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CASE NO.: Writ Petition (civil)  52 of 2002

PETITIONER: Bar Council of India

RESPONDENT: High Court of Kerala

DATE OF JUDGMENT: 27/04/2004

BENCH: CJI, Brijesh Kumar & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA,J.

INTRODUCTION:

       Constitutionality of Rule 11 of the Rules framed by the  High Court of Kerala forbidding a lawyer from appearing,  acting or pleading in any court till he got himself purged  of the Contempt by an order of the appropriate court is in  question in this writ petition.

BACKGROUND FACT:

       The Bar Council of India is a statutory body  constituted under the Advocates Act, 1961 ("the Act").  In  terms of Section 34(1) of the Act, the High Court of Kerala  framed rules; Rule 11 whereof reads as under:

"No advocate who has been found guilty  of contempt of court shall be permitted  to appear, act or plead in any court  unless he has purged himself of the  contempt."

       Contending that the said provision is violative of  Articles 14 and 19(1)(g) of the Constitution of India as  also Section 34(1) of the Advocates Act on the ground that  it seriously impinges upon and usurps the powers of  adjudication and punishment conferred on the Bar Councils  under the Act as also the principles of natural justice as  application thereof is automatic, this writ petition has  been filed by the Petitioner.

       It is not in dispute that the validity of the said rule  came up for consideration before a Bench of this Court in  Pravin C. Shah Vs. K.A. Mohd. Ali and Another [(2001) 8 SCC   650] and therein it was upheld.  The question appears to  have also been deliberated upon before a Constitution Bench  of this Court in Ex-Capt. Harish Uppal Vs. Union of India  and Another [(2003) 2 SCC 45].   

SUBMISSIONS:

       Despite the said decisions Mr. V.R. Reddy, learned

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senior counsel appearing on behalf of the writ petitioner,  would urge, relying on or on the basis of the decision of  this Court in Supreme Court Bar Association Vs. Union of  India and Another [(1998) 4 SCC 409], that as in terms of  the provisions of the Advocate Act, the Bar Council of India  is entitled to punish an Advocate counsel for commission of  misconduct \026 whether professional or otherwise \026 in terms of  Section 35 thereof;  Rule 11 framed by the High Court of  Kerala cannot be sustained.  The learned counsel would  strenuously contend that no prohibition can be imposed on a  lawyer to practice following and consequent upon a decision  of a court holding him guilty of commission of contempt.  No  time limit for debarment of an advocate having been  prescribed under Rule 11 of the Rules, Mr. Reddy would  submit that the same is ultra vires Article 14 of the  Constitution of India.  The learned counsel would argue that  in applying the provisions of Rule 11, the principles of  natural justice is violated as no other or further  opportunity of hearing is to be given therefor and in that  view of the matter too the impugned judgment cannot be  sustained.

       Mr. T.L.V. Iyer, learned senior counsel appearing on  behalf of the High Court of Kerala, on the other hand, would  argue that the decision of the Constitution Bench itself in  Supreme Court Bar Association (supra) is sufficient to  uphold the validity of Rule 11 as therein the right of the  courts to regulate the conduct of advocates within the court  and to prescribe the conditions subject to which they can  practise before it has been preserved which is not  subservient to the disciplinary jurisdiction of the Bar  Council.           The learned counsel would submit that the dicta laid  down by the Constitution Bench has been referred to with  approval in Harish Uppal (supra) and in that view of the  matter too the right of the High Court to frame such a rule  must be held to have been upheld.

       Mr. Iyer would further urge that an advocate can start  pleading and practising in court as soon as he purges  himself of contempt in relation whereto he must demonstrate  that a real and genuine remorse had been infused in him  about his conduct as a first step; whereafter, he may seek  pardon from the court concerned.

CONTEMPT JURISDICTION OF THE COURT:

       Law of contempt both as regard its interpretation and  application had posed complex questions before the Court.   ’No branch of law possibly has been more misconstrued or  misutilized within the contempt jurisdiction’; observed Lord  Denning.  The contempt jurisdiction originates from the  Ecclesiastical Courts which goes back to the middle ages  while ethics and law were treated to be at par.  

