Suo Moto v Manoj Sharma and another

Rajasthan High Court

JAIPUR BENCH

12 August 2013

CRLCP Case No. 5 of 2013

The Order of the Court was as follows :

1. These suo moto contempt proceedings have been initiated by the court on account of the disruption of judicial proceedings caused by the President, the General Secretary and other office bearers of the Rajasthan High Court Bar Association, Jaipur and also by the other members of the Bar accompanying them. In the midst of the judicial proceedings at about 11.30 A.M. today, Mr. Manoj Sharma, the President and Mr. Bhuvnesh Sharma, the General Secretary of the Rajasthan Bar Association, Jaipur alongwith many other advocates rushed into the court room and asked the court not to pass adverse orders in the matters in absence of the advocates. They also started threatening and pressurising the court under the guise of request, for not proceeding further in the matters. When the court told them not to interfere in the judicial proceedings, they started shouting, “when other courts are accommodating why this court is not accommodating us”. The Secretary Mr. Bhuvenesh Sharma said, [VERNACULAR PORTION DELETED] Another advocate said [VERNACULAR PORTION DELETED] litigants [VERNACULAR PORTION DELETED] Some other advocate said [VERNACULAR PORTION DELETED] When the court told them not to pressurise the court and the litigants or to cause any interference in the process of administration of justice, or else the court would be compelled to pass orders against them, they said [VERNACULAR PORTION DELETED] and then started shouting slogans in the court room. [VERNACULAR PORTION DELETED] The court under the circumstances had no alternative but to stop the judicial work and to retire in the chamber, declaring that appropriate orders shall be passed in the matter.

2. At this juncture, it is relevant to mention that on account of the indefinite strike call given by the Bar Associations at Jodhpur and Jaipur, raising protest against the setting up of Circuit Bench at Udaipur, the courts are not able to function since last about fifteen days. The court therefore on 6.8.2013 had passed the following order in SBCMA No. 51/12:-

“1. None is present for the appellant due to an indefinite strike call given by the Bar Associations at Jodhpur and Jaipur. Mr. Nand Kumar Gotewala, for the respondent, who is appellant in the connected Civil Misc. Appeal No.510/2012, is present in the Court.

2. It is indeed a very unfortunate and disturbing state of affairs prevailing in the Courts that the judicial work has been hampered because of the strike call for indefinite period given by the Bar Associations at Jodhpur and Jaipur. Apart from the fact that there is no justifiable reason for giving such a call, the Court is constrained to pass this order as the strikes and boycotts have become almost a regular feature in the courts and that too on baseless and frivolous grounds, which not only hampers the judicial process and paralyses the Court’s work, but also causes lot of hardships and irreparable losses to the litigants, for whom the Institution stands.

3. The Courts have not taken any stern action in this regard so far, probably because of the apprehension that the harmonious relations between Bar and the Bench would be spoiled, which again might cause greater hardship to the litigants. One cannot be oblivion of the fact that the Advocates are not only the officers of the Court but also one of the important components of the justice delivery system, however it appears that now the time has come to remind the Advocates about their duties towards the clients and the Courts.

4. Without elaborating further on this issue, it would be appropriate to reproduce the observations made by the Apex Court time and again in various decisions as regards the role and the rights and duties of the Advocates. The Apex Court in case of Ramon Services Pvt. Ltd. Vs. Subhash Kapoor (2001) 1 SCC 118 2000 Indlaw SC 709, considering all previous judgments had held that the strike/boycott by the lawyers affects not just the Members of the legal profession, but obstructs the process of Court, which is intended to secure Justice. The relevant observations made by the Apex Court in the said case are reproduced as under:-

“5…..When the advocate who was engaged by a party was on strike there is no obligation on the part of the court either to wait or to adjourn the case on that account. Time and again this Court has said that an advocate has no right to stall the court proceedings on the ground that advocates have decided to strike or to boycott the courts or even boycott any particular court. Vide U.P. Sales Tax Service Assn. Vs. Taxation Bar Assn. (1995) 3 SCC 716 1995 Indlaw SC 664; K. John Koshy Vs. (Dr.) Tarakeshwar Prasad Shaw (1998) 8 SCC 624 1996 Indlaw SC 3297; Mahabir Prasad Singh Vs. Jacks Aviation (1999) 1 SCC 371998 Indlaw SC 1297and Koluttumottil Razak Vs. State of Kerala 2000 Indlaw SC 172 .”

