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PETITIONER: BAR COUNCIL OF MAHARASHTRA

       Vs.

RESPONDENT: M. V. DABHOLKAR ETC. ETC.

DATE OF JUDGMENT03/10/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1976 AIR  242            1976 SCR  (2)  48  1976 SCC  (2) 291  CITATOR INFO :  E&R        1978 SC 548  (106)  R          1981 SC 344  (48)  RF         1981 SC 477  (5)

ACT:      Professional  conduct-Soliciting   work-If  amount   to misconduct-Disciplinary  Committee  of  State  Bar  Council- Defects in its working.

HEADNOTE:      The rule  of law  cannot  be  built  on  the  ruins  of democracy for  where law ends tyranny begins. If such be the keynote thought  for the  very survival of our Republic, the integral  bond   between  the   lawyer  and  the  public  is unbreakable. And  the vital  role of the lawyer depends upon his probity  and professional  life style.  Be it remembered that the  central function  of the  legal profession  is  to promote the  administration of  justice. If  the practice of law is  thus a  public utility  of great  implications and a monopoly is  statutorily granted by the nation, it obligates the lawyer  to observe  scrupulously those  norms which make him worthy  of the  confidence of  the community in him as a vehicle of  justice-social justice.  The Bar  cannot  behave with doubtful  scruples or  strive to  thrive on litigation. Canons of conduct cannot be crystalised into rigid rules but felt by  the collective  conscience of  the practitioners as right. [55 F-H].      Justice cannot  be attained  without the  stream  being pellucid throughout  its course  and that is of great public concern, not merely professional care. [50 F].      The  respondents,   who  were   lawyers  practising  in criminal courts,  were charged  with professional misconduct under s.  35(1) of  the Advocates  Act, 1961,  in that  they positioned themselves  at the  entrance to  the Magistrates’ Courts, watchful  of the arrival of potential litigants  and at sight, rushed towards the clients in an ugly scrimmage to snatch the  briefs. to  lay claim to the engagements even by physical fight  to undercut  fees, and  by  this  unedifying exhibition sometimes  carried even  into  the  Bar  Library, solicited and  secured work  for themselves. The Bar Council

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of Maharashtra  considered The  complaint received  from the High Court  against the  lawyers and  referred the matter to its  Disciplinary   Committee   for   further   probe.   The Disciplinary Committee  of the  State Bar  Council held  the respondents guilty  of professional misconduct and suspended them from  practising as  advocates for  a period  of  there years. On  appeal, the  Disciplinary Committee  of  the  Bar Council of  India held that under  r. 36 of the rules framed under s.  49(c) of the Advocates Act in order to be amenable to the disciplinary jurisdiction the advocates must have (i) solicited work  (ii) from a particular person and (iii) with respect to  a case.  It held  that unless the three elements were satisfied  it could  not be  said that  an advocate had acted  beyond  the  standard  or  professional  conduct  and etiquette. It therefore, absolved all the respondents of the charge cf professional misconduct. The State Bar Council has come in appeal to this Court. ^      HELD: Rule 36 of the rules framed under s. 49(c) of the Advocates Act, fairly construed, sets out wholesome rules of professional conduct  and the  dissection of  the said rule, the way  it has  been done  by  the  Disciplinary  Tribunal, disfigure it. [59 C].      (1) The  canons of  ethics and  propriety far the legal profession totally  taboo  conduct  by  way  of  soliciting, advertising.  scrambling   and  other  obnoxious  practices, subtle or clumsy for betterment of legal business. Law is no trade, briefs no merchandise and so the leaven of commercial competition or  procurement should  not vulgarise  the legal profession. [60 C] 49      (2)(a) The  procedure adopted  by the State Bar Council in referring  the  cases to its Disciplinary Committee is in due compliance with s. 35(1) of the Advocates Act. [51 C-D].      (b) The  contention that  the  resolution  of  the  Bar Council did  not ex  facie disclose  that it  had reason  to believe that  the  advocates  were  guilty  of  professional misconduct had  no merit.  The  requirement  of  "reason  to believe" cannot  be converted  into a  formalised procedural road block, it being essentially a barrier against frivolous enquiries. lt  is implicit  in the  resolution  Of  the  Bar Council, when  it says  that it has considered the complaint and  decided   to  refer  the  matter  to  the  Disciplinary Committee, that  it had  reason to  believe as prescribed by the statute. [51 D-E].      (3) The  State Tribunal  has, from  a processual angle, fallen far short of norms like proper numbering of witnesses and exhibits,  indexing and  avoidance of  mixing up  of all cases together,  default in  examination of the respondents, consideration  separately   of  the  circumstances  of  each delinquent for  convicting  and  sentencing  purposes.  More attention to  the specificity  in recording evidence against each deviant instead of testimonial clubbing together on all the respondents,  could have  made the  proceedings clearer, fairer and  in keeping  with court methodology without over- judicialised formalities. The consolidation of all cases and trying  them   all  jointly,   although  the  charges  there different episodes,   obviously violative of fair trial. [59 D-F].      (4) (a)  The profound  regret of  these cases  lies not only in  the appellate  Disciplinary  Tribunal’s  subversive view of  the law  of  professional  conduct  that  attempted solicitation by  snatching briefs and catching clients is of no  ethical   moment,  or   contravention  of  the  relevant provisions, but  also in  the naive  innocence of  fair  and

