IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.12.2010 C O R A M: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Writ Petition Nos.17353 of 2009, 17354 of 2009 and connected Miscellaneous Petitions Elephant G.Rajendran .. Petitioner in both the W.Ps. Vs. 1. Mr.R.K.Chandramohan, Advocate also holding the Office of The Chairman, Bar Council of Tamil Nadu and Pondicherry, High Court, Madras – 104. .. Respondent in both the W.Ps. 2. The Registrar General, High Court of Madras, Madras – 104. .. Respondent in both the W.Ps. 3. The Chairman, Bar Council of India, New Delhi. .. 3rd Respondent in W.P.No.17354/09 Prayer in W.P.No.17353 of 2009: Writ Petition filed under the Article 226 of the Constitution of India to issue a Writ of Quo- Warranto against the first respondent directing him to explain under what authority he holds the office as the Chairman of Bar Council of Tamil Nadu and Pondicherry and continues to hold the said post. Prayer in W.P.No.17354 of 2009: Writ Petition filed under the Article 226 of the Constitution of India to issue a Writ of Mandamus directing the Bar Council of India, New Delhi, 3rd Respondent herein, to initiate appropriate action within a time frame against the First Respondent as has been held by the Hon'ble Supreme Court in Ajay Kumar Pande's In RE reported in 1998 (7) SCC 248. For Petitioner : Mr.Elephant G.Rajendran, Party-in-Person in both the W.Ps. For Respondents : Mr.R.Vijay Narayan, Senior Counsel for Mr.R.Parthiban, for R1 in both the W.Ps. https://hcservices.ecourts.gov.in/hcservices/ Mr.A.Jenasenan, for R2 in both the W.Ps. Mr.S.Parthasarathy, Senior Counsel forMr.K.Venkatakrishnan for R3 in W.P.No.17354 of 2009. C O M M O N O R D E R F.M. IBRAHIM KALIFULLA, J. These two writ petitions have been filed by a practising Advocate of this Court by way of Public Interest Litigation. 2. In W.P.No.17353 of 2009, the prayer is for issuance of a writ of Quo Warranto directing the first respondent to explain under what authority he holds office of the Chairman of Bar Council of Tamil Nadu and Pondicherry and continue to hold the said post. 3. In W.P.No.17354 of 2009, the prayer is for issuance of a writ of Mandamus directing the Bar Council of India, New Delhi, the third respondent herein, to initiate appropriate action against the first respondent within a time frame as directed by the Hon'ble Supreme Court in the case of Ajay Kumar Pande reported in 1998 (7) SCC 248. 4. According to the petitioner, an Anticipatory Bail petition filed by a medical practitioner came up before Hon'ble Mr.Justice R.Ragupathy, as he then was, on 29.06.2009; that the first respondent appeared on behalf of the accused and argued the case; that the learned Judge was not inclined to grant the Anticipatory Bail and was about to dismiss the petition and at that point of time, the first respondent alleged that the learned Judge was merely passing orders on the basis of the submissions of the prosecutor alone. In the said case it is stated that the prosecutor was representing the CBI. It is further alleged that in the course of the hearing, the learned Judge stated that "A Union Minister had called me to exert influence in favour of accused and to release the petitioner/accused on anticipatory bail. You yourself know everything". 5. The petitioner would therefore allege that the first respondent must be aware of the name of the Union Minister and the conduct of the first respondent in making aspersions against the learned Judge was gross contempt and interfered with the administration of justice. He would further allege that the first respondent being the Chairman of the State Bar Council, his behaviour amounts to contempt of Court. 6. In the affidavit filed in support of the writ petition, it is further alleged that the media reports revealed that the learned Judge addressed a letter to the Hon'ble The Chief Justice, that as per the information, the first respondent who appeared for the accused in the Anticipatory Bail petition met the learned Judge in his Chambers and pressurised the learned Judge to grant the https://hcservices.ecourts.gov.in/hcservices/ relief to the accused and that he also contacted a Union Minister in his cell phone and wanted the learned Judge to speak to that Union Minister. According to the petitioner, such a conduct displayed by the first respondent also calls for contempt action. 