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Q1 Discuss the development of legal profession in India.

Do you think the All India bar


examination will help to improve the standard of legal profession? Discuss.
Ans: Legal profession

INTRODUCTION
Legal profession is an important limb of the machinery for administration of justice. Without
a well organised profession of law, the courts would not be in a position to administer justice
effectively as evidence of favour of against the parties to a suit cannot be properly
marshalled, facts cannot be properly uttered and the best legal arguments in support or against
the case of the parties cannot be put forth before the court.
MAYORS COURT
In the charter of 1726, which established the mayors courts at the three presidency towns, no
specific provisions was made laying down any particular qualifications for the persons who
would be entitled to act or plead as legal practitioners in these courts. Presumably, it was left
to these courts to regulate this matter by rules of practice which these curts were authorized to
frame. No change was affected in the position when new charter was issued in 1753 . No
organized legal profession came into being in the presidency towns during the period of the
mayors courts. Those who practised were void of any legal training or any knowledge of
law. They had adopted the profession in absence of anything better to do. Quite the few of so
called lawyers were the dismissed servants of the company.

SUPREME COURTS
Regulations act 1773, - the first concrete step in the direction of organizing a legal profession
of India was taken in 1774 when the supreme court was established at Calcutta. The
Regulating act 1773, empowered the supreme court to frame rules of procedure as it thought
necessary for the administration of justice and due execution of its powers. The term
advocate at that time extended only to the English and the Irish barristers and the members
of the faculty of Advocates in Scotland.
The indigenous Indian legal practitioner had no entry in this court. The charter of 1774
introduced the British system of legal practice in Calcutta. Similar position obtained in the
two other supreme courts at Bombay and madras [5] . Thus, in the three supreme courts the
only persons who were entitled to practise were the british barristers, advocates and
attorneys.
COMPANY ADALATS

Regulation VII of 1793.- In the Company's adalats, the deplorable state of affairs concerning
the legal profession has been graphically narrated in the preamble to Bengal Regulation VII
of 1793. The lawyers were by and large ignorant of the law and were subject to harassment
and extortion from the ministerial officers of the courts. The professional Vakils charged
exorbitant fees.
Provisions- The Regulation thus laid emphasis on the useful role which a sound legal
profession can play in the administration of justice. The Regulation was enacted with a view
to strengthen the legal profession in the best interests of the litigant public, the members of
the bar serving as trustees of their clients and thus helping in the sound administration of
justice. The Regulation, created for the first time a regular legal profession for the Company's
Adults. The Regulation brought order and a measure of quality to pleading and sought to
establish practice of law as a regular profession. The provisions of the regulation have already
noted earlier . It empowered the Sadar Diwani Adalat to enroll from time to time as many
pleaders as it thought necessary for all Company's adalats and to fix the retaining fee for
pleaders and also a scale of professional fee based on a percentage of the value of the
property. He could not demand or accept any fee, goods, effects or valuable consideration
from his clients over and above the sanctioned fees. The ultimate punishment for such a
violation was dismissal of the lawyer. Thus, the theory of freedom of contract between the
Vakil and his client was not recognized. The fees of, the pleaders were payable only after the
decision, and not before, the Court being practically the paymaster.
An interesting provision made was that after a party was retained as a pleader, he was to
execute a Vakalatnama constituting him pleader in the cause and authorizing him to prosecute
or defend the matter and binding himself to abide by and confirm all acts which pleader
might do or undertake in his behalf in the cause in the same manner as if it has been
personally present and consenting. This provision is the modern genesis of the modern
Vakalatnama.

DEVELOPMENT OF LEGAL PROFESSION


THE LEGAL PRACTITIONERS ACT, 1846
It was the first All-India law concerning the pleaders in the mofussil, made several important
innovations, namely:
(1) The office of the pleader in the courts of the Company was thrown open to all persons of
whatever nation or religion, provided he was duly certified (in such manner as directed by the
Sadar Courts) to be of good character and duly qualified for the office . Thus, religious test
was abolished for enrolment as a Pleader.

(2) Every Barrister enrolled in any of Her Majesty's Courts in India was made eligible to
plead in the Sadar Adalats subject to the rules of those Courts applicable to pleaders as
regards language or any other matter.
(3) Vakils were allowed freedom to enter into agreement with their clients for their fees for
professional services. This Act is regarded as the "first charter of the legal profession"
although it left unsolved the important question of the right of Vakils to practice in the
Supreme Courts.
THE LEGAL PRACTITIONERS ACT, 1879
The Act, XVIII of 1879, was enacted to consolidate and amend the law relating to legal
practitioners in the mofussil . The Act repealed the Pleaders, Mukhtars and Revenue Agents
Act, 1865. At this time, there were six grades of practitioners functioning in India. Advocates,
Solicitors (Attorneys), and Vakils of the High Court: Pleaders, mukhtars and-revenue agents
in the lower courts. The High Courts laid down standards for admission of Vakils to practice
in the High Court; for Zila courts, standards were laid down in the Regulations which were
lower for Pleaders than the High Court Vakils. Thus, Vakils became a distinct grade above the
Pleader.
Six Grades Of legal Practitioners The Legal Practitioners Act, 1879,
brought all-the six grades of legal practitioners into one system under the
jurisdiction of the High Courts. The Act empowered an Advocate or a
Vakils on the roll of any High Court to practice in his own High Court, in all
the courts subordinate there to, in any court in British India other than a
High Court on hose roll he was not entered . There was a proviso however,
to this section to the effect that this power would not extend to the
original jurisdiction of the High court in a presidency town. The right to
practice thus conferred by these provisions included the right to plead as
well as to act in the courts.
LEGAL PRACTIONERS ACT, 1884
The High Court could dismiss any Advocate or suspend him from practice after giving him
an opportunity of defending himself, but such an order needed the confirmation of the
Provincial Government.
The Calcutta High Court held that women were not entitled to be enrolled as Vakils or
Pleaders of courts subordinate to the High Court. A similar case came before the Patna High
Court. Miss Hazara secured a B.L. Degree of the Calcutta University. She was refused
enrolment as a Pleader. She challenged this in the High Court of Patna. The Court ruled that
the sections of the Legal Practitioners' Act referred to males and not to females. This was to
be expected as since 1793 no woman had ever been admitted to the roll of pleaders.

To remove doubts about the eligibility of women to be enrolled and to practise as legal
practitioners, the Legal Practitioners (Women) Act, XXIII of 1923, was enacted to expressly
provide that no woman would by reason only of her sex be disqualified from being admitted
or enrolled as a legal practitioner or from practising as such. Since this enactment, women
began getting enrolled as legal practitioners
INDIAN BAR COMMITTEE, 1923
From the above description of the condition of the legal profession in India, several things
appear to stand out conspicuously. Since the days of the Supreme Courts, the Barristers of
England had come to occupy a predominant position in the legal profession. For example, on
the Original Side of the Calcutta High Court, only Barristers could practice even though other
High Courts had removed the distinction between Barristers and Vakils. On the whole,
advocates were treated as somewhat inferior to the Barristers. Since the passing of the Legal
Practitioners Act, 1879, enormous changes had taken place in the conditions of the legal
profession. The legal profession had so far no organization of its own to regulate admission to
the profession and to maintain a high level of professional conduct. The Vakils started
demanding that all distinctions between them and the Barristers be removed. They started
demanding abolition of all statutory reservation of judicial appointments in favour of the
particular classes . There was also the demand for abolition of the system of dual agency and
the creation of an all-India Bar in the country. Thus, there was a demand by the legal
profession for unification and autonomy of the Bar be realized by displacing the several
grades of practitioners by a single homogeneous group of practitioners.
In February, 1921, a resolution put forth in the Legislative Assembly recommending
legislation with a view to create an Indian Bar, so as to remove all distinctions enforced by
statute or by practice between Barristers and Vakils."
INDIAN BAR COMMITTEE in response to the pressures thus generated, the Government
of India in 1923 appointed the Indian Bar Committee, popularly known as the Chamier
Committee under the Chairmanship of Sir Edward Chamier, a retired Chief Justice of the
Patna High Court.
REPORT AND SUGGESTIONS in its report submitted in 1924, the Committee apparently
felt staggered by the variety of legal practitioners entitled to practice in the High Courts and
in the courts subordinate to them.
On the question of organizing the legal profession on an all-India basis, the Committee came
to the conclusion that it did not consider it practicable at the time to organize the Bar on an
all-India basis or to constitute an all-India Bar Council, The Committee suggested however
that a Bar Council should be constituted for each High Court. But immediately such Bar
Councils were to be established for a few and not all High Courts. The Bar Council should
have power to enquire into matters calling for corrective action against a lawyer; but that the
existing disciplinary jurisdiction of the High Court should be maintained. The High Court

should be bound before taking disciplinary action against an advocate to refer the case to the
Bar Council for inquiry and report.
The Committee proposed that a Bar Council should have power to make rules subject to the
approval of the High Court concerned in respect of such matters as inter alia:
(a) the qualifications, admission, and certificates of proper persons to be Advocates of the
High Court;
(b) legal education;
(c) masters relating to discipline and professional conduct of Advocates etc.,
(d) the terms on which Advocates of another High Court could appear occasionally in the
High Court to which the Bar Council is attached;
(e) any other matter prescribed by the High Court.
While on some of the questions, e.g., abolition of the dual system, achieving the ideal of a
unified bar, composition and powers of the proposed Bar Councils, the recommendations of
the Committee fell short of the expectations of the Indians, nevertheless, there were some
positive elements therein.

THE INDIAN BAR COUNCILS ACT, 1926


To give effect to the recommendations of the Chamier Committee to some extent, the Central
Legislature enacted the Indian Bar Councils Act, I926. The object of the Act, as stated in its
preamble, was to provide for the constitution and incorporation of Bar Councils for certain
Courts in British India, to confer powers and impose duties on such Bar Councils, and to
consolidate and amend the law relating to legal practitioners entitled to practice in such
Courts. The purpose of the Act thus was to unify the various grades of legal practitioners and
to provide some measure of self-government to the Bars attached to the various Courts.
The Act extended to the whole of British, India, but it was applied immediately only to the
High Courts of Calcutta, Madras, Bombay, Allahabad and Patna. The Act could be applied to
such other High Court as the "Governor-General in Council may, by notification in the
Official Gazette, declare to be High Court, to which the Act applied."
The Act also achieved some unification of the Bar by eliminating the two grades of
practitioners, the Vakils and the Pleaders by merging them in the class of Advocates who
were "entitled as of right to practice" in the High Court in which they were enrolled and in
any other Court in British India, subject to some exceptions. The duties of the Bar Council
were to decide all matters concerning legal education, qualifications for enrolment, discipline

