From: Seema Sapra <seema.sapra@googlemail.com>
Date: Sat, Jul 9, 2016 at 12:55 PM
Subject: General Electric Company whistleblower Seema Sapra targeted with chemicals at Starbucks and men being used to stalk her - Re SEC complaint No. TCR1439646785831
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Cc: Seema Sapra <seema.sapra@gmail.com>, Seema Sapra <seemasapra@hotmail.com>
A highly poisonous chemical gas is being released into my room since 5 am this morning. It is now 7.38 am and this is still continuing. This appears to be some kind of anesthetic or similar gas,The involvement of the police is apparent in this as around 5 am, a police vehicle arrived at the back of the house with the siren blaring loudly for about 3 minutes This pattern was used to target me earlier in March, April and early May of this year when I was staying at a B&B in GK II.Seema SapraGeneral Electric Company whistleblowerOn Fri, Jul 8, 2016 at 8:57 PM, Seema Sapra <seema.sapra@googlemail.com> wrote:Today I was at the Supreme Court of India.Some poisonous chemical/ gas has been introduced into my car which is released from the steering area especially when I turn or take a U-turn.Poisonous chemical fumes/ gases were also released into my accommodation since 5 am this morning until around 11 am.I am presently sitting in Starbucks in Select Citywalk Mall.I presently have no money to pay for my accommodation, and this way will have no place to stay.I will be adding the following to my appeal in the Supreme Court of India in the contempt case.Seema SapraGeneral Electric Company whistleblower"
71. The impugned judgment has also directed that the appellant, an advocate enrolled with the Bar Council of Delhi will not be allowed to argue, whether as an Advocate or in person, except in her defence, before any Bench of this High Court or any court or tribunal subordinate to this High Court for a period of two years from today. It is submitted that this direction not only amounts to denying the appellant her right to access justice, but also amounts to an unlawful suspension of her right to practice law as an advocate for two years. The Division Bench has clearly erred in issuing this direction in the impugned judgment.
72. It is submitted that as clarified by a constitution bench of the Supreme Court in Supreme Court Bar Association of India v. Union of India (1998) 4 SCC 409, the Delhi High Court Division Bench while disposing off CONT. CAS(CRL) 2/2014 had no jurisdiction to debar the appellant from practicing the profession of law before it and before subordinate courts for a period of 2 years. The law as laid down by the Supreme Court is clear that only the Bar Council can suspend or abrogate an advocate's right to practice law and that too after following due process.
73. The impugned judgment of the Division Bench of the Delhi High Court has directed "that the contemnor will not be allowed to argue, whether as an Advocate or in person, except in her defence, before any Bench of this High Court or any court or tribunal subordinate to this High Court for a period of two years from today."
It is most respectfully submitted that this direction is in excess of the jurisdiction of the Delhi High Court, is contrary to the decisions of the Supreme Court of India in the following cases, and deserves to be set aside.
Supreme Court Bar Association vs Union Of India & Anr (1998) (5 Judges)
In Re: Ajay Kumar Pandey, Advocate vs Unknown (1998) (2 Judges)
Pravin C. Shah vs K.A. Mohd. Ali & Anr (2001) (2 Judges)
Ex-Capt. Harish Uppal vs Union Of India & Anr (2002) (5 Judges)
Bar Council Of India vs High Court Of Kerala (2004) (2 Judges)
R.K.Anand vs Registrar, Delhi High Court (2009) (3 Judges)
Section 30 in THE ADVOCATES ACT, 1961
30. Right of advocates to practise.—Subject to provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,—
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
The impugned judgment of the Division Bench of the Delhi High Court contains the following statement by way of reasoning for this direction. It states in paragraph 14: "It is no longer res integra that courts have powers in appropriate cases to direct a litigant or an Advocate not to appear in Court for arguing a case vide Re: Ajay Kumar Pandey, Advocate, (1998) 7 SCC 248 and R.K. Anand vs. Registrar, Delhi High Court, (2009) 8 SCC 106." It is submitted that this statement is incorrect in law and contrary to two five judge Bench decisions of the Supreme Court of India.
