IN THE SUPREME COURT
OF INDIA
CRIMINAL APPELLATE JURISDICTION
I.A. NO.
123144 OF 2017
CRIMINAL APPEAL NO. 10342 OF 2016
CRIMINAL APPEAL NO. 10342 OF 2016
IN THE MATTER OF
SEEMA SAPRA …Appellant/Petitioner
Versus
COURT ON ITS OWN MOTION
… Respondent
I N D E X
______________________________________________________
Sl. No.
PARTICULARS PAGES
________________________________________________________
1.
Application with prayer for reference of this
appeal for hearing to a five
Judge Constitution
Bench of this Hon’ble Court with
affidavit
2.
Annexure IA 1 – List of crimes
involving
Moral turpitude
3.
Annexure IA 2 – Compilation Note
on Principle
of Legality
FILED BY:
SEEMA SAPRA
APPELLANT/PETITIONER-IN-PERSON
DRAWN ON: 18.11.2017
FILED ON: 18.11.2017
IN
THE SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
I.A.
NO. OF 2017
CRIMINAL APPEAL NO. 10342 OF 2016
CRIMINAL APPEAL NO. 10342 OF 2016
IN THE MATTER OF
SEEMA SAPRA …Appellant/Petitioner
Versus
COURT ON ITS OWN MOTION … Respondent
To
Hon'ble The Chief Justice of India and His Companion Judges of the
Supreme Court of India., the application of the Appellant/ Petitioner most
respectfully showeth :-
1.
The impugned judgment of the Division Bench of the Delhi High Court has
also 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.”
2.
The Delhi High Court had no power or jurisdiction to punish the
petitioner-advocate in this manner even assuming without admitting that she was
guilty of contempt of court. It is most respectfully submitted that this
direction has been issued by the Delhi High Court without jurisdiction and is
ultra vires both the Advocates Act and the Contempt of Courts Act. This
direction of the Delhi High Court is also contrary to the following six
decisions of the Supreme Court of India and it is respectfully prayed ought to to
be set aside.
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In Re: Ajay Kumar Pandey, Advocate vs Unknown (1998) (2 Judges) (1998)
7 SCC 248
Pravin C. Shah vs K.A. Mohd. Ali & Anr (2001) (2 Judges) 2001 (8)
SCC 650
Ex-Capt. Harish Uppal vs Union of India
& Anr (2002) (5 Judges) [(2003) 2 SCC 45]
Bar Council of India vs High Court of Kerala
(2004) (2 Judges) (2004) 6 SCC 311
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3.
In addition to the above-listed six judgements of the Hon’ble Supreme
Court, the Supreme Court’s ruling in Mahipal Singh Rana vs State Of U.P (2016),
(2016 (8) SCC 335) is also relevant to the issue and is therefore discussed
hereinafter.
4.
Section 30 of the Advocates Act states as follows:
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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.
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5.
The impugned judgment of the Division Bench of the Delhi High Court
erroneously 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 of the Delhi High Court is completely
incorrect in law and contrary to two (five judge) Constitutional Bench
decisions of the Supreme Court of India in Supreme Court Bar Association vs
Union Of India & Anr (1998) (5 Judges) (1998) 4 SCC 409 and Ex-Capt. Harish
Uppal vs Union of India & Anr (2002) (5 Judges) [(2003) 2 SCC 45].
6.
It is further submitted that important and substantial questions of law
of constitutional importance and which are also relevant for the legal
community at large arise in this case and on which there is a conflict or
divergence of opinion between different Benches
of this Hon’ble Court. These questions of law, it is respectfully submitted,
need to be referred to for decision by a Constitution Bench of five Judges in
order to satisfactorily resolve and settle the law on this issue.
7.
These important and substantial questions of law are –
A.
Can a Court of Law on its own judicially direct that a lawyer
convicted for contempt of court by that Court will not be allowed to appear as
an advocate before that court and its subordinate courts? Or does this power
vest exclusively with the Bar Council as laid down in the Advocates Act, which
position of law has been affirmed by two 5-Judge Constitution Bench decisions of
the Supreme Court in Supreme Court Bar Association vs
Union Of India & Anr (1998) (5 Judges) (1998) 4 SCC 409 and in Ex-Capt.