       Inherent power of the Court to punish a person for  committing contempt of the court is universally recognised.   The law of contempt is governed by the Statutes including  Contempt of Courts Act, 1971 or other statutory laws  relating thereto as, for example, Indian Penal Code and Code  of Criminal Procedure but the powers of the superior courts  are engrafted in the Constitution by reason of Articles 129

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and 215 thereof providing that the Supreme Court and the  High Court being a court of records shall have all the  powers of such a court including the power to punish for  contempt of itself.  Apart from constitutional and statutory  provisions, the inherent power of the court in that behalf  is recognised.  (See R.L. Kapur Vs. State of Madras (1972) 1  SCC 651).

       The country is governed by rule of law.  Disobedience  of the court’s order has, thus, been held to strike at the  very root of the said concept having regard to the system   upon which our government is based. (See Kapildeo Prasad Sah  and Others Vs. State of Bihar and Others (1999) 7 SCC 569)

       An advocate is allowed considerable freedom in  conducting his case.  In the interest of the client, he even  can cast reflections upon the character, conduct or credit  of parties or witnesses with impunity, provided such  comments are relevant to the issue before the court and the  same is not defamatory in character.  So long the conduct of  the advocate does not amount to insult to the court, he may  not be held up for contempt.

       Summary power of punishing for contempt is used  sparingly and only in serious cases.  Such a power which a  court must of necessity possess but its usefulness depend  upon the wisdom and restraint with which it is exercised.   It is not used to suppress methods of advocacy. (See  Parashuram Detaram Shamdasani Vs. R. [1945] AC 264 at 270)

       In Shamdasani’s case (supra) Lord Goddard, CJ,  suggested other ways in which an advocate could commit  contempt.  He said:

"If in the course of a case a person  persists in a line of conduct or use of  language in spite of a ruling of the  presiding judge he may very property be  adjudged guilty of contempt of court,  but then the offence is the disregard of  the ruling and setting the court at  defiance.  So, also, if a litigant or  advocate threatened or attempted  violence on his opponent, or conceivably  if he used language so outrageous and  provocative as to be likely to lead to a  brawl in court, the offence could be  said to have been committed."

       In ’The Law of Contempt’ by Borrie and Lowe, at page  22, it is stated:

"Any advocate is likely to be punished  for contempt if he personally insults  the court and, as we have seen,  insulting the court includes not only  insults made to the judge, but also  insults made to a jury.  However, as has  been stated already, a distinction must  be made between addressing the court and  addressing opposing counsel or litigant,  for, as Lord Goddard, C.J., said in

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Parashuram Detaram Shamdasani Vs. R.:

"It must be rare indeed for words used  in the course of argument, however  irrelevant, to amount to a contempt when  they relate to an opponent, whether  counsel or litigant."

       Just as an advocate will not be  justified in using abusive language  neither will he be able to use  blasphemous language.  Thus in R. Vs.  Davison a litigant conducting his own  case repeatedly used blasphemous  language and for this conduct he was  held guilty of contempt, even after  allowances had been made for the fact  that he was a layman.  As Bayley, J.  said:

"The question is shortly this, whether,  for the future, decency and decorum  shall or shall not be preserved in  Courts of Justice; or whether, under  colour of defending himself against any  particular charge, a defendant is at  liberty to introduce new, mischievous,  and irrelevant matter upon the trial.  I  agree that a defendant, in all cases,  should have every facility allowed him  in his address to the jury, provided he  confines himself within those rules  which decency and decorum require.  In  every case, the subject of the  discussion before the jury is to be  considered, and a Judge is bound to see  that the arguments which are adduced,  are such as are consistent with decency  and decorum, and not foreign to the  matter on which the jury have to  decide."

       In the said treatise, it has furthermore been noticed:

"Lord Goddard, C.J.’s last suggestion  of barristers using threatening or  abusive behaviour, or using provocative  language, have already been discussed  and need no further explanation, but as  regards his first suggestion, that  complete disregard of a Judge’s ruling  can amount to contempt, two cases may be  cited to illustrate this type of  contempt.  The first is a recent  Australian case, Lloyd Vs. Biggin.   Lloyd, a barrister, wanted a magistrate  to rule whether or not certain evidence  was admissible but the magistrate  refused, stating that the question was  not for him to decide.  Lloyd then said:  "But your Worship must determine ..."  

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He was interrupted by the magistrate  saying: "Carry on with your case."