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speedy  procedure   displayed  by   the  State  Disciplinary Tribunal  in  clubbing  together  various  charges  levelled against the  advocates in  one common  trial, mixing  up the evidence   against   many,   recording   omnibus   testimony slipshodly,  not   maintaining  a   record  of   each  day‘s proceedings, examining  witnesses in  the  absence  of  some respondents taking  eight years to finish in trial involving depositions of  four  witnesses and omission to consider the evidence against each alleged delinquent individually in the semi-penal  proceeding.   True,  a  statutory  Tribunal  may ordinarily regulate its procedure without too much rigidity, subject to  the rules  of natural  justice, but  large scale disregard of  well-known norms  of fair  process  makes  one wonder whether some at least of the respondents had not been handicapped and whether justice may not be a casualty if the Tribunal   is    not   alerted    about    its    processual responsibilities. [52 B-D]      (b) The Appellate Tribunal was wholly wrong in applying r. 36  which was  promulgated only in 1965 while the alleged misconduct took  place earlier.   What  this Tribunal forgot was that the legal profession in India has been with us even before the  British and  coming to  decades of this century, the provisions  of s.  35 of the Advocates Act, s. 10 of the Bar Councils  Act and  other     enactments  regulating  the conduct of  legal  practitioners  have  not  turned  on  the splitting up  of   the text  of any  rule but  on the  broad canons of ethics and high tone of behaviour well-established by case  law and  long accepted  by the  soul  of  the  bar. Professional ethics  were bourn with the organised bar, even as moral norms arose with civilised society. The exercise in discovering the three elements of r. 36 was as unserviceable as it was supererogatory. [59 G-H].      (c) It  is a  misfortune that  a disciplinary body of a dimensionally get  and growing public utility profession has lost its  vision, blinkered  by, r.  36 (as misconstrued and trisected by it.) [60 G].

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1461 to 1468 of 1974.      From the  Judgment and order dated the 14th April, 1974 of the  Disciplinary Committee  of the  Bar Council of India New Delhi  in D.C. Appeals Nos 15 to 19 and 21, 22 and 25 of 1973. 50      V. S.  Desai, Vimal  Dave, Miss  Kailahs Mehta  for the Appellants. Respondents appeared in person in CAs. 1461 and 1467-1468.      Sakuddin  F.   Bootwala  and   Mrs.  Urmila  Sirur  for Respondents in CAs. 1462-1464      V. N. Ganpule for Respondent in C.A. 1465.      D. V.  Patel and  Mrs. K. Hingorani for the Bar Council of India.      S. K. Sinha for the Bihar State Bar Council.      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-These appeals  have filled us as much with deep  sorrow as with pained surprise. I he story of the alleged ’profession misconduct’ and the insensitivity of the disciplinary authority to aberrant professional conduct have been the  source of  our  distress,  as  we  will  presently explain, after unfurling the factual canvas first.      The first  chapter of  the  litigation  in  this  Court related of  the standing,  of the State Bar Council to appal

