Rangnekar, J.:—
[refers to section 9(4) of the Act.]
Clause 10 of the Letters Patent remains notwithstanding sections 10 and 19(2) of the Act. It may be argued that section 9(4) is confined to conditions of enrolment. The jurisdiction of the High Court is not confined to cases of professional misconduct.
In this case the advocates have been convicted of criminal offences. Refers to sections 15, 16 and 17 of the Criminal Law Amendment Act, 1908.
A crime is an unlawful act which is an offence against the public. See Halsbury, Vol. IX, 2nd Edition, p. 9.
Where an advocate has been convicted of a criminal offence that prima facie at all events amounts to misconduct. I say “prima facie at all events” because an offence may be committed unwittingly. But a deliberate violation of the law amounts to misconduct.
[Divatia, J. Do you say that in every deliberate violation of the law there is misconduct?]
Yes.
[Beaumont, C.J The misconduct must be such as to make an advocate unfit to practise at the bar.]
The section uses the word “misconduct”. I submit that “misconduct” or “reasonable cause” mean the same thing. Refers to in re Weare. In re The Solicitors Act, 1888. In the present case there is no regret shown. On the other hand it is regarded as a praiseworthy and patriotic act. The nature of the crime is that of treason against the State. All the Indian cases show that lawyers are a privileged class and that they have corresponding obligations. Lawyers are a part of the machinery of the administration of justice and the maintenance of law and order and when a lawyer breaks the laws it is “misconduct” on his part and he becomes unfit to practise at the bar.
[Beaumont, C.J There are no conditions imposed on their admission.]
I submit it is not necessary. It is a lawyer's duty to obey the law. The statutes on the point are: (a) Bombay Regulation No. II of 1827, section 56. The word used there is “misbehaviour”; (b) Letters Patent, cl. 10; and (c) Bombay Pleaders Act, XVII of 1920, sections 24, 25 and 26.
The first case of the Bombay High Court is reported in Government Pleader v. Jagannath. In that case there was no moral turpitude involved on the part of the pleaders but their conduct was held to amount to “misconduct” or “misbehaviour”.
The next case is that of Jivanlal Virajray Desai, In re. There was no overt act done in that case. The respondents had signed a pledge.
The Lahore High Court has discussed the same question in In re Abdul Rashid. It was a case under the Letters Patent. The conviction was under section 17(1) of the Criminal Law Amendment Act. Refers to In the matter of a 2nd Grade Pleader(4) and Emperor v. Rajani Kanta Bose.(5)
[Divatia, J. The Calcutta case was of professional misconduct.]
Yes. Reference was made to Shankar Ganesh Dabir v. Secretary of State for India.(6) That case shows that “moral turpitude” on a pleader's part is not essential for the exercise of the High Court's disciplinary powers.
[Rangnekar, J. What that case decides is that the words “reasonable cause” are not limited to professional misconduct.]
All these cases show that it is inconsistent with a practising pleader's duty to deliberately break the law.
[Divatia, J. Is there any case under the Indian Bar Councils Act?]
No. Refers to Ram Gobind Sinha, Pleader, In the matter of and The Crown v. Farid-ul-Haq. I submit that these two cases lay down no principle and therefore do not serve as any useful guide.
Refers to In re Wallace.
It was a case of contempt of Court committed by a lawyer in his personal capacity of a suitor.
[Divatia, J. What do you say to In re A, a Pleader.?]
In that case the Calcutta High Court merely refused to take action against the pleaders. It did not hold that the conduct of the pleader did not amount to misconduct.
[Divatia, J. The finding was that there was misconduct.]
Yes. But the High Court refused to take action. The underlying idea is that if you disobey the laws of the land you become unfit for practising law.
[Rangnekar, J. You must satisfy us that an advocate who has committed an offence would if allowed to practise impair the administration of justice].
There is misconduct implied in the conviction for a crime, but the Court may exercise its discretion and take no action.
[Rangnekar, J. Then why need you look into the nature of the offence? You can say that every violation of the law amounts to misconduct.]
The nature of the act is examined to see what action should be taken.
[Rangnekar, J. You must satisfy us that the advocate's conduct makes him unfit to practise at the bar.]
“Misconduct” is a word of wide connotation. I submit that the case of G, a pleader, In the matter of was not rightly decided.
The finding of the majority report of the Bar Council tribunal is that there is no misconduct and that therefore the High Court has no jurisdiction. I submit I am entitled to rely on the minority report. Refers to rule 10 of the Rules framed by the Bombay Bar Council.
The minority report takes the right view.
