PETITIONER:
BAR COUNCIL OF MAHARASHTRA
Vs.
RESPONDENT:
M. V. DABHOLKAR ETC. ETC.
DATE OF JUDGMENT03/10/1975
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
GUPTA, A.C.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 242 1976 SCR (2) 48
1976 SCC (2) 291
CITATOR INFO :
E&R 1978 SC 548 (106)
R 1981 SC 344 (48)
RF 1981 SC 477 (5)
ACT:
Professional conduct-Soliciting work-If amount to
misconduct-Disciplinary Committee of State Bar Council-
Defects in its working.
HEADNOTE:
The rule of law cannot be built on the ruins of
democracy for where law ends tyranny begins. If such be the
keynote thought for the very survival of our Republic, the
integral bond between the lawyer and the public is
unbreakable. And the vital role of the lawyer depends upon
his probity and professional life style. Be it remembered
that the central function of the legal profession is to
promote the administration of justice. If the practice of
law is thus a public utility of great implications and a
monopoly is statutorily granted by the nation, it obligates
the lawyer to observe scrupulously those norms which make
him worthy of the confidence of the community in him as a
vehicle of justice-social justice. The Bar cannot behave
with doubtful scruples or strive to thrive on litigation.
Canons of conduct cannot be crystalised into rigid rules but
felt by the collective conscience of the practitioners as
right. [55 F-H].
Justice cannot be attained without the stream being
pellucid throughout its course and that is of great public
concern, not merely professional care. [50 F].
The respondents, who were lawyers practising in
criminal courts, were charged with professional misconduct
under s. 35(1) of the Advocates Act, 1961, in that they
positioned themselves at the entrance to the Magistrates'
Courts, watchful of the arrival of potential litigants and
at sight, rushed towards the clients in an ugly scrimmage to
snatch the briefs. to lay claim to the engagements even by
physical fight to undercut fees, and by this unedifying
exhibition sometimes carried even into the Bar Library,
solicited and secured work for themselves. The Bar Council
of Maharashtra considered The complaint received from the
High Court against the lawyers and referred the matter to
its Disciplinary Committee for further probe. The
Disciplinary Committee of the State Bar Council held the
respondents guilty of professional misconduct and suspended
them from practising as advocates for a period of there
years. On appeal, the Disciplinary Committee of the Bar
Council of India held that under r. 36 of the rules framed
under s. 49(c) of the Advocates Act in order to be amenable
to the disciplinary jurisdiction the advocates must have (i)
solicited work (ii) from a particular person and (iii) with
respect to a case. It held that unless the three elements
were satisfied it could not be said that an advocate had
acted beyond the standard or professional conduct and
etiquette. It therefore, absolved all the respondents of the
charge cf professional misconduct. The State Bar Council has
come in appeal to this Court.
^
HELD: Rule 36 of the rules framed under s. 49(c) of the
Advocates Act, fairly construed, sets out wholesome rules of
professional conduct and the dissection of the said rule,
the way it has been done by the Disciplinary Tribunal,
disfigure it. [59 C].
(1) The canons of ethics and propriety far the legal
profession totally taboo conduct by way of soliciting,
advertising. scrambling and other obnoxious practices,
subtle or clumsy for betterment of legal business. Law is no
trade, briefs no merchandise and so the leaven of commercial
competition or procurement should not vulgarise the legal
profession. [60 C]
49
(2)(a) The procedure adopted by the State Bar Council
in referring the cases to its Disciplinary Committee is in
due compliance with s. 35(1) of the Advocates Act. [51 C-D].
(b) The contention that the resolution of the Bar
Council did not ex facie disclose that it had reason to
believe that the advocates were guilty of professional
misconduct had no merit. The requirement of "reason to
believe" cannot be converted into a formalised procedural
road block, it being essentially a barrier against frivolous
enquiries. lt is implicit in the resolution Of the Bar
Council, when it says that it has considered the complaint
and decided to refer the matter to the Disciplinary
Committee, that it had reason to believe as prescribed by
the statute. [51 D-E].
(3) The State Tribunal has, from a processual angle,
fallen far short of norms like proper numbering of witnesses
and exhibits, indexing and avoidance of mixing up of all
cases together, default in examination of the respondents,
consideration separately of the circumstances of each
delinquent for convicting and sentencing purposes. More
attention to the specificity in recording evidence against
each deviant instead of testimonial clubbing together on all
the respondents, could have made the proceedings clearer,
fairer and in keeping with court methodology without over-
judicialised formalities. The consolidation of all cases and
trying them all jointly, although the charges there
different episodes, obviously violative of fair trial. [59
D-F].
