BAR COUNCIL OF MAHARASHTRA versus M. V. DABHOLKAR. ETC. ETC

The appeals will now be J:ieard on merits py a. Division Berch.

p. 316, margin H

_... . - -

p. 316, margin H

BEG, J.-I not only concur with the conclusion reached by My Lord the Chief Justice and the reasons given to support it. but I think t.hat we can and should hold that there was actually a "lis" between the Bar Council and the allegedly delinquent Advocates who were hauled up before its Disciplinary Committee, on complaints sent by the Executive Committee of the State Bar Council, for what were said to be acts of professional misconduct.

p. 317, margin A

The learned Chief Justice.has very clearly and succinctly set out the reasons why a State Bar Council is a "person aggrieved" entitled to appeal against orders in disciplinary proceedings against members of the Bar of the State. It represents the Bar of the State. It is the "keeper of the conscience" and the guardian of the interests of members of the Bar. It acts "as the protector of the purity and dignity of the profession.'' Its function in relation to disciplinary proceedings, is to entertain complaints against Advocates, and, when there is a prima facie case of misconduct, to initiate proceedings by sending the complaint to its Disciplinary Committee. It has an interest in seeing that correct decisions are given upon matters involving allegations of misconduct against members of the Bar of the State. My learned brother Krishna Iyer has indicated the wide range and the social significance and dimensions of this interest.

p. 317, margin B

A State Bar Council is composed primarily of members elected from amongst Advocates of a State. . Its statutory functions are given in Section 6 of the Advocates Act, 1961 (hereinafter referred to as 'the Act'). Amongst these, we are especially concerned here with clauses (c) and (d) of Section 6(1) of the Act, which read as follows:

p. 317, margin D

"(c) to entertain and determine cases of misconduct against

p. 317, margin E

advocates on its roll; (d) to safeguard the rights. privileges and foterests of

p. 317, margin E

advocates on its roll;"

p. 317, margin E

Under Section 9 of the Act, the State Bar Council constitutes its Disciplinary Committee consisting of "three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person coopted by the Council from amongst Advocates who possess the qualifications specified .... ". Under Section 10 it elects an Executive Committee of five members and an Enrolment Committee of three. members. Thus, the State Bar Conncil operates. through its Committees. Each Committee has distinct and separable. functions. Each could, therefore, be said to have a "persona" and an identity of its own which is distinguishable from that of the Bar Council as a whole. Each Committee, no doubt, acts for the Bar Council, but its members are likely to be different although this is not necessarily so. In any case, when the State Bar Council has sent a case to its Disciplinary Committee, under Section 35 of the Act, that Committee proteeds as an independent and impartial authority which tries a complaint and either dismisses it or directs ptocccdings to be filed, or, upon finding an advocate guilty, punishes him by either reprimanding him, suspending him from practi~ for a specified period, or orders removal of· his name 7-L 839 Sup CI/75 from its roll of advocates. Indeed, Section 420) of the Act gives the Disciplinary Committee the powers of a Civil Court under the Civil Procedure Code; and, Section 42(2) enacts that its proceedings shall be ''deemed" to be judicial proceedings for the purposes mentioned there.

pp. 317–318, margin E

At the trial of a complaint, opportunities to be heard must be given to the Advocate General and to the Advocate who is tried by it. This has to be done because there arc disputes and conflicting interests and points of view on which the Disciplinary Committee has to give its decisions. The Advocate General can appear either personally or through an Advocate representing him. He presumably represents public interest as well as the interests of the legal profe&sion of which he is the formal head in the State. It is true that there is no provision in Section 35 of the Act for implcading the State Bar Council which, on its executive side, initiates the proceedings by sending the case to its Disciplinar) Committee. But, if the Bar Council has a separable interest, as a guardian of the rights and privileges of the members of the Bar, specifically mentioned by Section 6(1) (d) of the Act, there is no reason wh) a right to represent this interest before its own Disciplinary Committee as well as before the Bar Council of India, on an appeal under Section 37 of the Act, or, on the fl)rther appeal to this Court under Section 38 of the Act, should be denied to it. Neither Section 37 nor Section 38 of the Act mention the State Bar Council as a separate entity. Nevertheless, if, as we are holding, it can have the locus sta11di aud rights of a "person aggrieved", affected by the results of such proceedings, I sec no reason why we should not say that it is in the position or a party to a "!is" or a dispute between itself and the allegc.dly delinquent Advocate towards the decision of which the proceedings arc dircctecl.

