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In Re: Jivanlal Varajrai Desai - Court Judgment

LegalCrystal Citation
Decided On
Case Number Civil Application No. 681 of 1919
Reported in(1920)22BOMLR13
AppellantIn Re: Jivanlal Varajrai Desai
disciplinary jurisdiction - advocates and pleaders-satyagraha movement-signing of pledge to civilly disobey laws named by the committee of satyagraha sabha-mere signing is unprofessional for a lawyer-letters patent, clause 10-bombay regulation ii of 1827, section 56.;as a protest against the passing of the anarchical and revolutionary crimes act (xi of 1919), known popularly as the rowlatt act, certain barristers and pleaders practising in the courts of the ahmedabad district, joined a movement called the satyagraha sabha and signed a pledge whereby they undertook 'to refuse civilly to obey these laws (viz., the bowlatt act) and such other laws as a committee to be hereafter appointed may think fit.' on a reference from the district judge of ahmedabad the high court issued a notice to..........that the rowlatt bill legislation was a crime, and that they honestly thought that signing the satyagraha pledge would be a constitutional form of agitation against the passing of the rowlatt bills. but i have to consider whether the signing of such a pledge is consistent with the duties which they owe as officers of this court. advocates and pleaders are a privileged class enrolled not only for the purpose of rendering assistance to the courts in the administration of justice, but also for giving professional advice, for which they are entitled to be paid, to those members of the public, who require their services. their position, training and practice, give them immense influence with the public and their example must necessarily have a much greater effect, whether for good or for.....

Norman Macleod, Kt., C.J.

1. A notice was issued by the High Court in its Disciplinary Jurisdiction on the 12th of July 1919 against Jivanlal Varajrai Desai and Vallavbhai Jhaverbhai Patel who are Barristers-at-law and Advocates of this Court, and Mr. Krishnalal Narsilal Desai, High Court Pleader, at present practising in the Courts at Ahmedabad. The reason for issuing the notice was the receipt of a letter from Mr. Kennedy, the District Judge of Ahmedabad, dated the 22nd of April 1919, which runs as follows:-

1. I have the honour to submit for the determination of their Lordships the question of the pleaders of this Court who have signed what is known as the Satyagrahi pledge. The following are the pleaders practising here who have given in their names as members of the Satyagrahi league.

Mr. Gopalrao Ramohandra Dabholkar.

' Krishnalal Narsilal Desai, High Court Pleader.

' Manilal Vallabhram Kothari.

' Kalidas Jaskaran Jhaveri.

There are others who have not yet given in their names to me.

2. I had an interview with the above gentlemen on the 16th and expressed my sentiments and elicited theirs. I asked for some sort of satisfactory explanation of the sense in which they took the Satyagrahi oath. They have furnished an explanation which I do not think is satisfactory. I therefore submit the case for orders, as I suppose the question is general to all Districts.

3. As I understand the Satyagrahi oath, it binds the signatories not only to oppose the Rowlatt Bills, and cognate legislation but to break all laws of whatever kind which a Committee may decide should be broken. I gather also from the papers that some illegal acts have been already ordained. I cannot myself see that the public adherence to a body which has that rule binding on it, is consistent with the duty of a pleader and the terms of his Sanad, and I think the explanation furnished by the pleaders leaves matters much where they are.

4. I am not in any way- impressed by the temporary suspension of the illegal activities of this league. There can be no doubt (at least I have none) that suspension is merely a device to avoid the possibility of punishment falling on the Satyagra his in respect of acts directly or indirectly due to their teaching and influence, the actual perpetrators of which and the instigators of which are likely to meet with condign punishment.

5. I am of the belief that the above gentlemen are sreoerely and conscientiously under the impression that the Rowlatt Bill legislation is a crime, and as they have that impression, I would not blame them for going to the edge of the law to oppose it. They are all men for whom I have considerable esteem, and I have known them and appreciated them for some years, and it is very painful for me to raise their case, but I am of the opinion that they are unfit to practise until they have severed their connection with this league in the same public way in which they have joined it.

6. There are also at least two Barristers who have joined and are prominent members of the local league.

Mr. Jivanlal Varajrai Desai.

Mr. Vallavbhai Jhaverbhai Patel.

But I have no power to deal with them and very likely recent events in Ahmedabad may make it unnecessary to proceed against them. I enclose a copy of the Satyagrahi oath and of the explanation and covering letter of three of the pleaders concerned. No one would be more pleased than myself if it could be found that the explanation was satisfactory. But personally 1 am of the opinion it is not.