(4) (a) The profound regret of these cases lies not
only in the appellate Disciplinary Tribunal's subversive
view of the law of professional conduct that attempted
solicitation by snatching briefs and catching clients is of
no ethical moment, or contravention of the relevant
provisions, but also in the naive innocence of fair and
speedy procedure displayed by the State Disciplinary
Tribunal in clubbing together various charges levelled
against the advocates in one common trial, mixing up the
evidence against many, recording omnibus testimony
slipshodly, not maintaining a record of each day`s
proceedings, examining witnesses in the absence of some
respondents taking eight years to finish in trial involving
depositions of four witnesses and omission to consider the
evidence against each alleged delinquent individually in the
semi-penal proceeding. True, a statutory Tribunal may
ordinarily regulate its procedure without too much rigidity,
subject to the rules of natural justice, but large scale
disregard of well-known norms of fair process makes one
wonder whether some at least of the respondents had not been
handicapped and whether justice may not be a casualty if the
Tribunal is not alerted about its processual
responsibilities. [52 B-D]
(b) The Appellate Tribunal was wholly wrong in applying
r. 36 which was promulgated only in 1965 while the alleged
misconduct took place earlier. What this Tribunal forgot
was that the legal profession in India has been with us even
before the British and coming to decades of this century,
the provisions of s. 35 of the Advocates Act, s. 10 of the
Bar Councils Act and other enactments regulating the
conduct of legal practitioners have not turned on the
splitting up of the text of any rule but on the broad
canons of ethics and high tone of behaviour well-established
by case law and long accepted by the soul of the bar.
Professional ethics were bourn with the organised bar, even
as moral norms arose with civilised society. The exercise in
discovering the three elements of r. 36 was as unserviceable
as it was supererogatory. [59 G-H].
(c) It is a misfortune that a disciplinary body of a
dimensionally get and growing public utility profession has
lost its vision, blinkered by, r. 36 (as misconstrued and
trisected by it.) [60 G].
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1461 to
1468 of 1974.
From the Judgment and order dated the 14th April, 1974
of the Disciplinary Committee of the Bar Council of India
New Delhi in D.C. Appeals Nos 15 to 19 and 21, 22 and 25 of
1973.
50
V. S. Desai, Vimal Dave, Miss Kailahs Mehta for the
Appellants.
Respondents appeared in person in CAs. 1461 and 1467-1468.
Sakuddin F. Bootwala and Mrs. Urmila Sirur for
Respondents in CAs. 1462-1464
V. N. Ganpule for Respondent in C.A. 1465.
D. V. Patel and Mrs. K. Hingorani for the Bar Council
of India.
S. K. Sinha for the Bihar State Bar Council.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-These appeals have filled us as much
with deep sorrow as with pained surprise. I he story of the
alleged ‘profession misconduct’ and the insensitivity of the
disciplinary authority to aberrant professional conduct have
been the source of our distress, as we will presently
explain, after unfurling the factual canvas first.
The first chapter of the litigation in this Court
related of the standing, of the State Bar Council to appal
to this Court, under s.38 of the advocates Act, 1961 (the
Act, for short) against appeallate decision of the
Disciplinary Tribunal appointed by the Bar Council of India.
This Court upheld the competence to appeal, thus leading us
to the present stage of disposing of the eight cases on
merits.
The epileptic episodes-what other epithet can
adequately express tile solicitation circus dramatised by
the witnesses as practised by the panel of advocate
respondents before us? make us blush in the narration. For,
after all do we not all together belong” to the ‘inner
republic of bencher and bar’? The putative delinquents are
lawyers practising in the criminal courts in Bombay City.
Their profession ordains a high level of ethics as much in
the means as in the ends. Justice cannot be attained without
the stream being pellucid throughout its course and that is
of great public concern, not merely professional care.