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to this  Court, under  s.38 of  the advocates Act, 1961 (the Act,  for   short)  against   appeallate  decision   of  the Disciplinary Tribunal appointed by the Bar Council of India. This Court  upheld the competence to appeal, thus leading us to the  present stage  of disposing  of the  eight cases  on merits.      The   epileptic   episodes-what   other   epithet   can adequately express  tile solicitation  circus dramatised  by the  witnesses   as  practised  by  the  panel  of  advocate respondents before  us? make us blush in the narration. For, after all  do we  not all  together belong"  to  the  ’inner republic of  bencher and  bar’? The putative delinquents are lawyers practising  in the  criminal courts  in Bombay City. Their profession  ordains a  high level of ethics as much in the means as in the ends. Justice cannot be attained without the stream  being pellucid throughout its course and that is of great  public  concern,  not  merely  professional  care. Briefly  expressed,   these  practitioners,   according   to testimony; recorded  by  the  State  Disciplinary  Tribunal, positioned themselves  at the  entrance to  the  Magistrates Courts, watchful  of the  arrival of potential litigants. At sight, they rushed towards the clients ill an ugly scrimmage to snatch  the briefs,  to lay claim to the engagements even by physical  fight, to undercut fees, and by this unedifying exhibition, sometimes  carried even  into the  Bar  Library, solicited and  secured work for themselves. If these charges were true,  any member  of the Bar with elementary ethics in his bosom  would be  outraged at  his brethren’s conduct and yet, in  reversal  of  the  State  Disciplinary  Committee’s finding,  the  appellate  Tribunal  at  the  national  level appears to  have entered  a verdict,  based on a three point formula, that  this conduct,  even if true, was after all an attempt to solicit practice and did not cross the borderline of misconduct?  The Bar  Council of the State OF Maharashtra (the appellant before us) and the Bar Council of India which is a  party respondent, have expressed consternation at this view of the law of professional misconduct and we share this alarm Were  this view  right, it  is difficult  to call  the legal profession noble. Were this 51 understanding of deviant behaviour sound, there is little to distinguish  between railway porters and legal practitioners although we  do  not  mean  to  hurt  the  former  and  have mentioned a  past practice, to drive home our present point? We do  not wish  to dilate further on the evidence in so far as it  concerns each  of the respondent-advocates in view of certain developments  which we  will presently notice. There are eight  cases but  we are  relieved from  dissecting  the evidence against  most of  them for  reasons which  we  will hopefully and shortly state.      The Bar  Council of  Maharashtra, by its resolution No. 29 dated  August 8,  1964 considered  the complaint received from the  High Court  against  one  Kelawala  and  15  other Advocates among  whom are  those charged  with  professional misconduct and covered by the present appeals, under s.35(1) of the Act, and presumably having reason to believe that the professional misconduct  alleged required  a  further  probe referred  the  case  to  its  disciplinary  committee.  This procedure is in due compliance with s.35(1) of’ the Act and, although the  respondent in  C.A. 1467/74  (A. K. Doshi) has contended that the resolution of the Bar Council does not ex facie disclose  that it  had  reason  to  believe  that  the advocates involved  were guilty  of professional misconduct, we see no merit in it The requirement of ’reason to believe’ cannot be converted into a formalised procedural road block,

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it being  essentially a barrier against frivolous enquiries. It is implicit in the resolution of the Bar Council, when it says that  it has  considered the  complaint and  decided to refer the  matter to the disciplinary committee, that it had reason to believe, as prescribed by the statute      Such blanket reference to the disciplinary body, so far as we  are concerned,  related to  the  respondent  in  C.A. 1461/74 (Dhabolkar),  C.A. 1462/74  (Bhagtani), C.A. 1463/74 (Talati), C.A.  1464/74 (Kelawala),  C.A.  1465/74  (Dixit), C.A. 1466/74  (Mandalia), C.A..  1467/74  (Doshi)  and  C.A. 1468/74 (Raisinghani).  All the cases were tried together as a unified proceeding and disposed of by a common judgment by the  Disciplinary  Committee,  a  methodology  conducive  to confusion and  prejudice as  we will  explain later  in this judgment. The  respondents in  the various appeals before us were found  guilty ’of  conduct which  seriously lowers  the reputation of  the Bar  in the  eyes of the public’ and they were suspended  from practising as Advocates for a period of three years.  Appeals were  carried to  the Bar  Council  of India and"  in accordance with the statutory provision, they were referred  to the Disciplinary Committee appointed by it under s.  37(2)  of  the  Act.  The  Appellate  Disciplinary Committee  heard   the  appeals   and   absolved   them   of professional  misconduct.   Aggrieved  by  this  verdict  of reversal, the  Bar Council  of Maharashtra  has appealed  to this Court.  The initial  hurdle of  locus standi  has  been surmounted  as   stated  earlier,  we  have  been  addressed arguments on the merits by Shri V. S. Desai on behalf of the appellant. He  has canvassed  the correctness of the finding of fact  in each  case  although  with  varying  degrees  of diffidence,  but   turned  his  forensic  fusillade  on  the somewhat  startling   concept  of   professional  misconduct adopted by that disciplinary Tribunal 52      We will  proceed to deal with each appeal separately so far as  the factual  foundation for the charges is concerned but discuss  the legal  question later  as  it  affects  not merely the  advocates ranged  as respondents  but the Bar in India and  the public in the country. The profound regret of these cases  lies not  only in  the  appellate  disciplinary tribunal’s  subversive  view  of  the  law  of  professional conduct that  attempted  solicitation by  snatching briefs  and  catching clients is  or no  ethical moment,  or contravention  of the relevant provisions, but also in the naive innocence of fair and speedy  procedure displayed  by the  State  Disciplinary Tribunal  in  clubbing  together  various  charges  levelled against 16  advocates in  one common  trial, mixing  up  the evidence   against   many,   recording   omnibus   testimony slipshodly,  not   maintaining  a   record  of   each  day’s proceedings, examining  witnesses in  the  absence  of  some respondents, taking  eight years to finish a trial involving depositions  of  four  witnesses  and  the  crowning  piece, omission to  consider  the  evidence  against  each  alleged delinquent individually in the semi-penal proceedings. True, a statutory  tribunal may  ordinarily regulate its procedure without too  much rigidity, subject to’ the rules of natural justice, but  large-scale disregard  of well-known  norm  of fair process  makes us  wonder whether  some at least of the respondents have  not been  handicapped and  whether justice may not  be a  casualty if the tribunal is not alerted about its processual  responsibilities. We  have some observations to make  about  the  Tribunals  at  the  State  and  at  the appellate levels  in the  further stages  of this  judgment. However, we  find it convenient to dispose of the appeals on