2. Accompanying the letter were copies of what is known as the ' Satyagrahi oath,' and letters to the District Judge from Messrs. G. R. Dabholkar, Krishnalal Narsilal Desai, Kalidas Jaskaran Jhaveri and Manilal Vallabhram Kothari, explaining their conduct as the District Judge had requested at an interview with them on the 16th of April. It will be noted that the District Judge did not consider this explanation satisfactory, and that he considered ' that those four pleaders were unfit to practise until they had severed their connection with the Satyagrahi league in the same public way in which they had joined it. With regard to Messrs. Jivanlal Varajrai Desai and Vallavbhai Jhaverbhai Patel, Barristers-at-law, who the Judge stated had joined and were prominent members of the local league, the Judge said he had no power to deal with them.

3. This notice was issued under clause 10 of the Letters Patent. A similar notice was also issued on Messrs. Q. R. Dabholkar, Manilal Vallabhram Kothari, and Kalidas Jaskaran Jhaveri, under clause 56 of the Bombay Regulation II of 1827. Cause has now been shown by all the respondents and it has been admitted by Sir Chimanlal Setalvad, who appeared for Messrs. J. V. Desai, G. R. Dabholkar and K. N. Desai that whether they are to be dealt with under clause 10 of the Letters Patent or clause 56 of- the Bombay Regulation II of 1827, the same principles are involved.

4. In the case of Government Pleader, Bombay v. Annaji Narayan Deshpande I.L.R(1912) 37 Bom. 354 : 15 Bom. L. R. 231 it was held that the term 'misbehaviour' under clause 56 of the Bombay Regulation II of 1827 is not restricted to misbehaviour in the strict course of a pleader's professional duties, but includes general misbehaviour. And in In re S.B. Sarbadhicari (1906) I.L.R. 341 IndAp 41: 9 Bom. L.R. 9, 14appears the following passage:-

Their Lordships will not attempt to give a definition of 'reasonable cause,' or to lay down any rule for the interpretation of the Letters Patent in this respect. Every case must depend on its own circumstances. It is obvious that the intention of the Grown was to give a wide discretion to the High Courts in India in regard to the exercise of this disciplinary authority.

5. The powers of a Court in dealing with cases of alleged misconduct against attorneys are described in Be Hill (1868) L.R. 3 Q.B. 543. An attorney, while acting as a clerk to a firm of attorneys, in completing the sale of certain property, received the balance of the purchase-money, which he appropriated to his own use. On an application to strike him off the roll, he admitted the misappropriation, and it was held that although the misconduct was not committed strictly in his professional character, yet, as it was misconduct which would have prevented him from being admitted as an attorney, the Court would exercise its summary jurisdiction, and punish the misconduct. Lord Blackburn said:

But where there is a matter which would subject the person in question to a criminal proceeding, in my opinion, a different principle must be applied. We are to see that the officers of the Court are proper persons to be trusted by the Court with regard to the interests of suitors, and we are to look to the character and position of the persons, and judge of the cots committed by them, upon the same principle as if we were considering whether or not a person is fit to become an attorney.

6. Lord Cockburn said:

I should add, there is one consideration I omitted, and which, I think, is entitled to great weight. It is that put to us in the course of the discussion, namely, that if these facts had been brought to our knowledge upon the application for this gentleman's admission, we might have refused to admihim; and I think the fact of his having been admitted does not alter his position; having been admitted, we must deal with him as if he were now applying for admission; and as in the case of a person applying for admission as an attorney, we should have considered all the circumstances, and either have refuged to admit, or have suspended the admission for a certain time, so where a person has once been admitted we are bound, although he was not acting in the precise charaoter of an attorney, to take notice of his misconduct.

7. It is not suggested that the respondents have done anything which would subject them to criminal proceedings but that case is sufficient authority for stating that we can deal with the respondents in the same way as if they were now applying for enrolment.

