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Sir Jamshed Byramji Kanga Vs. Kaikhushru Bomanji Bharucha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Miscellaneous Nos. 102, 103 and 104 of 1933 and Civil Application Nos. 427 and 453 of 1934
Judge
Reported inAIR1935Bom1; (1934)36BOMLR1136
AppellantSir Jamshed Byramji Kanga;anant Vishnu Chitre
RespondentKaikhushru Bomanji Bharucha;pitamberdas Goculdas Mehta
Excerpt:
.....moral turpitude are not the only cases in which the court may be called upon to take disciplinary action. cases may arise in which it is proved that an advocate has been engaged in revolutionary activities designed to destroy the system of which the high court forms part, or activities likely to hamper or embarrass the administration of justice by the high court or any subordinate courts. courts of law can only function under a stable government, and the destruction of government, by revolutionary and unconstitutional means, must of necessity involve the destruction of the courts, or the grave impairing of their efficiency. the high court will not tolerate upon its rolls an advocate who is endeavouring to destroy or undermine the authority of the courts. any one who elects to engage in..........or a person with whom his professional brethren cannot be expected to associate. but in our opinion cases involving moral turpitude are not the only ones in which the court may be called upon to take disciplinary action. the court has a right to expect a high standard of loyalty to the court and co-operation from the advocates on its roll. cases may arise in which it is proved that an advocate has been engaged in revolutionary activities designed to destroy the system of which this court forms part, of activities likely to hamper or embarrass the administration of justice by this court or any of the courts subordinate thereto. courts of law can only function under a stable government, and the destruction of government by revolutionary and unconstitutional means must of necessity.....
Judgment:

John Beaumont, Kt., C.J.

1. These are three petitions presented by the Advocate General to this Court asking that three barristers on the roll of this Court may be suspended and removed from practice or otherwise dealt with as this Court thinks fit in exercise of the disciplinary jurisdiction vested in the Court. There are also two reports made to this Court by District Judges under Section 26 of the Bombay Pleaders Act for the purpose of action being taken by this Court under Section 25 of the Act. We will deal first with the case of barristers.

2. It is not disputed that all three barristers were convicted by Presidency Magistrates under Section 17(1) and (2) of the Criminal Law Amendment Act (XXIII of 1932) in that they had been members, and assisted, and managed the operations, of the Bombay Provincial Congress Committee Emergency Council, an association declared unlawful by the Government of Bombay. All the barristers were sentenced to terms of imprisonment and fine. The petitions were referred to a Tribunal of the Bar Council appointed by the Chief Justice in accordance with the terms of Sections 10 and 11 of the Indian Bar Councils Act, 1926. The Tribunal, after exhaustive inquiry, reported that the barristers had been guilty of no misconduct within the meaning of Section 10 of the Indian Bar Councils Act. Mr. O'Gorman, the President of the Tribunal, did not sign the report, but expressed his own opinion that the convictions of the barristers were evidence of misconduct within the meaning of the Act, and that the question whether such misconduct was of a nature to attract disciplinary action by the Court was not a matter for the Tribunal. The Tribunal was unanimous in finding that the barristers had acted from what they conceived to be patriotic motives, and that no moral turpitude was involved in their convictions.

3. Section 10(1) of the Indian Bar Councils Act provides that the High Court may reprimand, suspend or remove from practice any advocate of the High Court whom it finds guilty of professional or other misconduct.

4. It has been urged by counsel on behalf of the barristers involved, and also by counsel on behalf of the Bar Council and the Bar Association, that the words ' professional or other misconduct' in that paragraph denote only misconduct in professional capacity, or misconduct in a private capacity which is such as to denote unfitness for the post of an advocate. It is urged that the word ' misconduct' is new in relation to legislation dealing with the power of the High Court to take disciplinary action against advocates, and that it must be assumed that the expression was used by the legislature in the sense in which it is understood in English law in a similar connection. It is true that the word 'misconduct' in legislation upon this subject appears for the first time in the Indian Bar Councils Act. Under Regulation II of 1827, Section 56, which is the first legislative enactment on the subject, the Court can take action against a pleader accused of a criminal offence or guilty of mis-behaviour or neglect of d y; under Clause 10 of the Letters Patent the Court can take action on reasonable cause; under the Bombay Pleaders Act of 1920, Section 24, the Court can take action against a pleader convicted of a criminal offence implying a defect of character which, in the opinion of the Court, renders him unfit to be a pleader, and under Section 25 the Court may take action on reasonable cause. But the fact that the legislature has chosen to use the word 'misconduct' in the Indian Bar Councils Act rather than the more indefinite phrase, 'reasonable cause,' is no reason for restricting the natural meaning of the word. The English cases on the subject do not, in our opinion, afford much assistance. In England, disciplinary action against barristers is taken, not by the Court, but by the Benchers of the barrister's Inn, and the principles on which the Benchers act are not made public. In the case of solicitors the Court takes disciplinary action. It is no doubt true that the only reported cases in which disciplinary action has been taken in relation to misconduct other than professional have been cases in which the solicitor had been guilty of infamous conduct. There is, however, no case which decides that the Court would refuse to take action in the absence of evidence of ,such misconduct; and the sort of case with which we have to deal, in which an Indian barrister conceives it to be his duty as a patriot to break certain laws, could hardly arise in England. In our opinion, the English cases provide no justification for restricting the natural meaning of the words 'professional or other misconduct' in the Indian Bar Councils Act, and that meaning is misconduct in a professional or other capacity. In our view, the legislature intended to confer on the Court jurisdiction to take action in all cases of misconduct, and leave it to the discretion of the Court to take action only in suitable cases. We think that the convictions of the barristers concerned of a criminal offence are evidence of misconduct, and that we have jurisdiction to take disciplinary action against them.