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the evidence, on the assumption that if, in fact, there have been snatching  and fighting and like solicitation exercises indulged in  by any  of the  respondents, such conduct is in gross  breach   of  professional   behaviour   and   invites punishment.    A case-by-case disposal is desirable and so we begin with Dabholkar (respondent  in  C.A.  1461/74)  who  appeared  in person to  plead in defence. The evidence against him is far from satisfactory and suffers from generalised imputation of misconduct against a group of guilty lawyers. To dissect and pick   out   is   an   erroneous   process,   except   where individualised activities  are clearly deposed to. Moreover, the only witness who implicates him swears: ’I have not seen him actually  snatching away  the papers. I did not hear the talk Mr. Dabholkar had with the persons’. Moreover, he was a senior public  prosecutor. We  also record  the fact that he expressed distress as the arguments moved on. Apart from the weak  and   mixed  evidence   against  him,   there  is  the circumstance that  he is around 68 years old. With a ring of truth he  submitted that  he was  too old  to  continue  his practice in  the profession  and had resolved to retire into the sequestered  vale of life. He frankly admitted that even apart from the evidence, if there were any sins of the past, he would  not Pursue  the path  of professional  impropriety hereafter having  decided virtually  to step out of the Bar. except for  a limited  Purpose. He  had just four cases left with him which he desired to complete. having received fees. He further  represented that he did not intend to accent any new briefs  or appear  in any  Court except  to  the  little extent that the Bombay Paints & Allied Products. 53 Limited   (Chembur,   Bombay),   a   large   company   which occasionally A  engaged him  in small  cases chose  to brief him. We  are inclined  to take him at his word, particularly because he  has put  himself out  of harm’s  way by  a clear assurance about  his  future  plans.  On  the  evidence,  we exonerate him  from professional misconduct and otherwise we record him solemn statement to the Court.      Shri Bhagthani,  respondent in  C.A. 1462/74,  has  not engaged counsel,  nor appeared in person, but as we examined the evidence,  assisted by  Shri Desai,  we  found  precious little against  him. That  extinguishes the charge. No need, therefore,  arises   for  punishing  him  or  reversing  the appellate Tribunal’s acquittal.      The respondent  in C.A.  1463/74 is Talati. He has been found  ’not  guilty’  in  appeal  but,  as  we  perused  the evidence,  it   became  fairly   clear  that  some  acts  of misconduct had been made out, although the evidence suffered from omnibus  implication. His  counsel, Mr.  Zakuriddin  F. Bootwala, however  made a submission which has moved us into showing some  consideration for  this respondent.  Shri Zaki represented  that   his  client   had  stood  the  vexatious misfortune of  a long, protracted, litigation before the two tribunals and  a later round in this Court when the question of locus  standi of  the State Bar Council was gone into. He was in  poor circumstances  and had suffered considerably on this score.  Further, he has given an undertaking expressing unqualified regret  for his deviant behaviour and has prayed for the  clemency of the Court, promising to turn a new leaf of proper  professional conduct,  if he  were  permitted  to practice. Taking  note of  the compassionate  conspectus  of circumstances attendant  on his  case and  in  view  of  the tender of  unconditional regret which expiates, in part, his guilt, we  allow  the  appeal,  but  reduce  the  period  of suspension inflicted by way of punishment by the Maharashtra