The argument of the other side is that they may break the law every day but it is not “misconduct” under the Indian Bar Councils Act and that the High Court is powerless and cannot take disciplinary action against them. My submission is that there is misconduct and that the High Court, has power to exercise disciplinary jurisdiction over them, though the High Court may say that they will not take action against them. See Allinson v. General Council of Medical Education and Registration a case of a medical practitioner.
M.C Setalvad. There is no question of treason involved on the part of my clients. It is not a case of a lawyer who practises treason outside the Court and comes to practise the profession of a lawyer.
The convictions under sections 17(1) and 17(2) of the Criminal Law Amendment Act, 1908, are admitted, and the only question is how far these convictions make the respondents unfit to practise at the bar.
We are concerned in this case with the Indian Bar Councils Act only and with no other statute.
“Misconduct” must be of such a kind as would make a lawyer unfit for the exercise of his profession.
It is put against me that a conviction is per se prima facie evidence of misconduct. I submit there is no warrant for this proposition. It is either misconduct or it is not. The words “prima facie” simply suggest that there is a case for inquiry by the Bar Council Tribunal and nothing more. But that is different from the proposition that every conviction must amount to miscondiict. If a conviction is prima facie evidence of misconduct then the whole machinery of an inquiry by the tribunal would be unnecessary and become superfluous. The scheme of the Indian Bar Councils Act shows that there has to be a finding of the tribunal. The question of misconduct has to be investigated and is not to be inferred from the bare fact of a conviction. There can be a number of convictions which do not involve misconduct at all.
Notwithstanding a conviction the Court has to examine the nature of the crime to determine whether it amounts to misconduct. See In the matter of Rajendro Nath Mukerji. The words-there were “reasonable cause”. The same principle is enunciated in In re Abdul Rashid. This Court has to construe a statute—The Indian Bar Councils Act—where the word used is “misconduct”.
The words “reasonable cause” are wider than the word “misconduct”.
[Beaumont, C.J Are not the expressions the same? I cannot imagine a “reasonable cause” which does not involve “misconduct”.]
There is a distinction between the two terms. Take the case in Jivanlal Virajray Desai, In re. That case cannot be said to be one of “misconduct”.
[Divatia, J. Is there any difference between “misbehaviour” and “misconduct”? The former expression was used in Bom. Reg. II of 1827.]
Yes. What is the import of the word “misconduct” in the Indian Bar Councils Act? Before that Act the legislature had used the words “misbehaviour,” “reasonable cause” “crime involving defect of character”. The legislature has used the word “misconduct” advisedly. In England that word has a well-defined meaning. Misconduct must make a lawyer unfit to practise. Refers to Halsbury Vol. II, 2nd Edn., p. 510. The essential part of “misconduct” is that it makes a lawyer unfit to practise his profession.
There are two kinds of misconduct: Professional and other misconduct: see section 10 of the Indian Bar Councils Act.
Apart from cases of professional misconduct, the cases in England have been those of infamous or disgraceful conduct on the part of a lawyer in his private capacity: see In re Wallace and In re Weare. In re The Solicitors Act, 1888.
The “other misconduct” must, therefore, involve some infamous or disgraceful conduct which makes it undesirable to allow an advocate to associate with the brother members of his profession.
This is what is contemplated by the words “other misconduct” in section 10 of the Indian Bar Councils Act.
[Beaumont, C.J Do you say that a lawyer who carries on revolutionary activities to subvert the Government in whose Courts he pleads is a fit person to practise the profession of law?]
That case does not arise here.. The real test to be applied in this case is “Is there anything in the conduct of these advocates which makes them unfit for association with the other members of the profession?” The other members of the profession (represented by the Bar Association) are here in support of the report of the majority of the tribunal. The other test is “Is there anything in the conduct of these advocates which makes them unfit to practise at the bar?” It is not suggested that they have become unfit to advise their clients properly or that they have become less, efficient in the discharge of their professional duties.
The Rangoon High Court in In the matter of An Advocate has applied the same test as is applied by the English. Courts. Refers to In re An Advocate.
[Beaumont, C.J You want us to construe the words “other misconduct” in section 10 of the Indian Bar Councils Act in the limited sense of the English cases. The English decisions are not on any statute.]
The legislature has advisedly used the word “misconduct” and I submit that word ought to be construed as in the English cases. The “misconduct” contemplated by the section is misconduct which unfits an advocate for the exercise of his profession or makes it undesirable to allow him to practise. It is not every misconduct which is within, the ambit of the section.
