Moot 1
Facts 1) The BCI amended amended the the Bar Council Council of India India Rules, Rules, 2009 2009 and added, added, inter alia, that an advocate who browbeats andor abuses a !ud"e or !udicial o#cer or uses unbecomin" lan"ua"e in the court or refuses to attend the court as a tool of $rotest shall, on $reliminar% in&uir%, be sus$ended from $racticin" for an inde'nite $eriod and the decision of the (isci$linar% Committee shall be 'nal 2) The law%ers law%ers communit% communit% raised raised a voice voice of $rotest $rotest a"ainst a"ainst the rule rule as bein" arbitrar%, demeanin" to the nobilit% of the $rofession and a"ainst the inde$endence and inte"rit% of the Bar *) In the $rotest $rotest of the said said rule the +ashchi +ashchim m +radesh +radesh Bar ssociation ssociation called called for the state wide stri-e of advocates and to abstain inde'nitel% from all courts and tribunals demandin" the withdrawal of the amended rule .) The $rotest $rotest included included demonstration demonstrations s T/ interviews, interviews, dharnas, dharnas, of $ublic roads $reventin" !ud"es from enterin" the court $remises and bo%cott of courts This seriousl% $aral%ed the wor-in" of the i"h Court of +ashchim +radesh and subordinate courts ) The BCI, BCI, in e3ercise e3ercise of its $ower $ower under the advocates advocates act act 1941 and the rules thereunder sus$ended, on $reliminar% in&uir%, 0 advocates involved in the stri-e on the "rounds of $rofessional misconduct 4) 5eanwhile, 5eanwhile, in a civil case, case, the hi"h Court Court "ave an e36$arte e36$arte orders orders a"ainst a"ainst the $etitioner im$osin" the cost of 7000 I8R I8R , half of which is to be be $aid b% the b% the counsel of the $etitioner $etitioner The order stated that if the advocate holdin" /a-alat of a client, abstains from attendin" the court due to a stri-e call, he shall be $ersonall% liable to $a% costs which shall be addition to dama"es which he mi"ht have to $a% his client for loss The court also ordered the contem$t $roceedin"s a"ainst the counsel 7) The a""rieved a""rieved $art% $art% 'led a writ writ $etition $etition before before the u$reme u$reme Court for for &uashin" the order of the i"h Court nd the $etitioner also challen"ed the sus$ension of 0 advocates of +ashchim +radesh Bar ssociation for $rofessional misconduct
Issues 1) Whether there there is breach of contract or trust between the petitioner and his client. 2) Whether Whether the advocates advocates have a right right to strike in consona consonance nce with the the fundamental fundamental right right to freedom of speech and expression? ) Whether Whether the right to freedom freedom of professi profession on and occupatio occupation n includes includes discontinui discontinuing ng the profession or occupation? !) Whether Whether the amended amended rules rules of "#I as to to professiona professionall misconduct misconduct and and procedures procedures followed therein under which $% advocates have been suspended are arbitrar& in nature as well as against the principles of natural 'ustice.
Issue 1 ( Whether there is breach of contract or trust between the petitioner and his client.
) *here is no breach of trust between the petitioner and his client as the position of trustee arises onl& when the client+s mone& comes in the possession of an advocate. In re an advocate, I- 1$2 #al $$1, It was held that an advocate is treated as a trustee in relation to his clients mone& which comes in his possession. If an advocate refuses to give the client the mone& received for him he will be held guilt& of the professional misconduct. In this case the petitioner was not in possession of an& of the client+s mone& therefore the position of trust does not arise.
") *here is no breach of contract between the petitioner and his client. lthough the advocate 'olds a vakalat of his client but there is no contract between them. *he vakalat cannot be said to be a contract. *herefore there is no contract between the petitioner and his client. #) s such no /uestion of breach of contract or breach of trust arises between the parties . 0rder -ule 1 ##) talks about ex3parte orders. person against whom ex3parte decree is passed, he ma& appl& to court to set it aside. *he person has to satisf& the court that either summons were not dul& served on him or he was prevented b& sufficient cause to attend the court, when suit was called for hearing. nd here in the instant case etitioner was prevented b& sufficient cause from attending the court . 4e did not commit an& breach of his professional obligations much less the breach of contract or breach of trust.
Issue 2 ( Whether the advocates have a right to strike in consonance with the fundamental right to freedom of speech and expression?