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Tribunal from  three years to a period upto December 31 this year (1975)  . In  short, we find him guilty and reluctantly restore the verdict of the original tribunal, but reduce the punishment to suspension from practice, as aforesaid.      The  respondent   in  C.A.  1464/74  is  Kelawala.  His counsel, Mr.  Zaki, submitted  that  this  practitioner  had become purblind  and was ready to give an undertaking to the Court that  he would  no longer  practice in the profession. While there is some evidence against him, an overall view of the testimony,  does not  persuade us to take a serious view of the  case against him. Moreover, being old and near-blind and having  undertaken to  withdraw from  the profession for ever, it  is but  fair that he spends the evening years left to him without the stigma of gross misconduct. In this view, we do  not disturb the finding of the Disciplinary Committee of the Bar Council of India hut record the undertaking filed by Shri  Zaki that his client Kelawala will not practice the profession of law any longer. H      The respondent  in C.A.  1465/74 is Dixit for whom Shri Gannule appeared.  Shri Desai,  for the  appellant, took  us through the evidence 54 against this lawyer but fairly agreed that the evidence was, by any  standard, inadequate  to bring  home the  guilty  of misconduct.  We  readily  hold  him  rightly  absolved  from professional misconduct.      The respondent  in C.A. 1466/74 is Mandalia. He did not appear in  person or  through counsel.  The reason is fairly obvious. The  evidence is  so little that it is not possible nor proper  to pick  out with  precision and  assurance  any particular ’soliciting’  act to infer guilt. Shri Desai, for the appellant,  was fair  enough to accede to this position. His exculpation cannot, therefore, be interfered with.      The only  contesting respondent  is Doshi-C.A. 1467/74. He contests  his guilt  and pursues  his plea with righteous persistence and  challenges the evidence and its credibility projecting his  grievance about processual improprieties. We will consider  both these  facts of his legitimate criticism despite his  cantankerous arguments which we have heard with forbearance, remembering  that a  party arguing his own case may, perhaps,  not be  able to discipline himself to observe the minimal  decorum that  advocacy in  Court obligates. The respondent displayed,  as the  proceedings in this Court ran on, his  art of  irritating interruptions,  his exercises in popping up  and down heedless of the Court’s admonition, and his skill in remaining references to what was not on record. The fine  art of advocacy suffers mayhem when irrelevant men indelicately brush  with it.  The State  Tribunal’s  records reveal that  Shri Doshi  had not  spared their  patience  or sense of  pertinence. Having  said all this, we are bound to examine the  evidence against  him fairly.  Such a  scrutiny shows that the best witness Shri Shertukde, the President of the Bar  Association and otherwise a respected Member of the Bar, has  not involved  him in  any malpractice.  Even  Shri Pathare, the  only one  to rope him in, merely gives omnibus testimony ambivalent  in places  and unspecific  about some, including Doshi.  There is  little else  brought  home  with clarity against  loquacious Doshi. To convict him out of the vague; lips of Pathare may perhaps be a credulous folly. The grouping of  a number  of advocates  in a sort of mass trial has prejudiced  Shri Doshi,  a consequence  which could  and should have  been avoided. He had other grievances of denial of fair  opportunity which‘we could not verify for want of a daily diary or order sheet. We are satisfied by a perusal of the record  that  this  respondent  has  had  an  impressive

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background of  social service.  commendable testimonials  of his  legal  skills  from  competent  persons  and  some  law practice in  various Courts  and consultancy work for social welfare institutions  which are apt to dissuade him from the disreputable  bouts   in  the  ’pathological’  area  of  the Esplanade Police  Courts in  Bombay. Even assuming that this overzealous gentleman  had exceeded  the  strict  bounds  of propriety,  we   are  not   satisfied  that  the  charge  of professional misconduct,  as laid  has been  brought home to him. What  we have  observed about his conduct in this Court must serve  as a sufficient admonition to wean him away from improper conduct.  We do  not interfere with the exculpation secured by him before the appellate Tribunal hopeful that he will  canalize   his  professional   energies  in   a   more disciplined way to be useful to himself and. more 55 importantly, to  his unsolicited’ clientele. After all, even a sinner  has A  a future and given better court manners and less turbulent  bellicosity, Shri  Doshi appears  to have  a fair professional  weather ahead  in the  City. We  hold him unblemished so far as the vice of solicitation is concerned, but caution him to refine himself in advocacy.      Shri Raisinghani  is tho  respondent in  C.A.  1468/74. Shri V. S. Desai took us though the evidence against him and although he  is 65 years old, the evidence shows that he has physically fought  two rival  advocates  in  the  course  of snatching the  briefs from  clients, entering  the Esplanade criminal  courts.  One  of  these  fights  resulted  in  his trousers being  torn and the other assault by him was on Mr. Mandalia one  of the  respondents  in  these  appeals.  Shri Mandalia had  filed a  complaint against  Raisinghani but in the criminal  court they  lived down  their earlier skirmish and compounded  the case.  Be that  as it  may, we find that Shri Raisinghani is not merely an old man but a refugee from Pakistan who,  leaving his  properties there has migrated to Ahmedabad with  his family.  Apparently he  is in  penurious environs  and   stay  in   the  refugee  colony  in  Bombay, incidentally attending  to his claims to the properties left behind in  Pakistan and  acquiring some  evacuee property in lieu of  what he  has lost.  Staying in  Kalyan Refugee Camp this lawyer,  afflicted with  distress and  dotage, is  also attending the  Magistrate’s Court  to make  a  living.  This commiserative social  milieu may  not  absolve  him  of  the misconduct which,  we are  satisfied, the  testimony in  the case,  has  established.  Even  so,  Shree  Raisinghani  has appeared in  person and  has given an undertaking expressing remorse, praying  to be  shown clemency  and assuring  that, economic pressure  notwithstanding, he  will not go anywhere near  professional  pollution  in  the  last  years  of  his practice at  the Bar.  We are inclined to take a sympathetic view of his septuagenarian situation, record his apology and assurance,  restore  the  verdict  of  guilt  by  the  State Disciplinary Committee but reduce the punitive part of it to a period of suspension until December 31, this year (1975).      Now  to   the  legal   issue  bearing   on  canons   of professional conduct. The rule of law cannot be built on the ruins of  democracy, for  where law  ends tyranny begins. If such be  the keynote  thought for  the very  survival of our Republic, the  integral bond  between  the  lawyer  and  the public is  unbreakable. And  the vital  role of  the  lawyer depends upon  his probity and professional life-style. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law  is thus a public utility of great implications and a monopoly is  statutorily granted by the nation, it obligates