It has been further observed in para 22 as under :-

“22. Generally strikes are antithesis of progress, prosperity and development. Strikes by the professionals including the advocates cannot be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions. The services rendered by the advocates to their clients are regulated by a contract between the two besides statutory limitations, restrictions ad guidelines incorporated in the Advocates Act, the rules made thereunder and rules of procedure adopted by the Supreme Court and the High Courts. Abstaining from the courts by the advocates, by and large, does not only affect the persons belonging to the legal profession but also hampers the process of justice sometimes urgently needed by the consumers of justice, the litigants. Legal profession is essentially a service-oriented profession. The relationship between the lawyer and his client is one of trust and confidence.”

5. The issue whether lawyers have right to strike and/ or give a call for boycott of Courts was again considered by the Apex Court in case of Ex.Capt. Harish Uppal Vs. Union of India & Anr. (2003) 2 SCC 45 2002 Indlaw SC 1501. The question involved being very vital to the legal profession, notices were issued by the Apex Court to the Bar Associations and Bar Councils all over the country, and considering the responses and the submissions made by the Senior Counsels representing the Bar Council of India and other Bar Councils of the respective States, the Apex Court had observed in para 20 as under:-

“20. Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Association expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and there by the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh’s case 1998 Indlaw SC 1297 (supra) that if they participate in a boycott or a strike, their action is ex- facie bad in view of the declaration of law by this Court. A lawyer’s duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services case, that the Advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.”

6. The Apex Court in the said case, considering the provisions contained in Section 34 of the Advocates Act and the Role of Bar Council of India, also held in para 35 as under:-

“35. In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews carrying out of the Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay facts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequence by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. it is held that only in the rarest of rare cases where the dignity, integrity and Independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or Independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.”

7. The aforesaid observations and conclusions drawn by the Apex Court expressing serious concern over the menace of strike/boycott calls given by the Advocates, deserve to be implemented in the letter and spirit, and should not remain as a piece of paper. As observed by the Apex Court, the Courts also should not be privy to such strike calls. In view of the prevailing situation, it is therefore deemed just and proper to bring to the notice of the office bearers of the Bar Associations at Jodhpur and Jaipur, about the aforestated observations of the Apex Court with the hope that they resume the work at the earliest.

8. The office is directed to send the copies of this order to the respective Presidents of the Bar Associations at the Principal Seat at Jodhpur and at the Bench at Jaipur. In order to see that substantial justice is done to the parties and the Court is not constrained to pass orders in absence of the advocates, the matters are being adjourned today, however, it is clarified that the appropriate orders shall be passed in the matters, if the court work is not resumed by the advocates on or before 08.08.2013.

9. Put up this matter on 08.08.2013 alongwith connected matter.”

3. In response to the said order, it appears that the Rajasthan Bar Association at Jaipur and the Bar Association at Jodhpur had passed the resolutions for boycotting this court. The reports in this regard have been published in the local newspapers like Hindustan Times, Dainik Bhaskar, Rajasthan Patrika etc. on 8.8.13. The same are annexed alongwith this order and are directed to be taken on record as part of the proceedings.

4. It is needless to say that as per Article 215 of the Constitution of India, the High Court is a court of record and has all the powers of such Court including the power to punish for contempt of itself. As held by the Apex Court in case of Supreme Court Bar Association Vs. Union of India & Another (1998) 4 SCC 409 1998 Indlaw SC 688, the jurisdiction under Article 215 is an inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice. Para 12 of the said decision reads as under :-

“12. A court of record is a court, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court. The power that courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice.”

5. The court is very much conscious about the fact that the contempt of court is special jurisdiction and should be exercised sparingly. However as per the settled legal position, such jurisdiction must be exercised in the circumstances, which tend to shake public confidence in the judicial system, and which tend to affect the majesty of law and dignity of courts.