       The discourse continued thus:

Lloyd: "Your Worship, with great  respect, I wish your Worship to  determine whether your Worship proposes  to rule..." Magistrate: "Carry on with your cross- examination." Lloyd: "I cannot carry on with any  cross-examination unless your Worship  informs me whether this..." Magistrate: "I have had enough of your  impertinence.  I have put up with it for  two days.  You’re..." Lloyd: "Would your Worship just hear  me? Magistrate: "You’re fined #5 for  contempt of court.  If you do anything  more I will commit you." Lloyd:"Your Worship, if you would just  hear..." Magistrate:"You’re committed.  Constable, remove that man and place him  in the watchtower for three hours."

       The second case, Watt Vs.  Ligertwood shows that such defiance of a  judge’s ruling need not be solely  confined to the use of words.  In this  case, contrary to the express orders of  the court, and despite a warning that  such conduct would amount to contempt,  an advocate removed a material document  from the court and proceeded to destroy  it by throwing it on a fire.  For this  "gross and unjustifiable contempt" the  advocate was immediately imprisoned.

       An advocate will be expected to  conduct his case honestly, and  deliberate deception of the court can  amount to contempt."

       In Oswald’s Contempt of Court, 3rd edition, at pages  8-9, the law is stated in the following terms:

"It is now the undoubted right of a  Superior Court to commit for contempt.   The usual criminal process to punish  contempts was found to be cumbrous and  slow, and therefore the Courts at an  uncertain date assumed jurisdiction  themselves to punish the offence  summarily, the brevi manu, so that cases  might be fairly heard, and the  administration of justice not interfered  with.  A Court of Justice without power  to vindicate its own dignity, to enforce  obedience to its mandates, to protect  its officers, or to shield those who are

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entrusted to its care, would be an  anomaly which could not be permitted to  exist in any civilized community."

       When a person is punished by the superior court, the  right of freedom of speech conferred upon a citizen under  Article 19(1)(a) of Constitution of India cannot stand as a  bar as the power of this Court under the Article 129 and  that of the High Court under Article 215 are independent and  not subject to Article 19(1)(a); particularly when Clause  (2) thereof excludes the operation thereof.  (See Dr. D.C.  Saxena Vs. Hon’ble the Chief Justice of India, (1996) 5 SCC  216).

       An advocate does not enjoy absolute privilege when  acting in the course of his professional duties.  The  dignity of the court is required to be maintained in all  situations.  However, far-reaching implications the case may  have but a lawyer is not justified in making personal attack  upon the complainant or witnesses on matters not borne out  by the record nor in using language which is abusive or  obscene or in making vulgar gestures in court.  An advocate  in no circumstances is expected to descend to the level of  appearing to support his view in a vulgar brawl.   

Our view is only illustrative in nature to show that  the courts ordinarily exercise its power of contempt with  due care and caution and not mechanically and whimsically.   The power of contempt is not exercised only because it is  lawful to do so but when it becomes imperative to uphold the  rule of law.

ADVOCATES ACT:

       The said Act was enacted to amend and consolidate the  law relating to legal practitioners and to provide for the  constitution of Bar Council and All India Bar.  An  ’advocate’ has been defined to mean a person entered in any  roll under the provisions of said Act.  The expression  ’prescribed’ has been defined in Section 2(j) to mean  prescribed by the rules made therein.  Section 19 of the Act  empowers the Bar Councils to make rolls to carry out the  purposes of Chapter II.  Section 30 of the Act reads as  under: "30. Right of advocates to practice.\027 Subject to  provisions of this Act,  every advocate whose name is entered in  the State  roll shall be entitled as of  right to practise throughout the  territories to which this Act extends,-- - (i)     in all courts including the  Supreme Court; (ii)    before any tribunal or person  legally authorised to take  evidence; and (iii)   before any other  authority or person before whom  such advocate is by or under  any  law for the time being in force

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entitled to practice."          This provision has not yet been brought into force.

       Section 34 of the Act empowers the High Court to make  rules laying down the conditions subject to which an  advocate shall be permitted to practice in the High Court  and the courts subordinate thereto.  Section 35 provides for  conduct of advocates; sub-Section (1) whereof is as under:

"35. Punishment of advocates for  misconduct.\027(1)  Where on receipt of a  complaint or otherwise a State Bar  Council has reason to believe that any  advocate on its roll has been guilty of  professional or other misconduct, it  shall refer the case for disposal to its  disciplinary committee."

       Section 36 provides for the disciplinary powers of Bar  Council of India.

       An appeal lies to the Bar Council of India against a  decision made under Section 35 whereas an appeal lies to  this Court against an order made by the Bar Council of  India.