and control of the profession. The Bar Council was authorized, with the previous sanction of
the High Court, to make rules to regulate the admission of persons as Advocates of the High
Court.
A High Court was authorized to reprimand, suspend or remove from practice any Advocate of
the High Court whom it found guilty of professional or other misconduct. The High Court
was empowered, of its own motion, to refer any case in which it had otherwise reason to
believe that any such Advocate had been guilty of misconduct.
The Act of 1926 was an improvement on the pre-existing position in so far as it went but its
provisions were not entirely satisfactory and the Indian legal profession was not fully
satisfied with what had been achieved by it. The Act failed to satisfy the aspirations of the
profession as it merely granted the Bar Councils ineffective powers, much like departments
of the High Courts. The Bar Councils were given unreal and abortive powers; they were
controlled closely by the High Courts, the real powers being conferred in the High Courts.
The power to enroll Advocates continued to remain in the High Courts and the function of the
Bar Councils was merely advisory. The rules to be made by a Bar Council were subject to the
approval of the High Court. The High Court had effective disciplinary power over the
Advocates, the role of the Bar Council being merely advisory. A Bar Council could inquire
into a complaint of professional misconduct only when the matter was referred to it by the
High Court and even then the findings of the Bar Council were not binding on the High
Court. The Act did not in any way affect the Original Sides of the Calcutta and Bombay High
Courts. The Attorneys of the Calcutta and Bombay Courts were not in any way touched by
this Act and the enrolment of the Attorneys and the disciplinary jurisdiction over them,
therefore, continued to remain vested in the High Courts under their respective Letters Patent.
The Legal Practitioners Act, 1879, remained intact and un-amended. The Act left the
Pleaders, Mukhtars, etc., practicing in the mofussil courts out of the scope of the Act and the
Act did not bring about a Unified Bar.
Finally, the right of the Advocates of one High Court to practice in another High Court was
not unfettered but was expressly made subject to the rules made by the High Court or the Bar
Council.
To have an autonomous unified all-India bar having only one grade of practitioners, and
autonomous Bar Councils, the legal profession had to wait for over three decades, their long
awaited ideals and aspirations fructified only in 1961 when the Indian Parliament enacted the
Advocates Act in the Independent India.
After Independence it was deeply felt that the Judicial Administration in India should be
changed according to the needs of the time. The Law Commission was assigned the job of
preparing a report on the Reform of Judicial Administration. In the meanwhile the All India
Bar Committee went into detail of the matter and made its recommendations in 1953. To
implement the recommendations of the All India Bar Committee and after taking into account

the recommendations of the Law Commission on the subject of Reform of Judicial


Administration in so far as the recommendation relate to the Bar and to legal education, a
Comprehensive Bill was introduced in the Parliament.
ALL INDIA BAR COMMITTEE 1951
The Government of India took the view that in the changed circumstances of independence, a
comprehensive Bill sponsored by the Government was necessary. In August 1951, the then
Minister of Law announced on the floor of the House that the Government of India was
considering a proposal to set up a Committee of Inquiry to go into the problem in detail. The
Committee was constituted and asked to examine and report on :
1. The desirability and feasibility of a completely unified Bar for the whole of India,
2. The continuance or abolition of the dual system of counsel and solicitor (or agent) which
obtains in the Supreme court and in the Bombay and Calcutta High Courts,
3. The continuance or abolition of different classes of legal practitioners, such as advocates
of the Supreme Court, advocates of the various High Courts, district court pleaders, mukhtars
(entitled to practice in criminal courts only), revenue agents, and income-tax practitioners,
4. The desirability and feasibility of establishing a single Bar Council for (1) the whole of
India and (2) for each State,
5. The establishment of a separate Bar Council for the Supreme Court,
6. The consolidation and revision of the various enactments (Central as well as State)
relating to legal practitioners, and
7. All other connected matters
The All India Bar Committee submitted its detailed report on March 30, 1953. The report
consists the proposals for constituting a Bar Council for each state and an All-India Bar
Council at the national level as the apex body for regulating the legal profession as well as to
organize the standard of legal education in India.
ADVOCATES ACT 1961
In 1961, parliament enacted the Advocates Act to amend and consolidate the law relating to
legal practitioners. And to provide to the constitution of slate bar councils and the all india
bar council.
The Act establishes an All-India Bar Council for the first time. The Attorney-General of India
and the Solicitor-General of India are the ex-officio members of the Bar Council of India. It
has one member elected to it by each State Bar Council from amongst its members. The

Council elects its own Chairman and Vice-Chairman. The Bar Council of India has been
entrusted inter alia with the following important functions:
(1) To lay down standards of professional conduct and etiquettes for Advocates;
(2) To safeguard the rights, privileges and interests of Advocates;
(3) To promote legal education,
(4) To lay down standards of legal education in consultation with the Universities imparting
such education and the State Bar Councils;
(5) To recognize Universities whose degrees in law shall qualify for enrolment as an
Advocate
(6) To visit and inspect the Universities for that purpose;
(7) To exercise general supervision and control over State Bar Councils,
(8) To promote and support law reform;
(9) To organize legal aid to the poor.
This Act created a State Bar Council in each State. It is an autonomous body . The AdvocateGeneral of the State is its ex-officio member, and there are 15 to 25 elected Advocates. These
members are to be elected for a period of five years in accordance with the system of
proportional representation by means of single transferable vote from amongst Advocates on
the Roll of the State Bar Council. The State Bar Council has power to elect its own
Chairman. The main powers and functions of the State Bar Council are:

(a) To admit persons as Advocates on its Roll;


(b) To prepare and maintain such Roll;
(c) To entertain and determine cases of misconduct against Advocates on its Roll;
(d) To safeguard the rights, privileges and interests of Advocates on its roll;
(e) To promote and support law reform;
(f) To organize, legal aid to the poor.
Thus, every State Bar Council prepares and maintains a Roll of Advocates and: an
authenticated copy of the Roll is to be sent to the Bar Council of India. An application for

Admission as an Advocate is made to the State Bar Council within whose jurisdiction the
applicant proposes to practice.
The Bar Council of India regulates the content, syllabi, duration of the law degree. Subject to
the provisions made by the Bar Council, each University can lay down its own provisions and
regulations regarding the law degree. To perform its functions regarding legal education it is
assisted by a Legal Education Committee consisting of ten members, five being members" of
the Bar Council of India, and five co-opted by the Council who are not members' thereof. The
idea is that the co-opted members would mainly be law teachers.
The finances of the Bar Councils are essentially met out of the enrolment fees of the
Advocates, Twenty per cent of the fees appreciated are paid by each State Bar Council to the
Bar Council of India.9 The Bar Councils may receive donations and grants. The Bar Councils
can frame rules for carrying out their functions.
The rules made by the State Bar Council have to be approved by the Bar Council of India.
The Central Government has been given an overriding power of making rules on any matter.
There was no such provision originally. This provision was inserted in the Act in 1964. This
provision has been criticized as amounting to a threat to the independence and autonomy of
the Bar Councils.
The qualifications for admission as an Advocate are: citizenship of India, 21 years of age, and
LL.B. Degree from an Indian University. A foreign national can also be enrolled on the basis
of reciprocity if an Indian citizen is permitted to practice in that country. Foreign Law
Degrees can also be recognized by the Bar Council of India for the purpose.
The Act recognizes only one single class of practitioners, namely, Advocates. An Advocate on
the State roll is entitled to practice as of right before any tribunal, or authority in India, or any
court including the Supreme Court.
Advocates have been classified into Senior Advocates and other Advocates. An Advocate
may, with his consent, be designated as a Senior Advocate if the Supreme Court or a High
Court is of opinion that by virtue of his ability, experience and standing at the Bar he is
deserving of such distinction. Senior Advocates are, in the matter of their practice, subject to
such restrictions as the Bar Council of India may, in the interests of the legal profession
prescribe.
Originally, the Act had saved the dual system, i.e. Advocates and Attorneys, prevailing in the
Bombay and Calcutta High Courts on their Original Side. It was left to the two High Courts
to continue the system or not. These provisions were deleted with effect from 1st January,
1977 and now Attorneys are no longer recognized as a separate class of lawyers. However,
since the system prevailed for a long period in the two towns, it continues there still as a
matter of practice.

Any advocate enrolled with his State Bar Council is now entitled to practice i the Supreme
Court irrespective of his standing at the bar.
In Supreme Court there exist 3 categories of advocates: Senior Advocates, Advocates and
Advocates on Record.
A Senior Advocate is one who with his consent may be designated so if the Supreme Court is
of the opinion that by virtue of his ability, experience and standing at the bar is deserving of
such distinction. An advocate can become an Advocate on record after undergoing one year
training with an advocate of record and passing an examination held by the court. He has to
have an office in Delhi within a radius of 16 kilometers from the Court House and has to
employ a registered clerk.
Thus, admission, practice, ethics, privileges, regulation, discipline and improvement of the
profession are now all in the hands of the profession itself. The legal profession has achieved
its long cherished object of having a unified Bar on an All-India basis.
CONCLUSION
The advocates Act, 1961 has marked the beginning of a new era in the history of legal
profession by vesting largely in the Bar councils the power and the jurisdiction which the
courts till then exercised. It has fulfilled the aspirations of those who had been demanding an
all India Bar and effecting a unification of the bar in India by the creation of a single class of
practitioners with power to practice in all the courts. They are now bound by the rules made
under code of conduct laid down by their own of bodies to which members could resort to for
the protection of their rights, interests and privileges. Thus, the legal profession can play a
vital role in upholding individual rights and efficiently spreading justice while acting as an
integrating force in national life. It is now part of the modern legal system which provides
both the personnel and techniques for effective rational utility. The responsibility of this
profession to the Indian society is indeed great, as has been its history.
However all that glitters is not gold. The responsibility that the Indian Bar bears to the society
and the challenge that it faces today bear a testimony that the Indian Bar has not risen to the
level to discharge its duties.
We may not be able to say with any tolerable measure of consensus what justice signifies;
but there may be a fair measure of consensus on the idea of conditions of justice, one of
which is the construction of public discourse on the nature and limits, legitimacy and legality,
of state power. The denial of such discourse often signifies an end to the very quest for
justice. Creation and sustenance of such conditions has been articulated in the code of ethics
providing standards for identification and measurement of professional grievance. The
lawyers as a profession live ad thrive on ambiguity, inherent in, or imparted to words and the
professional deviance of lawyers is multifaceted.

The highest obligation is to provide free legal aid to the "indigent and the oppressed". This
obligation is subject to limits of the advocates economic condition. But we know that even
superstar lawyers whose economic conditions is unconscionably affluent even refuse
summarily to see an indigent person with urgent need for legal assistance. Most senior
lawyers stay away from legal aid programmes of the state. Unless the leaders of the bar do
some introspection and put the profession back on the rails all we will be left with is an
occupation and not a profession.
Yes it will enhance the norms of legal profession. The target of The All India Bar
Examination (AIBE) is to analyze a supporter's ability to hone the calling of law in India. The
AIBE will survey aptitudes at an essential level, and is expected to set a base benchmark for
admission to the act of law; it addresses an applicant's systematic capacities and
comprehension fundamental learning of law.

Q.2. Bar council of India; Constitution, powers and functions.


The Bar Council of India is a statutory body created by Parliament to regulate and represent
the Indian bar. We perform the regulatory function by prescribing standards of professional
conduct and etiquette and by exercising disciplinary jurisdiction over the bar. We also sets
standards for legal education and grants recognition to Universities whose degree in law will
serve as qualification for enrolment as an advocate.
In addition, we perform certain representative functions by protecting the rights, privileges
and interests of advocates and through the creation of funds for providing financial assistance
to organise welfare schemes for them.
Constitution: The following persons are the members of the Bar Council of India.
1. One member from each State Bar Councils. He will be elected by the members of the
respective State Bar Councils.
2. Attorney General of India-Ex Officio member.
3. Solicitor General of India-Ex officio member.
Ex-officio members will continue as members so long as they hold the offices of Attorney
General and Solicitor General posts. The other members will continue as members so long they are
continuing as members of the State Bar Council.
Powers: Bar Council of India is empowered with the following powers.
1. It is a body corporate.
2. It is legal persons having the autonomus status.
3. It has a common seal and perpetual succession.
4. It can do the following things in its own name. Buying and selling properties, Entering into
agreements, Filing cases etc.
5. Transfer the name of the Advocate from one state roll to another state roll on his application.
6. It can constitute executive committee, disciplinary committee, legal aid committee etc.
7. To hear and decide appeal, review and revision against the orders of the disciplinary
committee of the State Bar Council.