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the lawyer  to observe  scrupulously those  norms which make him worthy  of the  confidence of  the community in him as a vehicle of  justice-social justice.  The Bar  cannot  behave with doubtful  scruples or  strive to  thrive on litigation. Canons of conduct cannot be crystalised into rigid rules but felt by  the collective  conscience of  the practitioners as right:           "It must  be a conscience alive to the proprieties      and the  improprieties incident  to the  discharge of a      sacred public      L 1276 SCI/75 56      trust.  lt   must  be  a  conscience  governed  by  the      rejection of  self-interest and  selfish  ambition.  It      must be a conscience propelled by a consuming desire to      play  a   leading  role   in  the  fair  and  impartial      administration of  Justice,  to  the  end  that  public      confidence may be kept undiminished at all times in the      belief that  we shall  always seek truth and justice in      the 13  preservation of  the rule  of law. It must be a      conscience  not  shaped  by  rigid  rules  of  doubtful      validity, but  answerable only  to a  moral code  which      would drive  irresponsible judges  from the profession.      Without such  a conscience, there should be no judge(1)      and, we, may add, no lawyer. Such is  the high  standard set  for professional conduct as expounded by courts in this country and elsewhere.      These background observations will serve to size-up the grave misapprehension  of the  law of professional ethics by the tribunal  appoint ed  by the  Bar Council  of India. The disciplinary body,  acquitting everyone  on non-violation of bounds of propriety argued.           "Rule 36 (of the Bar Council of India on Standards      of Professional Conduct and Etiquette) is as follows:                An  Advocate   shall  not   solicit  work  or      advertise either  directly, or  indirectly  whether  by      circular,     advertisements,      touts,      personal      communications, interviews  not warranted  by  personal      relations, furnishing  newspaper comments  or procuring      his photograph to be published in connection with cases      in which he has been engaged or concerned. ." ..      Hence  in   order  to   be  amendable  to  disciplinary      jurisdiction, the  Advocates must  have  (1)  solicited      work (2) from a particular person (3) with respect to a      case. Unless  all the  three elements are satisfied, it      cannot be  said that  an Advocate  has acted beyond the      standard of professional conduct and  etiquette. It has      been stated  that the conduct of the Advocate concerned      did not  conform to  the highest standards of the legal      profession. It  is not  that every body must conform to      the highest  standards of  the legal  profession. It is      enough if  an Advocate  conforms to  the  standards  of      professional con  duct and  etiquette as referred to in      the rules".      *           *            *              *           "He (witness Mantri) says further that 7 Advocates      who are  personally present  today I  have seen each of      them standing  either on the first floor, near the lift      or on  the first  floor either  near the lift or in the      lobbies of the (1) Hastings,  Hon. John  S., "Judicial Ethics as it Relates      to Participation in Money Making Activities"-Conference      on Judicial Ethics, p. 8, The School of Law, University      of Chicago (1964). 57