Briefly expressed, these practitioners, according to
testimony; recorded by the State Disciplinary Tribunal,
positioned themselves at the entrance to the Magistrates
Courts, watchful of the arrival of potential litigants. At
sight, they rushed towards the clients ill an ugly scrimmage
to snatch the briefs, to lay claim to the engagements even
by physical fight, to undercut fees, and by this unedifying
exhibition, sometimes carried even into the Bar Library,
solicited and secured work for themselves. If these charges
were true, any member of the Bar with elementary ethics in
his bosom would be outraged at his brethren’s conduct and
yet, in reversal of the State Disciplinary Committee’s
finding, the appellate Tribunal at the national level
appears to have entered a verdict, based on a three point
formula, that this conduct, even if true, was after all an
attempt to solicit practice and did not cross the borderline
of misconduct? The Bar Council of the State OF Maharashtra
(the appellant before us) and the Bar Council of India which
is a party respondent, have expressed consternation at this
view of the law of professional misconduct and we share this
alarm Were this view right, it is difficult to call the
legal profession noble. Were this
51
understanding of deviant behaviour sound, there is little to
distinguish between railway porters and legal practitioners
although we do not mean to hurt the former and have
mentioned a past practice, to drive home our present point?
We do not wish to dilate further on the evidence in so far
as it concerns each of the respondent-advocates in view of
certain developments which we will presently notice. There
are eight cases but we are relieved from dissecting the
evidence against most of them for reasons which we will
hopefully and shortly state.
The Bar Council of Maharashtra, by its resolution No.
29 dated August 8, 1964 considered the complaint received
from the High Court against one Kelawala and 15 other
Advocates among whom are those charged with professional
misconduct and covered by the present appeals, under s.35(1)
of the Act, and presumably having reason to believe that the
professional misconduct alleged required a further probe
referred the case to its disciplinary committee. This
procedure is in due compliance with s.35(1) of’ the Act and,
although the respondent in C.A. 1467/74 (A. K. Doshi) has
contended that the resolution of the Bar Council does not ex
facie disclose that it had reason to believe that the
advocates involved were guilty of professional misconduct,
we see no merit in it The requirement of ‘reason to believe’
cannot be converted into a formalised procedural road block,
it being essentially a barrier against frivolous enquiries.
It is implicit in the resolution of the Bar Council, when it
says that it has considered the complaint and decided to
refer the matter to the disciplinary committee, that it had
reason to believe, as prescribed by the statute
Such blanket reference to the disciplinary body, so far
as we are concerned, related to the respondent in C.A.
1461/74 (Dhabolkar), C.A. 1462/74 (Bhagtani), C.A. 1463/74
(Talati), C.A. 1464/74 (Kelawala), C.A. 1465/74 (Dixit),
C.A. 1466/74 (Mandalia), C.A.. 1467/74 (Doshi) and C.A.
1468/74 (Raisinghani). All the cases were tried together as
a unified proceeding and disposed of by a common judgment by
the Disciplinary Committee, a methodology conducive to
confusion and prejudice as we will explain later in this
judgment. The respondents in the various appeals before us
were found guilty ‘of conduct which seriously lowers the
reputation of the Bar in the eyes of the public’ and they
were suspended from practising as Advocates for a period of
three years. Appeals were carried to the Bar Council of
India and” in accordance with the statutory provision, they
were referred to the Disciplinary Committee appointed by it
under s. 37(2) of the Act. The Appellate Disciplinary
Committee heard the appeals and absolved them of
professional misconduct. Aggrieved by this verdict of
reversal, the Bar Council of Maharashtra has appealed to
this Court. The initial hurdle of locus standi has been
surmounted as stated earlier, we have been addressed
arguments on the merits by Shri V. S. Desai on behalf of the
appellant. He has canvassed the correctness of the finding
of fact in each case although with varying degrees of
diffidence, but turned his forensic fusillade on the
somewhat startling concept of professional misconduct
adopted by that disciplinary Tribunal
52
We will proceed to deal with each appeal separately so
far as the factual foundation for the charges is concerned
but discuss the legal question later as it affects not
merely the advocates ranged as respondents but the Bar in
India and the public in the country. The profound regret of
these cases lies not only in the appellate disciplinary
tribunal’s subversive view of the law of professional
conduct that
attempted solicitation by snatching briefs and catching
clients is or no ethical moment, or contravention of the
relevant provisions, but also in the naive innocence of fair
and speedy procedure displayed by the State Disciplinary
Tribunal in clubbing together various charges levelled
against 16 advocates in one common trial, mixing up the
evidence against many, recording omnibus testimony
slipshodly, not maintaining a record of each day’s
proceedings, examining witnesses in the absence of some
respondents, taking eight years to finish a trial involving
depositions of four witnesses and the crowning piece,
omission to consider the evidence against each alleged
delinquent individually in the semi-penal proceedings. True,
a statutory tribunal may ordinarily regulate its procedure
without too much rigidity, subject to’ the rules of natural
justice, but large-scale disregard of well-known norm of
fair process makes us wonder whether some at least of the
respondents have not been handicapped and whether justice
may not be a casualty if the tribunal is not alerted about
its processual responsibilities. We have some observations
to make about the Tribunals at the State and at the
appellate levels in the further stages of this judgment.