) *he advocates have a right to strike in consonance with the fundamental right to freedom of speech and expression enshrined under article 1 of the #onstitution of India. In 5ameshwar rasad v. 6tate of "ihar, 7I- 182 6# 11889, the 6upreme #ourt held that :demonstration is a visible manifestation of the feelings or sentiments of an individual or a group: and that it would, therefore, be :a form of speech or expression:. *he court further reiterated that not all forms of demonstrations are covered under article 1 of the #onstitution of India. ;emonstrations which are peaceful and orderl& as in those cases wherein members merel& wear some badges,
holds dharnas, drawing attention to their grievances are held them to be covered b& rt. 10l)0a) and 0b). In our case the demonstration was peaceful as it included T/ interviews, dharnas, bo%cott of courts, etc and was not in an% wa% violent or a""ressive in nature Therefore, it is covered under rt 19:1) :a) and :b) ") It was held in or the "ench are at stake, #ourts ma& ignore 0turn a blind e&e) to a protest abstention from work for not more than one da&. @urthermore the protest, if an& is re/uired, can onl& be b& giving press statements, *A interviews, carr&ing out of #ourt premises banners and>or placards, wearing black or white or an& colour arm bands, peaceful protest marches outside and awa& from #ourt premises. 6ince the dignit&, integrit& and independence of the "ar was at stake due to the amended rule b& the "#I, whereb& the advocates right of fair hearing was taken b& the "#I, therefore the protest is 'ustified. -ead more atB httpB>>www.livelaw.in>law&ers3strike3suspension3court3work3illegal3 reiterates3sc>
Issue 3 whether right to freedom of profession and occupation includes discontuning the profession or occupationB3 a) -ight to freedom of profession and occupation does include discontinuing the profession and occupation #aseB3 5rishnan 5akkanth v. Covt. f 5erala 7I- 1D 6# 12E9B3 *he right to carr& on a business includes the right not to start an& business or if he chooses, he has the right to close it down at an& time he likes. *hus 6tate cannot compel a citiFen to carr& on a business against his will . 76ourceB narendra kumar book pg 2D%9 #aseB3
account of some personal inconvenience of counsel but as a permanent feature is unprofessional and also unbecoming of status of an advocate.
#aseB3 Mahabir rasad 6ingh v. M>6 Gacks viation vt. Htd. 7I- 1 6# 2ED93 -etaining the brief of client and at the same time abstaning from apperaing in court as a permanent feature is unprofessional and unbecoming of status of an advocate . If an advocate in pursuance of bo&cott call abstains himself from a court and reports that he will not attend the court in future and at the same time retains the breif of his client, the conduct of advocate will amount to unprofessional and unbecoming of status of an advocate.
4ere in the case advocate refrained from attending the courtB3 1) due to some reasons be&ond his control i.e due to some personal inconvenience. 2) ot as a permanent feature but on that particular da& onl& ) either he reported that he will not attend the court in future. 4ence abstention from the court b& the advocate was not unprofessional or bad in law.
Issue !3 whether the amended rules of "#I as to professional misconduct and procedures followed therein under which $% advocates have been suspended are arbitrar& in nature as well as against the principles of natural 'ustice.
