been narrated in the

two decisions of the High Court of Kerala reported in C.N.

Presannan vs. K.A. Mohammed Ali 1991 Criminal Law Journal

2194 and 1991 Criminal Law Journal 2205). Nonetheless it

is necessary to state that the High Court of Kerala found

the respondent-advocate guilty of criminal contempt in both

cases and convicted him under Section 12 of the Contempt of

Courts Act, 1971, and sentenced him in one case to a fine

of Rs.10,000/- (to be credited, if realised, to the funds

of Kerala Legal Aid Board). In the second case he was

sentenced to pay a fine of Rs.2,000/-. Though he challenged

the conviction and sentence imposed on him by the High

Court, he did not succeed in the Supreme Court except

getting the fine of Rs.2,000/- in one case deleted. The

apology tendered by him in this Court was not accepted, for

which a two Judge Bench made the following observation:

We regretfully will not be able to accept

his apology at this belated juncture, but

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

would rather admonish the appellant for his

conduct under our plenary powers under the

constitution, which we do hereby.

The above conviction and sentence and refusal to

accept the apology tendered on his behalf did not create

any ripple in him, so far as his resolve to continue to

appear and conduct cases in the courts was concerned. The

present appellant (who represents an association Lalan

Road Residents Association, Cochin) brought to the notice

of the Bar Council of Kerala that the delinquent advocate

continued to conduct cases before the courts in Ernakulam

District in spite of the conviction and sentence.

The Bar Council of Kerala thereupon initiated

disciplinary proceedings against the respondent-advocate

and finally imposed a punishment on him debarring him from

acting or pleading in any court till he gets himself

purged of the contempt of court by an order of the

appropriate court. The respondent-advocate challenged

the order of the State Bar Council in an appeal filed

before the Bar Council of India. By the impugned order the

Bar Council of India set aside the interdict imposed on

him.

This appeal, in challenge of the aforesaid order of

the Bar Council of India, is preferred by the same person

at whose instance the State Bar Council initiated action

against the respondent-advocate.

While imposing the interdict on the advocate the

Disciplinary Committee of the Bar Council of the State took

into account Rule 11 of the Rules framed by the High Court

of Kerala under Section 34(1) of the Advocates Act, 1961,

regarding conditions and practice of Advocates

(hereinafter referred to as the Rules). Rule 11 reads

thus:

No advocate who has been found guilty of

contempt of Court shall be permitted to

appear, act or plead in any Court unless he

has purged himself of the contempt.

The above rule shows that it was not necessary for the

Disciplinary Committee of the Bar Council to impose the

said interdict as a punishment for misconduct. Even if the

Bar Council had not passed proceedings (which the

Disciplinary Committee of the Bar Council of India has

since set aside as per the impugned order) the delinquent

advocate would have been under the disability contained in

Rule 11 quoted above. It is a self-operating rule for which

only one stipulation need be satisfied i.e. the advocate

concerned should have been found guilty of contempt of

court. The termini of the period of operation of the

interdict is indicated by the next stipulation i.e. the

contemnor purges himself of the contempt. The inhibition

will therefore start operating when the first stipulation

is satisfied, and it would continue to function until the

second stipulation is fulfilled. The latter condition would

remain eluded until the delinquent advocate himself

initiates steps towards that end.

Regarding the first condition there is no difficulty

whatsoever in the present case because it is an admitted

fact that respondent-advocate has been found guilty of

contempt of court by the High Court of Kerala in two cases

successively. For the operation of the interdict contained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

in Rule 11 it is not even necessary that the advocate

should have been sentenced to any punishment after finding

him guilty. The difficulty arises in respect of the second

condition mentioned above.

The Disciplinary Committee of the Bar Council of India

seems to have approached the question from a wrong angle by

posing the following question:

The fundamental question arising for

consideration in this appeal is whether Rule

11 of the Rules framed by the Honourable

High Court of Kerala under Section 34(1) of

the Advocates Act, 1961, is binding on the

Disciplinary Committee of the State Bar

Council and if not whether the Disciplinary

Committee was justified in ordering that on

account of the disqualification under Rule

11 the appellant could not be allowed to

appear, act or plead till he gets himself

purged of the contempt by an order of the

appropriate court.