However, we find it convenient to dispose of the appeals on
the evidence, on the assumption that if, in fact, there have
been snatching and fighting and like solicitation exercises
indulged in by any of the respondents, such conduct is in
gross breach of professional behaviour and invites
punishment.
A case-by-case disposal is desirable and so we begin with
Dabholkar (respondent in C.A. 1461/74) who appeared in
person to plead in defence. The evidence against him is far
from satisfactory and suffers from generalised imputation of
misconduct against a group of guilty lawyers. To dissect and
pick out is an erroneous process, except where
individualised activities are clearly deposed to. Moreover,
the only witness who implicates him swears: ‘I have not seen
him actually snatching away the papers. I did not hear the
talk Mr. Dabholkar had with the persons’. Moreover, he was a
senior public prosecutor. We also record the fact that he
expressed distress as the arguments moved on. Apart from the
weak and mixed evidence against him, there is the
circumstance that he is around 68 years old. With a ring of
truth he submitted that he was too old to continue his
practice in the profession and had resolved to retire into
the sequestered vale of life. He frankly admitted that even
apart from the evidence, if there were any sins of the past,
he would not Pursue the path of professional impropriety
hereafter having decided virtually to step out of the Bar.
except for a limited Purpose. He had just four cases left
with him which he desired to complete. having received fees.
He further represented that he did not intend to accent any
new briefs or appear in any Court except to the little
extent that the Bombay Paints & Allied Products.
53
Limited (Chembur, Bombay), a large company which
occasionally A engaged him in small cases chose to brief
him. We are inclined to take him at his word, particularly
because he has put himself out of harm’s way by a clear
assurance about his future plans. On the evidence, we
exonerate him from professional misconduct and otherwise we
record him solemn statement to the Court.
Shri Bhagthani, respondent in C.A. 1462/74, has not
engaged counsel, nor appeared in person, but as we examined
the evidence, assisted by Shri Desai, we found precious
little against him. That extinguishes the charge. No need,
therefore, arises for punishing him or reversing the
appellate Tribunal’s acquittal.
The respondent in C.A. 1463/74 is Talati. He has been
found ‘not guilty’ in appeal but, as we perused the
evidence, it became fairly clear that some acts of
misconduct had been made out, although the evidence suffered
from omnibus implication. His counsel, Mr. Zakuriddin F.
Bootwala, however made a submission which has moved us into
showing some consideration for this respondent. Shri Zaki
represented that his client had stood the vexatious
misfortune of a long, protracted, litigation before the two
tribunals and a later round in this Court when the question
of locus standi of the State Bar Council was gone into. He
was in poor circumstances and had suffered considerably on
this score. Further, he has given an undertaking expressing
unqualified regret for his deviant behaviour and has prayed
for the clemency of the Court, promising to turn a new leaf
of proper professional conduct, if he were permitted to
practice. Taking note of the compassionate conspectus of
circumstances attendant on his case and in view of the
tender of unconditional regret which expiates, in part, his
guilt, we allow the appeal, but reduce the period of
suspension inflicted by way of punishment by the Maharashtra
Tribunal from three years to a period upto December 31 this
year (1975) . In short, we find him guilty and reluctantly
restore the verdict of the original tribunal, but reduce the
punishment to suspension from practice, as aforesaid.
The respondent in C.A. 1464/74 is Kelawala. His
counsel, Mr. Zaki, submitted that this practitioner had
become purblind and was ready to give an undertaking to the
Court that he would no longer practice in the profession.
While there is some evidence against him, an overall view of
the testimony, does not persuade us to take a serious view
of the case against him. Moreover, being old and near-blind
and having undertaken to withdraw from the profession for
ever, it is but fair that he spends the evening years left
to him without the stigma of gross misconduct. In this view,
we do not disturb the finding of the Disciplinary Committee
of the Bar Council of India hut record the undertaking filed
by Shri Zaki that his client Kelawala will not practice the
profession of law any longer. H
The respondent in C.A. 1465/74 is Dixit for whom Shri
Gannule appeared. Shri Desai, for the appellant, took us
through the evidence
54
against this lawyer but fairly agreed that the evidence was,
by any standard, inadequate to bring home the guilty of
misconduct. We readily hold him rightly absolved from
professional misconduct.
