The High Courts and the Supreme Court derives its power to debar an advocate from Section 34 of the Advocates Act and Article 145 of the Constitution, respectively. Article 145 of the Constitution empowers the Supreme Court to make rules on regulation of practice before it. SRI HARSHA KANDUKURI,a post graduate from Azim Premji University, argues that the power to debar must be located within the specific rules and cannot be assumed by the Supreme Court in violation of principles of natural justice.
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ON August 31, the Supreme Court fined Prashant Bhushan Re.1 holding him guilty in his criminal contempt proceedings. If he defaults on the payment, he will undergo imprisonment for three months and be debarred from practicing before the apex court for three years.
Many have opined that the default punishment is unlawful as it is excessive imprisonment for failing to pay the fine of Re1.
The other interesting angle is, whether the Supreme Court has the power to debar an advocate from practicing before the courts in cases where the advocate was found guilty of Contempt of Court. This is an interesting question and one that the Constitutional Courts have dealt with extensively. It is argued here that, though the Supreme Court can debar an advocate, by way of regulating who can appear before it, the court exercises the said power from an unwritten source and this is illegal and wrong.
“It should be kept in mind that in a contempt trial no inquiry is made regarding whether the accused advocate is fit to be a lawyer or not. The inquiry in a contempt trial is regarding how the action of the accused lowered the position of the Court or led to obstruction of justice.
The question of whether an advocate convicted of contempt of Court can be debarred by the Courts from practicing the law was dealt with in the case of SCBA v. Union of India. In this case, the Constitution bench of the Court upheld the right of Bar Councils to try advocates for alleged professional misconduct. It held that Courts cannot suspend or revoke the licenses of advocates on their contempt and that the said power vests with the Bar Council. But the observation, which read as follows, shows an important distinction between preventing an advocate from appearing before the Court (debarring) and suspending or revoking the Advocate's licence.
"In a given case it may be possible, for this Court or the High Court, to prevent the contemner 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 practice as an advocate."
According to the Supreme Court, as observed in the cases of Pravin Shah and Harish Uppal, the functions of an advocate are not restricted to appear and plead before the Court, but also includes other works like legal advisory, drafting the documents, arbitrations and so on. The court also held that when an advocate is held guilty of contempt, then in order to preserve the dignity of the court, his right to appear and plead before the court is curtailed. It clarified that it has nothing to do with the revocation or suspension of licence which is within the domain of Bar Councils.
By debarring an advocate, the court only prevents him from appearing and pleading before the court, while he is free to indulge in other lawful functions that can be carried out as an advocate.
The Supreme Court opined that the power to debar an advocate from appearing before the court is rooted in Section 34 of the Advocates Act, 1961, and Article 145 of the Constitution of India. The said provisions empower the Constitutional Courts to lay down the rules relating to the practice of advocates before it. The courts, with their power to regulate who can appear before them, are debarring the advocates convicted of contempt from appearing before them.
“But the Court did not prescribe any rules to this effect in the Supreme Court Rules of 2013. Without a written provision for debarring the convicted advocates, the Court is exercising the power to debar an advocate from an unwritten source, which is illegal and wrong.
It is true that few High Courts -like Bombay High Court, Punjab and Haryana High Court, and Kerala High Court- have framed rules under Section 34 of the Advocates Act provided that, "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." By virtue of this rule, an advocate who was held guilty of contempt is debarred from appearing before the courts until he purges himself. But it is interesting to note that a similar provision is missing in Supreme Court Rules, 2013 which are framed under Article 145 of the Constitution of India as "rules as to the persons practicing before the Court."
The Supreme Court may very well regulate the persons who can appear before it and prescribe that the advocates convicted of contempt can be debarred from appearing before it. But the Court did not prescribe any rules to this effect in the Supreme Court Rules of 2013. Without a written provision for debarring the convicted advocates, the Court is exercising the power to debar an advocate from an unwritten source, which is illegal and wrong.
It is surprising that there is no provision regarding the quantum of debarment as well. In another contempt case decided by the Supreme Court, Advocate Mathew Nedumpara was debarred only for one year whereas Bhushan was debarred for three years. What is the criteria for the three years? There is literally no provision that holds the Court from debarring him for life. Unlike some High Court rules which say that purging of contempt may allow a convicted advocate to appear before the Courts, the Supreme Court rules have nothing to this effect.
It is not enough to have the power to debar an advocate convicted of contempt, it should be clearly provided in the rules, along with the quantum of punishment. An immediate amendment to Supreme Court Rules of 2013 may be undertaken to this effect, to remedy this anomaly.
“There is literally no provision that holds the Court from debarring him for life. Unlike some High Court rules which say that purging of contempt may allow a convicted advocate to appear before the Courts, the Supreme Court rules have nothing to this effect.
In fact, there was a discussion in the R K Anand case regarding what to do in cases where there are no rules to debar the advocates convicted of contempt. The court held that in such cases, courts can overcome the requirement of having the provision by mentioning possible debarment in the initial notice or in the notice issued before sentencing. This is bad law, as by merely serving notice, the court cannot punish for an unwritten rule at the time of the commission of the act and violate principles of natural justice.
The debarment is a punishment that should flow from a written source, which acts as a constructive notice to people not to commit such an act. A punishment cannot be imposed from vague 'inherent powers' or 'unwritten powers' as it does not allow the citizens to know about what is wrong and what they are being punished for in the first place.
The differentiation created by the court between the right of appearance before the court (which is regulated by the Court) and the right to practice the law beyond the appearance before the court (regulated by Bar Councils) can appear artificial in a few cases. Seeing from the lens of the effect test, which is applied in cases of fundamental rights, the effect of preventing the convicted advocate from appearing before the courts directly affects his right to practice the law as well. The debarment affects the reputation, revenue, and scope of practice of an advocate, though his right to practice or his license is untouched.
“If the act of the advocate is unworthy of a lawyer, then it should be left to the disciplinary committees of Bar Councils, that are constituted by the peers of the advocate, to decide upon the guilt of professional misconduct.
For an advocate whose practice is dominated in the field of litigation, which is predominantly the case of lawyers at the trial court level, restricting him or her from appearing before the courts in effect is as good as disbarring him. It can force the advocates to take up other legal activities, which they might not have undertaken in their career, like arbitration.
It should be kept in mind that in a contempt trial no inquiry is made regarding whether the accused advocate is fit to be a lawyer or not. The inquiry in a contempt trial is regarding how the action of the accused lowered the position of the Court or led to obstruction of justice.
By making the conviction for contempt a ground for debarment or preventing them from appearing before the Courts, the courts are indirectly passing a judgment regarding the fitness of the advocate to practice the law, without affording him an inquiry regarding the same.
If the act of the advocate is unworthy of a lawyer, then it should be left to the disciplinary committees of Bar Councils, that are constituted by the peers of the advocate, to decide upon the guilt of professional misconduct.
(The author is a postgraduate student of law at Azim Premji University, Bengaluru)