Lords Carson and Birkenhead had participated in revolutionary activities but it was not suggested that they had become unfit to practise at the bar.
The standard of conduct in India is the same as in England. Refers to In re an Advocate.
[Beaumont, C.J That is dealing with moral standards.] It is not suggested that there is anything personally disgraceful in the conduct of the advocates in this case. I further submit that the words “other misconduct” must involve the element of unfitness to practise if there is nothing disgraceful in the conduct of an advocate. My submissions regarding the case in Jivanlal Virajray Desai, In re are as follows:—
(a) It was decided on a different statute where the words, are different.
(b) It was wrongly decided.
(c) Assuming it was rightly decided it does not affect the present case.
Barristers enrolled as advocates are not officers of the Court.
[Rangnekar, J. Do you say that in Jivanlal Virajray Desai, In re Macleod C.J has wrongly assumed barristers enrolled as advocates to be officers of the Court?]
Yes. Further the Chief Justice wrongly assumes that the advocates in that case would have given wrong advice to their clients.
The proposition of the Chief Justice that “those who live by the law should keep the law” is absurd. Suppose lawyer refuses to have his child vaccinated why should he be compelled to cease to earn his living by the law?
[Beaumont, C.J I do not understand that proposition at all.]
That case has been the foundation of several other cases and my submission is that it was wrongly decided.
The profession of law would depend upon the mercy of the executive if the words “other misconduct” are given the wide meaning suggested by the Advocate General. The executive could use the threat of depriving lawyers of their living in order to coerce them into adopting a particular line of action. The case in Government Pleader v. Jagannath was of professional misconduct.
In Shankar Ganesh Dabir v. Secretary of State for India their Lordships expressed no opinion upon the merits. They held that it was a matter of discretion and that they would not interfere with the exercise of the discretion by the lower Court.
The words “reasonable cause” involve the exercise of discretion but not the words “other misconduct”. I submit, therefore, that the two expressions are different.
[Divatia, J. Do you say that the legislature by adopting the word “misconduct” has brought the Indian law in confirmity with English law?]
Yes. The words “reasonable cause” are wider than the-word “misconduct”. See In the matter of Sashi Bhushan Sarbadhicary. The case of In re Abdul Rashid is a decision on the words “reasonable cause”—words of wider import. Secondly, it is founded on the authority of Jivanlal Virajray Desai, In re which I submit was wrongly decided. The case of Emperor v. Rajani Kanta Bose was a case of professional misconduct.
These cases throw no light on the meaning of the words “other misconduct”.
B.J Desai. I support the findings of the tribunal-Refers to Bom. Reg. II of 1827, section 56, Bombay Pleaders Act, XVII of 1920, sections 24, 25 and 26 and the Letters Patent, clause 10.
The Indian Bar Councils Act restricts the grounds on which a lawyer may be dealt with under the disciplinary jurisdiction of the Courts.
Refers to the preamble and section 19 of the Indian Bar Councils Act.
All the earlier decisions of the Indian Courts have no application to the present case. Refers to section 9(4) of the Indian Bar Councils Act. That section merely preserves, the dual system prevailing in Calcutta and Bombay.
The wide powers possessed by the Courts prior to the Indian Bar Councils Act are curtailed by that Act. The words “professional or other misconduct” in section 10 involve the unfitness of a lawyer to practise his profession. “Professional misconduct” has reference to negligence on the part of a lawyer, or contempt of Court by a lawyer, or moral delinquency in his conduct towards his client, e.g, by embezzling his moneys.
Later, the Courts extended their jurisdiction over similar conduct on the part of a lawyer outside his profession.
Before the case of In re Weare. In re The Solicitors Act, 1888 it was suggested that the Courts could interfere only in cases of professional misconduct by a lawyer. But that case negatived the suggestion. See at pp. 441, 442 of the report of this case.
I submit that having regard to the history of the legislation on this point, the legislature went to the common law of England in enacting section 10 of the Indian Bar Councils Act. The principle of common law is found at p. 444 of the above case.
Your Lordships are concerned with the integrity of the profession and not the preservation of the State. Reference was made to In re Wallace.
The words “other misconduct” were enacted in section 10 to show that “misconduct” would not be confined to professional misconduct, but, nevertheless, it must be misconduct which unfits an advocate to practise at the bar.
Bahadurji. I adopt the arguments of Mr. Setalvad.