8. It is necessary, therefore, to carefully consider the terms of the document known as the Satyagraha oath 6r pledge Which, according to the copy sent to us by the District Judge, runs as follows:-

Being conscientiously of opinion that the Bills known as the Indian Criminal Law (Amendment) Bill I of 1919 and the Criminal Law (Emergency Powers) Bill II of 1919 are unjust, subversive of the principles of liberty and justice, and destructive of the elementary rights of individuals on which the safety of the community as a whole and the State itself is based, we solemnly affirm that in the event of these Bills becoming Law and until they a re withdrawn we shall refuse civilly to obey these Laws and such other laws as a Committee to be hereafter appointed may think fit, and further affirm that in this struggle we will faithfully follow truth and refrain from violence to life, person or property.

9. The movement to obtain signatures to this oath commenced in February. I may say at once that no one can reasonably object to the right of a citizen to express his opinion as to the merits or demerits of a legislative measure proposed to be adopted by the Government and, if he is opposed to it, to take every means to induce Government to withdraw it, provided he keeps within the bounds imposed by established law. The signatories to the oath have expressed their objection to these Bills, which came to be known as the Eowlatt Bills, and affirmed that they would civilly refuse to obey them if they became law. Civilly according to the dictionary means in a polite manner, politely. It is suggested that civil or polite disobedience is the same as what is known as passive resistance. That is not so. Passive resistance connotes complete inaction in the presence of a command of law, that is to say, the refusal to do what the law commands, while disobedience includes the doing of something which is forbidden by law. Whether the disobedience is active or passive depends on the nature of the law which it is intended to disobey.

10. Now we are concerned in this matter with the conduct of the respondents not as citizens but as advocates and pleaders.

11. We have nothing to do with their political views, nor have we anything to do with expressions of opinion on their part, however strong, against any particular measure proposed by the Legislature. But a public declaration made by an advocate or a pleader that he has bound himself civilly to disobey any laws which a Committee to be thereafter appointed might think fit, appears to me to go very much further than a mere expression of opinion as to the merits of a Bill proposed by the Legislature. I take it for the purpose of the argument that the respondents, as Mr. Kennedy believes, were sincerely and conscientiously under the impression that the Rowlatt Bill legislation was a crime, and that they honestly thought that signing the Satyagraha pledge would be a constitutional form of agitation against the passing of the Rowlatt Bills. But I have to consider whether the signing of such a pledge is consistent with the duties which they owe as officers of this Court. Advocates and pleaders are a privileged class enrolled not only for the purpose of rendering assistance to the Courts in the administration of justice, but also for giving professional advice, for which they are entitled to be paid, to those members of the public, who require their services. Their position, training and practice, give them immense influence with the public and their example must necessarily have a much greater effect, whether for good or for evil, than the example of those who do not occupy this privileged position. It is not necessary in order for us to be able to exercise our jurisdiction that any offence should have been committed, nor is It necessary that what the respondents have done should have subjected them to anything like general infamy or imputation of bad character. The case of In re Wallace (1866) L.R. 1 P.C. 283 was relied on by the respondents. But I do not think that Lord Westbury in giving judgment went so far as to say that an act to render an attorney remaining in the Court as a practitioner improper must necessarily be an act committing an attorney to anything like general infamy or an imputation of bad character. That was an appeal from a decision of a Canadian Court, and as regards the respondent in the case proceedings of a different nature could have been taken against him for the act complained of. Under the Letters Patent and the Regulation each case must be decided on its own facts, as their Lordships of the Privy Council said in Sarbadhicari's case, and in my opinion there may be acts which would entitle us to refuse admission to a candidate seeking to be enrolled as a pleader or an advocate, or to consider that it was improper that a pleader or advocate should remain as a practitioner of the Court, although the acts complained of do not involve an imputation of general infamy or bad character. This pledge, however, can be said to involve, if not directly, certainly indirectly, the professional character and reputation of the respondents. Their duty as pleaders and advocates under their sanads is to advise their clients to the best of their abilities as to what the law is, not as to what the law , should be in their opinion. But it would be impossible for them to keep their duties to the League separate from their professional duties. This conflict would become the more pronounced if any of the respondents had occasion to advise his client regarding one of the Laws denounced by the league.

12. Sir Chimanlal was asked whether his clients would be able to give advice conscientiously to their clients without being influenced by their pledge, and Sir Chimanlal replied that they would give advice as lawyers conscientiously and not as Satyagrahis. He was bound to say that, but the atmosphere of this Court, before which his clients have been arraigned, is somewhat different to the atmosphere of their consulting chambers in Ahmedabad. Supposing for instance the Committee had denounced the Income Tax Act, the respondents would be bound by their pledge to refuse to fill in the Schedules sent to them for the purpose of assessment. If a client consulted one of them regarding the way in winch the Schedule should be filled in he would be on the horns of a dilemma. Every member of the League of this description is of necessity a propagandist. To arrive at the desired end as many adherents must be gathered in as possible, no opportunity of doing so must be lost. It would, therefore, be the respondent's duty as a Satyagrahi to persuade the client to disobey the law, it would be his duty as an officer of the Court to tell the client to obey.