Harish Uppal vs Union of India & Anr (2002) (5 Judges) [(2003) 2 SCC 45]?
B.
Is the decision in R.K. Anand vs Registrar, Delhi High Court (2009) (3
Judges) (2009) 8 SCC 106, per incuriam and bad law in so far as a three Judge
Bench therein after ignoring and violating the binding ratios of the aforesaid two
5-Judge Constitutional Bench rulings, held that the court could exercise this
power (which the two Constitution Bench rulings had clarified it did not
possess) merely upon issuance of a special notice in this regard to the accused
contemnor?
C.
Is the ruling in Mahipal Singh Rana vs State Of U.P (2016),
(2016 (8) SCC 335) per
incuriam and bad law in that it also violates the spirit of the two 5-judge Constitutional
Bench rulings in Supreme Court Bar Association vs Union Of India & Anr
(1998) (5 Judges) (1998) 4 SCC 409 and in Ex-Capt. Harish Uppal vs Union of
India & Anr (2002) (5 Judges) [(2003) 2 SCC 45], which after an exhaustive
and in-depth review of the Advocates Act ruled that under the Act only the Bar
Council was exclusively vested with the power (in subsequent disciplinary
proceedings) to debar a lawyer from appearing in court or from practicing law after
a conviction for contempt?
E.
Is the enlarged interpretation given to Section 24A of the Advocates Act
by a 3-judge Bench of this Hon’ble Court in Mahipal Singh Rana vs State Of U.P
(2016), (2016 (8) SCC 335) not contrary to the binding ratios of the two
5-Judge Constitutional Bench decisions in Supreme Court Bar Association vs
Union Of India & Anr (1998) (5 Judges) (1998) 4 SCC 409 and in Ex-Capt.
Harish Uppal vs Union of India & Anr (2002) (5 Judges) [(2003) 2 SCC 45]
and therefore per incuriam and bad law, which therefore requires
reconsideration by a larger Bench?
F. Does Section 24A of the Advocates Act as
interpreted and applied in Mahipal Singh Rana vs State Of U.P (2016), (2016 (8)
SCC 335) not violate the constitutionally protected right to practice one’s profession guaranteed as a
fundamental right by Article 19(1)(g) of the Constitution of India?
G.
Does Section 24A of the Advocates Act as interpreted and applied in
Mahipal Singh Rana vs State Of U.P (2016), (2016 (8) SCC 335) not conflict with
the scheme of the Advocates Act and with Section 30 of the Advocates Act and
does it not violate the right accorded under that provision to enrolled
Advocates to practice in all courts?
H. Does Section 24A of the Advocates Act as
interpreted and applied in Mahipal Singh Rana vs State Of U.P (2016), (2016 (8)
SCC 335) not
violate the fundamental right guaranteed under Article 20 of the Constitution
of India which provides that no person convicted of any offence shall be subjected
to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence?
I.
Does Section 24A of the Advocates Act as interpreted and applied in Mahipal Singh Rana vs State Of U.P (2016), (2016 (8) SCC
335), if upheld, apply retrospectively or only prospectively from the date
of the judgment? Does Article 20 of the Constitution of India not require that this
expanded interpretation to Section 24A of the Advocates Act apply only
prospectively in contempt cases where the judgment is issued after the date of
the ruling?
J.
What is the meaning of the term “offence involving moral turpitude”?
K.
Is Contempt of Court by itself an offence involving moral turpitude? Do
all Contempt of Court convictions amount to convictions for offences involving
moral turpitude? Are all offences by lawyers per se offences involving moral
turpitude? Are all Contempt of Court convictions of lawyers per se offences
involving moral turpitude?
L. Are offences involving moral turpitude a
special category of offences which involve inherent baseness or vileness, shameful wickedness,
or depravity? Are offences involving moral turpitude a special category of
offences which involve criminal intent or mens rea which is contrary to
justice, honesty, modesty or good morals? Are offences involving moral
turpitude a special category of offences which are malum in se rather than
malum prohibitum? Are offences involving moral turpitude a special category of
offences which meet the test as being contrary to justice, honesty, modesty, good
morals or man’s duty to man?
M. What are the consequences and implications
for a person convicted of an offence involving moral turpitude, for instance in
immigration law, company law and employment law? Should the court be mindful of
these far-reaching consequences before holding that an offence conviction
involves moral turpitude?