6. It may further be mentioned that any act of the person which interferes or tends to interfere with the due course of any judicial proceedings or which obstructs or tends to obstruct the administration of justice would tantamount to “criminal contempt”, as per the definition contained in Section 2(c) of the Contempt of Courts Act, 1971 (hereinafter referred to as ‘the said Act’). The said clause 2(c) is reproduced as under for ready reference:-

Section 2 (c):- “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

(i)scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii)prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or

(iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”

7. In similar situation like what happened in this court, the Delhi High Court while giving directions to the advocates to call off the strike, in case of Dr. B.L Wadehra (Dr.) Vs. State (NCT of Delhi), AIR 2000 Delhi, 266 2000 Indlaw DEL 664, made certain observations, which are very apt. They read as under:-

“31. Every court has a solemn duty to proceed with the judicial business during court hours and the court is not obliged to adjourn a case because of a strike call. The court is under an obligation to hear and decide cases brought before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. The court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in Common Cause case the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant’s fundamental right for speedy trial and the court cannot remain a mute spectator or throw up its hands in helplessness on the face of such continued violation of the fundamental right.

32. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in court. If anyone does it, he commits a criminal offence and interferes with the administration of justice and commits contempt of court and he is liable to be proceeded against on all these counts.”

8. The above conclusions reached by the Delhi High Court were held to be absolutely correct and were approved in toto by the Apex Court in case of Ex.Capt. Harish Uppal Vs. Union of India & Anr. (2003) 2 SCC 45 2002 Indlaw SC 1501. There is no need to reiterate the said observations herein. Suffice is to say that such a misconduct on the part of the lawyers trying to thwart the judicial proceedings, and obstruct the course of justice, by trying to threaten, overawe and overpower the court, by using insulting, threatening and disrespectful language in the court room amounts to “criminal contempt” within the meaning of Section 2(c) of the said Act.

9. Since the initiative to interfere with the judicial proceedings and cause obstruction in the administration of justice was taken by the President Mr. Manoj Sharma and the General Secretary Mr. Bhuvnesh Sharma, the court prima facie finds them responsible for causing interference in the due course of judicial proceedings and causing obstruction in the administration of justice, and thereby for committing the “criminal contempt” under Section 2(c) of the said Act. The court therefore takes cognizance of such criminal contempt against them as contemplated under Section 15 of the said Act. In that view of the matter, following directions are given:-

(I) The office is directed to issue notices under Section 17 of the Contempt of Courts Act, 1971 to Mr. Manoj Sharma, President and Mr. Bhuvnesh Sharma, General Secretary of the Rajasthan High Court Bar Association, Jaipur. The notices shall be accompanied by the instant order and the other materials on record, to be made returnable on 26.8.2013.

(II) Since every case of criminal contempt under Section 15 of the said Act is required to be heard and determined by the Bench of not less than two Judges, as per Section 18 of the said Act, the office is also directed to place the matter before Hon’ble the Chief Justice for necessary consideration.

(III) Before parting, it would not be out of place to reiterate the observations made by the Apex Court in case of Ex. Cap. Harish Uppal Vs. Union of India 2002 Indlaw SC 1501 (supra) for referring the matter to the Bar Council of Rajasthan and Bar Council of India for taking necessary action against the advocates giving calls for strike or boycott. It has been held by the Apex Court in the said case interalia that the lawyers have no right to go on strikes or give a call for boycott, not even for a token strike. It has also been held in para 25 of the said decision that in case any association calls for a strike or a call for boycott, the State Bar Council concerned, and on their failure, the Bar Council of India must immediately take disciplinary action against the advocates who gave a call for strike and if committee members permit calling for a meeting for such purpose, against the committee members. It is needless to say that the Bar Councils which perform the public duty and are charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquettes, are obliged to rise to the occasion and discharge their duties uninfluenced by the position of the defaulting advocates. It is therefore directed that the copy of this order be also sent to the Chairman, Bar Council of Rajasthan and the Chairman, Bar Council of India for necessary consideration.

(IV) The office is directed to register the matter as Suo Moto Contempt proceedings under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act, 1971, for the purpose of Record.

Order accordingly