13. It cannot be doubted for a moment that it is extremely undesirable that any of those who hold sanads as advocates or pleaders of this Court should find themselves involved in this conflict of duty. Then there is the danger of their example being followed by perttous who do not possess that high moral character, that love for the truth, that abhorrence of all ideas of violence to life, person or property possessed by the respondents. It would appear on the face of it that the signatory to the pledge abdicates all independent judgment in favour of an unknown body of his fellow signatories. I am told that if the Committee referred to in the pledge called upon the signatories in pursuance of their pledge to do acts repugnant to the respondents' feelings, they would not act in accordance with their pledge. If that is the case, the signing of the pledge would not involve any obligation on the part of the signatories to act according to the pledge, and if a signatory considers himself entitled to form his own opinion whether he should follow the lead of the Committee or not, it follows that the pledge is worthless and he would much better not have signed it. But the public can only judge men by their actions, and the more ignorant and less educated of the public who sign the pledge and see the names of other signatories are not acquainted with the mental reservations of their fellow signatories. A very sound principle to remember is that those who live by the law should keep the law. I should certainly be disinclined to grant a Sanad of this Court to any one who I knew was a signatory to this pledge for I should not consider him a proper person to be enrolled in that privileged class referred to above. That being so I should be inclined to say under the powers given us by the Charter and the Regulation that a person who had signed this pledge was not a fit person to be allowed to continue amongst that privileged class.

14. Turning now to the letters of explanation given by the pleader respondents to the District Judge I am not surprised at his expressing the opinion that they were not satisfactory. It must be remembered that those letters were written a few days after the lamentable riots on the 10th and 11th April at Ahmedabad and, though I do not for a moment suggest that any of the respondents took any part either directly or indirectly in those riots, it is a matter of common knowledge that there had been several meetings attended by thousands of millhands during March and the first ten days of April which were -summoned by the leaders of the Satyagraha Sabha. Whether those meetings had any connection with the subsequent riots was a question which was not discussed during the course of the arguments, but it has already been the subject of judicial decision. The District Judge considered he had no power to deal with the barrister respondents; so the record contains no letter of explanation from them. Mr. J.V. Dosai, however, has put in an affidavit at last moment, a proceeding which cannot be commended considering that the hearing of these notices has twice been adjourned for the convenience of the respondents, while Mr. V.J. Patel with wiser discretion -has contented himself by being represented before us by Mr. G. N. Thakor who supported the argument of Sir Chimanlal.

15. There is no need to deal with Mr. Desai's affidavit. It is sufficient to say that it does him no credit.

16. I have refrained from dealing with many points contained in the argument of counsel for the respondents, which concern rather the politician than the Judge, and are therefore always open to controversy. The plain issue is what all the duties of the respondents to this Court ?

17. I have waited in vain for any acknowledgment on the part of , the respondents that they have realised in the events which have happened, that, however harmless and constitutional they may , have considered this movement when it was started, it is absolutely incompatible with their duties as lawyers to the High Court that they should continue to take part in it.

18. Sir Chimanlal did indeed say that it might be that the Satyagraha movement would receive its quietus. He hoped and trusted that it had received its final quietus now. That no doubt was his own personal opinion but is there any trace on the record that that was also the opinion of the respondents ?

19. Sir Chimanlal also said it was open to the signatories to withdraw from the pledge. Then why does not he advise his clients to do so now ?

20. I wish to make it perfectly clear that apart from all other considerations those who are enrolled as advocates and pleaders of this High Court or of the District Courts cannot serve two masters. It may be that after due consideration of this expression of our opinion the respondents may see the force of it. We have no desire to deal harshly with them, and for the present we shall content ourselves with giving them this warning. We do so because we are told that the Satyagraha Sabha since the riots of April has been quiescent. Whether we shall take any further action depends entirely on the development if any of the Satyagraha movement, so that these notices will be adjourned with leave to the Advocate General and the respondents to move for their restoration to the Board should occasion arise.

