TMI Blog1975 (10) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. this Court upheld the competence to appeal, thus leading us to the present stage of disposing of the eight cases on merits. 3. The epileptic episodes - what other epithet can adequately express the solicitation circus dramatised by the witnesses as practised by the panel of advocate-respondents before us?-make us blush in the narration. For, after all, do we not all together belong to the 'inner republic of bench and bar'? The putative delinquents are lawyers practising in the criminal courts in Bombay City. Their profession ordains a high level of ethics as much in the means as in the ends. Justice cannot be attained without the stream being pellucid throughout its course and that is of great public concern, not merely professional care. Briefly expressed, these practitioners, according to testimony recorded by the State Disciplinary Tribunal, positioned themselves at the entrance to the Magistrates' Courts, watchful of the arrival of potential litigants. At sight, they rushed towards the clients in an ugly scrimmage to snatch the briefs, to lay claim to the engagements even by physical fight, to undercut fees, and by this unedifying exhibition, sometimes carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it says that it has considered the complaint and decided to refer the matter to the disciplinary committee, that it had reason to believe, as prescribed by the statute. 5. Such blanket reference to the disciplinary body, so far as we are concerned, related to the respondent in C.A. 1461/74 (Dhabolkar), C.A. 1462/74 (Bhagtani), C.A. 1463/74 (Talati), C.A. 1464/74 (Kelawala), C.A. 1465/74 (Dixit), C.A. 1466/74 (Mandalia), C.A. 1467/74 (Doshi) and C.A. 1468/74 (Raisinghani). All the cases were tried together as a unified proceeding and disposed of by a common judgment by the Disciplinary Committee, a methodology conducive to confusion and prejudice as we will explain later in this judgment. The respondents in the various appeals before us were found guilty 'of conduct which seriously lowers the reputation of the Bar in the eyes of the public' and they were suspended from practising as Advocates for a period of three years. Appeals were carried to the Bar Council of India and, in accordance with the statutory provision, they were referred to the Disciplinary Committee appointed by it under Section 37(2) of the Act. The Appellate Disciplinary Committee heard the appeals and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dulged in by any of the respondents, such conduct is in gross breach of professional behavior and invites punishment. 7. A case-by-case disposal is desirable and so we begin with Dabholkar (respondent in C.A. 1461/74) who appeared in person to plead in defence. The evidence against him is far from satisfactory and suffers from generalised imputation of misconduct against a group of guilty lawyers. To dissect and pick out is an erroneous process, except where individualised activities are clearly deposed to. Moreover, the only witness who implicates him swears: 'I have not seen him actually snatching away the papers. I did not hear the talk Mr. Dabholkar had with the persons'. Moreover, he was a senior public prosecutor. We also record the fact that he expressed distress as the arguments moved on. Apart from the weak and mixed evidence against him, there is the circumstance that he is around 68 years old. With a ring of truth he submitted that he was too old to continue his practice in the profession and had resolved to retire into the sequestered vale of life. He frankly admitted that, even apart from the evidence, if there were any sins of the past, he would not pursue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him guilty and reluctantly restore the verdict of the original tribunal, but reduce the punishment to suspension from practice, as aforesaid. 10. The respondent in C.A. 1464/74 is Kelawala. His counsel Mr. Zaki, submitted that this practitioner had become purblind and was ready to give an undertaking to the Court that he would no longer practice in the profession. While there is some evidence against him, an overall view of the testimony does not persuade us to take a serious view of the case against him. Moreover, being old and near blind and having undertaken to withdraw from the profession forever, it is but fair that he spends the evening years left to him without the stigma of gross misconduct. In this view, we do not disturb the finding of the Disciplinary Committee of the Bar Council of India, but record the undertaking filed by Shri Zaki that his client Kelawala will not practice the profession of law any longer. 