8. Frame rules relating to day to day administration.

The Bar Council of India was established by Parliament under the Advocates Act, 1961. The
following statutory functions under Section 7 cover the Bar Councils regulatory and
representative mandate for the legal profession and legal education in India:
1. To lay down standards of professional conduct and etiquette for advocates.
2. To lay down procedure to be followed by its disciplinary committee and the disciplinary
committees of each State Bar Council.
3. To safeguard the rights, privileges and interests of advocates.
4. To promote and support law reform.
5. To deal with and dispose of any matter which may be referred to it by a State Bar
Council.
6. To promote legal education and to lay down standards of legal education. This is done in
consultation with the Universities in India imparting legal education and the State Bar
Councils.
7. To recognise Universities whose degree in law shall be a qualification for enrolment as
an advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar
Councils to visit and inspect Universities for this purpose.
8. To conduct seminars and talks on legal topics by eminent jurists and publish journals and
papers of legal interest.
9. To organise legal aid to the poor.
10.To recognise on a reciprocal basis, the foreign qualifications in law obtained outside India
for the purpose of admission as an advocate in India.
11.To manage and invest the funds of the Bar Council.
12.To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also constitute funds for the following purposes:
1. Giving financial assistance to organise welfare schemes for poor, disabled or other
advocates,

2.

Giving legal aid, and

3.

Establishing law libraries.

The Bar Council of India can also receive grants, donations, and gifts for any of these
purposes.

Q 3. Procedure of enrolment as an Advocate.


Ans: Senior and other advocates:
1) There shall be two classes of advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court
or a High Court is of opinion that by virtue of his ability [standing at the Bar or special
knowledge or experience in law] he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the
Bar Council of India may, in the interest of the legal profession, prescribe.
(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately
before the appointed day shall, for the purposes of this section, be deemed to be a senior
advocate: [Provided that where any such senior advocate makes an application before the
31st December, 1965 to the Bar Council maintaining the roll in which his name has been
entered that he does not desire to continue as a senior advocate, the Bar Council may grant
the application and the roll shall be altered accordingly.]
Persons who may be admitted as advocates on a State roll.
(1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be
qualified to be admitted as an advocate on a State roll, if he fulfills the following conditions,
namely:
(a) he is a citizen of India: Provided that subject to the other provisions contained in this Act,
a national of any other country may be admitted as an advocate on a State roll, if citizens of
India, duly qualified, are permitted to practise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law
(i) before the 3[12th day of March, 1967], from any University in the territory of India; or

(ii) before the 15th August, 1947, from any University in any area which was comprised
before that date within India as defined by the Government of India Act, 1935; or
(iii) after the 12th day of March, 1967, save as provided in sub-clause
(iiia), after undergoing a three year course of study in law from any University in India which
is recognised for the purposes of this Act by the Bar Council of India; or
(iiia) after undergoing a course of study in law, the duration of which is not less than two
academic years commencing from the academic year 1967-68 or any earlier academic year
from any University in India which is recognised for the purposes of this Act by the Bar
Council of India; or
(iv) in any other case, from any University outside the territory of India, if the degree is
recognised for the purposes of this Act by the Bar Council of India or; he is barrister and is
called to the Bar on or before the 31st day of December, 1976 or has passed the article clerks
examination or any other examination specified by the High Court at Bombay or Calcutta for
enrolment as an attorney of that High Court; or has obtained such other foreign qualification
in law as is recognised by the Bar Council of India for the purpose of admission as an
advocate under this Act;
(e) he fulfils such other conditions as may be specified in the rules made by the State Bar
Council, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp
Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council of 7[six
hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a
bank draft drawn in favour of that Council]:
Provided that where such person is a member of the Schedule Castes or the Schedule Tribes
and produces a certificate to that effect from such authority as may be prescribed, the
enrolment fee payable by him to the State Bar Council shall be [one hundred rupees and to
the Bar Council of India, twenty-five rupees].
[Explanation.For the purposes of this sub-section, a person shall be deemed to have
obtained a degree in law from a University in India on that date on which the results of the
examination for that degree are published by the University on its notice board or otherwise
declaring him to have passed that examination.]
2. Notwithstanding anything contained in sub-section (1),
a vakil or a pleader who is a law graduate] may be admitted as an advocate on a State roll, if
he (a) makes an application for such enrolment in accordance with the provisions of this
Act, not later than two years from the appointed day, and
(b) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).

(3) Notwithstanding anything contained in sub-section (1) a person who (a) has, for at least
three years, been a vakil or pleader or a mukhtar, or, was entitled at any time to be enrolled
under any law as an advocate of a High Court (including a High Court of a former Part B
State) or of a Court of Judicial Commissioner in any Union territory; or before the Ist day of
December, 1961, was entitled otherwise than as an advocate practise the profession of law
whether by of pleading or acting or both) by virtue of the provision of any law, or who would
have been so entitled had he not been in public service on the said date; or
(c) before the 1st day of April, 1937, has been an advocate of any High Court in any area
which was comprised within Burma as defined in the Government of India Act, 1935; or
(d) is entitled to be enrolled as an advocate under any rule made by the Bar Council of India
in this behalf, may be admitted as an advocate on a State roll if he (i) makes an application
for such enrolment in accordance with the provisions of this Act; and (ii) fulfils the
conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).
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);
(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 release or dismissal or, as the case may be,
removal].
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty
is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).
Q.4 Professional misconduct: what amounts to professional misconduct? What is the
procedure adopted and punishment rewarded by the Bar council of India and state Bar
councils for professional misconduct? Discuss with case laws.
Ans: Misconduct means dereliction of duty. Professional misconduct means dereliction of
duty relating to Legal profession. Under S.35 of the Advocates Act, An Advocate is
punishable not only for professional misconduct but also for other misconduct. Other
misconduct means a misconduct not directly connected with the legal profession.

Professional misconduct arises as a result of serious dereliction of duties to the court,


to the client, to the opponent, to the colleagues, to the profession, to the public etc. Following
are some of the instances of professional misconduct.
1. Making false allegation against judicial officers.
2. Deliberately lodging groundless criminal complaint.
3. Making groundless and insulting charges against witness.
4. Refusing to accept a case without justification.
5. Attending court proceedings in drunken state.
6. Attempting to influence judicial officers for favour.
7. Carrying on other trade or business.
8. Committing crimes.
9. Financing litigation.
10. Obtaining clients signature on blank papers.
11. Shouting slogans or holding demonstration in front of the court.
12. Approaching investigative officers for favour during investigation of a case.
13. Writing letter to the presiding officer in connection with the pending case.
14. Tampering with the witness
15. Suggesting the client to bribe the presiding officer.
16. Moving application before any court or authority before informing that a similar
application has been presented before any authority or rejected by any authority.
17. An exclusively retained pleader accepting a case against the client from the opposite
party.
18. Failure to appear in the proceedings of a case without any sufficient reason.
19. Retaining the judgement of the trial court with the intention of getting himself getting
himself engaged in appeal.
20. Presenting the plaint with in sufficient court fee stamp, when the client has given
money for the court fee.
21. Alleging partiality against presiding officer in open court.
22. Tampering with records and documents.
23. Writing letters to persons for soliciting cases.
24. Reporting no instructions from his client and subsequently appearing for the opposite
party in the same suit.
25. Advertising about his profession.
26. Taking advantage of the ignorance and illiteracy of the clients, demanding money
from them on false representations that is required for court purposes and
misappropriating the same.
27. Misappropriation of decreed amount payable to the client.
28. Giving wrong advise to the client.
29. Taking money from the client for the purpose of giving bribe.
30. Suppression of truth.
31. Changing sides.
32. Indecent cross examination.
33. Committing contempt of court.
34. False identifications of deponents.
35. Gross negligence involving moral turpitude.
36. Appearing without authority ie. On forged vakalath.
37. Failure to attend the trial.
38. Attesting forged affidavit.

39. Abstaining from appearing in court on the ground of strike called by the Bar
association.
40. Misleading the court resulting in eronious order.
Punishment for misconduct
The Disciplinary committee of the State Bar Council after hearing the Advocate
concerned and the Advocate general comes to the conclusion that the misconduct is proved
that it may pass any of the following orders, namely
(i) Reprimand the Advocate.
(ii) Suspend the Advocate from the practice for such period as it thinks fit.
(iii)

Remove the name of the Advocate from the Advocates Roll.


Punishment may be awarded depending on the gravity of misconduct established
against him. The punishment to remove from the Advocates Roll is awarded only in the cases
where the misconduct is of such nature that the Advocate is unworthy of remaining in the
profession.
Where an Advocate is suspended from the practice he shall not practice in any court
or tribunal or any authority or person during the suspended period.
Where notice is issued to the Advocate general, he may appear before the disciplinary
committee in person or through any Advocate appearing on his behalf. If the misconduct is
not proved beyond reasonable doubt then the disciplinary committee shall dismiss the
petition.

CASE LAWS RELAED TO PROFESSIONAL MISCONDUCT

1. Banumurthy v.Bar Council of Andhar Praadhesh


DC Appeal No.3/1994
The appellant was a member of the Andhar Pradesh Judicial service. When he was working as
Metropolitan Magistrate at Hydrabad there were certain allegations of corruption against him. A
departmental enquiry was conducted and e was served with an order of compulsory retirement and
retired on 30-7-1991.
After compulsory retirement he applied for resumption of practice. The State Bar Council
referred the matter to the Bar Council of India because he had been found guilty by the departmental
enquiry. The Bar Council of India returned the matter to the Disciplinary Committee of the State Bar
Council found him guilty of professional misconduct and suspended him from practice for a period of
2 years. Against this order the present appeal has been filed.
When the appeal was pending, he was allowed to resume his practice from 6-4-1994 by some
court order. Bar Council of India continued the enquiry and finally held that since 2 years has already
lapsed since his punishment for corruption charges, he shall resume his practice.
2. Dr.D.V.P.Raja v.D.Jayabalan
BCI DC Appeal No.43/1996

The appellant lodged a complaint with the Bar Council of Tamil Nadu alleging that the
respondents application in the form of complaints addressed to various authorities amounts to
professional to misconduct. The State Bar Council passed a resolution that there is a prima facie case
of professional misconduct and it was placed before the Disciplinary committee of the State Bar
Council for its adjudication.
Before the Disciplinary Committee the respondent raised a preliminary issue that the
Disciplinary Committee has no jurisdiction in this matter because there is no connection between his
standing as lawyer and his representation to various authorities. The Disciplinary Committee of the
State Bar Council also accepted this argument and dismissed complaint without going in to the merits
of the complaint. The Disciplinary Committee held that there was no nexus or proximity in his
standing as a lawyer and his to various authorities.
Against this order an appeal was filed before Bar Council of India. In the Bar Council of India
it was argued that the Bar Council of Tamil Nadu having passed a resolution that there is a prima facie
case against the respondent, the Disciplinary Committee could not have dismissed the complaint
without hearing it on merits.
After hearing both the sides the Bar Council of Tamil Nadu has passed a resolution that there
is a prima facie case to be enquired in to by the Disciplinary Committee has no power to consider the
question of its jurisdiction on the matter.
The decision of the Bar Council of Tamilnadu is good and valid.

3. G. M. Hirmani v.Iswarappa
BCI DC Appeal No. 30/1995
The
petitioner
filed
a
complaint
against
the
respondent.
Mr.Iswarapa (a practicing lawyer) in the Bar Council of Karnataka alleging professional misconduct
on the following grounds.
1. The petitioner filed a partition suit against Grija Devi and Premadevi (O.S.No.293/87). The
respondent Mr.Iswarappa was the general power of attorney holder of Smt. Girija Devi and Premadevi
and also acted as Advocate for them in the said case. He misused his position as an Advocate and
dominated the will of Girija Devi and Premadevi and purchased one portion of the suit property on
30-3-93 from them.
2. On 4-6092 Mr.Iswarappa took the signature of kirmani in a ten rupee bank bond paper
promising to compromise the partition suit and thereafter committed theft of the same bond paper.
3. During the pendency of the partion suit Mr.Iswarappa often visited the house of the
complainant in a drunken stage, through the complainant had asked him not to visit his house during
the pendency of the suit.
4. Iswarappa has falsely filed a criminal case against the complainant (C.C.No.12/93) Which
was dismissed after enquiry.
During the enquiry Iswarappa admitted that he was the general power of attorney of Girija
Devi and Premadevi and has purchased their property for valuable consideration and paid the full
amount and denied all other allegations.
The State Bar Council, after conducting a proper enquiry dismissed the complaint. Thereafter,
the complainant filed an appeal before the Bar Council of India.
The Bar Council of India also dismissed the appeal on the following grounds.
1. The complainant had failed to prove that Mr.Iswarappa took signature of the complainant on
a blank bond paper.