In Supreme Court Bar Association vs Union Of India & Anr (1998), a Constitution Bench of the Supreme Court of India clarified the law on this issue as follows:
" The question which arises is whether the Supreme Court of India can while dealing with Contempt Proceedings exercise power under Article 129 of the Constitution or under Article 129 read with Article 142 of the Constitution or under Article 142 of the Constitution can debar a practicing lawyer from carrying on his profession as a lawyer for any period whatsoever, We direct notice to issue on the Attorney General of India and on the respondents herein. Notice will also issue on the application for interim stay. Having regarding to the importance of the aforesaid question we further direct that this petition be placed before a Constitution Bench of this Court."
…
"This Court is indeed the final appellate authority under Section 38 of the Act but we are not persuaded to agree with the view that this Court can in exercise of its appellate jurisdiction, under Section 38 of the Act, impose one of the punishments, prescribed under that Act, while punishing a contemner advocate in a contempt case. 'Professional misconduct' of the advocate concerned is not a matter directly in issue in the contempt of court case. while dealing with the contempt of court case, this court is obliged to examine whether the conduct complained of amounts to contempt of court and if t he answer is in the affirmative, than to sentence the contemner for contempt of court by imposing any of the recognised and accepted punishments for committing contempt of court. Keeping in view the elaborate procedure prescribed under the Advocates Act 1961 and the Rules framed thereunder it follows that a complaint of professional misconduct is required to be tried by the disciplinary committee of the Bar Council, like the trial of a criminal case by a court of law and an advocate may be punished on the basis of evidence led before the disciplinary committee of the Bar Council after being afforded an opportunity of hearing. The delinquent advocate may be suspended from the rolls of the advocates or imposed any other punishment as provided under the Act. The enquiry is a detailed and elaborate one and is not of a summary nature. It is therefore, not permissible for this court to punish an advocate for "professional misconduct" in exercise of the appellate jurisdiction by convening itself as the statutory body exercising "original jurisdiction". Indeed, if in a given case the concerned Bar Council on being apprised of the contumacious and blame worthy conduct of the advocate by the High Court or this Court does not take any action against the said advocate, this court may well have the jurisdiction in exercise of its appellate powers under Section 38 of the Act read with Article 142 of the Constitution to proceed suo moto and send for the records from the Bar Council and pass appropriate orders against the concerned advocate. in an appropriate case, this Court may consider the exercise of appellate jurisdiction even suo moto provided there is some cause pending before the concerned Bar Council, and the Bar Council does "not act" or fails to act, by sending for the record of that cause and pass appropriate orders.
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 V.C. Mishra's case because in that case the Bar Council had not declined to deal with the matter ad take appropriate action against the concerned advocate. Since there was no cause pending before the Bar Council, this court could not exercise its appellate jurisdiction in respect of a matter which was never under consideration of the bar councils.
Thus, to conclude we are of the opinion that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner for committing contempt of court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in Re: Vinay Chandra Mishra, (1995) 2 S.C.C. 584 is not good law and we overrule it.
An Advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for "professional misconduct", on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion , and take appropriate action against such an advocate. Under Article 144 of the Constitution "all authorities civil and judicial, in the territory of India shall act in aid of the Supreme Court". The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act "in aid of the Supreme Court". It must, whenever, facts warrant rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of the and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record, records its findings about the conduct of an Advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the concern Bar Council, appropriate action should be initiated by the concerned Bar Council in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette. Nothing is more destructive of public confidence in the administration of justice than incivility, rudeness or disrespectful conduct on the part of a counsel towards the court or disregard by the court of the privileges of the bar. In case the Bar Council, even after receiving 'reference' from the court, fails to take action against the concerned advocate, this court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings from the Bar Council and passing appropriate orders. Of Course the appellate powers under Section 38 would be available to this Court only and not to the High Courts. We, however hope that such a situation would not arise.
In a given case it may be possible, for this Court or the High Court, the prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practice as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conductof an Advocate-on-Record, this court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-an-Record because that privilege is conferred by this court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts or Tribunals.
