R. Muthukrishnan v Registrar General of the High Court of Judicature at Madras (2019)

Who disciplines an advocate — the court before which he misbehaves, or the Bar Council? In 2016 the Madras High Court, faced with serious misbehaviour by advocates inside its premises, gave itself (and its Principal District Judges) the power to debar advocates for a list of misconducts. The Supreme Court struck those rules down.

The case draws the line clearly. Disciplinary control over advocates belongs to the Bar Councils under the Advocates Act. A court protects its dignity through its contempt jurisdiction, and an advocate found guilty of contempt may be kept out until he purges himself of it. What a High Court cannot do is set up its own disciplinary machinery under s. 34. At the same time, the judgment is a sharp criticism of the Bar Councils' failure to discipline their own members, and it restates the ethical duties of the Bar at length.

The Madras High Court amended the Rules of High Court of Madras, 1970, by inserting Rules 14-A to 14-D, which came into force on publication in the Gazette on 25 May 2016.

• Rule 14-A listed misconduct for which an advocate "shall be debarred from appearing before the High Court or Subordinate Courts permanently or for such period as the Court may think fit". The list included accepting money in the name of a Judge, tampering with court records, browbeating or abusing a Judge, spreading unfounded allegations against a Judge to a superior court, taking part in a procession or gherao inside the court campus or court hall, and appearing in court under the influence of liquor.
• Rule 14-B let the High Court debar an advocate from the High Court and all subordinate courts, and let the Principal District Judge debar him from every court in the district.
• Rule 14-C laid down a show-cause procedure, and Rule 14-D allowed an interim order barring appearance pending inquiry.

The petitioner, an advocate appearing in person, challenged the rules under Article 32 as violating Articles 14 and 19(1)(g) and ss. 30, 34(1), 35 and 49(1)(c) of the Advocates Act, since the power to discipline advocates is conferred on the Bar Council. He argued that the rules take away the independence of the Bar and run contrary to the Constitution Bench decision in Supreme Court Bar Association v Union of India.

The High Court replied that the rules had been kept in abeyance pending review, and defended them as framed in compliance with the Supreme Court's directions in R.K. Anand v Registrar, Delhi High Court (2009) and on the strength of Ex-Capt. Harish Uppal v Union of India (2003), pointing to numerous instances of misbehaviour by advocates within its premises in 2015.

1. Does s. 34(1) of the Advocates Act empower a High Court to frame rules for debarring advocates by way of disciplinary proceedings?
2. What is the proper route for a court faced with misconduct by advocates in court?

The writ petition was allowed and Rules 14-A to 14-D were struck down.

No disciplinary power under s. 34

"The High Court is not authorized by the provisions of the Advocates Act to frame such rules." Section 34 "does not confer such power of debarment by way of disciplinary methods or disciplinary inquiry as against an advocate as that has to be dealt with by the Bar Council as provided in other sections in a different chapter of the Act."

The Court observed that Rule 14-A did not provide for debarment in the exercise of contempt jurisdiction: "The debarment is sought to be done by way of disciplinary control, which is not permissible."

Contempt is the court's tool

"The debarment cannot be ordered by the High Court until and unless advocate is prosecuted under the Contempt of Courts Act." To proceed by disciplinary rules instead "is a clear usurpation of the power of the Bar Council and is wholly impermissible in view of the decision of this Court in Supreme Court Bar Association vs. Union of India". The existing Rule 14 of the Madras rules — that no advocate found guilty of contempt shall be permitted to appear, act or plead in any court unless he has purged himself of contempt — was the legitimate route.

The Court held that "the High Court has overstretched and exceeded its power even in the situation which was so grim which appears to have compelled it to take such a measure." It stressed: "Circumstances may be grim, but the autonomy of the Bar in the disciplinary matters cannot be taken over by the Courts. It has other more efficient tools to maintain the decorum of Court."

Why the rules were dangerous

If a court could discipline a lawyer even for complaints made to higher authorities about the behaviour of Judges, that "would be making the Bar too sycophant and fearful which would not be conducive for fair administration of justice." The Court added: "Fair criticism of judgment and its analysis is permissible. Lawyers' fearlessness in court, independence, uprightness, honesty, equality are the virtues which cannot be sacrificed."

But the Court was equally clear on the other side: the lawyer's right to lodge an appropriate complaint cannot be taken away, "however, making such allegation publicly tantamounts to contempt of court and may also be a professional misconduct". The misconduct listed in Rule 14-A may in appropriate cases amount to contempt, which the High Court can deal with in its contempt jurisdiction.

The Bar Councils' failure

The Court did not spare the Bar. It found "the disciplinary control of the Bar Council is not as effective as it should be", with cases kept pending for years. "It is absolutely necessary to maintain the independence of the Bar and if the cleaning process is not done by the Bar itself, its independence is in danger." Where a Bar Council fails to act against an advocate, the High Court may entertain a writ petition and direct the Bar Council to act in accordance with law — "But at the same time, the High Court and even this Court cannot take upon itself the disciplinary control as envisaged under the Advocates Act."

On strikes and the role of the Bar

In its discussion of the Bar's role, the Court said: "However, lawyers cannot go to the streets or go on strike except when democracy itself is in danger and the entire judicial system is at stake." Grievances against corrupt judges must be taken, by complaint, to the appropriate administrative authorities, not levelled in public. The Court also criticised advocates going to the press or media to attack judges: "Cases cannot be decided by media trial."

Section 34(1) of the Advocates Act does not empower a High Court to frame rules debarring advocates from practice by way of disciplinary proceedings; disciplinary control over advocates vests in the Bar Councils under the Act. A court may bar an advocate from appearing only when he has been found guilty of contempt of court, until he purges himself of it. Rules 14-A to 14-D of the Madras High Court Rules, 1970, as framed in May 2016, were ultra vires s. 34 and were quashed.

• Direct question: Can a High Court frame rules under s. 34 of the Advocates Act to debar an advocate for professional misconduct? Discuss. Answer: no — Muthukrishnan; disciplinary power belongs to the Bar Council; the court's route is contempt, followed by exclusion until the contempt is purged.
• Problem question: a Principal District Judge debars an advocate for shouting at him in court. Answer: debarment by disciplinary process is impermissible; the judge may initiate contempt proceedings, and the Bar Council may be moved (or directed by the High Court) to take disciplinary action.
• Linking point: read this with Supreme Court Bar Association v Union of India (disciplinary power is the Bar Council's) and Ex-Capt. Harish Uppal v Union of India (strikes and boycotts), both of which the judgment relies on and discusses.
• Essay use: the judgment's criticism of the Bar Councils' disciplinary committees, and its insistence that "the cleaning process" must be done by the Bar itself, is useful material for any answer on the independence and self-regulation of the legal profession.