2. He has failed to prove that Iswarappa has purchased the property by misusing his power of
attorney.
3. He failed to prove that Iswarappa acted as an Advocate for Girija Devi Premadevi in the
partition suit. Iswarappa produced evidence that he never acted as council of pemadevi and
Girijadevi in the partition suit and one Mr.AtchuthaGiri was the Advocate for them in that
partition suit. Thus the complainant had failed to establish a case of professional misconduct
against the respondent.
4. N.S.(Appellant) v. K.V.(Respondent)
BCI DC Appeal No.14/198
The appellant was a Govt. Pleader and the respondent was a Senior Advocate of 33 years
experience in the Madras High Court. On 12-11-1986 when he was going to the Bar Association, the
appellant informed him that he made a mention of a case before a Judge in which respondent was
appearing for the opposite party. The respondent told the appellant that he had not been previously
informed about it and that he has no notice that the appellant is going to make a mention in the case;
so``I will see to it. Immediately the appellant without any justification abused the respondent in a
very bad manner using vulgar words.
K.V. filed a complaint before the Bar Council of Tamilnadu. N.S.denied all the allegations,
but admitted that heated exchange of words took place between them. After examining both the
parties, the Disciplinary Committee found him guilty of professional misconduct and suspended
him from practice for a period of 6 months.
N.S. challenged this order before the Bar Council of India. The main question in the appeal is
whether the abusive language used by the appellant against the respondent would amount to
professional misconduct. The Bar Council of India held that it amounts to professional misconduct
but it held that the suspension of N.S. from practice for a period of 6 months is not necessary and
reprimanded with strong words.

Q.5 Contempt of court- Meaning, types of contempt, nature and extent of punishment,
remedies available to the comtemnor.
Ans: Object of the Act: The main object of the contempt of court Act is to protect the dignity
and decorum of the court and to uphold the majesty of law. The object is not to protect the
judges from criticism. By providing punishment for contempt of the court the ability to
deliver fearless and impartial justice is strengthened.
Definition: The definition given in the Act for the term contempt of court is not
exhaustive. it is difficult to define it by words, because the scope of contempt of court is very
wide. Contempt means
(i)Any disrespect to the authority of law.
(ii) Disobedience of the order of the court.
(iii) Disturbance to the proceedings of the court.
Types: Following are the types of contempt (i) Civil contempt and(ii)Criminal contempt.
Civil contempt

S.2(b)defines the term `civil contempt .`It means (i)Willful disobedience to any
judgemaent,decree,direction,order,writ or other process of a court;or(ii)Willful breach of an
undertaking given to a court.
For taking action for civil contempt on the ground of willful disobedience of court order, it
should be established that the court which has passed the order has jurisdiction to pass such
order. Disobedience of an order passed without jurisdiction is not a Contempt must prove
that the court has no jurisdiction.
A willful breach of an unconditional undertaking given orally or in writing either in person or
through his Advocate will be treated as civil contempt. When undertakings are given orally ,
the court shall record it in the proceedings.
Breach of a compromise entered in the court cannot be treated as civil contempt. The remedy
in such cases is only a civil suit for specific performance of the promise.
Punishment: S.12 prescribes the punishment for contempt. court may award any one of the
following punishments.
(i) Simple imprisonment for a term which may extend to 6 months.
(ii) Fine which may extend to Rs.2000/-.
(iii)Both the punishment ie., Imprisonment and fine together.

Criminal contempt
S.2C defines the term `criminal contempt. It means
(i) Publication of any matter (by words, spoken or written, or by
representation or otherwise.)

signs or by visible

(ii) Doing of any other act which


(a) Scandalises or tenda to scandalide, or lowers or tends to lower the authority of any
court; or
(b) Prejudices or interferes or tends to interfere with the due course of judicial
proceeding; or
(c) Interferes or tends to interfere with, or obstructs or tends to obstruct the
Administration of justice.
Publication means publishing something orally or in writing through news paper, pamplets,
radio, television or cinema. conversation between two persons cannot be treated as
publication.
To decide criminal contempt, the absence of criminal intention on the part of the person who
has published the matter containing criminal contempt or done the act of contempt will not be
taken into account.
In E.M.S.Nambothribad v.T.N.Mambiar (AIR 1970 SC 2015) the then Chief Minister of
Kerala, Mr.Nambothribad in a press meet expressed the following about judiciary. judiciary is

responsible for the suppression of people. Judges are favouring some class of people and
working against the other classes. Judiciary is acting against the interest of working class and
the agriculturist. judiciary is helping the oppressor group. The supreme court held that the act
of Mr. Nambothribad amounts to criminal contempt.
Making complaint against a Judge about his misconduct with sufficient evidence to the higher
authorities is not a contempt. But, the same complaint is published in any manner then it
amounts to contempt.
Preventing the court Amin from executing the court order, Threatening an Advocate not to
appear in a particular case, Threatening the witness, Preventing the witnesses from attending
the courts, Preventing the Commissioner from performing his duties are treated as criminal
contempt.(see D.C. Saxina v. Chief Justice of India at P 67).
Punishment: Punishment for the criminal contempt is same like civil contempt.(see p 36)
Punishment for contempt
S.12 Prescribes the punishment for contempt of court. punishment is same for the civil as
well as the criminal contempt. If the charge of contempt of court is proved, the Court shall
award any one of the following punishment.
1.Simple imprisonment for a term which may extend to 6 months.
2.Fine which may extend to Rs.2000/-.
3.Both the punishments ie., imprisonment and fine together.
According to S.12(2),For contempt of court any one of the above mentioned punishment
alone can be given and not any other punishment alone can be given and not any other
punishment. But, in Delhi Judicial Services Association v. State of Gujarat (AIR 1991 SC
2176)the Supreme Court held punishment not mentioned in S.12 can also be given for
contempt of court.
In Re Vinay Chandra Mishra (AIR 1995 SC2348)the supreme court held that for contempt of
court committed by an Advocate, he shall be suspended from practice for a fixed period or he
shall be permanently restrained from practice.
The Supreme Court Bar Association has filed a review petition against this order. In which
the supreme court held that for contempt of court the court cannot cancel the Advocates right
to practice. But, he shall be suspended from practice for a fixed period.
For the civil contempt, normally fine alone will be imposed. If the court thinks that fine alone
is not a sufficient punishment then he shall be put in the civil prison instead of ordinary
imprisonment.
If the contempt of court is co committed by a company in collusion of the Directors,
Secretary and other Managerical staff then shall be detained in the civil prison.
If the contempt is committed by a firm then the punishment shall be enforced against
the partners of the firm.
Defences in Criminal Contempt

Or
Criminal Contempt not Punishable
S.3 to 7 deals with the defences avilable in Criminal Contempt. They are as follows:
1.Innocent Publication(S.3):A person shall not be guilty of contempt of court if he had
made any innocent publication of any matter pending before a court without knowing that the
mater is pending a court. The person charge with contempt must prove that publication is
made without knowing that the Matter is pending in the court.
2.Publication Relating to a Decided Case (S.3(2)):Publication about the decided case is
not a contempt since the case is already decided by the court, the publication is not going to
interfere with the disposal of the case. that is why it is not treated as contempt.
3.Distribution of publication without knowing that it contains contempt of court
Matter(S.3(3)): If a person distributes and publication without knowing that it contains
contempt of court matter then it cannot be treated as contempt. If the publication does not
contain the name and address of the Author, publisher and printer then this defence cannot be
used by the person distributing such publications.
4.Fair and Accurate Reporting of Judicial Proceedings(S.4): Fair and accurate reporting
of judicial proceedings is not a contempt. This is because we are following the principle of
openness in the matter of administration of justice.
The following reporting of judicial proceedings though it is fair and accurate it will be
treated as contempt of court.
1. Reporting of the proceedings against any law which is in force.
2. Reporting of the proceedings when the court has prohibited the reporting in the
interest of the general public.
3. Reporting of the proceedings conducted in the judges chamber in the interest of
defence of public order.
4. Reporting of information relating to secret process, discovery or invention which
is an issue in the case.
5. Fair Criticism of Judicial Act(S.5): A proper and fair comment on a decision is not a
contempt of court. Criticism is permitted to the extent where it does not interfere with the
administration of justice. So, it is open to any one to express fair, reasonable and legitimate
criticism of a judicial decision.
6. Bonafide Complaint against the Presiding Officers of a subordinate court(S.6): A
bonafide complaint made in good faith against the presiding officer of a subordinate court to
the higher authorities, who have control over such subordinate court, is not a contempt.
7. No Substantial Interference with the Administration of Justice: It means an act which is
technically a contempt but such act does snot substantially interfere with the administration
of justice. For such acts no punishment is awarded.

Defences in the Civil Contempt


Following are some of the important defences available to a person charged with civil
contempt.
1. Disobedience of the Order is Not Willful: If the disobedience of the order is
accidental or which is not willful then its a good defence in a civil contempt
proceedings.
2. The Order Passed Without Jurisdiction: If the order passed by the court is without
jurisdiction then the disobedience or violation of such order cannot be treated as
contempt of court.
An order passed without jurisdiction is void, hence it wont bind any person. The person
charged with contempt must prove that the court has no jurisdiction to pass such order.
3. Order Disobeyed is Vague or Ambiguous: An order is treated as vague if it is not
clear, specific and complete. For violation of such order contempt proceedings cannot
be taken.
4. Order Involves More than One Reasonable Interpretation: If the order of the court
involves more than reasonable interpretation, and one interpretation is adopted by the
party and acted in accordance with such interpretation then he cannot be held liable for
contempt of court for not following the order interpretation.
5. Compliance with the Order is Impossible: Impossibility means that the
implementation of the order is practically not possible .impossible is different from
mere difficulty. Mere difficulty is not a defence. The person charged with contempt
must prove the impossibility of compliance with the order.
In Amar Singh v.K.P Geatha Krishnan(1993,I SCR 465)the court has passed on order
to give some benefits to the retired employees. This order was not implemented. In the
contempt proceeding it was argued that the implementation of the order involves huge
expenditure hence compliance with the order is impossible. The court has not accepted this
defence.
6.No Knowledge of the Order: A person cannot be held liable for civil contempt, if he
has no knowledge about the order. If he has knowledge about the order, through it is not
officially communicated to him, then he cannot put this defence for violation of the order.
Contempt against Subordinate Court
The Contempt of court Act, 1971 confers power only to the Supreme Court and High
Courts to try the contempt of court and award suitable punishment.
Contempt of court against the subordinate courts shall be tried by the High court. The
concerned subordinate court or the Advocate General of the state shall file the petition before
the High court. In the Union Territories, the officer authorized in this behalf shall file the
petition.
A contempt which comes within the definition of S.228 of I.P.C. shall be tried and
punished by the subordinate courts.