We are conscious of the fact that the conduct of the contemner of VC Misra's case was highly contumacious and even atrocious. It was unpardonable. the contemner therein had abused his professional privileges while practising as an advocate. he was holding a very senior position in the Bar Council of India and was expected to act in a more reasonable way. He did not. these factors appear to have influenced the bench in that case to itself punish him by suspending his licence to practice also while imposing a suspending sentence of imprisonment for committing contempt of court but while doing so this court vested itself with a jurisdiction where none exists. The position would, have been different had a reference been made to the Bar Council and the Bar Council did not take any action against the concerned advocate. In that event, as already observed, this court in exercise of its appellate jurisdiction under Section 38 of the Act read with Article 142 of the Constitution of India, might have exercised suo moto powers and sent for the proceedings from the Bar Council and passed appropriate orders for punishing the contemner advocate for professional misconduct after putting him on notice as required by the proviso to Section 38 which reads thus:-
" Provided that no order of the disciplinary committed of the Bar Council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard."
but it could not have done so in the first instance.
In V.C. Mishra's case, the Bench, relied upon its inherent powers under Article 142, to punish him by suspending his licence, without the Bar Council having been given any opportunity to deal with his case under the Act. We cannot persuade ourselves to agree with that approach. It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the constitution so as to function within the bounds of its own jurisdiction. To the extent, this Court makes the statutory authorities and other organs of the State perform their duties in accordance with law, its role is unexceptionable but it is not permissible or the Court to "take over" the role of the statutory bodies or other organs of the State and "perform" their functions.
In In Re: Ajay Kumar Pandey, Advocate vs Unknown (1998), a Division Bench of the Supreme Court of India applied the decision of the Constitution Bench from 1998 and (refraining from itself debarring the contemnor from practicing law or appearing in court) issued the following direction:
We, therefore, deem it appropriate, in view of the observations made in Supreme Court Bar Association v. Union of India and Anr. (supra), to direct that the copy of this judgment together with the relevant record be forwarded to the Chairman, Bar Council of India, who may refer the case to the concerned committee for appropriate action as is considered fit and proper.
In Pravin C. Shah vs K.A. Mohd. Ali & Anr (2001), a Division Bench of the Supreme Court of India clarified that in the face of an existing rule like Rule 11 of the Rules framed by the High Court of Kerala under Section 34(1) of the Advocates Act, 1961, regarding conditions and practice of Advocates, a lawyer convicted of contempt of Court would not be entitled to appear as counsel before a Court until such lawyer purged himself of the contempt.
Rule 11 reads
No advocate who has been found guilty of contempt of Court shall be permitted to appear, act or plead in any Court unless he has purged himself of the contempt.
This case was therefore not concerned with the issue decided by the Constitution Bench in Supreme Court Bar Association vs Union Of India & Anr (1998), where the Constitution Bench had ruled on the jurisdiction of a court to itself debar a lawyer guilty of contempt of court from appearing before a Court.
The position was further clarified by another Constitution Bench of the Supreme Court of India in Ex-Capt. Harish Uppal vs Union Of India & Anr (2002). This was not a case involving a contempt of court proceeding or an appeal from a contempt of court proceeding. In this case, the issue before the Constitution Bench was whether lawyers had any right to strike or boycott Courts. However, in the course of its observations on the appropriate conduct expected from lawyers, the Constitution Bench made some remarks on the issue of the power of the High Courts under Section 34(1) of the Advocates Act to frame rules laying down conditions subject to which an Advocate shall be permitted to practice in the High Court and Courts subordinate thereto. The Constitution Bench noted the observations of the earlier Constitution Bench in Supreme Court Bar Association vs Union Of India & Anr (1998). The Constitution Bench then went on to observe that lawyers calling for a strike or lawyers failing to appear for their clients because of a strike would be liable for disciplinary action for professional misconduct.