p. 318, margin A

The term ''!is" is not confined to litigation by means of a suit in a Court of law. In Butler v. M(>w1tgarret( it was held that a "suit is not necessary to constitute tis". It was pointed oub there that "a family controversy capable of being litigated is a !is mota". Jn B. Jol11rs0n & Co. (Builders) v. Minister of Health('), Lord Greene, M.R. said : "Lis implies the conception o[ an issu()' joined between two parties. Th~ de cision of a !is ..... is the decision of that issue".

p. 318, margin E

II' the State Bar Council, acting through its Executive Committee, has found a prima fade case to be sent and tried by its Disciplinary Committee, it performs the functions of a prosecuting agency. It docs so in the discharge of its duty to safeguard "the rights, privileges and interests" of Advocates as a whole on its roll which arc affected by the misconduct of an Advocate. There arc, therefore, triable issues between it and the individual Advocate accused o[ misconduct. It seems to me that we could and should, therefore, hold that t11e State Bar Council, in its executive capacity, acts as the prosecutor through its Executive Colll!llittee. There is no incongruity in its Disciplinary Committee, representing its Judicial wing, functioning as an impartial Judge whose decisions arc binding upon the State Bar Council. Ifwe are holding that a Bar Council, dissatisfied "ith a decision o[ its Disciplinary Committee, can appeal against it, we have to, I think, as its logical corollary, also hold that it is ··(tJ 1 n:L:-ca. 64t. [t9n12 All. E. R. 395 At JJJ.

p. 318, margin F

a party to a "!is". Our opinion that it is a "person aggrieved'', within the meaning of that expression as used in Sections 37 and 38 of the Act, necessarily implies that.

p. 319, margin A

The point of view stated above rests upon the distinction between the two different capacities of the State Bar Council; an executive capacity, in which it acts as the prosecutor through its Executive Committee, and a quasi-judicial function, which it performs through its Disciplinary Committee. If we can make this distinction, as I think we can, there is no merger between the prosCC\JtOr and the Judge here. If one may illustrate from another sphere, when the State itself acts through its executive agencies to prosecute and then through its judicial wing to decide a case, there is no breach of a rule of natural justice. The prosecutor and the Judge could not be said to have the same personality or approach just because both of them represents different aspects or functions of the same State.

p. 319, margin A

For the reasons given above, l do not see any objection to a participation of a State Bar Council in its executive capacity, in a disciplinary proceeding, against an Advocate on its roll, either at the initial or the appellate stages. Before it can become a "person aggrieved'' by an order against which it could appeal, there must have been a "!is" or a dispute to be decided which gives rise to the order complained of. To such a "lis" the State Bar Council, in its executive capacity must be deemed to be a party. Apparently, its interests arc presumed to be sufficiently represented by the Advocate General. Hence, it was not considered necessary to provide for its separate representation by a notice to be given by its Diseiplinary Committee as is provided for in the case of the Advocate General. But, there seems to me to be legal obstacle in the way of its separate representation, if it so desires, even before its ow11 Disciplinary Committee. It certainly has notice of every complaint whenever it sends it to its Disciplinary Committee. Its right to appeal, in any event, as a "person aggrieved", seems squarely covered by the provisions of Sections 37, and 38 of the Act. It may be mentioned here that the respondents themselves treated the Bar Council as a party interested in a "lis", so that it could become a "person aggrieved" by the setting aside of the orders against respondents, when they impleaded the State Bar Council as a respondent in their appeals to the Bar Council of India. Its statutory right to appeal to this Court under Section 38 is not affected by the mere fact that it did not put in appearance before the Bar Council of India,