There is no question of Rule 11 being binding on the

Disciplinary Committee or any other organ of the Bar

Council. There is nothing in the said rule which would

involve the Bar Council in any manner. But there is nothing

wrong for the Bar Council informing a delinquent advocate

of the existence of a bar contained in Rule 11 and remind

him of his liability to abide by it. Hence the question

formulated by the Disciplinary Committee of the Bar Council

of India, as aforequoted, was unnecessary and fallacious.

In the impugned order the Disciplinary Committee

rightly stated that the exercise of the disciplinary

powers over the advocates is exclusively vested with the

Bar Council and this power cannot be taken away by the High

Court either by a judicial order or by making a rule.

This is precisely the legal position adumbrated by the

Constitution Bench of this Court in Supreme Court Bar

Association vs. Union of India and anr. {1998 (4) SCC 409}

In fact the relevant portions of the said decision have

been quoted in the impugned order in extenso. But having

informed themselves of the correct legal position regarding

the powers of the Bar Council the members of the

Disciplinary Committee of the Bar Council of India embarked

on a very erroneous concept when it observed the following:

But to say that an advocate who had been

found guilty of contempt of court shall not

be permitted to appear, act or plead in a

court unless he has purged himself of the

contempt would amount to usurpation of

powers of Bar Council.

After examining Rule 11 of the Rules the Disciplinary

Committee of the Bar Council of India held that there

cannot be an automatic deprivation of the right of an

advocate to appear, act or plead in a court, since such a

course would be unfair and even violative of the

fundamental rights guaranteed under Articles 14, 19(1)(g)

and 21 of the Constitution of India. In the end the

Disciplinary Committee of the Bar Council of India made an

unwarranted proposition on a misplaced apprehension as

follows:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

The independence and autonomy of the Bar

Council cannot be surrendered to the

provisions contained in Rule 11 of the Rules

made by High Court of Kerala under S.34(1)

of the Advocates Act.

By giving expression to such a proposition the Bar

Council of India has obviously overlooked the legal

position laid down by the Constitution Bench in Supreme

Court Bar Association vs. Union of India (supra). In

paragraph 57 of the decision the Bench said thus:

In a given case, an advocate found guilty

of committing contempt of court may also be

guilty of committing professional

misconduct, depending upon the gravity or

nature of his contumacious conduct, but the

two jurisdictions are separate and distinct

and exercisable by different forums by

following separate and distinct procedures.

The power to punish an advocate by

suspending his licence or by removal of his

name from the roll of the State Bar Council

for proven professional misconduct vests

exclusively in the statutory authorities

created under the Advocates Act, 1961, while

the jurisdiction to punish him for

committing contempt of court vests

exclusively in the courts.

Thereafter in paragraph 80, the Constitution Bench

said the following:

In a given case it may be possible, for

this Court or the High Court, to prevent

the contemnor advocate to appear before it

till he purges himself of the contempt but

that is much different from suspending or

revoking his licence or debarring him to

practise as an advocate. In a case of

contemptuous, contumacious, unbecoming or

blameworthy conduct of an Advocate-on-

Record, this Court possesses jurisdiction,

under the Supreme Court Rules itself, to

withdraw his privilege to practice as an

Advocate-on-Record because that privilege

is conferred by this Court and the power

to grant the privilege includes the power

to revoke or suspend it. The withdrawal

of that privilege, however, does not

amount to suspending or revoking his

licence to practice as an advocate in

other courts or tribunals.