The respondent in C.A. 1466/74 is Mandalia. He did not
appear in person or through counsel. The reason is fairly
obvious. The evidence is so little that it is not possible
nor proper to pick out with precision and assurance any
particular ‘soliciting’ act to infer guilt. Shri Desai, for
the appellant, was fair enough to accede to this position.
His exculpation cannot, therefore, be interfered with.
The only contesting respondent is Doshi-C.A. 1467/74.
He contests his guilt and pursues his plea with righteous
persistence and challenges the evidence and its credibility
projecting his grievance about processual improprieties. We
will consider both these facts of his legitimate criticism
despite his cantankerous arguments which we have heard with
forbearance, remembering that a party arguing his own case
may, perhaps, not be able to discipline himself to observe
the minimal decorum that advocacy in Court obligates. The
respondent displayed, as the proceedings in this Court ran
on, his art of irritating interruptions, his exercises in
popping up and down heedless of the Court’s admonition, and
his skill in remaining references to what was not on record.
The fine art of advocacy suffers mayhem when irrelevant men
indelicately brush with it. The State Tribunal’s records
reveal that Shri Doshi had not spared their patience or
sense of pertinence. Having said all this, we are bound to
examine the evidence against him fairly. Such a scrutiny
shows that the best witness Shri Shertukde, the President of
the Bar Association and otherwise a respected Member of the
Bar, has not involved him in any malpractice. Even Shri
Pathare, the only one to rope him in, merely gives omnibus
testimony ambivalent in places and unspecific about some,
including Doshi. There is little else brought home with
clarity against loquacious Doshi. To convict him out of the
vague; lips of Pathare may perhaps be a credulous folly. The
grouping of a number of advocates in a sort of mass trial
has prejudiced Shri Doshi, a consequence which could and
should have been avoided. He had other grievances of denial
of fair opportunity which`we could not verify for want of a
daily diary or order sheet. We are satisfied by a perusal of
the record that this respondent has had an impressive
background of social service. commendable testimonials of
his legal skills from competent persons and some law
practice in various Courts and consultancy work for social
welfare institutions which are apt to dissuade him from the
disreputable bouts in the ‘pathological’ area of the
Esplanade Police Courts in Bombay. Even assuming that this
overzealous gentleman had exceeded the strict bounds of
propriety, we are not satisfied that the charge of
professional misconduct, as laid has been brought home to
him. What we have observed about his conduct in this Court
must serve as a sufficient admonition to wean him away from
improper conduct. We do not interfere with the exculpation
secured by him before the appellate Tribunal hopeful that he
will canalize his professional energies in a more
disciplined way to be useful to himself and. more
55
importantly, to his unsolicited’ clientele. After all, even
a sinner has A a future and given better court manners and
less turbulent bellicosity, Shri Doshi appears to have a
fair professional weather ahead in the City. We hold him
unblemished so far as the vice of solicitation is concerned,
but caution him to refine himself in advocacy.
Shri Raisinghani is tho respondent in C.A. 1468/74.
Shri V. S. Desai took us though the evidence against him and
although he is 65 years old, the evidence shows that he has
physically fought two rival advocates in the course of
snatching the briefs from clients, entering the Esplanade
criminal courts. One of these fights resulted in his
trousers being torn and the other assault by him was on Mr.
Mandalia one of the respondents in these appeals. Shri
Mandalia had filed a complaint against Raisinghani but in
the criminal court they lived down their earlier skirmish
and compounded the case. Be that as it may, we find that
Shri Raisinghani is not merely an old man but a refugee from
Pakistan who, leaving his properties there has migrated to
Ahmedabad with his family. Apparently he is in penurious
environs and stay in the refugee colony in Bombay,
incidentally attending to his claims to the properties left
behind in Pakistan and acquiring some evacuee property in
lieu of what he has lost. Staying in Kalyan Refugee Camp
this lawyer, afflicted with distress and dotage, is also
attending the Magistrate’s Court to make a living. This
commiserative social milieu may not absolve him of the
misconduct which, we are satisfied, the testimony in the
case, has established. Even so, Shree Raisinghani has
appeared in person and has given an undertaking expressing
remorse, praying to be shown clemency and assuring that,
economic pressure notwithstanding, he will not go anywhere
near professional pollution in the last years of his
practice at the Bar. We are inclined to take a sympathetic
view of his septuagenarian situation, record his apology and
assurance, restore the verdict of guilt by the State
Disciplinary Committee but reduce the punitive part of it to
a period of suspension until December 31, this year (1975).