p. 319, margin C

KmsHNA lnR, J.-My concurrence in the opinion which has been hande<l down by the learned Chief Justice is ordinarily dissuasive of a separate long note, save when a fresh perspective is to be presented or new frontiers are to be drawn by doing so. Partiall.v, my supplementary has this apofogy. ·

p. 319, margin G

The two-day long arguments in this case have been devoted to a construction of two simple words in common use forming the expression 'person aggrieved". Precedential erudition and traditional approaches notwithstanding, the key to the meaning of the expression in question lies in plain English plus the social feel of the stams and the public comnlitment of the legal profession, the regulation of which has been achieved by the Advocates Act, 1961 (for short, the Act) wherein the above words occur. Legal scholarship, to be fruitful, must focus on the life-style of the law without getting lost in mere logomachy,

pp. 319–320, margin G

The short question is as to whether the State Bar Council is a 'person aggrieved' within the meaning of s. 38 so that it has locus standi to appeal to this Court against a decision of the Disciplinary Tribunal of the Bar Council of India which, it claims, is embarrassing· ly erroneous and, if left unchallenged, may frustrate the high ob!igation of maintaining standards of probity and purity and canons of correct professional conduct among· the members of the Bar on its rolls.

p. 320, margin B

I skip the facts as they have been set out in the judgment of the learned Chief Justice, except to state that a number of advocates, who are ranged as respondents, had been found guilty by the Disci· plinary 1ribunal of the State Bar Council of unseemly soliciting but, on appeal, the disciplinary body of the National Bar Council, exonerated them on certain view of 'protessional condµct' which disturbed the State Bar Council and even the All·lndia Bar Council, with the result that the former came upto this Court in appeal and the latter actively supported this stand

p. 320, margin C

The hackneyed phrase, 'person aggrieved', is . not merely of frequent occurrence in statutes and in the writ jurisdiction but has come up for judicial consideration in Anglo-American and. Indian coilrts ih a variety of situations and legislative settings. Notwithstanding the slippery semantics of such legalese, the Indian legislative draftsmen have continued to use them, out of linguistic allegiance to the l3ritish art, and Indian Judges have frequently sought interpretative light from English authorities of ancient vintage. These 'borrow· ed' drafting and interpretative exercises arc sometimes inept when time and country change and the context and text of the statute vary. I stress this aspect since much of the time of the Courts in India is consun1ed by massive, and sometimes mechanical, reliance on exotic constructions and default in evolving legislative simplicity and avoiding interpn:tativc complexit;y. At a time when our Courts are on trial for delayed disposals and mystifying processes, this desideratum becomes all the more urgent. Otherwise, why should decoding a sing e exprcssion-'person aggrieved'-takc two days of ]·earned length'!

p. 320, margin E

Even in England, so well-known a Parliamentary draftsman as Francis Bennion has recently pleaded in the Manchester Guardian against incomprensible law forgetting 'that it is fundamentally important in a free society that the law should be readily ascertainable and reasonably clear, and that otherwise it is oppressive and deprives the citizen of one of his basic rights'. It is also needlessly expensive and wasteful. Reed Dickerson, the famous American Draftsman, said : 'lt cost the Government and the public many millions of dollars annually'. The Renmn Committee, in England, has reported on drafting reform but it is unfortunate that India is unaware of this problem and in a post-Independence statute like the Advocates Act legislators should still get entangled in these drafting mystiques and judges forced to pl;iy a linguistic game when the country has an illiterate laity as consumers of law and the rule of law is basic to our coustitutional order .