S.228: When judicial proceedings are going on, a person causing disturbance to the
proceedings and thereby shows disrespect to the court shall be punished with simple
imprisonment for a term which may extend to 6 months or with a fine which may extend to
Rs.1000/-or with both.
In the trial of such cases the court shall follow the procedure laid down in S.345 & 346 of
Criminal procedure Code. This section deals with summary procedure. So the court shall
follow summary procedure and no detailed enquiry is needed.
Contempt Procedure in the Supreme
Court or the High Court
The Contempt of the court Act confers the following two types of powers to the supreme
court and the High courts with regard to contempt of court.
1. Power to punish a person who has committed contempt of court inside the
court(S.14).
2. Power to punish a person who has committed contempt of court outside the
court(S.15).
1. Contempt of Court Inside the Court: When judicial proceedings are going on, if it
appears to the court that a person is guilty of contempt of court in their presence then the
court shall take the following actions.
(i) Pass an order to arrest the person.
(ii) Give a notice in writing immediately regarding the charges against him.
(iii) Offered him opportunity to make his defence to the charge.
(iv) Take such evidence as may be necessary or as may be offered by such person and hear
him.
During the trial, if the person charged with contempt applies either orally or in writing,
for a trial by some other judge other than the judge in whose presence the alleged contempt is
committed then the request along with the statement of facts of the alleged contempt shall be
placed before the Chief Justice shall be taken as evidence.
If the case is transferred to some other Judge then the judge in whose presence the
alleged contempt was committed need not appear as witness. The facts submitted by him to
the Chief Justice shall be taken as evidence.
During the pendency of the proceedings, the person charged with contempt shall be
detained in such custody as the court may specify. He may be released on bail with or without
sureties or on a self bond as the court thinks fit.
In Sugdev Singh v. Deeja Singh(AIR 1954 SC 186)the supreme court has advised that to
the extent possible, the judge in whose presence the alleged contempt was committed, must
avoid to conduct the trial by himself.
2.Contempt of Court Outside the Court: The supreme court or the High Court shall take
action for contempt of court committed outside the court in the following situations.

(i) On its own motion.


(ii) On a petition made by the Advocate General(in relation to the High Court)( or the
Attorney General or the solicitor General(in relation to the Supreme Court).
(iii) On a petition by any other person(if consent is given in writing to file such petition by
the Advocate General or Attorney General or Solicitor General as the case may be).
A person cannot file a contempt of court petition without the consent of the Advocate
General or the Attorney General or the Solicitor General. After Admitting a petition the court
shall follow the following procedure.
1. Notice shall be sent to the person charged with contempt.
2. Person charged with contempt shall be allowed to submit his defence in an affidavit.
3. The trial shall be conducted by persuing the defences submitted by him or taking
such other evidences as may be necessary.
4. The trial shall be conducted by a bench consisting of two judges.
5. If the court feels that the person charged with contempt may abscond then his
properties shall be attached.
Limitation: The limitation period for filing a petition for contempt of court is one year.
After one year even the court cannot take action on its own motion(s.20).
Contempt by Judicial Officers
S.16 of the Act deals with contempt by judges, Magistrates and other persons acting
Judicially. According to this section these persons are also liable for contempt of his own
court or any other court just like an ordinary individual. If they are not made liable for
contempt then people may lose faith on judiciary by the contempt act of judges.
Observation or remark made by a Judge regarding a subordinate court in an appeal or
revision pending before him shall not be treated as contempt of court.
In State of Rajasthan v.Prakash Chand (AIR 1988 SC 1344)the Supreme Court held that
S.16 has no application against the judges of the High Court and the Supreme Court. So they
cannot be punished for contempt of court.
In B.K.Mishra v.Bhemsen Dixit (1973, 1 SCC 446)the Supreme Court held that refusal to
follow the decision of the High Court or the Supreme Court by a subordinate court amounts
to contempt of court.
No Special Privilege for Advocates: In the contempt of court Act, there is no special privilege
for Advocates. A contempt of court Act, A contempt of court committed by an Advocate will
be dealt with just like a contempt committed by any other person.
Case law:

Madras High Court


New Bridge Holdings B.V vs Ttk-Lig Limited on 16 December, 2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS


DATED :

16.12.2011

CORAM
THE HON'BLE MR.JUSTICE D.MURUGESAN
AND
THE HON'BLE MR.JUSTICE K.K.SASIDHARAN
Contempt Petition No.1140 of 2011
New Bridge Holdings B.V.
a company incorporated under the
provisions of laws of The Netherlands
and having its Registered Office
at Siriusdreef 14
N.L-2132 WT Hoofddorp
The Netherlands
P.O.Box 721 NL-2130 AS
Hoofddorp, The Netherlands
through its Authorised Signatory
Mr.Rajesh Kumar Jha

..

Petitioner

..

Respondents

-vs1. TTK-LIG Limited


through its Managing Director
Mr.T.R.Venkatesh
6, Cathedral Road
Chennai 600 006
2.
3.
4.
5.
6.
7.
8.
9.

Mr.T.T.Jagannathan
Mr.T.T.Raghunathan
Dr.(Mrs.) Latha Jagannathan
Ms.Bhanu Raghunathan
Mr.J.Srinivasan
Mr.H.T.Rajan
Mr.Girish Rao
Mr.T.R.Venkatesh

Petition under Sections 10 & 12 of the Contempt of Courts Act, 1971


to punish the respondents for disobeying and defying the order dated
01.06.2011 passed in Company Application No.113 of 2011 in Company Petition
No.41 of 2011 on the file of the Company Law Board, Chennai Bench, Chennai
in accordance with law.
For Petitioner

::

Dr.Abhishek Manu Singhvi


Senior Advocate for
Mr.R.Jawaharlal &
Mr.R.Saravanakumar

For Respondents

::

Mr.A.L.Somayaji

Senior Advocate for


Mr.R.Sankaranarayanan
for

Seshadri for

R1 & R9
Mr.S.Rajesh for R6
Mr.H.Karthick
M/s Iyer & Thomas for
R2 to R5, R7 & R8

ORDER

D.MURUGESAN, J.
The petitioner, New Bridge Holdings B.V., through its Authorised
Signatory seeks for a direction to punish the respondents for their act of
disobeying and defying the order dated 1.6.2011 made in C.A.No.113 of
2011 in C.P.No.41 of 2011 on the file of Company Law Board, Chennai
Bench, Chennai.
2. In support of the petition, the petitioner has averred as follows. The
first respondent, M/s TTK-LIG Limited is a joint venture company
incorporated in 1963 with the petitioner/its parent company. The
petitioner and TTK group hold 49.87 per cent shares each and the
balance percentage is held by 40 individuals. The first respondent, inter
alia, manufactures contraceptives including condoms under the
trademarks "Durex" and "Kohinoor". The group/parent company of the
petitioner had provided the technology, machinery, processes, etc., in
1963 and continue to provide the same to the first respondent. The group
company had also permitted the use of its world renowned trademarks
"Durex" and "Kohinoor" to the first respondent and in addition 80 per
cent of the turnover and profit of the first respondent comes from
exports to the petitioner and its group companies.
3. Both the petitioner and the first respondent are under the joint and
equal management right from the year 1963 and their inter-se rights are
governed by the Articles of Association and the agreements executed
between them. The ninth respondent by name T.R.Venkatesh is the
Managing Director of the first respondent company. Though he is
supposed to be independent, he started acting in collusion with TTK
group. In the meeting of the Board of Directors of the first respondent
company held on 2.5.2011, resolutions were passed reducing the
petitioner to minority from the position of equal and joint management
of joint venture company. A further resolution was passed to suspend the

export, unless the group companies of the petitioner agree for the sale
price of total costs plus profit of 50 per cent instead of the profit of 15 per
cent and agree to purchase 80 crore pieces per year for five years. It was
also resolved to appoint a distributor in India from amongst the TTK
group companies for five years. According to the petitioner, all the
resolutions were contrary to the Articles of Association of joint venture
company and therefore ultra vires and illegal. Though the condition in
regard to the sale price and increase of profit from 15 per cent to 50 per
cent was onerous, the foreign buyer agreed under duress and coercion
only in order to get the supplies. The foreign buyer agreed to the terms
only on condition that the first respondent company should resume the
exports by 10.5.2011. As the first respondent did not resume the export
and forced the petitioner to give its consent to the resolutions as a precondition for resumption of export, the petitioner had to withdrew its
offer.
4. On the above factual background, the petitioner filed a company
petition before the Company Law Board for oppression of its rights and
mismangement of the first respondent company. The petitioner also
prayed for stay of the resolutions passed by the Board of Directors of the
company in its meeting held on 2.5.2011 and to restrain the respondents
from implementing the same. The Company Law Board took up the
petition for hearing on 20.5.2011 and, after hearing both sides and
perusing the records, passed the following interim order:
"Till the matter is heard I think it is just and proper to direct the
respondents to restore the supply of goods as per the terms detailed in
the letter dated 06.05.2011 i.e., at 50%, as against 15%. The above order
is made without prejudice to the contentions on both sides. The supply
made by the respondents on the basis of this order shall be subject to the
final outcome of the CP."
5. According to the petitioner, in spite of the above directions of the
Company Law Board, the respondents deliberately and wilfully
disobeyed the order. The Managing Director of the first respondent
company wrote to the foreign buyer that unless an agreement for a term
of five years with an assured order for 80 crore pieces per year with 50
per cent profit to the company is executed, exports would not be
resumed. Under the circumstances, the petitioner filed C.A.No.113 of

2011 before the Company Law Board seeking initiation of proceedings


for disobedience. By order dated 27.5.2011, the Company Law Board
adjourned the matter to 1.6.2011 for hearing on the implementation of
the order dated 20.5.2011. The said adjournment was granted on the
request of the respondents.
6. The Company Law Board took up the matter in C.A.No.113 of 2011 on
1.6.2011 and passed the following order:
"The copy of the affidavit has been served on the respondents. The
affidavit is taken on record. The draft agreement has been made
available by the respondents for my perusal, as per which 800 million
units per annum or 50% global sales of Durex whichever is lower will be
supplied for a term of five years. In my view, till a formal agreement is
drawn up, it will be in the interest of the company and the joint venture
partners to limit the supply for a period of three months from June 2011
to August 2011 at the price stipulated in my order dated 20.05.2011 and
on the undertaking given in the affidavit by the petitioner, LIG, SSL and
its affiliates. In partial modification of my order dated 25.05.2011, the
respondents are hereby directed to resume the supply as per the terms
undertaken in the affidavit filed by the petitioner and its affiliates.
The respondent company has made clear that the mutual trust and
confidence that was prevalent in the past decades between the parties
have been completely destroyed and expressed their willingness to exit
from the company on a fair price. The petitioner had undertaken to
respond to the offer made on behalf of respondents (TTK Group) on
June 22, 2011. I therefore direct both sides to come with proposals in
this regard. CP adjourned to 22.06.2011 at 10.30 AM."
The said order came to be passed on the following undertaking given by
the petitioner:
"2.1. The petitioner, LIG, SSL and its affiliates had earlier placed
Purchase Orders on the JV Company. They would replace those
Purchase Orders on the JV Company within 24 hours; at a price
stipulated by this Hon'ble Board in its order dated 20.05.2011. The JV
Company would commence supply within 48 hours and complete the
same, in terms of previously existing arrangement.