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    Esplanade Court  and trying  to solicit  work from  the      persons A  coming to  the Esplanade  Court.  This  mere      attempt to solicit is nothing."           "In order  to be  within the  mischief of rule 36,      not merely canvassing is enough, but canvassing must be      for a  case With  the person  who  had  not  till  then      engaged a  lawyer. There  is nothing  to show either of      these things:  none of  the persons who might have been      subjected to  these solicitations  as they  are stated,      have been  examined  to  prove  the  case.  Hence  this      evidence does  not establish anything within rule 36.".      . .  All that is necessary for us to see is whether the      three items  referred to have been complied with and we      find that  they have  not been complied with because we      do not  know what  was the nature of the communication,      we do  not know  in  connection  with  which  case  the      solicitation took  place and with whom the conversation      took place.  Hence Mr.  Shertukade’s  evidence  is  not      sufficient for  the purpose  of taking any disciplinary      action under rule 36.      *    *    *    *    *           "Mr. Krishnarao  V. Pathumdi  is the first witness      in this  case (case  of Raisinghani).  He says:  "I had      seen Kelawala, Mr. Baria; Mr. Raisinghani, Mr. Bhagtani      approaching  the   people  visiting   the   Court   and      soliciting work from them". This we have already slated      is far  below the  requirement required  to  be  proved      under  rule   36....He  says   that  he  had  seen  Mr.      Raisinghani approaching  people and soliciting work. He      did  not   ascertain  the  names  of  the  persons  who      approached because  it was  not his  business.  But  as      stated above,  is evidence does not establish the three      elements required to be proved under rule 36 because we      do not know what was the personal communication between      him and  the persons  solicited. We do not know whether      it related to a case or not." ....Then the next witness      is Mr. Sitaram Gajanan Shertukade. In cross-examination      by  Mr.   Rai  singhani  he  says:  "I  have  seen  Mr.      Raisinghani  accosting   people.  I   have   seen   Mr.      Raisinghani snatching  the papers from the hands of the      litigating public. I have seen this more than 10 times.      The  litigating   public  from  whom  the  papers  were      snatched did  not say  anything that  there was a fight      between Mr.  Raisinghani  and  other  lawyer  over  the      papers which  were snatched.  I did  not contact  those      persons from  whom the  papers were snatched nor talked      to them so he was not concerned with this Therefore his      evidence cannot be sufficient (Emphasis, ours) 58      We may,  illustratively,  quote  an  excerpt  from  the evidence of  the Bar  Association President and one-time Bar Council Member  Shri Shertukade  to show  the injury  to the profile  of   the  profession   the  curious   view  of  the disciplinary tribunal has inflicted:           "I have  seen Mr.  Raisinghani accosting people. I      have seen Mr. Raisinghani snatching the papers from the      hands of  litigating public. I have seen this more than      10 times  There was  a fight between Mr. Rasinghani and      Mr. Baria.  made oral  complaint to the C.P.M. I do not      remember who  was present  at that  time. In that fight      Mr. Raisinghani s pant was torn... There was assault by      Mr. Raisinghani  on Mr.  Mandalia and I had advised Mr.      Mandalia to  file a  complaint against Mr. Raisinghani.      Mr. Mandalia  did file  a case  against Mr. Raisinghani      but it was compounded."

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    How  can   a  disciplinary   authority,  aware  of  its accountability to  the Indian  Bar, functioning as the stern monitor holding  the punitive  mace to preserve professional purity and  promote public  commitment and  appreciative  of what is  disgraceful, dishonourable and unbecoming judged by the standards  of conduct  set for  this noble  calling  and deviations damaging  to its  public image,  find its  way to hold such  horrendous misbehaviour  as snatching,  catching, fighting, and  under-cutting as  not outraging the canons of conduct without exposing itself to the charge of dereliction of public  duty on  the trisection of r. 36 and blind to the ’law for lawyers’?      It has  been universally  understood, wherever there is an organised bar assisting in administering justice, that an attorney solicitor,  barrister or advocate will be suspended or  disbarred   for  soliciting   legal  business.  And  the ’snatching’ species  of solicitation are more revolting than ambulance chasing’, advertising and the like. If the learned profession is  not a  money-making trade  or a  scramble for porterage but a branch of the administration of justice, the view of  the appellate disciplinary tribunal is indefensible and deleterious.  We, as  a legal fraternity, must and shall live up to the second and live down the first. by observance of high  standards and dedication to the dynamic rule of law in a developing country.      It is  unfortunate that  the Maharashtra  tribunal  has slurred  over   vital  procedural  guidelines.  Professional misconduct prescribed  by  s.  35  of  the  Act  has  to  be understood in  the setting  of a  calling to  which Lincoln, Gandhi, Lenin  and a  galaxy of great men belonged. The high moral tone  and the  considerable public  service the bar is associated with  and its  key role  in the developmental and dispute-processing  activities   and,  above   all,  in  the building up  of a just society and constitutional order. has earned for  it a monopoly to practise law and an autonomy to regulate its  own internal  discipline.  This  heavy  public trust should  not be  forfeited by  legalising or  licensing fights for  briefs affrays  in  the  rush  towards  clients, undercutting and  wrangling among  members. Indeed,  we were scandalized when  one of  the respondents  cited a  decision under the Suppression of Immoral Traffic Act to prove 59 what is  ’soliciting’.  The  odious  attempt  to  equate  by implication the  standards for the two professions was given up after  we severely  frowned on  it. But  the disciplinary tribunal’s view  that an  attempt to solicit did not matter, that professional  misconduct rested  solely on r. 36 of the rules framed  under s.  49(c) and  that r. 36 was made up of three components,  shows how an orientation course in canons of conduct and etiquette in the socio-ethical setting of the lawyer, the public and professional responsibility may be an educative asset  to disciplinary  tribunals and Bar Councils which appoint tribunals and regulate professional conduct by rules. Cicero  called the  law  ’a  noble  profession’,  but Frederick the Great described lawyers as ’leeches’. We agree that r.  36, fairly  construed, sets  out wholesome rules of professional conduct  although the  canons of ethics existed even prior to r. 36 and the dissection of the said rule; the way  it   has  been   done  by  the  disciplinary  tribunal, disfigures it.  It is  also clear that r. 36 is not the only nidus of professional ethics.      Indeed, the  State  tribunal  has,  from  a  processual angle, fallen  far short  of norms  like proper numbering of witnesses and  exhibits, indexing and avoidance of mixing up of  all  cases  together,  default  in  examination  of  the