pp. 320–321, margin F

Back to the issue. Is the State Bar Council a 'person aggrieved' ? No narrow. pedantic, technical or centenarian construction ~an be blindly applied. On the other hand, a spacious construction, functionally informed by the social conscience and the salutary purpose of the enactment must illumine the judicial effort. So viewed, the ample import and breath of meaning of the words 'person aggrieved' will embrace the State Bar Council, for reasons which I shall present ly set out.

p. 321

Each statute has a personality and a message. Judicial interpretation is not bloodless and sterile exercise in spinning subtle webs, sometimes cobwebs, out of words and phrases otherwise simple,. but to unfold the scheme of the legislation insightfully, sense its social setting and read the plain intendment. This living approach can do justice to law. We are .here concerned with .a legislative outfit for a national Bar, organising and prescribing its statutory autonomy, elective structure, public functions, internal regulation and ultimate appeal to the Supreme Court where canons of good conduct have been allegedly breached by delinquent lawyers. This conspectus will show what a vibrant and responsible role the Bar Council ha> to play at the State and national levels and any interpretation which will detract from this supervisory status of the Bar Council will be incongruous with the founding creed of the mstitu- · tion. The paramount concern of the Bar Councils is the lawyer, the public a1t1d professional responsibility. Anything that hurts the health of this system is a social trauma, a legal grievance, a '.•pecial injury, for them. After all, 'lawyer-power' lasts not through peak incomes of a few and security of statutory monopoly, but by the high comport and ethics of the many, screening and weeding deviants and delinquents.

p. 321, margin C

Let us get a glimpse of the great expectations about the legal profession in society. Long ago, De Toqueville trenchantly remarked that the profession of law. ·

p. 321, margin F

"is the only aristrocratic clement which can be amalgama· tcd without violence with natural elements of democracy ... , I cannot believe that a Republic could subsist if the influence · · of lawyers in public business did not increase in proportion

p. 321, margin G

to the power of the people." He rightly stressed tliat 'lawyers belong to the .people by birtll and interest, to the aristocracy by habit and taste'. Thus the profession is the connecting link between the community and the Administration. given ::m cnligthended, goal-oriented group outgrowing its elitist more~. Indeed today lawyers arc recruited also from the lower brackets. India has huge number of law men who can be a force. What Prof. Brabanti observed about the Pakistan Bar has some, only some though, relevance to India, and I quote :

pp. 321–322, margin H

"The sheer size of the legal community,. strongly organised into bar associations and closely allied with equally strong courts has not only been a major source for the diffusion and {egcneration of norms generally, but by weight of numbers has enabled the courts to remain strong and has prevented the rise of administrative lawlessness. There is a curious anomaly here. The legal community, while often antagonistic to government and constraining executive action, is nevertheless closely identified normatively and culturally with the bureaucratic elite. This identification curiously coupled with healthy antagonism actually enhances the strength o[ the legal comunity. It derives popular support from its ostensible opposition to Government and at the same time elicits bureaucratic support in the community at large. It has a net work o[ relationships in rnral areas and the cities .... In short, the legal commnnity is a force to be reckoned with. It has challenged the executive during and after martial law, it has defined efforts to restrict court jurisdiction, it has compelled justiciability of fundamental rights, it has forced abrogation of several restrictive enactments. Is this law as an impendiment to political development? Is this misallocation of scarce resources in the system? Is this unproductive use of nonproductive man-power? On the contrary, it seems to us that

p. 322, margin B

this is the ve1y genius of political development." 1'1ichacl Hager, after quoting Prof. Brabanti, coinmcnts (in his artick in the American Bar Association Journal, Janua1y 1972, Vol. 58. on The Role of Lawyers in Developing Countries'). :

p. 322, margin E

"The legal profession has a uniqnc opportunity to effect change from within the political elite, to exert pressure from without and to win over the general public to development policies. Aud as Mihaly and Nelson observed with respect to legal education, 'law graduates usually fan out not only into legal practice but also into responsible positions in business, government and politics':'