7. It is further alleged that since the first respondent is holding a statutory office, his conduct in attempting to interfere with the course of justice by using the name of a Union Minister for achieving an illegal action and therefore, he is disqualified from holding the office of the Chairman of Bar Council of Tamil Nadu and Pondicherry. According to the petitioner, by virtue of the gravity of the conduct indulged in by the first respondent, his continuance in the office of Chairman, Bar Council of Tamil Nadu and Pondicherry would injure and damage the reputation of the said institution. 8. The petitioner by making reference to the various newspaper reports would contend that apart from initiating suo moto contempt action against the first respondent, necessary Quo Warranto should be issued calling upon the first respondent to explain as to under what authority he is holding the office of the Chairman, Bar Council of Tamil Nadu and Pondicherry, apart from necessary directions to the Bar Council of India to initiate appropriate action against him. 9. When the writ petitions were moved before a learned Single Judge on 17.07.2009, at the S.R. stage for maintainability, the learned Single Judge on noting that the petitioner has filed the writ petitions by way of Public Interest Litigation, directed the Registry to post the matter before the Hon'ble The Chief Justice for posting before an appropriate Bench. Thereafter, the writ petitions were posted for admission on 27.08.2009, and on that date, the petitioner filed an affidavit sworn to by an Advocate in which the said Advocate supported the version of the petitioner. 10. We also noted the averments of the petitioner in his affidavit, where it was stated that the learned Judge has written a letter to the Hon'ble The Chief Justice of the Madras High Court, we directed the Registrar General of this Court to inform the Court as to any such letter has been addressed by the learned Judge to the Hon'ble The Chief Justice. It was further directed that if any such letter had really been addressed, to circulate the same to this Court. 11. When the writ petitions were posted again on 31.08.2009, the Registry placed before us the letter of the learned Judge dated 02.07.2009. After going through the letter of the learned Judge, as we were prima facie satisfied that a case was made out for admission, RULE NISI was issued. On that date, notice was taken on behalf of the first respondent by his counsel and for the appearance of other respondents, it was directed to be posted after eight weeks. https://hcservices.ecourts.gov.in/hcservices/ 12. It was again on 13.10.2009, when the learned counsel for the first respondent sought for some more time for filing his counter, the case was posted to 27.10.2009. The case was then posted on 12.11.2009, 23.11.2009, 25.11.2009, 30.11.2009, 01.12.2009, 04.12.2009, 15.12.2009, 21.01.2010, 22.02.2010, 19.07.2010, 20.07.2010, 21.07.2010 and thereafter on 19.10.2010, when arguments were heard and orders reserved. 13. On behalf of the first respondent, counter affidavits were filed in both the writ petitions and by the third respondent Chairman of the Bar Council of India, New Delhi in W.P.No.17354 of 2009. 14. In the counter affidavit filed by the first respondent in the writ for Quo Warranto, the first respondent raised a preliminary objection by contending that none of the ingredients calling for issuance of Quo Warranto having been alleged in the affidavit filed in support of the writ petition, the prayer of the petitioner cannot be granted. According to the first respondent a writ of Quo Warranto would lie only if the appointment of the person is contrary to the rules governing the appointment, that the person so appointed is ineligible to hold the post and office in question should be a public office to which the person is appointed and it cannot be in respect of an elected office. 15. In W.P.No.17354 of 2009, the first respondent would contend that based on the affidavit averments and allegations, the petitioner should only approach the competent authority for taking any action in accordance with law and that going by the provisions contained in the Advocates Act, if at all the petitioner is aggrieved, he should only approach the State Bar Council in the first instance and thereafter the Bar Council of India. The first respondent therefore contended that the writ petition cannot be a remedy. 16. In the counter affidavit filed on behalf of the third respondent, Bar Council of India, the only relevant stand which can be culled out as stated in paragraph 16 is to the effect that the Bar Council of India is always ready and willing to offer all the best co-operation for achieving due and proper administration of justice, if this Court directs for any such action within the purview of the provisions of the Advocates Act and the Rules framed thereunder in the interest of justice. The rest of the statements contained in the counter affidavit of the third respondent are not germane for our consideration and therefore we are not referring to the same in detail. 