Rule 11 of the Rules is not a provision intended for

the Disciplinary Committee of the Bar Council of the State

or the Bar Council of India. It is a matter entirely

concerning the dignity and the orderly functioning of the

courts. The right of the advocate to practise envelopes a

lot of acts to be performed by him in discharge of his

professional duties. Apart from appearing in the courts he

can be consulted by his clients, he can give his legal

opinion whenever sought for, he can draft instruments,

pleadings, affidavits or any other documents, he can

participate in any conference involving legal discussions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

etc. Rule 11 has nothing to do with all the acts done by

an advocate during his practice except his performance

inside the court. Conduct in court is a matter concerning

the court and hence the Bar Council cannot claim that what

should happen inside the court could also be regulated by

Bar Council in exercise of its disciplinary powers. The

right to practise, no doubt, is the genus of which the

right to appear and conduct cases in the court may be a

specie. But the right to appear and conduct cases in the

court is a matter on which the court must have the major

supervisory power. Hence the court cannot be divested of

the control or supervision of the court merely because it

may involve the right of an advocate.

When the rules stipulate that a person who committed

contempt of court cannot have the unreserved right to

continue to appear and plead and conduct cases in the

courts without any qualm or remorse, the Bar Council cannot

overrule such a regulation concerning the orderly conduct

of court proceedings. Courts of law are structured in such

a design as to evoke respect and reverence to the majesty

of law and justice. The machinery for dispensation of

justice according to law is operated by the court.

Proceedings inside the courts are always expected to be

held in a dignified and orderly manner. The very sight of

an advocate, who was found guilty of contempt of court on

the previous hour, standing in the court and arguing a case

or cross-examining a witness on the same day, unaffected by

the contemptuous behaviour he hurled at the court, would

erode the dignity of the court and even corrode the majesty

of it besides impairing the confidence of the public in the

efficacy of the institution of the courts. This

necessitates vesting of power with the High Court to

formulate rules for regulating the proceedings inside the

court including the conduct of advocates during such

proceedings. That power should not be confused with the

right to practise law. While the Bar Council can exercise

control over the latter, the High Court should be in

control of the former.

In the above context it is useful to quote the

following observations made by a Division Bench of the

Allahabad High Court in Prayag Das vs. Civil Judge,

Bulandshahr and ors. (AIR 1974 Allahabad 133):

The High Court has a power to regulate the

appearance of advocates in courts. The

right to practise and the right to appear in

courts are not synonymous. An advocate may

carry on chamber practice or even practise

in courts in various other ways, e.g.

drafting and filing of pleadings and

Vakalatnama for performing those acts. For

that purpose his physical appearance in

courts may not at all be necessary. For the

purpose of regulating his appearance in

courts the High Court should be the

appropriate authority to make rules and on a

proper construction of Section 34(1) of the

Advocates Act it must be inferred that the

High Court has the power to make rules for

regulating the appearance of Advocates and

proceedings inside the courts. Obviously

the High Court is the only appropriate

authority to be entrusted with this

responsibility.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

In our view, the legal position has been correctly

delineated in the above statements made by the Allahabad

High Court. The context for making those statements was

that an advocate questioned the powers of the High Court in

making dress regulations for the advocates while appearing

in courts.

Lord Denning had observed as follows in Hadkinson vs.

Hadkinson {1952 (2) All England Law Reports 567}:

I am of the opinion that the fact that a

party to a cause has disobeyed an order of

the court is not of itself a bar to his

being heard, but if his disobedience is such

that, so long as it continues, it impedes

the course of justice in the cause, by

making it more difficult for the court to

ascertain the truth or to enforce the orders

which it may make, then the court may in its

discretion refuse to hear him until the

impediment is removed or good reason is

shown why it should not be removed.

The observations can apply to the courts in India

without any doubt and at the same time without impeding the

disciplinary powers vested in the Bar Councils under the

Advocates Act.

We have already pointed out that Rule 11 of the Rules

is a self-operating provision. When the first postulate of

it is completed (that the advocate has been found guilty of

contempt of court) his authority to act or plead in any

court stands snapped, though perhaps for the time being.

If he does such things without the express permission of

the court he would again be guilty of contempt of court

besides such act being a misconduct falling within the

purview of Section 34 of the Advocates Act. The interdict

as against him from appearing in court as a counsel would

continue until such time as he purges himself of the

contempt.