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respondents consideration,  separately, of the circumstances of each  delinquent for  convicting and sentencing purposes. More attention  to the  specificity  in  recording  evidence against  each   deviant  instead   of  testimonial  clubbing together  of  all  the  respondents,  would  have  made  the proceedings  clearer   fairer  and  in  keeping  with  court methodology, without  over judicialised  formalities. Indeed the consolidation  of 16  cases and  trying them all jointly although the charges were different episodes, were obviously violative of  fair trial.  And 8  years for  an  enquiry  so simple and  brief: We  express the  hope that improvement of this branch of law relating to disciplinary proceedings will receive better  attention  from  the  Bar  Council  and  the tribunal members.  What prophylactic prescription can ensure fundamentally fair  hearing or  due process  better than  by choosing persons  of sense and sensibility familiar with the basics of  trial procedure and conscientious about avoidance of prejudice  and delay  ? Rules may regulate, but men apply them. Both are important.      The appellate disciplinary tribunal was wholly wrong in applying r.  36 which was promulgated only in 1965 while the alleged misconduct  took place  earlier. What  this tribunal forgot was  that the legal profession in India has been with us even  before the  British and  coming to  decades of this century, the  provisions of r. 35 of the Advocates Act s. 10 of the  Bar Councils Act and other enactments regulating the conduct of  legal  practitioners  have  not  turned  on  the splitting up of the text of any rule but on the broad canons of ethics  and high  tone of  behaviour well  established by case-law  and   long  accepted  by  the  soul  of  the  bar. Professional ethics  were born  with the organised bar, even as moral norms arose with civilised society. The exercise in discovering  the   ’three  elements’   of  r.   36  was   as unserviceable as it was as supererogatory. 60      The ruling  in In  the matter of ’P’ an Advocate(1); In re: Shri  M. Advocate  of Supreme  Court of India(2); In the matter of  an Advocate(3);  Govt. Pleader v. Siddick(4) were cited before  us and  no judge, nor lawyer will be in doubt, even without  study of  case law,  that snatching  briefs by standing at  the door of the court house and in fighting for this  purpose   is  too   dishonourable,   disgraceful   and unbecoming  to  be  approved  even  for  other  professions. Imagine two  or three  medical men  manhandling a patient to claim him  as a client  The law has suffered at the hands of the appellate  tribunal.  Lest  there  should  be  lingering doubts we  hold that  the canons of ethics and propriety for the  legal  profession  totally  taboo  conduct  by  way  of soliciting,  advertising,  scrambling  and  other  obnoxious practices,  subtle   or  clumsy,  for  betterment  of  legal business. Law  is no trade, briefs no merchandise and so the leaven of  commercial competition  or procurement should not vulgarise the  legal profession.  Canon 27  of  Professional Ethics of the American Bar Association states:           "It  is  unprofessional  to  solicit  professional      employment  by   circulars,   advertisements,   through      touters or by personal communications or interviews not      warranted by personal relations."      We wish  to put beyond cavil the new call to the lawyer in the  economic order.  In the days ahead, legal aid to the poor and  the weak,  public interest  litigation  and  other rule-of law  responsibilities will  demand a whole new range of responses  from the  bar or  organised social groups with lawyer  members.  Indeed,  the  hope  of  democracy  is  the dynamism  of  the  new  frontiersmen  of  the  law  in  this

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developing  area   and  what   we  have   observed   against solicitation and  alleged profit’  making vices  are distant from such  free service to the community in the Jural sector as part of the profession’s tryst with the People of India.      It is  a misfortune  that  a  disciplinary  body  of  a dimensionally great  and growing  public utility  profession has lost its vision, blinkered by r. 36 (as misconstrued and trisected by  it). For  the practice  of Law  with expanding activist horizons,  professional ethics cannot be contain ed in a  Bar Council  rule nor in traditional cant in the books but in  new canons  of conscience  which  will  command  the members of the calling of justice to obey. rules of morality and utility, clear in the crystallized case-law and concrete when tested on the qualms of high norms-      (1) (1964)1 S. C. R. 697.      (2) (1956) S. C. R. 811.      (3) I. L. R. 63 Cal. 869.        (4) 31 Bom. L. R. 625. 61 simple enough  in given  situations,  though  involved  when expressed in  a single sentence. We but touch upon this call to the calling of law, as more is not necessary in the facts of these cases.      The law  has  thus  been  set  right,  the  delinquents identified and  dealt with,  based on individualised deserts and the  appeals are disposed of in the trust that standards and sanctions  befitting the national Bar will be maintained in  such  dignified  and  deterrent  a  manner  that  public confidence in  this arm  of the  justice-system  is  neither shaken nor shocked.      Parties will bear their costs throughout. P.B.R. 62