17. In his submissions, the petitioner who appeared in person contended that the first respondent not having denied the various averments contained in the affidavit of the petitioner, it should be taken that those averments are true and further proceedings should be taken on that basis. The learned petitioner would contend that having regard to the magnitude of the conduct https://hcservices.ecourts.gov.in/hcservices/ alleged against the first respondent and keeping in mind the pivotal post of Chairman of the State Bar Council held by the first respondent which is a Statutory Body controlling the members of the Bar in the State, apart from initiating appropriate contempt action against the first respondent, the third respondent Bar Council of India should also be directed to enquire into the allegations and punish the first respondent by suspending his practice. 18. The learned petitioner would request this Court to forward his complaint to the Bar Council of India for proceeding against the first respondent. The petitioner relied upon the decisions reported in 1972 (1) SCC 651 (R.L.Kapur Vs. State of Madras), 1993 (4) SCC 441 (Supreme Court Advocates-on-Record Assn. v. Union of India), 1998 (4) SCC 409 (Supreme Court Bar Association Vs. Union of India), 1998 (7) SCC 248 (Ajay Kumar Pandey, Advocate, in Re.), AIR 1974 SC 2269 (C.I.T. Bombay Vs. R.H.Pandit), 2001 (7) SCC 231 (B.R. Kapur v. State of T.N.,) in support of his submissions. 19. As against the above submissions, Mr.Vijay Narayan, learned senior counsel appearing for the first respondent by referring to Sections 3(2)(b), 3(3), 2(1)(j), 6(1)(c), 7(1)(b), 8, 35 and 36 of the Advocates Act as well as Chapter II Part VI of the Bar Council of India Rules contended that any allegations against the first respondent in the course of his discharge of professional duty as an Advocate can be by way of a complaint before the State Bar Council and the third respondent Bar Council of India only possess appellate jurisdiction and therefore if at all the petitioner wants to make any grievance as against the first respondent, he should have worked out his remedy under the provisions of the Advocates Act and the Bar Council of India Rules and hence the writ petitions are not maintainable. 20. As far as his claim for taking any action against the first respondent by way of contempt is concerned, the learned senior counsel would contend that by virtue of Section 20 of the Contempt of Courts Act, any such contempt action should have been initiated within one year. In support of his submissions, the learned senior counsel relied upon the decisions reported in 2000 (3) SCC 171 (Om Prakash Jaiswal v. D.K. Mittal), 2001 (7) SCC 549 (Pallav Sheth Vs. Custodian), 2005 (1) SCC 254 (Bal Thackrey Vs. Harish Pimpalkhute), AIR 2001 SC 3315 (State of Kerala Vs. M.S.Mani), AIR 1993 SC 892 (Janata Dal Vs. H.S.Chowdhary), 2004 (3) SCC 363 (Dr.B.Sing Vs. Union of India), AIR 2005 SC 540 (Dattaraj Nathuji Thaware Vs. State of Maharashtra), 2005 (5) SCC 136 (Gurpal Singh v. State of Punjab), 2007 (10) SCC 614 (Neetu Vs. State of Punjab), 2008 (6) CTC 811 (T.Venkateswaran Vs. Muthuraj) and AIR 1982 SC 149 (S.P.Gupta Vs. Union of India). 21. The learned counsel would also contend that since the contentions of the petitioner do not fit in any of the Public Interest Litigation guidelines set done by the Hon'ble Supreme Court, on that ground as well, the writ petitions are not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 22. In these two writ petitions, the nature of relief claimed are threefold, that by virtue of the first respondent's misbehaviour with the learned Judge in a judicial matter while representing a party as an Advocate, he is disqualified from continuing in the post of Chairman of the Bar Council of Tamil Nadu and Pondicherry, that having regard to the gravity of the misbehaviour indulged in by the first respondent, he should be proceeded with by way of contempt action and for the very same reason, the Bar Council of India should be directed to initiate action against him and suspend his practice. 23. Before going into the details of the nature of misbehaviour of the first respondent alleged in the writ petitions, we feel it appropriate to refer to the principles laid down in the various decisions placed before us on either side to reach a just conclusion. 