In is in this context, that the Constitution Bench made the following remarks on the power of Courts to control conduct in Court, which remarks have a bearing on the present issue. The Constitution Bench stated as follows:
One last thing which must be mentioned is that the right of appearance in Courts is still within the control and jurisdiction of Courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in Court can only be within the domain of Courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto. Many Courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self restraint is exercised, Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever
sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. Hence Courts cannot be and are not divested of control or supervision of conduct in Court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of Court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in Courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of Court proceedings. On the contrary it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the Court. Proceedings inside the Courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of Court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the Court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the Courts. The power to frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the Courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an Advocate shall have a right to practice i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the Court including inter-alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter-alia to lay down conditions on which an Advocate shall be permitted to practice in Courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.
In a separate but concurring order, Justice M B Shah and Justice D M Dharmadhikari added the following:
Further appropriate rules are required to be framed by the High Courts under Section 34 of the Advocates Act by making it clear that strike by advocate/advocates would be considered interference with administration of justice and concerned advocate/advocates may be barred from practising before Courts in a district or in the High Court.
Hence, it is directed that (a) all the Bar Associations in the country shall implement the resolution dated 29th September, 2002 passed by the Bar Council of India, and (b) under Section 34 of the Advocates Act, the High Courts would frame necessary rules so that appropriate action can be taken against defaulting advocate/advocates.
In Bar Council Of India vs High Court Of Kerala (2004), a Division Bench of the Supreme Court of India upheld the constitutionality of Rule 11 of the Rules framed by the High Court of Kerala forbidding a lawyer from appearing, acting or pleading in any court till he got himself purged of the Contempt by an order of the appropriate court is in question in this writ petition. Noting that it was bound by the previous decisions of Constitution Benches in Supreme Court Bar Association vs Union Of India & Anr (1998) and Ex-Capt. Harish Uppal vs Union Of India & Anr (2002), the Division Bench suggested that Rule 11 did not violate the principles of natural justice. The Division Bench stated:
"Rule 11 framed by the Kerala High Court is legislative in character. As validity of the said rule has been upheld, it cannot be said that the same by itself, having not provided for a further opportunity of hearing the contemnor, would attract the wrath of Article 14 of the Constitution of India."
The law on this subject was again considered by a three judge Bench of the Supreme Court in R.K.Anand vs Registrar, Delhi High Court (2009) in paragraphs 138 to 147 of its judgment. It is respectfully submitted that this decision in R K Anand is per incuriam as it is contrary to the ratio of the decisions of the two Constitution Benches in Supreme Court Bar Association vs Union Of India & Anr (1998) and Ex-Capt. Harish Uppal vs Union Of India & Anr (2002) for reasons which are elaborated below.
In R K Anand, two lawyers were found guilty of contempt of court by the Delhi High Court and were inter alia prohibited, by way of punishment, from appearing in the Delhi High Court and the courts subordinate to it for a period of four months from the date of the judgment. By the time the Supreme Court heard the appeals, the four-month period had already elapsed.
After referring to the earlier Supreme Court decisions on this subject, the three Judge Bench in R K Anand stated the following in paragraph 143:
In Supreme Court Bar Association the direction prohibiting an advocate from appearing in court for a specified period was viewed as a total and complete denial of his right to practise law and the bar was considered as a punishment inflicted on him. 1 In Ex. Capt. Harish Uppal it was seen not as punishment for professional misconduct but as a measure necessary to regulate the court's proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and Though in Paragraph 80 of the decision, as seen earlier there is an observation that in a given case it might be possible for this court or the High Court to prevent the contemnor advocate to appear before it till he purge himself of the contempt.
orderly functioning of the courts but may become necessary for the self protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court's record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an `inconvenient' court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor's conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any court's functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time. It is already explained in Ex. Captain Harish Uppal that a direction of this kind by the Court cannot be equated with punishment for professional misconduct. Further, the prohibition against appearance in courts does not affect the right of the concerned lawyer to carry on his legal practice in other ways as indicated in the decision.
144. We respectfully submit that the decision in Ex-Capt. Harish Uppal vs. Union of India places the issue in correct perspective and must be followed to answer the question at issue before us.