5. The next question which arises is, whether we ought to take such action ; and as this is the first case with which this Court has been called upon to deal under the Indian Bar Councils Act, we will state shortly the principles on which we propose to exercise our discretion. We realise that these principles are not immutable, and that the exercise of discretion must vary with changing conditions.

6. In cases of professional misconduct it may sometimes be necessary that the Court should impose a penalty which is intended to be punitive, and to serve as a warning to other advocates. But in the case of misconduct which is not professional, in our opinion, the element of punishment should not enter into our consideration at all. It is no part of our duty to impose penalties for misconduct, unconnected with the exercise of the profession, which is either not punishable or has been, or can be, punished under the law of the land. The State imposes suitable penalties for the infringement of its laws, and provides proper sanctions for the enforcement of such penalties, and we see no reason why the disciplinary jurisdiction vested in this Court should be employed merely in aid of the criminal law.

7. Advocates, however, are a privileged class enjoying a monopoly of audience in the Courts, and their position gives them considerable opportunities for good or evil. It is of the highest importance that the High Court should be invested with power to ensure that only advocates of good character shall be upon the roll, but it is also important that that power be in no way abused. In cases of misconduct involving moral turpitude the Court has to see whether the advocate has shown himself to be unworthy of the confidence of the Court, or unfit to be entrusted with the business of his client, or a person with whom his professional brethren cannot be expected to associate. But in our opinion cases involving moral turpitude are not the only ones in which the Court may be called upon to take disciplinary action. The Court has a right to expect a high standard of loyalty to the Court and co-operation from the advocates on its roll. Cases may arise in which it is proved that an advocate has been engaged in revolutionary activities designed to destroy the system of which this Court forms part, of activities likely to hamper or embarrass the administration of justice by this Court or any of the Courts subordinate thereto. Courts of law can only function under a stable Government, and the destruction of Government by revolutionary and unconstitutional means must of necessity involve the destruction of the Courts, or the grave impairing of their efficiency. What we have to consider in all these cases is the conduct of the advocate as it affects his position as an advocate and his relations to the Court. This Court will not tolerate upon its rolls an advocate who is endeavouring to destroy or undermine the authority of the Courts. Anyone who elects to engage in activities of that nature must do so without the authority and prestige attached to the position of an advocate.

8. Various Indian cases were referred to by counsel. We do not think it necessary to discuss the decisions of other High Courts, because, if we are right in thinking that the question involved is as to the principles on which the Court should exercise its discretion under the Indian Bar Councils Act, that matter is one which each High Court must determine for itself. The only decision of this High Court to which it is necessary to refer is Jivan-lal Varajray Desai, In re I.L.R (1919). 44 Bom. 418 : 22 Bom. L.R. 13. In that case the advocates involved had signed a pledge whereby they bound themselves to refuse civilly to obey certain specified laws and such other laws as a committee to be thereafter appointed might think fit. The facts of the case are, therefore, clearly distinguishable from those in the present case. But we do not find ourselves in agreement with much of the reasoning upon which that decision is based. Both Sir Norman Macleod and Mr. Justice Heaton seemed to consider that an advocate, who for conscientious reasons had elected to disobey particular laws, would be embarrassed in giving advice to his clients. Our own experience at the bar does not induce us to think that any such embarrassment would ensue, and this view seems to be supported by recent experience in India. Many advocates who took part in the Civil Disobedience Movement of 1930, and were convicted of various offences, have since returned to practice, and no case has been brought to our attention in which such advocates have proved less fitted than formerly to advise their clients properly. Nor are we prepared to accept what Sir Norman Macleod described as a very sound principle, namely, that those who liye by the law should keep the law. In our opinion, the obligation of obedience to the law is neither greater nor less in the case of lawyers than of other citizens. If the so-called principle means that those who earn their living by the practice of the law must cease so to do if they break the law, the condition is one which should be imposed under legislative authority when the advocate is admitted and not invented afterwards by the Courts.