Now to the legal issue bearing on canons of
professional conduct. The rule of law cannot be built on the
ruins of democracy, for where law ends tyranny begins. If
such be the keynote thought for the very survival of our
Republic, the integral bond between the lawyer and the
public is unbreakable. And the vital role of the lawyer
depends upon his probity and professional life-style. Be it
remembered that the central function of the legal profession
is to promote the administration of justice. If the practice
of law is thus a public utility of great implications and a
monopoly is statutorily granted by the nation, it obligates
the lawyer to observe scrupulously those norms which make
him worthy of the confidence of the community in him as a
vehicle of justice-social justice. The Bar cannot behave
with doubtful scruples or strive to thrive on litigation.
Canons of conduct cannot be crystalised into rigid rules but
felt by the collective conscience of the practitioners as
right:
“It must be a conscience alive to the proprieties
and the improprieties incident to the discharge of a
sacred public
L 1276 SCI/75
56
trust. lt must be a conscience governed by the
rejection of self-interest and selfish ambition. It
must be a conscience propelled by a consuming desire to
play a leading role in the fair and impartial
administration of Justice, to the end that public
confidence may be kept undiminished at all times in the
belief that we shall always seek truth and justice in
the 13 preservation of the rule of law. It must be a
conscience not shaped by rigid rules of doubtful
validity, but answerable only to a moral code which
would drive irresponsible judges from the profession.
Without such a conscience, there should be no judge(1)
and, we, may add, no lawyer.
Such is the high standard set for professional conduct as
expounded by courts in this country and elsewhere.
These background observations will serve to size-up the
grave misapprehension of the law of professional ethics by
the tribunal appoint ed by the Bar Council of India. The
disciplinary body, acquitting everyone on non-violation of
bounds of propriety argued.
“Rule 36 (of the Bar Council of India on Standards
of Professional Conduct and Etiquette) is as follows:
An Advocate shall not solicit work or
advertise either directly, or indirectly whether by
circular, advertisements, touts, personal
communications, interviews not warranted by personal
relations, furnishing newspaper comments or procuring
his photograph to be published in connection with cases
in which he has been engaged or concerned. .” ..
Hence in order to be amendable to disciplinary
jurisdiction, the Advocates must have (1) solicited
work (2) from a particular person (3) with respect to a
case. Unless all the three elements are satisfied, it
cannot be said that an Advocate has acted beyond the
standard of professional conduct and etiquette. It has
been stated that the conduct of the Advocate concerned
did not conform to the highest standards of the legal
profession. It is not that every body must conform to
the highest standards of the legal profession. It is
enough if an Advocate conforms to the standards of
professional con duct and etiquette as referred to in
the rules”.
* * * *
“He (witness Mantri) says further that 7 Advocates
who are personally present today I have seen each of
them standing either on the first floor, near the lift
or on the first floor either near the lift or in the
lobbies of the
(1) Hastings, Hon. John S., “Judicial Ethics as it Relates
to Participation in Money Making Activities”-Conference
on Judicial Ethics, p. 8, The School of Law, University
of Chicago (1964).
57
Esplanade Court and trying to solicit work from the
persons A coming to the Esplanade Court. This mere
attempt to solicit is nothing.”
“In order to be within the mischief of rule 36,
not merely canvassing is enough, but canvassing must be
for a case With the person who had not till then
engaged a lawyer. There is nothing to show either of
these things: none of the persons who might have been
subjected to these solicitations as they are stated,
have been examined to prove the case. Hence this
evidence does not establish anything within rule 36.”.
. . All that is necessary for us to see is whether the
three items referred to have been complied with and we
find that they have not been complied with because we
do not know what was the nature of the communication,
we do not know in connection with which case the
solicitation took place and with whom the conversation
took place. Hence Mr. Shertukade’s evidence is not
sufficient for the purpose of taking any disciplinary
action under rule 36.
* * * * *
“Mr. Krishnarao V. Pathumdi is the first witness
in this case (case of Raisinghani). He says: “I had
seen Kelawala, Mr. Baria; Mr. Raisinghani, Mr. Bhagtani
approaching the people visiting the Court and
soliciting work from them”. This we have already slated
is far below the requirement required to be proved
under rule 36….He says that he had seen Mr.