CODE OF CRIMINAL PROCEDURE:         Section 345 of the Code of Criminal Procedure provides  for when an offence as is described under Sections 175, 178,  179 and 180 or 228 of the Indian Penal Code is committed in  the view or in the presence of any civil, criminal or  revenue court before rising of the court may detain the  offender in custody and take cognizance of the offence and  after giving the offender a reasonable opportunity of  showing cause why he should not be punished to a fine of Rs.  200/- or imprisonment in default for one month.

       Section 346 provides for the procedure where the Court  is of the opinion that the offender should be imprisoned  otherwise than in default of payment of fine or that a fine  exceeding two hundred rupees should be imposed on him or  such court is for any reason of opinion that the case should  not be disposed of under Section 345, such court after  recording the facts constituting the offence and the  statement of the accused may forward the case to a  Magistrate having jurisdiction to try the same, and may  require security to be given for the appearance of such  person before such Magistrate or if sufficient security is  not given, shall forward such person in custody to such  Magistrate.

       Section 345 of the Code of Criminal Procedure deals  with five classes of contempt, namely, (i) Intentional  omission to produce a document by a person legally bound to  do so; (ii) refusal to take oath when duly required to take  one; (iii) refusal to answer questions by one legally bound  to state the truth; (iv) refusal to sign a statement made to  a public servant when legally required to do so; and (v)  intentional insult or interruption to a public servant at  any stage of a judicial proceeding.

       An advocate practicing in the Court can also be

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punished under the aforementioned provisions. DISTINCTION BETWEEN CONTEMPT OF COURT AND MISCONDUCT BY AN  ADVOCATE:

       Punishment for commission of contempt and punishment  for misconduct, professional or other misconduct, stand on  different footings.  A person does not have a fundamental  right to practice in any court.  Such a right is conferred  upon him under the provisions of the Advocates Act which  necessarily would mean that the conditions laid down therein  would be applicable in relation thereto.  Section 30 of the  Act uses the expressions "subject to" which would include  Section 34 of the Act.

In Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr.  [2004 (1) SCALE 224] this Court noticed:

"Subject to" is an expression whereby  limitation is expressed.  The order is  conclusive for all purposes.

This Court further noticed the dictionary meaning of  "subject to" stating:

"Furthermore, the expression ’subject  to’ must be given effect to.  

       In Black’s Law Dictionary, Fifth  Edition at page  1278 the expression  "Subject to"  has  been defined as  under :

"Liable, subordinate, subservient,  inferior,       obedient to; governed or  affected by; provided that;  provided, answerable for. Homan v.  Employers Reinsurance Corp,., 345  Mo. 650, 136 S.W. 2d 289, 302"           

CASE LAWS:

       A Constitution Bench of this Court in Supreme Court Bar  Association (supra) no doubt overruled its earlier decision  in Vinay Chandra Mishra, Re [(1995) 2 SCC 584] so as to hold  that this Court in exercise of its jurisdiction under  Article 142 of the Constitution of India is only empowered  to proceed suo motu against an advocate for his misconduct  and send for the records and pass an appropriate orders  against the advocate concerned.   

       But it is one thing to say that the Court can take suo  motu cognizance of professional or other misconduct and  direct the Bar Council of India to proceed against the  advocate but it is another thing to say that it may not  allow an advocate to practise in his court unless he purges  himself of contempt.

       Although in a case of professional misconduct, this  Court cannot punish an advocate in exercise of its  jurisdiction under Article 129 of the Constitution of India  which can be imposed on a finding of professional misconduct

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recorded in the manner prescribed under the Advocates Act  and the rules framed thereunder but as has been noticed in  the Supreme Court Bar Association (supra); professional  misconduct of the advocate concerned is not a matter  directly in issue in the matter of contempt case.   