21. In connection with these notices there has been ' regrettable incident of which we are bound to take notice. An application was made to this Court by some of the respondents or their pleaders for copies of Mr. Kennedy's letter. Copies were furnished and considering that the respondents were lawyers it do not appear necessary to inform them that such copies were given to them for their private information and not for publication. That letter was published before the case came on for hearing in Court. Who is responsible for what we must regard as a very grave breach of a well recognized rule we cannot say. We are quite sure that the legal advisers of the respondents are free from blame; if the respondent or respondents who published the letter- do not give in his or their names to the Registrar, the blame must for the present rest on all the respondents.

Heaton, J.

22. I concur generally in the judgment just delivered by my Lord the Chief Justice and I concur in the order proposed by him. There are however a few words of my own to add. One of the legal gentlemen concerned in these proceedings in dealing, in an affidavit, with the Rowlatt legislation and the Satygraha movement wrote as follows :

I believe that it is the inherent right of a citizen to protest against such legislation by such constitutional methods and I have merely acted on that bonafide belief.

23. Of the rights of ordinary citizens however little need be said, for we are not dealing with the case of ordinary citizens. Our notices were issued against professional lawyers and it is with them and with them only that we are concerned. They belong to a privileged class and they enjoy their privileges with our consent. But just as they enjoy special privileges, so they are under peculiar obligations. Moreover, this Court is under special obligations in regard to them. Just as it licenses or permits them to practise as lawyers so it is bound to see that they do not flagrantly abuse their privileges.

24. I will first deal with their obligations to clients. We not unnaturally asked what advice would a professional lawyer, who had taken the Satyagraha pledge, give to a client who asked him whether as a citizen he ought to obey one of those laws which as a lawyer he was pledged civilly to disobey. If the lawyer's answer were that, to quote the words of the pledge : ' 'the law was unjust, subversive of the principles of liberty and justice and destructive of the elementary rights of individuals' and ought to be disobeyed; then a position would arise which we could not but consider reflected very unfavourably on the lawyer's performance of his professional duty. For, it is as much the lawyer's duty in dealing with his client to act on the law as it is, not as he would have it be, as it is the duty of a Judge to do the same.

25. We were, however, most positively assured by counsel who appeared for the respondent that this would not happen. In other words we are told that though as citizens the respondents would unhesitatingly assert that certain laws ought not to be obeyed; yet they would, as professional lawyers, advise their clients that those same laws had to be obeyed. It may be so; but the temptation to tell the client that the law should be disobeyed would at least be severe, and would place them in a position which no conscientious practising lawyer ought to occupy.

26. I will now turn to the duty of professional lawyers to this Court and to the law. They are bound, as I have said, to act according to the law as it is, not as they would have it be. Criticism of the law, even severe criticism, is permitted even to Judges, much more so perhaps to professional lawyers. Nevertheless it is a matter of conscience with both, that they are to recognize and give effect to the law. We must assume that professionally the respondents would obey all the laws : but as they have taken a pledge, as citizens, to disobey certain laws, their position is just as unsatisfactory in relation to this Court and to the law as it is in relation to their clients.

27. It seems to me that professional lawyers cannot fulfil both the obligations of the Satyagraha pledge and the obligations of their profession. They are pledged to follow the truth but this they cannot consistently do if they disobey certain laws as citizens whilst as lawyers they obey and advise obedience to those same laws.

28. It has been necessary to say all this, as I gather that the respondents are blind to the fact that there is any thing unsatisfactory or unbecoming in their attitude. They are under the impression that their position as professional lawyers is correct. But to me it seems to be essentially incorrect.

29. Suppose we were dealing with those who desired to become professional lawyers and who applied to us for enrolment on our list of advocates or for Sanads to practise as pleaders. Should we grant the applications I greatly doubt it. At any rate until the applicants had given definite undertakings that they would limit their political activities, not merely so as not to interfere with, but so as not to excite suspicion as to the correctness of their professional conduct.

30. The attitude which the respondents have adopted is to my mind undeniably embarrassing and unseemly from a professional point of view. But need we anticipate that anything worse will follow That we cannot say. It depends on the development of the Satyagraha movement with which the respondents have intimately associated themselves.

Kajiji, J.

31. I have had the advantage of reading the judgments of my Lord the Chief Justice and brother Heaton and I concur in the order proposed and have nothing to add.

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