N.
Is Mahipal Singh Rana vs State Of U.P (2016), (2016 (8) SCC 335) not
wrong in stating that all and any convictions of lawyers for Contempt of Court
will ipso fact, by itself and without any further examination or criteria be
treated as convictions for offences involving moral turpitude?
O.
Is Mahipal Singh Rana vs State Of U.P (2016), (2016 (8) SCC 335) not
wrong in suggesting that any lawyer convicted of contempt of court for
whatsoever reason, even for an unpremeditated statement in Court followed by remorse
and a sincere, unconditional and unqualified apology, should face suspension of
his bar council enrolment for a period of 2 years and possibly forever?
P.
Do the decisions in R K Anand and in Mahipal Singh Rana not violate the
Principle of Legality and the Constitutional guarantee of Article 20 of the
Constitution of India which provides that “No person shall … be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the
commission of the offence”.
8.
In Supreme Court Bar Association vs Union Of India & Anr (1998), a
Constitution Bench comprised of 5 Judges of the Supreme Court of India
clarified the law on this issue as follows:
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" 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 the 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.
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9.
In In Re: Ajay Kumar Pandey, Advocate vs Unknown (1998), a Division
Bench of the Supreme Court of India followed the decision of the Constitution
Bench in Supreme Court Bar Association from 1998 and (refraining from itself
debarring the contemnor from practicing law or appearing in court) issued the
following direction:
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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.
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10. 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.
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Rule 11 read
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.
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11. This case was therefore not concerned with
the issue decided in Supreme Court Bar Association vs Union Of India & Anr (1998),
where the Constitution Bench had ruled on the judicial jurisdiction and power
of a court to itself debar a lawyer guilty of contempt of court from appearing
before a Court or from practicing law.
12. 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 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.
13. It 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:
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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.
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14. In a separate but concurring order, Justice M
B Shah and Justice D M Dharmadhikari added the following:
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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.
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15. 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. 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 stated 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.”
16. 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 the judgment. It is respectfully
submitted that this decision in R K Anand is per incuriam and bad law as it is
contrary to the binding ratios of the decisions of the two 5-judge 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) for reasons which are elaborated below.
17. 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.
18. 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:
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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. 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:
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19. 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.
20. 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:
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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.
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21. It is respectfully submitted that the
decision in R K Anand by the three judge Bench is per incuriam and bad law 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) and also it is respectfully submitted to the
constitutional guarantee and fundamental right under Article 20 of the
Constitution of India.
22. Since the impugned decision relies upon R K
Anand which is per incuriam and bad law 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 with
implications for important constitutional guarantees, the administration of
justice and important limits to the jurisdiction of the Courts, it is
respectfully submitted that this appeal should 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.
23. 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.
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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 ((2014) 16 SCC 623), 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.”
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24. It is submitted that the Delhi High Court has
not framed any rule under Section 34 of the Advocates Act that is 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:
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“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.”
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25. 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.
26. 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.
27. It is therefore submitted that the Division
Bench of the Delhi High Court had no jurisdiction or power to debar the
appellant lawyer from appearing as an advocate 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.
28. A recent three-Judge Bench decision of the
Supreme Court in Mahipal Singh Rana vs State Of U.P (2016), (2016
(8) SCC 335) is also relevant to
the issue raised in this petition. This decision is relevant in so far as it
has interpreted Section 24A of the Advocates Act.
29. The relevant portion of Section 24A of the
Advocates Act reads:
3[24A. Disqualification for enrolment.—(1) No
person shall be
admitted as an advocate on a State roll—
(a) if he is convicted of an offence
involving moral turpitude;
(b) if he is convicted of an offence under
the provisions of the
Untouchability (Offences) Act, 1955 (22 of
1955);
4[(c) if he is dismissed or removed from
employment or office
under the State on any charge involving moral
turpitude.
Explanation.—In this clause, the expression
“State” shall have the meaning assigned to it under Article 12 of the
Constitution:]
Provided that the disqualification for
enrolment as aforesaid shall cease to have effect after a period of two years
has elapsed since his 5[release or dismissal or, as the case may be, removal].