       In Supreme Court Bar Association (supra),however, this  Court held: "57. In a given case, an advocate found  guilty of committing contempt of court  may also be guilty of committing  "professional misconduct", depending  upon the gravity or nature of his  contumacious conduct, but the two  jurisdictions are separate and distinct  and exercisable by different forums by  following separate and distinct  procedures. The power to punish an  advocate by suspending his licence or by  removal of his name from the roll of the  State Bar Council for proven  professional misconduct vests  exclusively in the statutory authorities  created under the Advocates Act, 1961,  while the jurisdiction to punish him for  committing contempt of court vests  exclusively in the courts."                  The constitution Bench, however, in no uncertain terms  observed: "80. In a given case it may be  possible, for this Court or the High  Court, to prevent the contemner advocate  to appear before it till he purges  himself of the contempt but that is much  different from suspending or revoking  his licence or debarring him to practise  as an advocate. In a case of  contemptuous, contumacious, unbecoming  or blameworthy conduct of an Advocate- on-Record, this Court possesses  jurisdiction, under the Supreme Court  Rules itself, to withdraw his privilege  to practice as an Advocate-on-Record  because that privilege is conferred by  this Court and the power to grant the  privilege includes the power to revoke  or suspend it. The withdrawal of that  privilege, however, does not amount to  suspending or revoking his licence to  practice as an advocate in other courts  or tribunals."

       The Constitution Bench of this Court in Harish Uppal  (supra) noticed the aforementioned observations stating:

"25...Thus a Constitution Bench of this  Court has held that the Bar Councils are  expected to rise to the occasion as they  are responsible to uphold the dignity of  Courts and majesty of law and to prevent  interference in administration of  justice. In our view it is the duty of  Bar Councils to ensure that there is no  unprofessional and/or unbecoming

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conduct."

       Holding that the right of appearance in courts is still  within the control and jurisdiction of courts, this Court  noticed:

"34...Section 30 of the Advocates Act  has not been brought into force and  rightly so. Control of conduct in Court  can only be within the domain of Courts.  Thus Article 145 of the Constitution of  India gives to the Supreme Court and  Section 34 of the Advocates Act gives to  the High Court power to frame rules  including rules regarding condition on  which a person (including an Advocate)  can practice in the Supreme Court and/or  in the High Court and Courts subordinate  thereto. Many Courts have framed rules  in this behalf. Such a rule would be  valid and binding on all. Let the Bar  take note that unless self restraint is  exercised, Courts may now have to  consider framing specific rules  debarring Advocates, guilty of contempt  and/or unprofessional or unbecoming  conduct, from appearing before the  Courts. Such a rule if framed would not  have anything to do with the  disciplinary jurisdiction of Bar  Councils. It would be concerning the  dignity and orderly functioning of the  Courts. The right of the advocate to  practise envelopes a lot of acts to be  performed by him in discharge of his  professional duties. Apart from  appearing in the Courts he can be  consulted by his clients, he can give  his legal opinion whenever sought for,  he can draft instruments, pleadings,  affidavits or any other documents, he  can participate in any conference  involving legal discussions, he can work  in any office or firm as a legal  officer, he can appear for clients  before an arbitrator or arbitrators etc.  Such a rule would have nothing to do  with all the acts done by an advocate  during his practice. He may even file  Vakalat on behalf of client even though  his appearance inside the Court is not  permitted. Conduct in Court is a matter  concerning the Court and hence the Bar  Council cannot claim that what should  happen inside the Court could also be  regulated by them in exercise of their  disciplinary powers. The right to  practice, no doubt, is the genus of  which the right to appear and conduct  cases in the Court may be a specie. But  the right to appear and conduct cases in  the Court is a matter on which the Court  must and does have major supervisory and  controlling power. Hence Courts cannot

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be and are not divested of control of  supervision of conduct in Court merely  because it may involve the right of an  advocate. A rule can stipulate that a  person who has committed contempt of  Court or has behaved unprofessionally  and in an unbecoming manner will not  have the right to continue to appear and  plead and conduct cases in Courts. The  Bar Councils cannot overrule such a  regulation concerning the orderly  conduct of Court proceedings. On the  contrary it will be their duty to see  that such a rule is strictly abided by.  Courts of law are structured in such a  design as to evoke respect and reverence  to the majesty of law and justice. The  machinery for dispensation of justice  according to law is operated by the  Court. Proceedings inside the Courts are  always expected to be held in a  dignified and orderly manner. The very  sight of an advocate, who is guilty of  Contempt of Court or of unbecoming or  unprofessional conduct, standing in the  Court would erode the dignity of the  Court and even corrode the majesty    besides impairing the confidence of the  public in the efficacy of the  institution of the Courts. The power to  frame such rules should not be confused  with the right to practise law. While  the Bar Council can exercise control  over the latter, the Courts are in  control of the former. This distinction  is clearly brought out by the difference  in language in Section 49 of the  Advocates Act on the one hand and  Article 145 of the Constitution of India  and Section 34(1) of the Advocates Act  on the other. Section 49 merely empowers  the Bar Council to frame rules laying  down conditions subject to which an  Advocate shall have a right to practice  i.e. do all the other acts set out  above. However, Article 145 of the  Constitution of India empowers the  Supreme Court to make rules for  regulating this practice and procedure  of the Court including inter alia rules  as to persons practising before this  Court. Similarly Section 34 of the  Advocates Act empowers High Courts to  frame rules, inter alia to lay down  conditions on which an Advocate shall be  permitted to practice in Courts. Article  145 of the Constitution of India and  Section 34 of the Advocates Act clearly  show that there is no absolute right to  an Advocate to appear in a Court. An  Advocate appears in a Court subject to  such conditions as are laid down by the  Court. It must be remembered that  Section 30 has not been brought into  force and this also shows that there is