Now we have to consider the crucial question - How can

a contemnor purge himself of the contempt? According to

the Disciplinary Committee of the Bar Council of India,

purging oneself of contempt can be done by apologising to

the court. The said opinion of the Bar Council of India can

be seen from the following portion of the impugned order:

Purging oneself of contempt can be only by

regretting or apologising in the case of a

completed action of criminal contempt. If

it is a case of civil contempt, by

subsequent compliance with the orders or

directions the contempt can be purged off.

There is no procedural provision in law to

get purged of contempt by an order of an

appropriate court.

Purging is a process by which an undesirable element

is expelled either from ones own self or from a society.

It is a cleansing process. Purge is a word which acquired

implications first in theological connotations. In the case

of a sin, purging of such sin is made through the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

expression of sincere remorse coupled with doing the

penance required. In the case of a guilt, purging means to

get himself cleared of the guilt. The concept of purgatory

was evolved from the word purge, which is a state of

suffering after this life in which those souls, who depart

this life with their deadly sins, are purified and render

fit to enter into heaven where nothing defiled enters.

(vide Words and Phrases, Permanent Edn., Vol.35A, page

307). In Blacks Law Dictionary the word purge is given

the following meaning: To cleanse; to clear or exonerate

from some charge or imputation of guilt, or from a

contempt. It is preposterous to suggest that if the

convicted person undergoes punishment or if he tenders the

fine amount imposed on him the purge would be completed.

We are told that a learned single Judge of the

Allahabad High Court has expressed a view that purging

process would be completed when the contemnor undergoes the

penalty (vide Dr. Madan Gopal Gupta vs. The Agra University

and ors., AIR 1974 Allahabad 39). This is what the learned

single Judge said about it:

In my opinion a party in contempt purged

its contempt by obeying the orders of the

court or by undergoing the penalty imposed

by the court.

Obeying the orders of the court would be a mode by

which one can make the purging process in a substantial

manner when it is a civil contempt. Even for such a civil

contempt the purging process would not be treated as

completed merely by the contemnor undergoing the penalty

imposed on him unless he has obeyed the order of the court

or he has undone the wrong. If that is the position in

regard to civil contempt the position regarding criminal

contempt must be stronger. Section 2 of the Contempt of

Courts Act categorises contempt of court into two

categories. The first category is civil contempt which is

the willful disobedience of the order of the court

including breach of an undertaking given to the court. But

criminal contempt includes doing any act whatsoever which

tends to scandalise or lowers the authority of any court,

or tends to interfere with the due course of a judicial

proceeding or interferes with, or obstructs the

administration of justice in any other manner.

We cannot therefore approve the view that merely

undergoing the penalty imposed on a contemnor is sufficient

to complete the process of purging himself of the contempt,

particularly in a case where the contemnor is convicted of

criminal contempt. The danger in giving accord to the said

view of the learned single Judge in the afore-cited

decision is that if a contemnor is sentenced to a fine he

can immediately pay it and continue to commit contempt in

the same court, and then again pay the fine and persist

with his contemptuous conduct. There must be something

more to be done to get oneself purged of the contempt when

it is a case of criminal contempt.

The Disciplinary Committee of the Bar Council of India

highlighted the absence of any mode of purging oneself of

the guilt in any of the Rules as a reason for not following

the interdict contained in Rule 11. Merely because the

Rules did not prescribe the mode of purging oneself of the

guilt it does not mean that one cannot purge the guilt at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

all. The first thing to be done in that direction when a

contemnor is found guilty of a criminal contempt is to

implant or infuse in his own mind real remorse about his

conduct which the court found to have amounted to contempt

of court. Next step is to seek pardon from the court

concerned for what he did on the ground that he really and

genuinely repented and that he has resolved not to commit

any such act in future. It is not enough that he tenders

an apology. The apology tendered should impress the court

to be genuine and sincere. If the court, on being

impressed of his genuineness, accepts the apology then it

could be said that the contemnor has purged himself of the

guilt.