2.2. Payments for the supplies so made, would be mad to the JV


Company, within 15 days, from the date of receipt of delivery of
individual consignments of the ordered goods.
2.3. The petitioner, LIG, SSL and its affiliates would place Purchase
Orders for a total of 200 million pieces (condoms) or 50% of their
collective global requirement, whichever is lower (which includes the
Purchase Orders referred to in paragraph 2.1 above), over the next three
months i.e.June, 2011 to August, 2011, at prices stipulated by this
Hon'ble Board's Order dated 20.05.2011.
The petitioner, LIG, SSL and its affiliates, would remain bound by the
terms of the aforesaid undertaking."
7. After the above order, the respondents sent an e-mail of excuse for not
complying with the order of Company Law Board and also forwarded a
letter dated 13.6.2011 to the advocates of the foreign buyer stating that
unless an agreement was executed with the first respondent company for
a period of five years with an assured order of 80 crore pieces per year or
50 per cent of the foreign buyer's total requirement whichever is lower
with the price at total cost plus 50 per cent profit, they would not resume
supplies. On the above facts, the petitioner had approached this Court
with the allegation of wilful disobedience and disregard to the order of
Company Law Board by the respondents.
8. The respondents 1 to 9 have filed a common counter affidavit denying
each and every averment of the petitioner. The contempt petition is
opposed on the ground that the petitioner having obtained the order
dated 1.6.2011, should have filed a petition to execute the said order and
there was not even an attempt to do so. In fact, the petitioner had
questioned the said order in Company Appeal No.11 of 2011 before this
Court and having failed to obtain any interim order, has resorted to file
the contempt petition. Secondly, the petitioner is not the beneficiary of
any order of the Company Law Board and it has no locus standi on the
ground that the beneficiary of the order would be only SSL, PLC and LRC
products limited, the parent companies. It is the case of the respondents
that the petitioner had suppressed an important fact that SSL and LRC
had filed a claim before the High Court of Justice, Chancery Division,
London and sought for the grant of mandatory injunction against the

first respondent to effect supply of contraceptives based on the alleged


contract and the said application was dismissed on 1.7.2011 and by a
subsequent order dated 21.7.2011, the claim for grant of default
judgment was also dismissed. The petitioner had allowed the said orders
to stand and did not question the said orders any further. According to
the respondents, the petitioner is only a proxy exposing the cause of SSL
and LRC simultaneously in Company Law Board and before this Court.
According to the respondents, in any event, the question of wilful
disobedience of the order of the Company Law Board does not arise.
When the company petition was heard on 20.5.2011, the Company Law
Board did not grant interim order of stay of the resolutions passed by the
first respondent company on 2.5.2011. In fact, the Company Law Board
in its order found that it cannot go into any commercial compromise
between the parties. It is also averred that alleging disobedience, the
petitioner filed C.A.No.113 of 2011 before the Company Law Board under
Regulations 44 and 47 of the Company Law Board Regulations read
with Section 406 of the Companies Act. By order dated 7.7.2011, after
referring to earlier orders, the Company Law Board had only permitted
the first respondent to exit from the company on a fair value to be
arrived at on the valuation of shares. Accordingly, the Company Law
Board had appointed a valuer to value the shares of the company with a
further direction that the first respondent can also opt to purchase the
petitioner's share. Having obtained such an order, it is not open for the
petitioner to approach this Court again alleging disobedience. In any
case, as the contempt petition has been filed against interim order, it is
not maintainable.
9. We heard Dr.Abhishek Manu Singhvi, learned Senior Advocate for the
petitioner, Mr.A.L.Somayaji, learned Senior Advocate for the
respondents 1 & 9, Mr.S.Rajesh, learned Advocate for the respondent 6
and Mr.H.Karthick Seshadri, learned Advocate for the respondents 2 to
5, 7 & 8 elaborately.
10. We have carefully considered the rival contentions. Before we go into
the contentious issues raised on merits, we are called upon to consider as
to whether the contempt petition would lie before this Court alleging
wilful disobedience of the order of the Company Law Board. The relevant
provisions of the Contempt of Courts Act, Company Law Board

Regulations and the Companies Act for consideration of the issue read
thus:
"S.10. Power of High Court to punish contempts of subordinate Courts.-Every High Court shall have and exercise the same jurisdiction, powers
and authority, in accordance with the same procedure and practice, in
respect of contempts of Courts subordinate to it as it has and exercises in
respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged
to have been committed in respect of a Court subordinate to it where
such contempt is an offence punishable under the Indian Penal Code (45
of 1860).
R.47. Bench to be deemed to be a Court for certain purposes.--A Bench
shall be deemed to be a Court or lawful authority for the purpose of
prosecution or punishment of a person who wilfully disobeys any
direction or order of such Bench.
S.634A. Enforcement of orders of Company Law Board.--Any order
made by the Company Law Board may be enforced by that Board in the
same manner as if it were a decree made by a Court in a suit pending
therein, and it shall be lawful for that Board to send, in the case of its
inability to execute such order, to the Court within the local limits of
whose jurisdiction,-(a) in the case of an order against a company, the registered office of the
company is situated, or
(b) in the case of an order against any other person, the person
concerned voluntarily resides, or carries on business or personally works
for gain.
[Provided that the provisions of this section shall not apply on and after
the commencement of the Companies (Second Amendment) Act, 2002.]"
11. Section 10 of the Contempt of Courts Act, 1971 confers a power on the
High Court to punish contempts of subordinate Courts. By that
provision, every High Court shall have and exercise the same
jurisdiction, powers and authority, in accordance with the same

procedure and practice, in respect of contempts of Courts subordinate to


it as it has and exercises in respect of contempts of itself. The phrase
"Courts subordinate to it" used in Section 10 is wide enough to include
all Courts which are judicially subordinate to the High Court, even
though they are not under its administrative control under Article 235 of
the Constitution of India. The High Court has the power of
superintendence under Article 227 over all Courts and Tribunals
throughout the territories in relation to which it exercises jurisdiction. In
order to keep the subordinate Courts and the Tribunals over which the
High Court exercises its jurisdiction, the power of superintendence is
conferred on the High Court under Article 227 of the Constitution of
India. The inherent power of the High Court to supervise the
subordinate Courts and the Tribunals would also include its power to
punish for contempt of the Tribunals, which is based on a correlative
duty of the High Court, co-related to the power of superintendence
which the High Court has over the Tribunals. The power of
superintendence under Article 227 is not being administrative, but being
judicial. It extends to punish for the contempt of the Tribunals. The
question as to whether the High Court has jurisdiction to initiate
proceedings under the Contempt of Courts Act with respect to the
proceedings of the Assistant Collector pending before it for the
correction of papers under Section 40 of the Land Revenue Act, came up
for consideration before the Allahabad High Court. In the judgment
in Satdeo Pandey v. Baba Raghav Das, AIR 1953 All. 419, the question
was considered by a Division Bench and as there was a difference of
opinion on the question, it was referred to a third Judge. Justice Wali
Ullah, while considering the question, ultimately held that the Court of
an Assistant Collector is a revenue Court and is subordinate to the High
Court; consequently, it comes within the power possessed by the High
Court to protect its subordinate Courts. While holding that the Revenue
Court of an Assistant Collector is a Court subordinate to the High Court,
one of the two Hon'ble Judges, namely, Justice Mushtaq Ahmed, placed
reliance on the following two judgments. The first judgment was by
Justice Cornelius made in Sultan Ali v. Nur Hussain, AIR 1949 Lahore
131, holding the law thus:
"The High Court is also the superior Court within the province, charged
with the duty of setting limits to the jurisdiction of all other judicial

tribunals or Courts within the province, and this imports subordination


to the latter tribunals qua the High Court. Further, if it can be shown
that over 'any part of its' jurisdiction, a tribunal is directly subordinate to
the appellate or revisional authority of the High Court then it must be
held to be subordinate to the High Court in the respects relevant for the
application of S.115, Civil P.C."
A Full Bench judgment of the Allahabad High Court Lucknow Bench
reported in AIR 1950 All. 80 was also quoted, where the Full Bench
observed thus:
"A very great difference exists between the Workmen's Compensation
Act and the Payment of Wages Act, inasmuch as the former Act provides
for an appeal 'from certain orders' of the Commissioner appointed under
the Act to the High Court, while the latter does not provide for any such
appeal. Thus under the Workmen's Compensation Act, the
Commissioner is a Court subordinate to the appellate jurisdiction of the
High Court and can well be held to be a Court subordinate to the High
Court for the purposes of S.115, Civil P.C."
The approach of the Court seems to be that in case a Tribunal or even a
Revenue Court, while discharging its quasi-judicial function, would be
considered to be a Court subordinate to the High Court. In that event the
orders of the Tribunal/Revenue Court are amenable to the appellate
jurisdiction of the High Court.
11A. In Jaitendra Kumar Agrawal v. Lakshmi Kant, 1974 Crl. L.J. 1140, a
Full Bench of the Delhi High Court, after examining the provisions of the
statute, held that the Tribunal is a Court within the meaning of Section
195(1)(b) of the Criminal Procedure Code and a civil Court within the
meaning of Section 476 (old) of the said Code. The issue was again
considered by yet another Full Bench of Delhi High Court in Sardari Lal
v. Ram Rakha, 1984 Crl.L.J. 1098 and the Full Bench has taken the same
view. While considering the question as to whether a Revenue Board
could be brought under the provisions of Section 10 and for that reason
could it be considered to be a Court subordinate to the High Court, the
Apex Court in the judgment in Board of Revenue, U.P. v. Vinay Chandra,
AIR 1981 SC 723 has observed that the Revenue Board is subject to the
power of superintendence of the High Court under Article 227 and

therefore it constitutes a Court. A careful study of the law would lead to


the only conclusion that in order to constitute a Court in stricto sensu,
the essential condition is that the Court should have, apart from having
some of the trappings of judicial tribunal, power to give a decision or a
definite judgment which has finality and authoritativeness which are
essential test of judicial pronouncement. The High Court must apply the
above test for determining what is a Court strictly so called within the
connotation of the term used in the Contempt of Courts Act.
12. The question as to whether the Company Law Board could be
considered to be a Board coming under the superintendence of the High
Court, the following provisions are referable. The Company Law Board
has been constituted by the Central Government by issuance of a
notification in the Official Gazette in terms of Section 10E of the
Companies Act. By virtue of the provisions of sub-section (1A) of Section
10E, the Company Law Board shall exercise and discharge such powers
and functions as may be conferred on it under the Act or other law. Subsection (4C) of Section 10E vests on the Company Law Board the powers
vested in a Court underthe Code of Civil Procedure while trying a suit for
discovery and inspection of documents or other material objects
producible as evidence; enforcing the attendance of witnesses and
requiring the deposit of their expenses; compelling the production of
documents or other material objects producible as evidence and
impounding the same; examining witnesses on oath; granting
adjournments and reception of evidence on affidavits. Sub-section (4D)
of Section 10Econtemplates that every Bench shall be deemed to be a
civil Court for the purposes of section 195and every proceeding before
the Bench shall be deemed to be a judicial proceeding within the
meaning of sections 193 and 228 of the Indian Penal Code and for the
purpose of section 196 of that Code. By that provision, the Company Law
Board shall be considered to be a Court and by virtue of the provisions
of Section 10F, the decision or order of the Company Law Board is
appealable to the High Court by a person aggrieved over such decision or
order. The Company Law Board exercises the judicial power while
dealing with the Company Application and its orders have the trappings
of judicial pronouncement. The Company Law Board is thus a Court
judicially subordinate to the High Court and the High Court has
jurisdiction to enquire into the alleged contempt and if found to be true,

has jurisdiction to punish the violators. (See the judgment of Andhra


Pradesh High Court in N.Venkata Swamy Naidu v. M/s Sri Sri Surya Teja
Constructions Pvt.Ltd. & Ors., 2008 Crl.L.J.227)
13. It is alternatively argued on behalf of the respondents that in terms of
Regulation 47 of the Company Law Board Regulations, 1991, the Bench
of the Company Law Board shall be deemed to be a Court or lawful
authority for the purpose of prosecution or punishment of a person who
wilfully disobeys any direction or order of such Bench. It is further
argued that in terms of Section 634A of the Companies Act, any order
made by the Company Law Board may be enforced by that Board in the
same manner as if it were a decree made by a Court in a suit pending
therein and therefore when such power is conferred on the Company
Law Board to prosecute and punish a person who wilfully disobeys any
direction or order of such Bench, invocation of the provisions of Section
10 of the Contempt of Courts Act is unsustainable. Let us consider first
the submission on Section 634A of the Companies Act. A close reading of
the provisions of Section 634A of the Companies Act would show that
the Company Law Board is vested with the power to enforce its order in
the same manner as a decree made by a Court in a suit. The said
provision was inserted by Act 46 of 1997, which came into force with
effect from 24.12.97. By virtue of the proviso inserted by the Companies
(Second Amendment) Act, 2002, the said provision shall not apply on
and after the commencement of the said amendment Act. The
amendment Act came into force with effect from 13.12.2002. Hence, the
reliance placed by the respondents over the power of the Company Law
Board to enforce its order in terms of Section 634A instead of filing a
contempt petition is no more available and has to be rejected.
14. Let us now move on to the submission on Regulation 47. Normally,
this Court would not entertain a contempt petition in the event a specific
provision is conferred on the Company Law Board itself to proceed for
disobedience of its order. It is true that by virtue of the Company Law
Board Regulations, which are framed under sub-section (6) of Section
10E of the Companies Act, a power is vested on the Board to prosecute
and punish a person who wilfully disobeys any direction or order of such
Bench. However, the said power conferred on the Company Law Board
under Regulation 47 would not take away the jurisdiction of the High