11. The respondent in C.A. 1466/74 is Dixit for whom Shri Ganpule appeared Shri Desai for the appellant took us through the evidence against this lawyer but fairly agreed that the evidence was, by any standard, inadequate to bring home the guilt of misconduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commendable testimonials of his legal skills from competent persons and some law practice in various Courts and consultancy work for social welfare institutions which are apt to dissuade him from the disreputable bouts in the 'pathological' area of the Esplanade Police Courts in Bombay. Even assuming that this over-zealous gentleman had exceeded the strict bounds of propriety, we are not satisfied that the charge of professional misconduct, as laid, has been brought home to him. What we have observed about his conduct in this Court must serve as a sufficient admonition to wean him away from improper conduct. We do not interfere with the exculpation secured by him before the appellate Tribunal hopeful that he will canalize his professional energies in a more disciplined way to be useful to himself and, more importantly, to his 'unsolicited' clientele. After all, even a sinner has a future and given better court manners and less turbulent bellicosity, Shri Doshi appears to have a fair professional weather ahead in the City. We hold him unblemished so far as the vice of solicitation is concerned, but caution him to refine himself in advocacy. 14. Shri Raisinghani i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitioners as right: It must be a conscience alive to the proprieties and the improprieties incident to the discharge of a sacred public trust. It must be a conscience governed by the rejection of self-interest and selfish ambition. It must be a conscience propelled by a consuming desire to play a leading role in the fair and impartial administration of justice. to the end that public confidence may be kept undiminished at all times in the belief that we shall always seek truth and justice in the preservation of the rule of law. It must be a conscience, not shaped by rigid rules of doubtful validity, but answerable only to a moral code which would drive irresponsible judges from the profession. Without such a conscience, there should be no judge. and, we may add, no lawyer. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been complied with because we do not know what was the nature of the communication, we do not know in connection with which case the solicitation took place and with whom the conversation took place. Hence Mr. Shertukade's evidence is not sufficient for the purpose of taking any disciplinary action under Rule 36. x x x Mr. Krishnarao V. Pathumdi is the first witness in this case (case of Raisinghani). He says: I had seen Kelawala, Mr. Baria, Mr. Raisinghani, Mr. Bhagtani approaching the people visiting the Court and soliciting work from them . This we have already stated is far below the requirement required to be proved under Rule 36. He says that he had seen Mr. Rai singhani approaching people and soliciting work. He did not ascertain the names of the persons who approached because it was not his business. But as stated above, this evidence does not establish the three elements required to be proved under Rule 36 because we do not know what was the personal communication between him and the persons solicited. We do not know whether it related to a case or not. Then the next witness is Mr. Sitaram Gajanan Shertukade. In cross-examination by Mr. Raisinghani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the like. If the learned profession is not a money-making trade or a scramble for porterage but a branch of the administration of justice, the view of the appellate disciplinary tribunal is indefensible and deleterious. We, as a legal fraternity, must and shall live up to the second and live down the first, by observance of high standards and dedication to the dynamic rule of law in a developing country. 20. It is unfortunate that the Maharashtra tribunal has slurred over vital procedural guidelines. Professional misconduct proscribed by Section 35 of the Act has to be understood in the setting of a calling to which Lincoln, Gandhi, Lenin and a galaxy of great men belonged. The high moral tone and the considerable public service the bar is associated with and its key role in the developmental and dispute-processing activities and, above all, in the building up of a just society and constitutional order has earned for it a monopoly to practise law and an autonomy to regulate [its own internal discipline. This heavy public trust should not be forfeited by legalising or licensing fights [for briefs, affrays in the rush towards clients, under-cutting and wrangling among members. Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of trial procedure and conscientious about avoidance of prejudice and delay? Rules may regulate, but men apply them Both are important 22. The appellate disciplinary tribunal was wholly wrong in applying Rule 36 which was promulgated only in 1965 while the alleged misconduct took place earlier. What this tribunal forgot was that the legal profession in India has been with us even before the British and coming to decades of this century, the provisions of Section 35 of the Advocates Act, Section 10 of the Bar Councils Act and other enactments regulating the conduct of legal practitioners have not turned on the splitting up of the text of any rule but on the broad canons of ethics and high tone of behavior well established by case-law and long accepted by the soul of the bar. Professional ethics were born with the organised bar, even as moral norms arose with civilised society. The exercise in discovering the 'three elements of Rule 36 was as unserviceable as it was supererogatory. 23. The rulings in In the matter of 'P' an Advocate AIR 1963 SC 1313; In re: Shri M. Advocate of Supreme Court of India 1957CriLJ300 ; In the matter of an Advocate AIR1936Cal158 ; Govt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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