p. 322, margin E

The Bar is not a private guild, like that of 'barbers, butchers and candlestick-makers' but, by bold contrast, a public institution committed to public justiee and pro publico service. The grant of monoply licence to practice law is based on three assumptions : (I) There is a socially useful function for the lawyer to perform. (2) TI1c lawyer is a professional person who will perform that function, and (3) His performance as a professional perso11 is. regulated by himself ~nd more formally, by the profession as a whole. The central function

p. 322, margin G

v. v. (Krishna Iyer. J,) 32:> that the legal profession must perfo1m is nothing less than the administration of justice ('The Practice of Law is a Public Utility'-'The Lawycr, The Public and Professional Responsibility' by F. Raymond Marks

p. 323

al-Chicago American Bar Foundation, 1972, p.288-289). A glance at the functions of the Bar Council, and it will be apparent that a rainbow of public utility duties, including legal aid to the poor, is cast on these bodies in the national hope that the members of this monopoly will serve society and keep to canons of ethics befitting an honourable order. If pathological cases of member misbehaviour occur, the reputation and credibility of the Bar suffer a mayhem and who, but the Bar Council, is more concerned with and sensitive to this potential disrepute the few black sheep bring about? The official heads of the Bar i.c:, the Attorney General and the Advocates•General too are distressed if a lawyer 'stoops to conquer' by resort to soliciting, louting and other corrnpt practices .

p. 323, margin A

I may now refer to A. P. Gmulhi v. H. M. Seervai(' where divergent opinions were delivered but all concurred irl treating the Bar Council as an 'aggrieved person'. The earlier decision iu Bilataraju(2) strikes a note in consonance with this view. No hesitancy inhibits me from hazarding the opinion that the social canvas must be spread wide when making out the profile of a statute like the Advocates Act for the good reason that the Bar has a share in being the sentinel on the qui vive when the legal dykes of right and justice are breached by authoritarianism. or citizen-wrong doing. Nor do I conceal my halfhorror at any professional tribunal glossing over 'snatching briefs' and 'dragging clicnts'-providcd they are proved-as less than gross misconduct. If the salt lose their savour, wherewith shall they be salted? However, I hasten to make it plain, to avoid prejudice to the parties, that I totally desist from pronouncing on the merits of the evidence in this case.

p. 323, margin C

One more point. A case of professional misconduct is not a Its in the British sense nor a case and controversy in the American meaning. . ~t is ::Jeu~lic investigation about misconduct by o!1e belonging to a public pr ession where, every member of the Bar with a reputation to lose has a stake and every one concerned with the justice administration is interested. Traditionally used to the adversary system, we search for individual persons aggrieved. But a new class of litigation-public inter.est litigation-where a section or whole of the community is involved (such as consumers' organisations or NAACP-National Association for Advancement of Coloured People-in America), emerges. In a developing country like ours, this pattern of public-oriented litigation better fulfils the rule of law if it is to run close to the rule of life. The Bar Council clearly comes within this category of organisations when a lawyer is involved. · .

p. 323, margin F

l derive support for this philosophy of approach from academic and judicial opinion in England and America. A question arose whether a railroad company-BAR (Bangor and Aroostook Railroad)could bring an action against the stockholders for having drained BAR (I) SC. C.R. improperly. Although an academic critic took the view that the District Court was incorrect in its view that BAR was the 'sole beneficiary', he .went on to state that the public's interest in the financial health of BAR provided a separate interest in bringing the action. The learned author wrote :