145. Lest we are misunderstood it needs to be made clear that the occasion to take recourse to the extreme step of debarring an advocate from appearing in court should arise very rarely and only as a measure of last resort in cases where the wrong doer advocate does not at all appear to be genuinely contrite and remorseful for his act/conduct, but on the contrary shows a tendency to repeat or perpetuate the wrong act(s).
146. Ideally every High Court should have rules framed under section 34 of the Advocates Act in order to meet with such eventualities but even in the absence of the Rule the High Court cannot be held to be helpless against such threats. In a matter as fundamental and grave as preserving the purity of judicial proceedings, the High Court would be free to exercise the powers vested in it under section 34 of the Advocates Act notwithstanding the fact that Rules prescribing the manner of exercise of power have not been framed. But in the absence of statutory Rules providing for such a course an advocate facing the charge of contempt would normally think of only the punishments specified under section 12 of the Contempt of Courts Act. He may not even imagine that at the end of the proceeding he might end up being debarred from appearing before the court. The rules of natural justice, therefore, demand that before passing an order debarring an advocate from appearing in courts he must be clearly told that his alleged conduct or actions are such that if found guilty he might be debarred from appearing in courts for a specific period. The warning may be given in the initial notice of contempt issued under section 14 or section 17 (as the case may be) of the Contempt of Courts Act. Or such a notice may be given after the proceedee is held guilty of criminal contempt before dealing with the question of punishment.
147. In order to avoid any such controversies in future all the High Courts that have so far not framed rules under section 34 of the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped that all the High Courts shall frame the rules within four months from today. The High Courts may also consider framing rules for having Advocates on Record on the pattern of the Supreme Court of India. Suborning a witness in a criminal trial is an act striking at the root of the judicial proceeding and it surely deserves the treatment meted out to the appellant. But the appellants were not given any notice by the High Court that if found guilty they might be prohibited from appearing in the High Court, and the courts subordinate to it, for a certain period. To that extent the direction given by the High Court was not in conformity with the principles of natural justice. But as to the consequence of that we shall deal with in due course. THE QUESTION OF SENTENCE:
After setting out its understanding of the law on this subject, the three judge Bench in R K Anand, allowed the appeal of one of the lawyers, Mr IU Khan and set aside his conviction for contempt of court and noted that the four-month prohibition period was already over.
In the case of Mr R K Anand, the appeal was dismissed and he was issued a notice by the Supreme Court on why the punishment issued to him should not be enhanced. The three judge Bench observed as follows:
We, accordingly, propose to issue a notice to him for enhancement of punishment. We also hold that by his actions and conduct the appellant has established himself as a person who needs to be kept away from the portals of the court for a longer time. The notice would therefore require him to show-cause why the punishment awarded to him should not be enhanced as provided under section 12 of the Contempt of Courts Act. He would additionally show-cause why he should not be debarred from appearing in courts for a longer period. The second part of the notice would also cure the defect in the High Court order in debarring the appellant from appearing in courts without giving any specific notice in that regard as held in the earlier part of the judgment.
It is respectfully submitted that the decision in R K Anand by the three judge Bench is per incuriam in so far as it observes that a Court can debar a lawyer from appearing in court after a conviction for contempt of court even in the absence of an appropriate and enabling rule framed by a High Court under Section 34 of the Advocates Act, provided that a prior notice is issued to the lawyer in the initial contempt notice or at the stage after conviction but before a ruling on punishment. (According to the three judge Bench, such prior notice telling the lawyer clearly that his alleged conduct or actions are such that if found guilty he might be debarred from appearing in courts for a specific period would be necessary to comply with the rules of natural justice.) This observation of the three Judge Bench in R K Anand is in direct conflict with the decisions of the two Five Judge Benches in Supreme Court Bar Association vs Union Of India & Anr (1998) and Ex-Capt. Harish Uppal vs Union Of India & Anr (2002).