Raisinghani approaching people and soliciting work. He
did not ascertain the names of the persons who
approached because it was not his business. But as
stated above, is evidence does not establish the three
elements required to be proved under rule 36 because we
do not know what was the personal communication between
him and the persons solicited. We do not know whether
it related to a case or not.” ….Then the next witness
is Mr. Sitaram Gajanan Shertukade. In cross-examination
by Mr. Rai singhani he says: “I have seen Mr.
Raisinghani accosting people. I have seen Mr.
Raisinghani snatching the papers from the hands of the
litigating public. I have seen this more than 10 times.
The litigating public from whom the papers were
snatched did not say anything that there was a fight
between Mr. Raisinghani and other lawyer over the
papers which were snatched. I did not contact those
persons from whom the papers were snatched nor talked
to them so he was not concerned with this Therefore his
evidence cannot be sufficient (Emphasis, ours)
58
We may, illustratively, quote an excerpt from the
evidence of the Bar Association President and one-time Bar
Council Member Shri Shertukade to show the injury to the
profile of the profession the curious view of the
disciplinary tribunal has inflicted:
“I have seen Mr. Raisinghani accosting people. I
have seen Mr. Raisinghani snatching the papers from the
hands of litigating public. I have seen this more than
10 times There was a fight between Mr. Rasinghani and
Mr. Baria. made oral complaint to the C.P.M. I do not
remember who was present at that time. In that fight
Mr. Raisinghani s pant was torn… There was assault by
Mr. Raisinghani on Mr. Mandalia and I had advised Mr.
Mandalia to file a complaint against Mr. Raisinghani.
Mr. Mandalia did file a case against Mr. Raisinghani
but it was compounded.”
How can a disciplinary authority, aware of its
accountability to the Indian Bar, functioning as the stern
monitor holding the punitive mace to preserve professional
purity and promote public commitment and appreciative of
what is disgraceful, dishonourable and unbecoming judged by
the standards of conduct set for this noble calling and
deviations damaging to its public image, find its way to
hold such horrendous misbehaviour as snatching, catching,
fighting, and under-cutting as not outraging the canons of
conduct without exposing itself to the charge of dereliction
of public duty on the trisection of r. 36 and blind to the
‘law for lawyers’?
It has been universally understood, wherever there is
an organised bar assisting in administering justice, that an
attorney solicitor, barrister or advocate will be suspended
or disbarred for soliciting legal business. And the
‘snatching’ species of solicitation are more revolting than
ambulance chasing’, advertising and the like. If the learned
profession is not a money-making trade or a scramble for
porterage but a branch of the administration of justice, the
view of the appellate disciplinary tribunal is indefensible
and deleterious. We, as a legal fraternity, must and shall
live up to the second and live down the first. by observance
of high standards and dedication to the dynamic rule of law
in a developing country.
It is unfortunate that the Maharashtra tribunal has
slurred over vital procedural guidelines. Professional
misconduct prescribed by s. 35 of the Act has to be
understood in the setting of a calling to which Lincoln,
Gandhi, Lenin and a galaxy of great men belonged. The high
moral tone and the considerable public service the bar is
associated with and its key role in the developmental and
dispute-processing activities and, above all, in the
building up of a just society and constitutional order. has
earned for it a monopoly to practise law and an autonomy to
regulate its own internal discipline. This heavy public
trust should not be forfeited by legalising or licensing
fights for briefs affrays in the rush towards clients,
undercutting and wrangling among members. Indeed, we were
scandalized when one of the respondents cited a decision
under the Suppression of Immoral Traffic Act to prove
59
what is ‘soliciting’. The odious attempt to equate by
implication the standards for the two professions was given
up after we severely frowned on it. But the disciplinary
tribunal’s view that an attempt to solicit did not matter,
that professional misconduct rested solely on r. 36 of the
rules framed under s. 49(c) and that r. 36 was made up of
three components, shows how an orientation course in canons
of conduct and etiquette in the socio-ethical setting of the
lawyer, the public and professional responsibility may be an
educative asset to disciplinary tribunals and Bar Councils
which appoint tribunals and regulate professional conduct by
rules. Cicero called the law ‘a noble profession’, but
Frederick the Great described lawyers as ‘leeches’. We agree
that r. 36, fairly construed, sets out wholesome rules of
professional conduct although the canons of ethics existed
even prior to r. 36 and the dissection of the said rule; the
way it has been done by the disciplinary tribunal,
disfigures it. It is also clear that r. 36 is not the only
nidus of professional ethics.