This Court has held in M.Y. Shareef and anr. vs.

Honble Judges of the Nagpur High Court and ors. (AIR 1955

SC 19) that an apology is not a weapon of defence to purge

the guilty of their offence, nor is it intended to operate

as a universal panacea, but it is intended to be evidence

of real contriteness. Ahmadi, J (as the learned Chief

Justice then was) in M.B. Sanghi, Advocate vs. High Court

of Punjab and Haryana and ors. {1991(3) SCC 600}, while

considering an apology tendered by an advocate in a

contempt proceeding has stated thus:

And here is a member of the profession who

has repeated his performance presumably

because he was let off lightly on the first

occasion. Soft justice is not the answer

not that the High Court has been harsh with

him what I mean is he cannot be let off on

an apology which is far from sincere. His

apology was hollow, there was no remorse

no regret it was only a device to escape

the rigour of the law. What he said in his

affidavit was that he had not uttered the

words attributed to him by the learned

Judge; in other words the learned judge was

lying adding insult to injury and yet if

the court finds him guilty (he contested the

matter tooth and nail) his unqualified

apology may be accepted. This is no

apology, it is merely a device to escape.

A four Judge Bench of this Court in Mulk Raj vs. State

of Punjab {1972 (3) SCC 839} made the following

observations which would throw considerable light on the

question before us:

Apology is an act of contrition. Unless

apology is offered at the earliest

opportunity and in good grace apology is

aborn of penitence. If apology is offered

at a time when the contemnor finds that the

court is going to impose punishment it

ceases to be an apology and it becomes an

act of a cringing coward. The High Court

was right in not taking any notice of the

appellants expression of apology without

any further word. The High Court correctly

said that acceptance of apology in the case

would amount to allow the offender to go

away with impunity after having committed

gross contempt.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

Thus a mere statement made by a contemnor before court

that he apologises is hardly enough to amount to purging

himself of the contempt. The court must be satisfied of

the genuineness of the apology. If the court is so

satisfied and on its basis accepts the apology as genuine

the court has to make an order holding that the contemnor

has purged himself of the contempt. Till such an order is

passed by the court the delinquent advocate would continue

to be under the spell of the interdict contained in Rule 11

of the Rules.

Shri Sadrul Anam, learned counsel for the respondent-

advocate submitted first, that the respondent has in fact

apologised before this Court through the counsel engaged

by him, and second is that when this Court observed that

this course should set everything at rest it should be

treated as the acknowledgement made by this Court that the

contemnor has purged himself of the guilt.

We are unable to accept either of the said

contentions. The observation that this course should set

everything at rest in the judgment of this Court cannot be

treated as anything beyond the scope of the plea made by

the respondent in that case. That apart, this Court was

certainly disinclined to accept the apology so tendered in

this Court which is clearly manifested from the outright

repudiation of that apology when this Court said thus:

We regretfully will not be able to accept

his apology at this belated juncture, but

would rather admonish the appellant for his

conduct under our plenary powers under the

constitution, which we do hereby.

The respondent-advocate continued to appear in all the

courts where he was earlier appearing even after he was

convicted by the High Court for criminal contempt without

being objected by any court. This is obviously on account

of the fact that presiding officers of the court were not

informed of what happened. We, therefore, direct that in

future, whenever an advocate is convicted by the High Court

for contempt of court, the Registrar of that High Court

shall intimate the fact to all the courts within the

jurisdiction of that High Court so that presiding officers

of all courts would get the information that the particular

advocate is under the spell of the interdict contained in

Rule 11 of the Rules until he purges himself of the

contempt.

It is still open to the respondent-advocate to purge

himself of the contempt in the manner indicated above. But

until that process is completed respondent-advocate cannot

act or plead in any court situated within the domain of the

Kerala High Court, including the subordinate courts

thereunder. The Registrar of the High Court of Kerala

shall intimate all the courts about this interdict as

against the respondent-advocate.

This appeal is disposed of accordingly.