Shambhu Ram Yadav v Hanuman Das Khatry (2001)

An advocate of fifty years' standing wrote to his own client that the judge took bribes and asked him for ₹10,000 to get the suit decided in his favour. That is the most serious thing an advocate can do short of doing it, and the case is the benchmark for permanent removal from the roll.

It matters equally for a second reason, and this is the one examiners press: it is the leading authority on the limits of the power of review under s. 44. A differently constituted Disciplinary Committee reduced permanent debarment to a reprimand, and the Supreme Court struck that order down.

The appellant complained to the Bar Council of Rajasthan, which referred the complaint to its Disciplinary Committee. The complaint was that the respondent, while appearing as counsel in a suit pending in a civil court, wrote a letter to his own client, Mahant Rajgiri, stating that another of his clients had told him the judge concerned accepts bribes and had obtained several favourable orders from him; that if the Mahant could influence the judge through some other gentleman that was a different thing, but otherwise he should send ₹10,000 so that through that other client the suit could be got decided in his favour; and that if the Mahant could personally win over the judge there would be no need to spend money.

The letter was not disputed. The defence was that the Presiding Judge's services had been terminated on account of illegal gratification, that the advocate had followed the norms of professional ethics in bringing these facts to his client's knowledge to protect his interest, and that no money had in fact been sent.

The State Bar Council held the admitted contents to be misconduct under s. 35 and suspended him for two years with effect from 15 June 1997. On appeal the Disciplinary Committee of the Bar Council of India, by order dated 31 July 1999, enhanced the punishment: his name was to be struck off the roll, debarring him permanently, with ₹5,000 costs. He had served as an advocate for fifty years, and "it was not expected of him to indulge in such a practice of corrupting the judiciary or offering bribe to the Judge".

He then filed a review petition under s. 44. It was allowed by a Disciplinary Committee two of whose three members had not sat on the earlier Committee, and the permanent debarment was reduced to a reprimand — on the grounds that the letter was only a reply to the client's own query and so was not an offer by the advocate to bribe a judge; that he was an old man of 80 who had joined the profession in 1951; and that his past record was clean. The complainant appealed under s. 38.

1. Is it professional misconduct for an advocate to write to his client that the judge takes bribes and to ask for money to be sent for that purpose?
2. What are the limits of the power of review conferred by s. 44?
3. What punishment is commensurate?

The review order was set aside and the order of permanent removal from the roll was restored. The appeal was allowed with costs quantified at ₹10,000.

The judgment opens with the sentence you will be asked to quote:

"Legal profession is not a trade or business. It is a noble profession. Members belonging to this profession have not to encourage dishonesty and corruption but have to strive to secure justice to their clients, if it is legally possible."

On the misconduct: "The respondent was indeed guilty of a serious misconduct by writing to his client the letter as aforesaid. Members of the legal profession are officers of the court. Besides courts, they also owe a duty to the society which has a vital public interest in the due administration of justice. The said public interest is required to be protected by those on whom the power has been entrusted to take disciplinary action. The disciplinary bodies are guardians of the due administration of justice."

On the review: "The original order has been reviewed on non-existent grounds. All the factors taken into consideration in the impugned order were already on record and were considered by the Committee when it passed the order dated 31-7-1999. The power of review has not been exercised by applying well-settled principles governing the exercise of such power." The earlier Committee had itself noticed that the advocate was replying to a letter from his client, and had noticed his age and years at the Bar. And on the finding that he "had no intention to bribe the Judge": "There is nothing on the record to suggest it."

The proposition to memorise: "The exercise of power of review does not empower a Disciplinary Committee to modify the earlier order passed by another Disciplinary Committee taking a different view of the same set of facts."

On quantum: "The punishment, of course, has to be commensurate with the gravity of the misconduct." And: "the Bar Council considered that a high standard of morality is required from lawyers, more so from a person who has put in 50 years in the profession."

An advocate who writes to his client that the judge takes bribes and asks the client to send money so that the suit may be decided in his favour is guilty of professional misconduct justifying removal from the roll; and the power of review under s. 44 does not permit a differently constituted Disciplinary Committee to modify an earlier order by taking a different view of the same set of facts.

Both limbs are ratio, and the second is what the case is most often cited for. Obiter: the opening declaration that the legal profession is "a noble profession", much quoted since; and the wider observation that "the credibility of a Council including its disciplinary body in respect of any profession whether it is law, medicine, accountancy or any other vocation depends upon how they deal with cases of delinquency involving serious misconduct."

The rule that was broken. Part VI, Chapter II, Rule 3 of the Bar Council of India Rules is two sentences: "An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden." The first sentence is enough. Notice that the offence is complete on the attempt — the money was never sent, and it made no difference. What was solicited was the corruption of a judicial officer, and the letter was in the advocate's own hand.

Why the defence failed on the evidence. The respondent said he was merely answering his client's query. The Court noted a gap: "It is not in dispute that the respondent had not produced the letter received by him from his client to which the admitted letter was sent requiring his client to send Rs 10,000 for payment as bribe to the Judge concerned." He proved nothing; his own admitted letter proved everything. That is worth remembering alongside the rule that the burden lies on the person alleging misconduct — here the admission did the work, so there was nothing left for the burden to bite on.

Why the review was bad, and what s. 44 actually permits. Section 44 lets "the disciplinary committee of a Bar Council... of its own motion or otherwise review any order within sixty days of the date of that order passed by it under this Chapter", with a proviso that a State Committee's review order has no effect unless approved by the Bar Council of India. Note the asymmetry: a review by the Bar Council of India's own Disciplinary Committee needs nobody's approval — which is why its misuse here had no institutional check and had to be corrected on appeal.

Review is not a rehearing. It operates where something has genuinely been overlooked. Here every fact relied on in the review order — that the letter answered a query, the advocate's age, his years at the Bar, his record — was already on the record and had been considered by the Committee that passed the order under review. A fresh set of members simply weighed the same facts differently, and that is outside the power.

And on proportionality. Set this case against the others in the module. R.D. Saxena — misconduct found, punishment reduced to a reprimand, because the law on an advocate's lien had never been settled. P.D. Gupta — one year, for buying the property in the suit. D.P. Chadha — five years, for a fraud on the court. Shambhu Ram Yadav — permanent removal, because the misconduct struck at the integrity of the judiciary itself. The variable is gravity, and seniority here was an aggravating factor, not a mitigating one.

The case is now the standing authority on the limits of s. 44, and the answer to any viva question about a Bar Council reviewing its own order.

The procedure sits in Part VII, Chapter II of the Bar Council of India Rules, headed "Review under Section 44 of the Act". An application must be a signed petition supported by affidavit, carrying a fee of ₹500, filed within 60 days of the order sought to be reviewed. If the Committee does not summarily reject it, notice goes to the parties and to the Advocate-General; and under rule 5, where a State Disciplinary Committee decides that a review should be allowed, the order and record go to the Bar Council of India for approval — if it does not approve, the State Committee must dismiss the application.

The case also supplies the textbook head "duty to the public, State and society" with its only real authority: the Bar owes a duty to a society "which has a vital public interest in the due administration of justice", and the disciplinary bodies are "guardians of the due administration of justice".

Where the law stands. Nothing here has been repealed. Sections 35, 37, 38 and 44 of the Advocates Act 1961 are in force as written, and Shambhu Ram Yadav has not been doubted.