a) mended rules of "#I and procedures followed therein as to professional misconduct under which $% advocates of ashim radesh "ar ssociation have been suspended are arbitrar& in nature and against the principles of natural 'ustice. It violates 2 main principles of natural 'usticeB3 1) emo 'udex in causa sua 0 a latin phrase which means a person canJt be 'udge in his own case) In the instant case,the state wide strike was in response to rules amended b& "#I,thereb& making "#I and the protesters part& to dispute and preliminar& in/uir& was also conducted b& disciplinar& committee of "#I 0sec. of dvocates ct,181disciplinar& committee of bar council consists of 2 members elected from amongst bar council and 1 co3opted b& council from advocates having re/uisite /ualifications). 4ence in the instant case the "#I was the part& as well as 'udge in the same case thereb& violating the above mentioned principle. #aseB Institute of chartered accountants of india v. H.5.-atna 701E8)! 6## $D9 7I- 1ED 6# D19 @actsB a member of institute was removed on grounds of misconduct on the basis of a report. *he /uestion before 6.#. was whether the findings of council holding the members guilt& can
be said to be vitiated on account of bias because the chairman and the vice3chairman of the disciplinar& committee were ex officio president and vice3president of the council,the other members of committee were also drawn from council. 4eldB the decision was vitiated b& supreme court because to the members accused of misconduct, the danger of partisan consideration being accorded to report would seem ver& real indeed. 2) udi alteram partem rule of natural 'ustice which means no part& should be condemned unheard was also violated in the case as the suspended advocates were not given an opportunit& to defend themselves and were suspended unheard. #aseB 5ishan chand v. #ommr. f police 7I- 181 6# D%$0D1%)9 Gustice wanchoo 0supreme court 'udge) observed B the compulsion of hearing before passing the order implied in maxim Kaudi alteram partemJ applies in 'udicial or /uasi 'udicial proceedings. #aseB 6tate of rrisa v. "inapani ;ei 7I- 18D 6# 1289 "efore an impugned order was passed opportunit& of being heard was not given hence supreme court set aside the order as it was violative of principles of natural 'ustice. #ase ( In 6tate of "ihar v. Hal 5rishna dvani,7I- 2%% 6# $D9 it was held that in case an& authorit&, in discharge of its duties fastened upon it under the law it must provide a chance to him to have his sa& in the matter. *he court observed that the principle of natural 'ustice made it incumbent upon the authorit& to given an opportunit& to the person before an& comment was made or opinion was expressed which was likel& to be 'ust for 'udiciousl& affect the person. It e/uall& covers the reputation of a person during his life and after. *hus an& wrong action of the state or its agencies which sullies the reputation of a virtuous person would certainl& come under the scope of article 21. b) In dvocates ct,181 under sec D and E provision for appeals have been incorporated against the orders of disciplinar& committee and sec !! provides the provision of review of order b& disciplinar& committee within 8% da&s. *he amended section under the instant case confers on disciplinar& committee the power to suspend an advocate on preliminar& in/uir& without making provision of right to appeal or to review the order and thereb& it would mean even if suspension is =n'ust or arbitrar& there is no remed& against it and thereb& besmirching the dignit& and respect of advocate and also affecting his right to livelihood guaranteed under rticle 21 of the constitution. #aseB ;elhi *ransport #orporation v. ;.*.#. MaFdoor #ongress 7I- 11 6# 1%19 *he right to livelihood cannot hang on to the fancies of individuals in authorit&.
4ence the impugned amendment is violative of principles of natural 'ustice and is arbitrar& in nature a) *he impugned order is violative of principles of natural 'ustice and hence arbitrar& for 2 reasonsB 1)*he punishment and procedure dealing with professional misconduct of advocates is given under section $ and 8 of dvocates ct,181 which makes provision of giving notice to advocate and attorne& general as to date fixed for hearing and also giving them opportunit& of being heard and thereafter an advocate can be suspended or other punishment be inflicted on him, but in the instant case no such procedure has been followed before suspending an advocate. 2)Impunged rule is bad in law as it merel& relies on preliminar& in/uir& for suspending advocates for an indefinite time without making an& provision as to final in/uir&.
. b) In rahlad 6aran Cupta v. "#I L nr 7I- 1D 6# 1E9 #ourt observed when matters relating to charges of professional misconduct which is /uasi3criminal in nature, it re/uires proof be&ond reasonable doubt. In the instant case we must not lose sight of the fact that suspension on preliminar& in/uir& was ver& much in the nature of a punishment for professional misconduct , which means disciplinar& committee performing /uasi 'udicial functions abdicated its obligation to prove the guilt be&ond shadow of doubt.
Issue . althou"h sus$ension is not a $unishment but then his ta-es awa% his rt of 19 1 " case a$ ro%a$a anthin" which is antithetic to article 1. and fr is arbitrar% (iscontinuin" ow can a !ud"e $unish the client; Case The !ud"e went be%ond the list b% im$osin" this 'ne I a$$eared in all the $revious hearin" I didn
+ra%er 1) This order should be set aside then I should be "iven an o$$ortunit% of fair hearin" acc to the $rinci$les of natural !ustice then the order should be $assed
2) mendment should be modi'ed and the advocates should be "iven fair hearin" Issue 1 c case 6 (octor and law%ers are not liable for an% loss a""rieved to their client and have no liabilit% B) If the court thin-s that the advocate didn
Those 0 advocates did $eaceful $rotest and were not