Indeed, the State tribunal has, from a processual
angle, fallen far short of norms like proper numbering of
witnesses and exhibits, indexing and avoidance of mixing up
of all cases together, default in examination of the
respondents consideration, separately, of the circumstances
of each delinquent for convicting and sentencing purposes.
More attention to the specificity in recording evidence
against each deviant instead of testimonial clubbing
together of all the respondents, would have made the
proceedings clearer fairer and in keeping with court
methodology, without over judicialised formalities. Indeed
the consolidation of 16 cases and trying them all jointly
although the charges were different episodes, were obviously
violative of fair trial. And 8 years for an enquiry so
simple and brief: We express the hope that improvement of
this branch of law relating to disciplinary proceedings will
receive better attention from the Bar Council and the
tribunal members. What prophylactic prescription can ensure
fundamentally fair hearing or due process better than by
choosing persons of sense and sensibility familiar with the
basics of trial procedure and conscientious about avoidance
of prejudice and delay ? Rules may regulate, but men apply
them. Both are important.
The appellate disciplinary tribunal was wholly wrong in
applying r. 36 which was promulgated only in 1965 while the
alleged misconduct took place earlier. What this tribunal
forgot was that the legal profession in India has been with
us even before the British and coming to decades of this
century, the provisions of r. 35 of the Advocates Act s. 10
of the Bar Councils Act and other enactments regulating the
conduct of legal practitioners have not turned on the
splitting up of the text of any rule but on the broad canons
of ethics and high tone of behaviour well established by
case-law and long accepted by the soul of the bar.
Professional ethics were born with the organised bar, even
as moral norms arose with civilised society. The exercise in
discovering the ‘three elements’ of r. 36 was as
unserviceable as it was as supererogatory.
60
The ruling in In the matter of ‘P’ an Advocate(1); In
re: Shri M. Advocate of Supreme Court of India(2); In the
matter of an Advocate(3); Govt. Pleader v. Siddick(4) were
cited before us and no judge, nor lawyer will be in doubt,
even without study of case law, that snatching briefs by
standing at the door of the court house and in fighting for
this purpose is too dishonourable, disgraceful and
unbecoming to be approved even for other professions.
Imagine two or three medical men manhandling a patient to
claim him as a client The law has suffered at the hands of
the appellate tribunal. Lest there should be lingering
doubts we hold that the canons of ethics and propriety for
the legal profession totally taboo conduct by way of
soliciting, advertising, scrambling and other obnoxious
practices, subtle or clumsy, for betterment of legal
business. Law is no trade, briefs no merchandise and so the
leaven of commercial competition or procurement should not
vulgarise the legal profession. Canon 27 of Professional
Ethics of the American Bar Association states:
“It is unprofessional to solicit professional
employment by circulars, advertisements, through
touters or by personal communications or interviews not
warranted by personal relations.”
We wish to put beyond cavil the new call to the lawyer
in the economic order. In the days ahead, legal aid to the
poor and the weak, public interest litigation and other
rule-of law responsibilities will demand a whole new range
of responses from the bar or organised social groups with
lawyer members. Indeed, the hope of democracy is the
dynamism of the new frontiersmen of the law in this
developing area and what we have observed against
solicitation and alleged profit’ making vices are distant
from such free service to the community in the Jural sector
as part of the profession’s tryst with the People of India.
It is a misfortune that a disciplinary body of a
dimensionally great and growing public utility profession
has lost its vision, blinkered by r. 36 (as misconstrued and
trisected by it). For the practice of Law with expanding
activist horizons, professional ethics cannot be contain ed
in a Bar Council rule nor in traditional cant in the books
but in new canons of conscience which will command the
members of the calling of justice to obey. rules of morality
and utility, clear in the crystallized case-law and concrete
when tested on the qualms of high norms-
(1) (1964)1 S. C. R. 697. (2) (1956) S. C. R. 811.
(3) I. L. R. 63 Cal. 869. (4) 31 Bom. L. R. 625.
61
simple enough in given situations, though involved when
expressed in a single sentence. We but touch upon this call
to the calling of law, as more is not necessary in the facts
of these cases.
The law has thus been set right, the delinquents
identified and dealt with, based on individualised deserts
and the appeals are disposed of in the trust that standards
and sanctions befitting the national Bar will be maintained
in such dignified and deterrent a manner that public
confidence in this arm of the justice-system is neither
shaken nor shocked.
Parties will bear their costs throughout.
P.B.R.
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