24. We are conscious of the fact that the allegations alleged against the first respondent, if made out, would definitely call for serious action against him, in as much as, the first respondent made a crude attempt to interfere in the administration of justice. 25. Keeping the above perception in mind, we wish to define the scope of consideration of the claims made in the writ petitions and the stand of the first respondent in his attempt to meet those allegations. The decisions cited before us really throws much light on the issues raised and therefore we wish to be guided by the principles laid down therein. 26. In the decision reported in 1993 (4) SCC 441 (Supreme Court Advocates-on-Record Assn. v. Union of India) in paragraphs 53 and 57 the Hon'ble Supreme Court highlighted the Constitutional guarantees to safeguard the independence of Judiciary, which is as follows: "53. For securing the above cherished objectives equally to all citizens irrespective of their religion, race, caste, sex, place of birth and the chronic socio- economic inequalities and disadvantages, the Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts, and for ensuring the principle of the ‘Rule of Law’ which in the words of Bhagwati, J. (as the learned Chief Justice then was) “runs through the entire fabric of the Constitution”. To say differently, it is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours. ***** 57. Regarding the significance of this principle, Chandrachud, J. (as the learned Chief Justice then was) https://hcservices.ecourts.gov.in/hcservices/ in Union of India v. Sankalchand Himatlal Sheth said that the independence of judiciary is the ‘cardinal feature’ and observed that the judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary." (Emphasis added) 27. In the decision reported in 1995 (2) SCC 584 (Vinay Chandra Mishra vs. None) the Hon'ble Supreme Court highlighted the pivotal role played by the superior Courts and also the duties and responsibilities of the legal practitioners vis-a-vis their clients and the Courts. Such statement of the Hon'ble Supreme Court are found in paragraphs 39, 41 and 42 which are as under: "39. The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. ***** https://hcservices.ecourts.gov.in/hcservices/ 41. As held by this Court in the matter of Mr ‘G’, A Senior Advocate of the Supreme Court (1995) 1 SCR 490, “the Court, in dealing with cases of professional misconduct is not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character. ... He [a legal practitioner] is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action”. 42. In Lalit Mohan Das v. Advocate General, Orissa (1957 SCR 167), this Court observed: “A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalising the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From that point of view, the conduct of the https://hcservices.ecourts.gov.in/hcservices/ appellant was highly reprehensible." (Emphasis added) 28. In the decision reported in 1998 (4) SCC 409 (Supreme Court Bar Association Vs. Union of India) the Hon'ble Supreme Court dealt with the power to punish for contempt and the procedure for taking action against the Advocates for professional misconduct in paragraphs 42, 43, 71, 77, 78 and 79 which read as follows: "42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining “the jury, the judge and the hangman” and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice. 43. The power of the Supreme Court to punish for contempt of court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of “professional misconduct” in a summary manner, giving a go-by to the procedure prescribed under the Advocates Act. The power to do complete justice under Article 142 is in a way, corrective power, which gives preference to equity over law but it cannot be used to deprive a professional lawyer of the due process contained in the Advocates Act, 1961 by suspending his licence to practice in a summary manner while dealing with a case of contempt of court. ***** 71. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19-5-1961, matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practise as an https://hcservices.ecourts.gov.in/hcservices/ advocate vests exclusively in the Bar Council of the State concerned, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body. ***** 77. However, the exercise of powers under the contempt jurisdiction cannot be confused with the appellate jurisdiction under Section 38 of the Act. The two jurisdictions are separate and distinct. We are, therefore, unable to persuade ourselves to subscribe to the contrary view expressed by the Bench in