30. In Mahipal Singh Rana, the Supreme Court
extended the two-year bar under Section 24A to a practicing lawyer convicted of
contempt of court even though the lawyer was already enrolled with the Bar
Council. The Supreme Court stated as follows:
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“42. Apart from the above, we do not find
any reason to hold that the bar applicable at the entry level is wiped out
after the enrollment. Having regard to the object of the provision, the said
bar certainly operates post enrollment also. However, till a suitable
amendment is made, the bar is operative only for two years in terms of the
statutory provision.
43.
In these circumstances, Section 24A which debars a convicted person from
being enrolled applies to an advocate on the rolls of the Bar Council for a
period of two years, if convicted for contempt.
44. In addition to the said
disqualification, in view judgment of this Court in R.K. Anand (supra), unless
a person purges himself of contempt or is permitted by the Court, conviction
results in debarring an advocate from appearing in court even in absence of
suspension or termination of the licence to practice. We therefore, uphold
the directions of the High Court in para 42 of the impugned order quoted
above to the effect that the appellant shall not be permitted to appear in
courts
of District Etah until he purges himself of contempt.”
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31. The Court in Mahipal Singh Rana further
directed that “Under Section 24A of the Advocates Act, the enrollment of the
appellant will stand suspended for two years from the date of this order”.
32. The petitioner has the following submissions
to make in respect of the Supreme Court’s decision in Mahipal Singh Rana.
33. The appellant submits that she fully
appreciates the concern expressed by this Hon’ble Court in Mahipal Singh Rana’s
case that an advocate convicted of contempt of court must purge himself of the
contempt of court by feeling and expressing sincere regret and remorse for the
contumacious conduct. However, the appellant submits that the factual situation
in the present appellant’s case and that in Mahipal Singh Rana’s case are very
different, as is the conduct alleged to be contumacious, as were the
surrounding circumstances, and past conduct of the parties involved.
34. It is submitted that the decision in Mahipal
Singh Rana is not clear and is ambiguous as to what consequences will follow if
an enrolled advocate is convicted of contempt of court. The answers to the
following questions remain unclear after a reading of the decision in Mahipal
Singh Rana. Will the advocate’s enrollment with the Bar Council be merely suspended
automatically upon a judgment issued by a Court of law convicting such
lawyer for contempt of court? Will the enrollment be suspended for two years
only or for longer until the Court grants the lawyer permission to practice law
upon determining that the lawyer has purged himself of the contempt? Will the
enrollment be suspended or terminated? Will the enrollment automatically revive
after expiration of a period of two years or will a lawyer have to reapply to
the Bar Council for fresh enrollment after the bar is lifted? Will the expanded
interpretation to Section 24A in Mahipal Singh Rana apply only prospectively or
retrospectively as well. Will the retrospective application of this expanded
interpretation of Section 24A not violate the constitutional guarantee of
Article 20 of the Constitution of India?
35. Further it is most respectfully submitted
that in Mahipal Singh Rana the Supreme Court has erroneously interpreted
Section 24A of the Advocates Act and in a manner that is directly contrary to
the ratios of the two five-Judge Bench decisions of
this Court in the Supreme Court Bar Association and Captain Harish Uppal, and
also contrary to the express language of the statute in sections 30, 24A and
Section 35 of the Advocates Act and also to the scheme of the Advocates Act, It
is submitted that the expanded interpretation accorded to Section 24A of the
Advocates Act in Mahipal Singh Rana is
also violative of the constitutional guarantee under Article 20 of the
Constitution of India. The decision in Mahipal Singh Rana is per incuriam and
bad law for these reasons. The five-Judge Bench decisions of this Court in the
Supreme Court Bar Association and Captain Harish Uppal cases exhaustively interpreted
the Advocates Act including Section 24A and arrived at the conclusion that the
Advocates Act did not automatically result in debarring a lawyer who was
convicted of contempt of court. These 5 Judge Bench decisions constituted binding
precedent for the subsequent smaller benches, including for the three Judge
Bench in Mahipal Singh Rana.
36. Section 24A only applies to the conditions
for enrolment of lawyers under the Advocates Act. Further, it only disqualifies
a person from enrolment if such person has been convicted of an offence
involving moral turpitude. This qualification to the debarring conviction is a
crucial component. Not all convictions and not all offences involve moral
turpitude. The bar exists only for convictions for those offences which involve
moral turpitude. The determination that a conviction involves moral turpitude
and thus disqualifies a person under section 24A is one that must be made by
the Bar Council in the fulfilment of its enrolment function and duties.