Court to entertain a contempt petition in exercise of the powers


under Section 10 of the Contempt of Courts Act, 1971 read with Article
227 of the Constitution of India. Section 12 of the Contempt of Courts
Act prescribes the punishment with simple imprisonment for a term
which may extend to six months or with fine which may extend to two
thousand rupees or with both. On the other hand, the Company Law
Board is not conferred with a power under Regulation 47 prescribing a
definite punishment for wilful disobedience of its direction or order. It
must be noticed that even the High Court is vested with only a power to
order limited sentence under the Contempt of Courts Actbarring its
wider power under Section 215 of the Constitution of India. The
provisions of Regulation 47 cannot be read to confer Company Law
Board with such wider power. The said provision with unguided power
to impose punishment cannot be considered to be justifiable to question
the jurisdiction of the High Court to entertain a contempt petition.
Hence, the contention of the respondents regarding the preliminary
issue as to the power of this Court to entertain a contempt petition is
rejected.
15. This takes us to the other rival contentions on merits. The jurisdiction
of the High Court to entertain a contempt petition and to punish the
contemner has been well stated by the Apex Court and the High Court in
various judgments. A Division Bench of this Court in Ramalingam v.
Mahalinga Nadar, 1965 (2) MLJ 162 has observed thus:
"Essentially, Contempt of Court is a matter which concerns the
administration of justice, and the dignity and authority of judicial
tribunals; a party can bring to the notice of Court, facts constituting what
may appear to amount to contempt of Court, for such action as the Court
deems it expedient to adopt. But, essentially, jurisdiction in contempt is
not a right of a party, to be invoked for the redressal of his grievances;
nor is it a mode by which the rights of a party, adjudicated upon by a
tribunal, can be enforced against another party. The entire corpus of
execution law exists for the enforcement of rights, by one party against
another, which have been the subject matter of adjudication. In our view,
there are sufficient grounds here to show that it will be expedient and
undesirable to institute proceedings in contempt jurisdiction, in a
situation of this kind. Firstly, the facts themselves may be in controversy,

whether a deliberate flouting of a judicial order or decree has occurred


and we state this, irrespective of the merits of the instant case. When
they are in controversy, they cannot be ascertained without due enquiry.
If the Court is to commence an action in contempt jurisdiction, only after
ascertaining facts at such an enquiry, obviously it will be converting itself
into an agency for arriving at findings of fact which may be a foundation
for contempt jurisdiction. On the contrary, it would be in the interests of
justice to exercise contempt jurisdiction, or to commence to do so, only
when the facts of the record ex facie support such a proceeding; any
detailed enquiry must be left to the Court which has passed the order,
and which is presumably fully acquainted with the subject-matter of its
own decree of temporary prohibitory injunction. For this reason, we are
of the view that Order XXXIX Rule 2(3) of the Civil Procedure Code, is
far more adequate and satisfactory remedy in such cases. Again, where
the situation is strictly inter parties and third party rights are not
involved, it is clearly more desirable that the Court which made the order
of injunction, should go into the facts, and ascertain the truth of the
alleged disobedience, and the extent to which it has been wilful.
".........Contempt jurisdiction should be reserved for what essentially
brings the administration of justice into contempt or unduly weakens it,
as distinguished from a wrong that might be inflicted on a private party,
by infringing a decretal order of Court."
16. Coming to the facts of the present case, the petitioner initially
approached the Company Law Board by filing a petition for oppression
of its right and mismanagement of the first respondent company. They
also prayed for stay of the resolutions of the Board of Directors of the
company dated 2.5.2011 and sought for an order restraining the first
respondent company from implementing the same. The Company Law
Board did not stay that order. On the other hand, it proceeded to direct
the first respondent to restore the supply of goods as per the terms
detailed in letter dated 6.5.2011 at 50 per cent as against 15 per cent. At
the time when the said order was passed, it was made clear that the said
order was made without prejudice to the contentions on both sides. After
the resolution of the Board of Directors of the first respondent company
dated 2.5.2011, the foreign buyer had agreed to the following terms for
resumption of supply in their e-mail dated 6.5.2011:

"This is further to Mr.Venkatesh's (MD of JV company) email of May 2,


2011 and various discussions I had with you, including today. Given the
fact that over 50% of RB's Global requirement of Durex etc. are sourced
from the JV company, each day of suspension of supply would heavily
impact its global business, brand equity and competitiveness of its
products. I had voiced concerns about the merit of the decision to
increase export price in the Board Meeting. Since you have maintained
your position and given the situation, RB has instructed me to agree to
following terms, provided supply is resumed immediately, today:
Transfer price FAMC + 50% Term Five years Guaranteed volume 800
million pieces per annum or 50% of global sales of Durex, which ever is
lower.
While the necessary paper work for a formal agreement can be drawn up
by the attorneys, we request the supplies should be resumed today, to
avoid any further damage to RB's brands. Appreciate your confirmation
that necessary advice has been given to the JV management, to act
accordingly."
17. The condition for supply was on the basis of the enhanced profit of 50
per cent instead of 15 per cent and also for a guaranteed volume of
purchase of 800 million pieces per annum or 50 per cent of global sales
of Durex, whichever is lower and the total period agreed was five years. It
is the specific stand of the respondents that they were prepared to
resume the supply subject to the above conditions. Nevertheless, the
foreign buyer had gone back on the above terms and withdrew its offer in
their letter dated 13.5.2011, which resulted in the first respondent
company in not complying with the directions contained in order dated
20.5.2011.
18. That apart, by invoking Regulations 44 and 47 of the Company Law
Board Regulations, the petitioner themselves approached the Company
Law Board for a direction to initiate contempt proceedings under the
above provisions against the first respondent company for wilful
disobedience of the order dated 20.5.2011 and to pass appropriate orders
for punishing the respondents. That application was considered by the
Company Law Board on 27.5.2011 and adjourned the same to 1.6.2011
for filing of counter affidavit and also for hearing on the implementation

of the order dated 20.5.2011. The application was again taken up by the
Company Law Board on 1.6.2011. Of course, the Company Law Board
having noticed its earlier order, only modified the earlier order dated
20.5.2011 by directing the first respondent company to resume the
supply as per the terms undertaken in the affidavit filed by the petitioner
and its affiliates on 1.6.2011. It must be noticed that the undertakings in
paragraphs 2.1, 2.2 and 2.3 of the affidavit of the petitioner dated
1.6.2011 clearly modified the earlier terms and conditions agreed to by
the foreign buyer vide their e-mail dated 6.5.2011 and subsequently
withdrawn suo motu by their letter dated 13.5.2011. This affidavit of
undertaking dated 1.6.2011 was taken on record by the Company Law
Board and the order was passed on the same date. It does not appear as
to whether the respondent company agreed to the above terms which are
suo motu modified by the petitioner by filing an affidavit with the above
undertakings, whereby as against the purchase of 800 million pieces of
condoms or 50 per cent of their collective global requirement of Durex
whichever is lower, the petitioner undertook to place orders for a total of
200 million pieces (condoms) or 50 per cent of their collective global
requirement whichever is lower over the next three months i.e., upto
August, 2011. The earlier condition relating to the period of five years
was also not mentioned in that affidavit of undertaking. Even without
ascertaining the response from the respondent company, except
referring that a copy of the affidavit has been served on the respondents,
which is also in dispute, the Company Law Board had passed the order
dated 1.6.2011. There is nothing to indicate as to whether the said order
was passed after hearing the respondents herein. That apart, the
Company Law Board has also observed that "the respondent company
made it clear that the mutual trust and confidence that was prevalent in
the past decades between the parties have been completely destroyed
and expressed their willingness to exit from the company on a fair price."
With the above observation, the Company Law Board had only directed
both sides to come with proposals in this regard. Having noticed the
earlier order directing the respondents to resume supply and that too in
terms of the acceptance of the conditions by the foreign buyer vide their
e-mail dated 6.5.2011 and adjourned the matter for reporting compliance
of the said direction, the Company Law Board modified the earlier order
on the basis of the undertakings of the petitioner and its affiliates with a
further direction to the parties to come with proposals on the offer of the

respondent company to exit on a fair price. This only indicates that the
Company Law Board did not incline to exercise the power vested in it
under Regulation 44 to punish the respondents.
19. Mr.A.L.Somayaji, learned senior counsel for the respondents 1 & 9
has also brought to our notice that subsequently by an order dated
7.7.2011, the Company Law Board, having noticed the earlier orders,
only permitted the respondent-TTK group to exit from the company on a
fair value to be arrived at on valuation and with that finding, the
Company Law Board was inclined to appoint a valuer to value the shares
of the company. The Company Law Board also directed that the TTK
group can also opt to purchase the shares of the petitioner company.
Placing reliance on the above, the learned senior counsel would submit
that in view of the subsequent order, the petitioner cannot have any
grievance to allege that the respondents had wilfully disobeyed the order
dated 1.6.2011.
20. On the other hand, it is the contention of Dr.Singhvi, learned senior
counsel for the petitioner that there is no question of merger of an
interim order in view of the subsequent order. According to the learned
senior counsel, the question as to whether the respondent company had
wilfully disobeyed the order dated 1.6.2011 will be alone relevant and
merely because subsequently the Company Law Board has directed the
respondent company to exit from the company would not by itself dilute
the earlier order dated 1.6.2011. He would also submit that the order
dated 7.7.2011 is in relation to the resolution of the first respondent
company dated 2.5.2011 and not in respect of the interim order dated
1.6.2011. Though we find force in the contention of Dr.Singhvi on the
question of merger, as there cannot be a merger of one interim order
with that of the subsequent order for the purpose of considering as to
whether the earlier order has been violated or not, as the question of
wilful disobedience should be considered with reference to the earlier
order and in the event there has been a wilful disobedience of that order,
still the Court can proceed with the contempt petition.
21. Though the order dated 1.6.2011 was passed in C.A.No.113 of 2011
and the order dated 7.7.2011 was passed in C.P.No.41 of 2011,
nevertheless, the Company Law Board had referred extensively to the
earlier order dated 1.6.2011 passed in C.A.No.113 of 2011 in its order.