pp. 323–324, margin G

"It would seem to be incontestable that the public has a very real interest in rail roads. Railroads have been found vital to a healthy national economy; any such factor must a priori, be deemed a potent component of the public welfare. As such, it is evident that a financially healthy railroad is of concern not only to its stockholders, but to the public as well .... Finding that the management of a railroad has obligations running to the public as well as fiduciary duties owing to the corporation's stockholders, the Court concluded that, of these two responsibilities, the public interest is paramount. "It must be remembered," the Court cautioned, "that railways are public corporations organized for public purposes ... They a 1 primarily owe duties to the public of a higher nature even than that of earning large dividends for their shareholdcrs." (Review by James F. Simon of Bangor & Aroostook R. R. v. Bangor Punta Operations, Inc (Bangor & Aroostook), 482 F.2d 865 (1st Cir. 1973), cert. granted, 94 S.Ct. 863 (1974) Columbia Law Review Vol. 74 No. 3, April 1974p. 528 at pp. 531-532).

p. 324

Similarly, the American Supreme Court relaxed from the restrictive attitude towards 'standing' in pub1ic action in Baker v. Carr (369 U.S. 186 (1962), vide Maryland Law Review, Vol. XXXIII 1973 p. 506:

p. 324, margin E

"In Baker, voters challenged the failure of the Tennessee legislature to reapportion itself since 1901; the plaintiffs lived in countries which had become under-represented under the old Jaw. The Supreme Court held that these voters had the requisite standing to challange the inaction of the legislature. The Court expanded the notion of direct injury to include mere 'debasement' of a vote, rather than the total deprivation which had previously been required." .

p. 324, margin E

American jurisprudence has recognised, for instance, the expanding impprtance of consumer protection in the economic system and permitted consumer on~anisations to initiate or intervene in . actions, althou!Jh by the narrow rule of 'locus sta11di', . such a course could not have been justified (see p. 807-New York University Law Review, Vol. 46, 1971). In fact, citizen organisations have recently been campaip;ning for usin!l' legal actions for protection of community interest, broadening the scope of 'standing' in legal proceedings (see p.403- Boston University Law Review, Vol. 51, 1971).

p. 324, margin E

In the well-known case of Attorney-General of the Gambia v. Pierra Sarr N.'Jie(I), Lord Denning observed about the Attorney-General's standing thus :

p. 325, margin A

" ... The worM 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests. Has the Attorney-General a sufficient interest for this purpose ? Their Lordships think that he has. The Attorney Genera] in a colony represents the Crown as the gu,ardian of the public interest. It is his duty to bring before the judge any misconduct of a barrister or solicitor which is of sufficient gravity

p. 325, margin A

to warrant disciplinary action." Ray, J (as he then was) crystallised this ratio in A .P. Gandhi (supra) thus : · "The Judicial Committee construed the words 'person aggrieved' to include the Attorney General of Gambia as representing the public interest.'.'

p. 325, margin C

(p.927) '"The profession touches the public on the one hand and the courts on the other. On no other basis could the presence of the Advocate General be explained."

p. 325, margin C

(p. 928)

p. 325, margin E

Although not strictly confined to 'standing' with reference to suits . .iurists have thrown some light on this subject. Professor S.A. de Smith has observed :

p. 325, margin E

"All developed legal systems have had to face t11c problem of adjusting conflicts between two aspects of the public interest-the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undes· irability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him." (Quoted in 'Standing and Justiciability' by V. S. Deshpande-- Journal of the Indian Law Institute-April-June 1971-

p. 325, margin F

Vol. 13, No. 2, p. 174) Professor H.W.R. Wade has observed :

p. 325, margin F

"In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio (!) [1961] A, C. 617. popularis. This is because it Jooks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper wlorking order by preventing inferior tribunals and public authorities from abusing their powers."

pp. 325–326, margin H

(Standing and Justiciability-iNd, p. 175) The possiblo apprehension that widening fogal standing with a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system. In this very case, tu grant an exclusionary windfall the respondents is to cripple the Bar Council in its search for justice and insistence on standards.

p. 326, margin A

I have been long on a short point, but brcvily, where there is something to speak. is not the soul of wit but a sign of something difforl'nt. P.13.R.

p. 326, margin B