37. Contempt of Court is not an offence that
normally by itself involves moral turpitude. However, a sub-category of
convictions for contempt of court might involve moral turpitude. These would
typically be cases involving fraud, dishonesty, perjury, or other similar
offences involving criminal intent or mens rea against the administration of
justice. Not all convictions for contempt of court will constitute a bar
against enrolment under Section 24A. The bar would come into force only for
those convictions for contempt of court which contain elements that establish
moral turpitude. The appellant will produce foreign legal citations in support
of the proposition that – “The crime of contempt of court may or may not be a
crime of moral turpitude. (October 16, 1979 Opinion of Mr. McLeod to Governor
Riley.) However, in making a determination on whether or not an individual
convicted for contempt of court was convicted of a crime of moral turpitude, it
is necessary to look at the specific grounds for the conviction, i.e.,
attempted grand jury tampering. Cf. In The Matter of Holman, 277 S.C. 293, 286
S.E. 2d 148 (1982).” – extract from 1983 WL 181726 (S.C.A.G.).
38. Also see ‘Moral Turpitude’ by Julia Ann
Simon-Kerr in 2012 Utah Law Review at pages 1001 to 1069; Crimes Involving
Moral Turpitude: In Search of a Moral Approach to Immoral Crimes by Patrick J.
Campbell in St. John's Law Review, Number 1 Volume 88, Spring 2014, at pages
147-174; IN THE MATTER OF P, 6 IN Dec. 400 (B.I.A. 1954) Board of Immigration
Appeals Executive Office for Immigration Review U.S. Department of Justice; The Immigration Consequences of Criminal Conduct
by Nelson A. Vargas-Padilla in American University Criminal Law Brief, Volume 3
| Issue 1 Article 4 at pages 24-37.
39. Attached hereto as Annexure IA -1 is a list
of crimes involving moral turpitude and those not involving moral turpitude as
recognized under US jurisprudence. Contempt of Court in this list falls into
the category of offences not involving moral turpitude.
40. Also see -
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Moral Turpitude
“Turpitude in its ordinary sense involves the idea of inherent baseness
or vileness, shameful wickedness, depravity…. In its legal sense it includes
everything contrary to justice, honesty, modesty or good morals…. The word
‘moral,’ which so often precedes the word turpitude, does not seem to add
anything to the meaning of the term, other than that emphasis which often
results from a tautological expression. All crimes embraced within the
Roman’s
conception of the crimen falsi involve turpitude; but it is not safe
to declare that such crimes are the only ones involving turpitude.” In Ramsey
v. State, the court said that a crime involving
moral turpitude is one which is malum in se rather than malum
prohibitum. In Georgia, the test for whether a felony is one involving moral
turpitude is “does the [crime], disregarding its felony punishment, meet the
test as being contrary to justice, honesty, modesty, good morals or man’s
duty to man?”
It has been held that the following
offenses are crimes involving moral turpitude:
• Fraud or false pretenses in obtaining
something of value
• Larceny or a misdemeanor theft by taking
• Larceny after trust
• Murder
• Soliciting for prostitutes
• Voluntary manslaughter
• Sale of narcotics or other illegal drugs
• Pattern of failure to file federal tax
returns in years in which taxes are due
• Criminal Issuance of a bad check
• Making a false report of a crime
The following have been held to be offenses
which are not crimes involving moral turpitude:
• Public drunkenness
• Driving under the influence
• Carrying a concealed weapon
• Unlawful sale of liquor
• Fighting
• Simple Battery
• Simple Assault
• Misdemeanor criminal trespass
• Child abandonment
• Misdemeanor offense of escape
• Misdemeanor offense of obstructing a law
enforcement officer
• The federal misdemeanor offense of Conspiracy
in Restraint of Interstate Trade and Commerce
• Possession of less than one ounce of
marijuana
[This is taken from Handbook of Criminal
Evidence by Davis, 2000 edition.]
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41. This burden of determination as to whether a
particular conviction for contempt of court or indeed for other offences
constitutes a disqualification under Section 24A because it involves moral
turpitude will fall upon the bar council.
