Professional Misconduct and Contempt of Court notes — Unit 4

The Advocates Act does not explicitly define "Professional Misconduct." It is a broad, evolving concept.

⇒Meaning

The Supreme Court has held that misconduct means any conduct that makes a person unfit to be an advocate, or any act that shows moral turpitude, dishonesty, or a violation of the BCI Rules of Etiquette.

⇒Examples of Misconduct:

• Misappropriating client's money (the most serious offence).
• Forging court documents.
• Bribing court officials or witnesses.
• Appearing in court heavily intoxicated.
• Going on illegal strikes and boycotting courts.

When a client is cheated by a lawyer, they file a complaint under Section 35 with the State Bar Council.

⇒1. The Initiation

Where on receipt of a complaint (or suo motu) a State Bar Council has "reason to believe" that any advocate has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee.

⇒2. The Trial

The Disciplinary Committee fixes a date, issues notices to the advocate and the Advocate-General of the State. It conducts a trial (giving the advocate a right to defend themselves, following Natural Justice).

If the Disciplinary Committee finds the advocate guilty, it can pass any of the following orders:

• Dismiss the complaint: (If found innocent).
• Reprimand the advocate: (A severe formal warning recorded in their file).
• Suspend the advocate: Suspend the advocate from practice for such period as it may deem fit. (During suspension, they cannot practice in ANY court).
• Remove the name: Remove the name of the advocate from the State Roll of Advocates. (The ultimate penalty—disbarment. The lawyer's career is terminated).

Because disbarment ruins a career, the Act provides a robust appellate mechanism.

⇒1. Appeal to BCI (Sec 37)

Any person aggrieved by an order of the Disciplinary Committee of a State Bar Council (including the Advocate-General) may prefer an appeal to the Bar Council of India within 60 days. The BCI's Disciplinary Committee will hear the appeal.

⇒2. Appeal to Supreme Court (Sec 38)

If the advocate is still aggrieved by the order made by the BCI Disciplinary Committee, they can appeal directly to the Supreme Court of India within 60 days.

Can lawyers go on strike to protest a bad law or a corrupt judge?

⇒Ex-Capt. Harish Uppal Case (2003)

The Supreme Court gave a definitive judgment on this issue. The Court ruled that lawyers have NO RIGHT TO STRIKE or give a call for boycott of courts.

A strike paralyzes the justice system and denies citizens their fundamental right to speedy justice. If lawyers have a grievance, they must protest peacefully (wearing black armbands) outside court hours. Going on strike is considered professional misconduct, and the Bar Councils are legally obligated to take disciplinary action against striking lawyers.

While the Bar Council punishes ethical violations, the Court itself wields the power of Contempt to protect its majesty and authority.

⇒The Purpose of Contempt Law

It is not designed to protect the personal ego of a judge. It is designed to protect the public's confidence in the judicial institution. If people are allowed to blatantly ignore court orders or launch smear campaigns against judges, the rule of law collapses.

⇒Two Types of Contempt (Sec 2)

The Act divides contempt into Civil and Criminal.

This deals with disobedience.

⇒Definition

Civil contempt means willful disobedience to any judgment, decree, direction, order, writ, or other process of a court, or willful breach of an undertaking given to a court.

⇒The Keyword: 'Willful'

If a court orders you to pay Rs. 1 Lakh, and you don't pay because you are completely bankrupt and physically cannot, it is not civil contempt. But if you have the money in your bank and deliberately refuse to pay, defying the court, it is willful disobedience (Civil Contempt).

This is far more serious and controversial, dealing with words/publications.

⇒Definition

Criminal contempt means the publication (whether by words, spoken or written, or by signs) or the doing of any other act whatsoever which:

• (i) Scandalizes or tends to scandalize the authority of any court (e.g., Tweeting that "All Supreme Court judges take bribes").
• (ii) Prejudices or interferes with the due course of any judicial proceeding (e.g., Media running a parallel 'media trial' declaring an accused guilty before the judge decides).
• (iii) Interferes or obstructs the administration of justice in any other manner (e.g., throwing a shoe at a judge during a hearing).

The Contempt Act provides safeguards to protect Freedom of Speech and the press.

⇒Key Defenses:

• Innocent Publication (Sec 3): The publisher had no reasonable ground to believe a proceeding was pending.
• Fair and Accurate Report (Sec 4): Publishing a fair and accurate report of a judicial proceeding.
• Fair Criticism (Sec 5): A person shall not be guilty of contempt for publishing any fair comment on the merits of any case which has been finally decided. (You can criticize a judgment, but you cannot abuse the judge personally).
• Truth as a Defense (Sec 13(b)): Added by a 2006 amendment. The court may permit 'truth' as a valid defense if it is satisfied that it is in public interest.

What happens if you are found guilty?

⇒The Sentence

A contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

⇒The Apology

The accused may be discharged or their punishment remitted if they make an apology to the satisfaction of the court. However, the apology must be unconditional and bona fide (genuine). You cannot say, "I am sorry if the court felt offended" (conditional). You must say, "I unconditionally apologize for my actions."

The Contempt of Courts Act, 1971 does not give the Supreme Court or High Courts the power to punish for contempt. It merely regulates the procedure.

⇒Inherent Constitutional Power

• Article 129: Declares the Supreme Court to be a Court of Record and gives it the inherent power to punish for contempt of itself.
• Article 215: Gives the exact same inherent power to the High Courts.

(Because this power comes directly from the Constitution, the Parliament cannot take it away by repealing the 1971 Act).

• Misconduct (Sec 35): State Bar Council Disciplinary Committee tries the lawyer. Punishments range from reprimand to permanent disbarment.
• Appeals: SBC DC -> BCI DC -> Supreme Court.
• Lawyers' Strikes: Illegal and constitute professional misconduct (Harish Uppal case).
• Civil Contempt (Sec 2b): Willful disobedience of court orders.
• Criminal Contempt (Sec 2c): Words or acts that scandalize the court or prejudice a pending trial.
• Defenses: Fair criticism of a decided case (Sec 5) and Truth in public interest (Sec 13b).

⇒Premium Advice for Top Marks

• Section 35 Procedure: Memorize the flow: Complaint -> Reason to believe -> Disciplinary Committee -> Trial -> Punishment. Detail the 4 specific punishments they can give.
• Civil vs Criminal Contempt: Draw a comparison table. Highlight the keyword "willful disobedience" for Civil, and "scandalizing the court" for Criminal. Examiners heavily penalize students who confuse the two.
• The Apology Trap: When writing about Sec 12 (Punishment), always mention that an apology must be "unconditional". Courts routinely reject apologies that appear to be just a tactical move to escape jail.