Since the impugned decision relies upon R K Anand which is per incuriam being contrary to the ratios of the Constitution Bench decisions in Supreme Court Bar Association vs Union Of India & Anr (1998) and Ex-Capt. Harish Uppal vs Union Of India & Anr (2002). and because this is an important issue concerning the public interest, the administration of justice and important limits to the jurisdiction of the Courts, it is respectfully submitted that this appeal deserves to be heard by a five judge Constitution Bench of this Hon'ble Court. The appellant therefore prays that this Appeal be listed before a five judge Bench. The impugned judgment of the Delhi High Court is in direct conflict with the decisions of the two Five Judge Benches in Supreme Court Bar Association vs Union Of India & Anr (1998) and Ex-Capt. Harish Uppal vs Union Of India & Anr (2002) and is therefore per incuriam and bad in law. It is further submitted that a five judge Bench will also be able to go into the question as to whether the observations on this subject in Ex-Capt. Harish Uppal vs Union Of India & Anr (2002) (5 Judges) should be considered obiter dicta, so that the law on this subject as stated by the five Judge Bench in Supreme Court Bar Association vs Union Of India & Anr (1998) would remain unmodified by Harish Uppal.
For the sake of clarity and completeness, an exposition on the meaning of "per incuriam" by the young scholar and author Gautam Bhatia on his blog at https://indconlawphil.wordpress.com/2016/05/18/why-the-supreme-courts-criminal-defamation-judgment-is-per-incuriam/ is reproduced below.
In common law, a judgment that is per incuriam has no legal force or validity, and does not count as precedent. Classically, per incuriam is a very narrow concept, applicable only in two circumstances: to a judgment that is passed in ignorance of a relevant statutory provision, or without considering binding precedent of a coordinate or larger bench. In 2015, however, in Sundeep Kumar Bafna v State of Maharashtra, the Supreme Court expanded the definition of per incuriam, noting that:
"It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam."
It is submitted that the Delhi High Court has not framed any rules under Section 34 of the Advocates Act similar to rule 11 of the Kerala High Court. Therefore, the Division Bench of the Delhi High Court had no jurisdiction to issue the direction "that the contemnor will not be allowed to argue, whether as an Advocate or in person, except in her defence, before any Bench of this High Court or any court or tribunal subordinate to this High Court for a period of two years from today." At the most, after finding the appellant guilty of contempt of court, the Delhi High Court could have only directed the Bar Council of Delhi to consider initiating appropriate disciplinary action against the appellant. This indeed is what the Delhi High Court did in a subsequent decision dated 22.2.2016 in the case of lawyer Deepak Khosla in Contempt Case Criminal 9 of 2014. In that case, the Delhi High Court passed the following direction in its order:
"We had considered prohibiting the contemnor from further appearance before this Court or subordinate court and Tribunals in Delhi for some period of time after his having served the prison sentence, but we restrain ourselves from doing so. We feel that appropriate orders in this regard should, in the facts of this case, be taken by the Bar Council concerned. Hence a copy of this order be sent to the Bar Council of Delhi and the Bar Council of Karnataka, for them to take appropriate measures apropos the contemnor, Mr.Deepak Khosla."
It is further submitted that the impugned judgment is contrary even to the law as explained by the three Judge Bench of the Supreme Court in R K Anand. R K Anand expressly required that a prior notice be issued to a lawyer by a Court before debarring a lawyer from appearance, and that such prior notice must inform the lawyer that if found guilty of contempt of court, she could be debarred from appearing in Court. According to the three judge Bench in R K Anand, such a prior notice was mandatory to comply with the rules of natural justice. It is submitted that no such notice was issued to the appellant by the Delhi High Court before the impugned judgment was issued in Contempt Case Criminal 2 of 2014. The impugned judgment is therefore bad in law on this ground as well.
It is pointed out that in R K Anand, the Supreme Court overturned the conviction of Mr I U Khan and in the case of Mr R K Anand, a fresh notice was issued to him by the Supreme Court which was intended to cure the defect created by the absence of a prior notice on possible debarment from court appearances.
It is therefore submitted that the Division Bench of the Delhi High Court had no jurisdiction to debar the appellant lawyer from appearing before the Delhi High Court and subordinate courts for a period of two years and this direction is liable to be set aside by this Hon'ble Court."
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