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no absolute right to appear in a Court.  Even if Section 30 were to be brought  into force control of proceedings in  Court will always remain with the Court.  Thus even then the right to appear in  Court will be subject to complying with  conditions laid down by Courts just as  practice outside Courts would be subject  to conditions laid down by Bar Council  of India. There is thus no conflict or  clash between other provisions of the  Advocates Act on the one hand and  Section 34 or Article 145 of the  Constitution of India on the other."  

       This Court is bound by the aforementioned decisions.

       The question came up directly for consideration in  Pravin C. Shah (supra).  Thomas, J. speaking for the Bench  inter alia observed that Rule 11 does not bind the  disciplinary committee or any other organ of the Bar  Council.  It is in no way involved.  It, however, may have a  duty to inform a delinquent advocate of the Bar under Rule  11.

       ’Rule 11 concerns dignity and the orderly functioning  of the courts’, the court held and further observed:

"16...Conduct in court is a matter  concerning the court and hence the Bar  Council cannot claim that what should  happen inside the court could also be  regulated by the Bar Council in exercise  of its disciplinary powers. The right to  practice, no doubt, is the genus of  which the right to appear and conduct  cases in the court may be a specie. But  the right to appear and conduct cases in  the court is a matter on which the court  must have the major supervisory power.  Hence the court-cannot be divested of  the control or supervision of the court  merely because it may involve the right  of an advocate."

       Pointing out the difference between maintenance of  dignity of court and corroding the majesty of it as also  impairing the confidence of the public in the efficacy of  the court vis-‘-vis the professional misconduct of the  lawyers, the Court held that Rule 11 is a self-operating  provision.  Addressing the question as to how a contemnor  can purge himself of contempt, this Court held that obeying  the orders of the court or undergoing the penalty imposed by  it may not be necessarily sufficient to complete purging of  the contemnor of the contempt, particularly, when the  contemnor is convicted of criminal contempt it was observed  that there must be something more to be done to get oneself  purged of the criminal contempt.  As regard tendering of  apology, it was opined: "31. Thus a mere statement made by a  contemnor before court that he  apologises is hardly enough to amount to  purging himself of the contempt. The

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court must be satisfied of the  genuineness of the apology. If the court  is so satisfied and on its basis accepts  the apology as genuine the court has to  make an order holding that the contemnor  has purged himself of the contempt. Till  such an order is passed by the court the  delinquent advocate would continue to be  under the spell of the interdict  contained in Rule 11 of the Rules."           The said decision governs the field.  We do not see any  reason to depart from the views taken therein.

ARTICLE 19(1)(g):         Bar Council of India is not a citizen entitling it to  raise the question of validity of the Rules on the  touchstone of Article 19(1)(a) of the Constitution.  It has  no such fundamental right.  No person aggrieved who is a  citizen of India is before us.  The contention of Mr. Reddy  that Rule 11 of the Rules is violative of Article 19(1)(g)  of Constitution of India is, thus, misplaced.  We cannot  permit the Bar Council to raise the said contention.

NATURAL JUSTICE:

       Principle of natural justice is required to be observed  by a court or Tribunal before a decision is rendered  involving civil consequences.  It may only in certain  situation be read into Article 14 of the Constitution of  India when an order is made in violation of the rules of  natural justice.  Principle of natural justice, however,  cannot be stretched too far.  Its application may be subject  to the provisions of a statute or statutory rule.