42. Now Section 35 of the Advocates Act
exclusively governs the removal of an enrolled advocate’s name from the Bar
Council for “professional or other misconduct”. This requires a disciplinary
enquiry against the advocate in accordance with the statute and the prescribed
rules; and upon finding sufficient cause, the bar council is empowered to
either reprimand or suspend or disbar the concerned advocate. A conviction for
contempt would, as pointed out in the five Judge decision in the case of the
Supreme Court Bar Association, prompt the Bar Council to initiate disciplinary
proceedings against an advocate if the convicting court brought the conviction
to the attention of the bar council. Note that the language used in Section 35
is misconduct which is a much broader term than the term used in Section 24A,
i.e., “conviction for an offence involving moral turpitude. At the same time,
the term misconduct also envisages a moral or ethical lapse on the part of the
concerned advocate.
43. It is therefore submitted that mere
conviction for contempt of court does not automatically result in the lawyer’s license
getting suspended for two years under Section 24A of the Advocates Act as the
Supreme Court has erroneously held in Mahipal Singh Rana.
44. It is respectfully submitted that the Mahipal
Singh Rana and the R K Anand judgments are bad law and per incuriam as they
violate the ratios of two larger 5 Judge Bench decisions, in Supreme Court Bar
Association vs Union Of India & Anr (1998) (5 Judges) and in Ex-Capt.
Harish Uppal vs Union of India & Anr (2002) (5 Judges).
45. Smaller Benches of the Supreme Court of India
are bound by larger Bench decisions which act as binding precedent.
46. As several important and substantial questions
of law including those involving constitutional guarantees arise in the present
case, and as the impugned judgment relies upon R K Anand which it is submitted is
bad law, it is respectfully submitted that it would only be appropriate for
this matter to be referred to a larger five Judge Bench of this Hon’ble Court where
these issues can be finally resolved.
47. It is also submitted that the decision in
Mahipal Singh Rana violates the Principle of Legality which is an
internationally accepted fundamental principle of criminal law and would also
apply to the offence of criminal contempt of court. In India, Article 20 of the
Constitution is based upon the Principle of Legality. For more on the Principle
of Legality, see compilation attached hereto as Annexure IA 2.
48. The appellant’s right to life is being grossly
violated since the last seven years. She is being daily targeted 24/7. Her life
in in grave and immediate danger, and she is being poisoned with poisonous
chemical agents including nerve agents.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may
graciously be pleased to allow this Application and :-
(i)
To refer this appeal for hearing by a five Judge Constitution Bench of
this Hon’ble Court;
(ii)
To pass such other orders and further orders as may be deemed necessary
on the facts and in the circumstances of the case.
FOR WHICH ACT OF KINDNESS, THE APPELLANT/ PETITIONER SHALL AS IN DUTY
BOUND, EVER PRAY.
FILED BY:
SEEMA SAPRA
APPELLANT/PETITIONER-IN-PERSON
DRAWN ON: 18/11.2017
FILED ON: 18/11/2017
IN THE SUPREME
COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
I.A. NO. OF 2017
CRIMINAL APPEAL NO. 10342 OF 2016
CRIMINAL APPEAL NO. 10342 OF 2016
IN THE MATTER OF
SEE*MA SAPRA …Appellant/Petitioner
Versus
COURT ON ITS OWN MOTION … Respondent
AFFIDAVIT
I, Seema Sapra, D/o Late A. R. Sapra, presently homeless in New Delhi,
do hereby solemnly state and affirm as under:
1. That I am the Appellant/ Petitioner and am familiar with the facts
and circumstances of the case and am competent and authorized to swear this
Affidavit.
2. That I have drafted, read and understood the accompanying Application
seeking directions for reference of this appeal for hearing to a five Judge Constitution
Bench of this Hon’ble Court and I state that the contents of the application
are based on my personal knowledge and on other sources which I believe to be
true and correct.
DEPONENT
VERIFICATION:
I, the above-named Deponent, do hereby verify that the contents of the
above Affidavit are true and correct to my knowledge, no part of it is false
and nothing material has been concealed there from.
Verified at New Delhi on this 18th day of November 2017.
DEPONENT
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