Applying these principles to the case of the barristers before us, they were, as we have said, convicted of being members and assisting and managing the operations of an association declared unlawful by the Local Government. We cannot go behind the convictions, but we are entitled to consider the grounds on which such convictions were based, in order to determine whether they involve any conduct implying unfitness on the part of the barristers for the exercise of their profession. No evidence of this nature has, however, been adduced by Government. The notification by Government declaring the association unlawful merely recited, in the words of the Criminal Law Amendment Act, that in the opinion of Government the association had for its object the interference with the administration of the law or with the maintenance of law and order and constituted a danger to the public peace. But we do not know what the facts were which induced Government to form this opinion. The activities of the association might be of a general revolutionary character, or might be such as to promote local breaches of the peace. Nor is there any reliable evidence as to what the particular activities of these barristers were in relation to the association. In two of the petitions it is alleged by the Advocate General that the barrister in question had taken a leading part in the publication of the Bombay Congress Bulletin, and extracts from that Bulletin were annexed to the petitions. Those extracts contain matter of a very revolutionary character, but the Advocate General admits that he did not succeed in proving the connection of the advocates with those extracts, and he did not, therefore, rely on the extracts, or indeed refer to them in opening the petitions; and we, therefore, need not refer to them. It is enough to say that in our opinion merely having been members, or assisted the operations, or managed the affairs, of an unlawful association does not render the advocate unfit for the exercise of his profession. Such conduct does not necessarily involve moral turpitude, or any attack upon the system of which this Court forms part, or embarrass in any way the administration of justice by the Courts of this Presidency.

9. We deal now with the case of the pleaders. The case of Mr. P.G. Mehta, who practises at Mahad, has been reported to us by the District Judge of Thana. His sanad was granted on January 31, 1918, in the statutory form given in Regulation II of 1827. Below the signature of the Registrar is attached a printed note, which is not signed by anybody, in the following terms:

It will be considered a breach of the condition of good behaviour if the holder takes part in any disloyal movement.

10. It is clear that that note can only operate as a warning in terrorem. It was not competent for the authority which granted the sanad to commit future Judges of the High Court to the construction which ought to be placed on the sanad. The charge against the pleader is that he was a dictator of the Kolaba District Congress Committee, which body had been declared an unlawful association by Government, and that as such dictator he allowed a printed bulletin under the title of the Kolaba Satyagraha Patrika to be printed and published under his signature. He was convicted under Section 21 of the Emergency Powers Ordinance, No. II of 1932, and sentenced to a term of imprisonment and fine. A few days before the report of the District Judge was signed, the pleader gave a purshis stating that he did not intend to take part in the Civil Disobedience Movement.

11. The case of the pleader Motilal Hargovandas was reported to this Court by the District Judge of Broach. His sanad was granted on August 20, 1915, and is in the same form as the sanad granted to Mr. Mehta. He was convicted under Section 17(1) of the Criminal Law Amendment Act as having been a member and assisted the operations of an association declared unlawful by Government.

12. The Act under which we are empowered to take disciplinary action against pleaders is the Bombay Pleaders Act (XVII of 1920). As alreadys noticed, under Section 24 of that Act the High Court may suspend or remove from practice a pleader who has been convicted by any criminal Court in British India of a criminal offence implying a defect in his character which in the opinion of the High Court renders him unfit to be a pleader. Section 25 provides, so far as material, that on the application of the Government Pleader in the High Court, or on a report from a District Court or Court of Session, the High Court may suspend or remove from practice, or may fine or reprimand, a pleader on reasonable cause. Section 26 enables the District Judge to initiate proceedings, where a pleader has been guilty of neglect of duty or violation of any of the provisions of the Act, or of any other improper conduct. The difference in phraseology in the three sections is curious, but the section under which we are asked to take action, which is Section 25, empowers us only to take action on reasonable cause. In our opinion there is no substantial difference between a case dealt with under the Bombay Pleaders Act on reasonable cause, and a case dealt with under the Indian Bar Councils Act for misconduct. We cannot conceive of a cause being considered reasonable for taking disciplinary action against a pleader unless the pleader had been guilty of misconduct, and if misconduct is proved, that amounts to reasonable cause. In our opinion, we have jurisdiction to take action against these pleaders who have been convicted as above stated, but, exercising our discretion upon the principles mentioned above, we think no action is called for.

13. In the result we propose to make no order as to costs or otherwise in any of the matters.


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