Hence, the observations made by the Company Law Board in the


subsequent order can also be taken into consideration. As we have
already pointed out, the earlier order dated 1.6.2011 was passed solely on
the basis of an affidavit of undertaking filed by the petitioner and that
too, the order came to be passed on the same date when the affidavit was
filed and these facts were noticed by the Company Law Board in the
subsequent proceedings dated 7.7.2011 extensively. Having noticed and
having posted the matter for reporting compliance of the earlier order,
the Company Law Board did not proceed further and has only directed
both parties to submit the proposals on the offer of the TTK group to exit
from the company on a fair value to be arrived at after valuation of
shares and for that reason had appointed a valuer.
22. Whether the direction dated 20.5.2011 to the respondent company to
resume the supply could be on the basis of the acceptance of certain
conditions by the petitioner company through their e-mail dated
6.5.2011 or whether such undertaking had been rightly withdrawn by the
petitioner company on 13.5.2011 or whether the undertaking of the
petitioner through an affidavit dated 1.6.2011 could be acted upon
without a fair hearing of the respondents and an order could be passed
on that basis on the same date, are all matters to be adjudicated upon in
detail.
23. The contempt jurisdiction is essentially to keep administration of
justice pure and undefiled. A clear contumacious conduct, which is not
otherwise explainable, alone merits action for contempt and the
consequent punishment. The power to punish should be exercised
carefully and cautiously. In the event where prima facie two views are
possible and capable of different and reasonable interpretation and
unless it is not only firmly held that the contemner is bound by the
direction issued in the order and also it defiled the said direction wilfully
and deliberately, the Court cannot hold that a contempt is made out.
When two views are possible as to the purport of the order while
considering the different stand taken by either party, the rule of wilful
disobedience shall not be applied, as the essential ingredient for civil
contempt is "wilful disobedience" and not any or every disobedience
which could be explained by acceptable reasons. In this context, we may
also place reliance on the judgment of the Supreme Court in State of

Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221 holding that "if the
order was ambiguous and equivocal and reasonably capable of two
interpretations, a party who acted on the basis of one of such
interpretations could not be held to have wilfully disobeyed the order".
Further, one more element would be that such wilful disobedience
should be proved by supportive materials. The term "wilful" would
ordinarily connote wilful and deliberate disregard to the order of the
Court. Whether there has been any wilful disobedience or not depends
upon the facts of each case. The power of the contempt of Court cannot
be exercised in the event the alleged contempt requires an enquiry to
determine as to whether there has been any wilful disobedience or not
and in the said circumstance, the Court must refrain from doing so and
consequently should not entertain a contempt petition.
24. Recently the Supreme Court in Dinesh Kumar Gupta v. United India
Insurance Company Limited and others, (2010) 12 SCC 770, while
considering a similar situation, has held as follows:
"17. This now leads us to the next question and a more relevant one, as to
whether a proceeding for contempt initiated against the appellant can be
held to be sustainable merely on speculation, assumption and inference
drawn from facts and circumstances of the instant case. In our
considered opinion, the answer clearly has to be in the negative in view
of the well-settled legal position reflected in a catena of decisions of this
Court that contempt of a civil nature can be held to have been made out
only if there has been a wilful disobedience of the order and even though
there may be disobedience, yet if the same does not reflect that it has
been a conscious and wilful disobedience, a case for contempt cannot be
held to have been made out. In fact, if an order is capable of more than
one interpretation giving rise to variety of consequences, noncompliance with the same cannot be held to be wilful disobedience of the
order so as to make out a case of contempt entailing the serious
consequence including imposition of punishment. However, when the
courts are confronted with a question as to whether a given situation
could be treated to be a case of wilful disobedience, or a case of a lame
excuse, in order to subvert its compliance, howsoever articulate it may
be, will obviously depend on the facts and circumstances of a particular
case; but while deciding so, it would not be legally correct to be too

speculative based on assumption as the Contempt of Courts Act, 1971


clearly postulates and emphasises that the ingredient of wilful
disobedience must be there before anyone can be hauled up for the
charge of contempt of a civil nature."
25. Considering the above facts, we cannot come to a definite conclusion
as to whether the respondents have wilfully disobeyed the Court order
and that too, there has been a wilful disobedience. There is one more
aspect to be considered in this regard. It is the specific case of the
respondents that the petitioner is a third party and he is canvassing the
petition on behalf of one SSL, namely, the purchaser of the
contraceptives. It is their specific case of the respondents that they are
given to understand that one SSL, the purchaser of contraceptives, had
filed a claim before the Courts of English for a mandatory injunction and
the Chancery Court and the Court of appeal dismissed their claim. As the
ultimate purchaser who sought the supply had failed to obtain any order
from the Courts in England, the petitioner who is not the purchaser or in
no way connected with the supply of contraceptives, seeks to obtain an
order for supply of the contraceptives by using the contempt jurisdiction.
Dr.Singhvi, learned senior counsel for the petitioner, while refuting the
said contention, would submit that the foreign buyer is the parent of the
petitioner and the order of the Company Law Board came to be passed
only in the application for disobedience filed by the petitioner. Hence, he
would submit that the argument that the petitioner is a third party to the
proceeding and is indirectly trying to get the supply by filing a contempt
petition is totally untenable. While considering the above rival
contentions, again this Court is only called upon to determine the factual
controversy in a contempt petition, which is impermissible. This Court is
only entitled to consider as to whether the order complained has been
wilfully disobeyed or not and this Court would not be competent to go
into the legality or otherwise of the order nor can it travel beyond the
order complained. On the above facts, we are not inclined to exercise the
contempt jurisdiction to hold that the respondents are guilty of contempt
and, accordingly, we dismiss the contempt petition as devoid of merits.
Consequently, Sub Application Nos.478 and 573 of 2011 are also
dismissed.

Q.6 who has the power to issue writs? Explain various kinds of writs.
The Constitution of India has conferred on Supreme Court and High Courts power to issue
writs. Writ Jurisdiction of Supreme Court and High Courts extends not only to inferior courts
and tribunals but also to the state of any authority or person endowed with state authority.
There is difference between the Writ Jurisdiction of Supreme Court and High Courts as
follows:

1. The Writ Jurisdiction of Supreme Court is mentioned under Article 32 of the Indian
Constitution, while the Writ Jurisdiction of High Courts is mentioned under Article
226 of the Indian Constitution.
2. The High Courts have wider powers as to compare to Supreme Court in issuing writs.
3. The Supreme Court can issue writ only in case of violation of any of the fundamental
rights contained in Part-III of the constitution, while the High Courts can issue writs
not only in case of violation of fundamental rights but also in case of violation of any
legal rights of the citizens provided that a writ is a proper remedy in such cases,
according to well-established principles.
4. Article 32 of the Constitution of India imposes on the Supreme Court a duty to issue
the writs, whereas no such duty is imposed on the High Courts by Art-226.
5. The jurisdiction of the Supreme Court extends all over the country, whereas that of
the High Courts only to the territorial confines of the particular state and the Union
Territory to which its jurisdiction extends
Types of Writs
There are five types of Writs Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo
warranto.
1. Habeas Corpus
Habeas Corpus is a Latin term which literally means you may have the body. The writ is
issued to produce a person who has been detained , whether in prison or in private custody,
before a court and to release him if such detention is found illegal.

2. Mandamus
Mandamus is a Latin word, which means We Command. Mandamus is an order from the
Supreme Court or High Court to a lower court or tribunal or public authority to perform a
public or statutory duty. This writ of command is issued by the Supreme Court or High court
when any government, court, corporation or any public authority has to do a public duty but
fails to do so.
3. Certiorari
Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme
Court or any High Court for quashing the order already passed by an inferior court, tribunal
or
quasi-judicial
authority.

4. Prohibition
The Writ of prohibition means to forbid or to stop and it is popularly known as Stay Order.
This writ is issued when a lower court or a body tries to transgress the limits or powers vested
in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior
court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a
particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in
the
lower
court
etc.
come
to
a
stop.

5. The Writ of Quo-Warranto


The word Quo-Warranto literally means by what warrants? or what is your authority? It
is a writ issued with a view to restrain a person from holding a public office to which he is
not entitled. The writ requires the concerned person to explain to the Court by what authority
he holds the office. If a person has usurped a public office, the Court may direct him not to
carry out any activities in the office or may announce the office to be vacant. Thus, High
Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Q.7 SATYABRATA GHOSE VS. MUGNEERAM BANGUR & CO: CASE REVIEW
ANS: Citation: 1954 AIR 44
Facts
Satyabrata (plaintiff), assignee of Bejoy Krishna Roy, sued defendant
alongwith Bejoy as party defendant, for wrongfully repudiating the contract of
developing the lands which were sold to the plaintiff, and asked for specific
performance of the same. Defendant took the defence of frustration as the
lands which needed to be developed were temporarily requisitioned by the

Govt. under the defence rules such that for unspecified period of time, any
development work if executed on the land would be illegal. The contract was
made at a time when war conditions were prevailing and any such requisition
was imputed to be in contemplation of the parties while forming contract.
Further, no time was specified in the contract.
Issue: Whether the contract was rendered illegal and hence frustrated u/s
56? If not, what should be reasonable time within which performance of
contract was to be given u/s 46?
Held
Impossibility u/s 56 doesnt mean literal impossibility to perform
(like strikes, commercial hardships, etc.) but refers to those cases
where a supervening event beyond the contemplation and control of
the parties (like the change of circumstances) destroys the very
foundation upon which the contract rests, thereby rendering the
contract impracticable to perform, and substantially useless in
view of object and purpose which the parties intended to achieve
through the contract.
Though under the English Law, frustration developed under the guise of
reading implied terms in the contract upon which parties rested the
fundamental assumption as to the performance (i.e. when an unexpected
change of circumstances render the contract impossible to perform, Courts
apply the test of what the reasonable men as parties to such a contract
would have stipulated under the unexpected change of events), however,
Indian Law treats the two subjects of study completely different u/s 32 and
56. Therefore, where a Court in India while interpreting the contract, is
convinced about the existence of an implied (S.9) or express term in the
contract, that the contract shall be discharged upon happening of certain
event, the matter will be dealt u/s 32 and will be completely outside the
purview of S.56.
In the present case: Firstly, war condition were known to the parties while
entering into the contract such they were aware of the possible difficulty in
performance of the contract, in such circumstances, the requisition of
property did not affect the root of the contract; Secondly, no stipulation as to
time was provided in the agreement such that the work was to be completed
within a reasonable time, but having regard to the nature of the development
contract and the knowledge of the war conditions prevailing during the
contract, such a reasonable time was to be relaxed. Therefore, the contract
had not become impossible of performance u/s 56.

JUDGEMENT

In the judgment as passed by the Supreme Court in Satyabrata Ghose vs. Mugneeram
Bangur & Co. and Another [Dated 16.11.1953, reported as AIR 1954 SC 44 = 1954 SCR
310], (Satyabrata Ghose case) the Court dealt with the doctrine of frustration of contract.
The present case is worth including in this category of timeless ratio as the matter
involves the understanding the scope of frustration of contract.
The dispute in the present matter pertained to the question as to whether a contract for
sale of land was discharged and came to an end by reason of certain supervening
circumstances which affected the performance of a material part of it. The court while
adjudicating the above issue was also sought to distinguish the law relating to frustration
of contract as applicable in England and in India.
The first issue was taken up to interpret or rather understand the true scope and effect of
Section 56 of the Indian Contract Act and to what extent, if any it incorporates the
English rule of frustration of contracts. Section 56 relates to performance of contracts
dealing with a circumstance under which performance of a contract is excused or
dispensed with on the ground of the contract being-void. The first part of Section 56 lays
down the law in the same way as in England, whereas the second part enunciates the
law relating to discharge of contract by reason of supervening impossibility or illegality of
the act agreed to be done.
The Court observed that the doctrine of frustration is really an aspect or part of the law
of discharge of contract by reason of supervening impossibility or illegality of the act
agreed to be done and hence comes within the purview of section 56 of the Indian
Contract Act. In regard to application of English legal position, it was clarified that in
deciding cases in India the only doctrine that is to be seen is of supervening impossibility
or illegality as laid down in section 56 of the Contract Act taking the word "Impossible" in
its practical and not literal sense. Section 56 lays down a rule of positive law and does
not leave the matter to be determined according to the intention of the parties.
Although in English law these cases are treated as cases of frustration, in India they
would be dealt with under section 32 of the Indian Contract Act which deals with
contingent contracts or similar other provisions contained in the Act. The relief is given
by the court on the ground of subsequent impossibility when it finds that the whole
purpose or basis of a contract was frustrated by the intrusion or occurrence of an
unexpected event or change of circumstances which was beyond what was
contemplated by the parties at the time when they entered into the agreement.