       Before a contemnor is punished for contempt, the court  is bound to give an opportunity of hearing to him.  Even  such an opportunity of hearing is necessary in a proceeding  under Section 345 of the Code of Criminal Procedure.  But if  a law which is otherwise valid provides for the consequences  of such a finding, the same by itself would not be violative  of Article 14 of the Constitution of India inasmuch as only  because another opportunity of hearing to a person, where a  penalty is provided for as a logical consequence thereof,  has been provided for.  Even under the penal laws some  offences carry minimum sentence.  The gravity of such  offences, thus, is recognized by the Legislature.  The  courts do not have any role to play in such a matter.   

        Rule 11 framed by the Kerala High Court is legislative  in character.  As validity of the said rule has been upheld,  it cannot be said that the same by itself, having not  provided for a further opportunity of hearing the contemnor,  would attract the wrath of Article 14 of the Constitution of  India.

       In Mohinder Singh Gill and another Vs. the Chief  Election Commissioner, New Delhi and Others [AIR 1978 SC  851], this Court observed: "43. Indeed, natural justice is a  pervasive facet of secular law where a  spiritual touch enlivens legislation,  administration and adjudication, to make

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fairness a creed of life. It has many  colours and shades, many forms and  shapes and, save where valid law  excludes it, applies when people are  affected by acts of Authority. It is the  hone of healthy government, recognised  from earliest times and not a mystic  testament of Judge-made law. Indeed,  from the legendary days of Adam - and of  Kautilya’s Arthasastra - the rule of law  has had this stamp of natural justice  which makes it social justice. We need  not go into these deeps for the present  except to indicate that the roots of  natural justice and its foliage are  noble and not new-fangled. Today its  application must be sustained by current  legislation, case-law or other extant  principle, not the hoary chords of  legend and history. Our jurisprudence  has sanctioned its prevalence even like  the Anglo-American system."  

       In N.K. Prasada Vs. Government of India and Ors. [Civil  Appeal No. 3137 of 1999] disposed of on 12th April, 2004,  this Court observed:

"The principles of natural justice, it  is well-settled, cannot be put into a  strait-jacket formula.  Its application  will depend upon the facts and  circumstances of each case.  It is also  well-settled that if a party after  having proper notice chose not to  appear, he a later stage cannot be  permitted to say that he had not been  given a fair opportunity of hearing.   The question had been considered by a  Bench of this Court in Sohan Lal Gupta  (Dead) through LRs. and Others Vs. Asha  Devi Gupta (Smt.) and Others [(2003) 7  SCC 492] of which two of us (V.N. Khare,  CJI and Sinha, J.) are parties wherein  upon noticing a large number of  decisions it was held:

"29.The principles of natural  justice, it is trite,  cannot be  put in a straitjacket formula.  In  a given case the party should not  only  be required to show that he  did not have a proper notice  resulting in violation of  principles of natural justice but  also to show that he was seriously  prejudiced thereby..."    

       The principles of natural justice,  it is well-settled, must not be  stretched too far."                       

       (See also Marda Chemicals Ltd. etc. etc. v. Union of  India & Ors. etc. etc. [ (2004) 4 Scale 338] and Canara Bank

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and Others Vs. Debasis Das and Others [(2003) 4 SCC 557])          

       In Union of India and Another Vs. Tulsiram Patel  [(1985) 3 SCC 398] whereupon reliance has been placed by Mr.  Reddy, this Court held:

"97. Though the two rules of natural  justice, namely, nemo judex in causa sua  and audi alteram partem, have now a  definite meaning and connotation in law  and their content and implications are  well understood and firmly established,  they are nonetheless not statutory  rules. Each of these rules yields to and  changes with the exigencies of different  situations. They do not apply in the  same manner to situations which are not  alike. These rules are not cast in a  rigid mould nor can they be put in a  legal strait-jacket. They are not  immutable but flexible. These rules can  be adapted and modified by statutes and  statutory rules and also by the  constitution of the Tribunal which has  to decide a particular matter and the  rules by which such Tribunal is  governed..."

       The ratio of the said decisions, therefore, does not  support the proposition canvassed by Mr.Reddy.

Furthermore, the contemnor could also get an  opportunity of hearing while purging his conduct.  Rule 11  of the Rules, therefore, is not also ultra vires  Article 12  of the Constitution.

CONCLUSION:

       We, therefore, are of the opinion that Rule 11 of the  Rules framed by Kerala High Court is not unconstitutional.   There is no merit in this writ petition which is accordingly  dismissed.  There shall be no order as to costs.