The legislature would have used the words “any misconduct” if the arguments of the Advocate General were correct. The very fact that the legislature has used the words “professional or other misconduct” enlarges the-Court's jurisdiction by giving it power to deal with the conduct of an advocate outside the profession but the words limit the nature of the misconduct to cases which make a lawyer unfit to practise at the bar. The High Court requires an advocate to produce before his enrolment a certificate of good character. The High Court represents to the public that an advocate on its rolls is fit to be trusted both as regards his ability and as regards his character. If an advocate acts in a manner which casts a reflection on his character, the Court will strike him off the roll because it can no longer represent him to the public as an honest man or as a man of integrity. Refers to In re Weare. In re the Solicitors Act, 1888. Unless the conviction of the advocates in this case is held by the Court to imply a defect of character or as making, them unfit to practise, the Court will take no action against them. Theirs was an isolated act of disobedience of a particular law from the best of motives.
Sir Jamshed Kanga, in reply. In England it is the Inns of Court which admit or suspend a barrister. In India the power of admission and removal of an advocate is given to the High Court.
[Beaumont, C.J There is a right of appeal to the Lord Chancellor and Judges of the High Court as Visitors from a decision of the Benchers.]
Yes.
In In re Wallace a distinction is drawn between a “crime” and an “offence”. See p. 294.
My submission is that it is unworthy of any member of this honourable profession to become or continue to be a member of and assist in the operations of an association which the Government declared unlawful as constituting a menace to the maintenance of law and order. Refers to the judgment of the Presidency Magistrate while convicting the advocates.
The Letters Patent were drafted by English lawyers. There is no distinction between the words “reasonable cause” and “misconduct”. I say “misconduct” is the wider term. Mr. Desai wants to read the words “such as unfits him for the exercise of his profession” after the words “other misconduct” in section 10 of the Indian Bar Councils Act. I submit that there is no warrant for doing so.
Civ. App. Nos. 427 and 453 of 1934.
Sir Jamshed Kanga, Advocate General, with P.B Shingne, Government Pleader, for the complainant.
H.C Coyajee with K.N Dharup, for one of the pleaders.
C.K Daphtary, instructed by Messrs Dixit Maneklal & Co. with H.D Thakore, for the other pleader.
D.N Bahdurji, for the Western India Advocates' Association.
Sir Jamshed Kanga. The proceedings are under the Bombay Pleaders Act, 1920. The sanad makes it a condition that the pleader should not participate “in any disloyal movement”.
One of the pleaders was convicted under section 21 of the Emergency Powers Ordinance, II of 1932. The other pleader was convicted under section 17(1) of the Criminal Law Amendment Act, 1908.
I rely on the provisions of the Bombay Pleaders Act, 1920.
[Divatia, J. The Bombay Pleaders Act repeals Bom. Reg. II of 1827. Does that mean that the pleader's sanad has gone by the board?]
No. The sanad would continue. Refers to section 4 of the Bombay Pleaders Act. The legislature looks upon a conviction as evidence of bad character. See section 54 of the Indian Evidence Act, Explanation II.
Coyajee. The pleader has given an undertaking that he does not intend to take part in the Civil Disobedience Movement. He has already been punished for his offence. Disciplinary action is not taken by way of a second punishment. See the observations of Lord Mansfield quoted in In the matter of Rajendro Nath Mukerji.
Sections 25 and 26 of the Bombay Pleaders Act should be read along with section 24 of that act. The Court is concerned with the conduct of a pleader qua pleader and his conviction in this case does not unfit him to practise as a pleader.
The pleader merely asked people to go to jail with a view to create a favourable atmosphere to induce the Government to accede to their political demands. It may be a right view or a wrong view, but it does not unfit the pleader to practice as a lawyer.
Daphtary. Section 24 of the Bombay Pleaders Act does not apply to this case. I submit that the conviction of my client does not imply a “defect in his character which renders him unfit to be a pleader” within the meaning of that section. I further submit that such a conviction cannot be taken as affording the High Court “reasonable cause” for taking disciplinary action against him. The “reasonable cause” must be one which reflects on the moral character of the pleader and thereby unfits him to practise the law.
Bahadurji. I adopt the submissions of law of Messrs Coyajee and Daphtary.
The discretion of the Court should be exercised judicially. The test of what is misconduct other than professional misconduct is laid down in In re Weare. In re The Solicitors Act, 1888.
The Judgment of the Court was delivered by
Beaumont, C.J:—These are three petitions presented by the Advocate General to this Court asking that three Barristers on the Roll of this Court may be suspended and removed from practice or otherwise dealt with as this Court thinks fit in exercise of the Disciplinary Jurisdiction vested in the Court. There are also two reports made to this Court by District Judges under section 26 of the Bombay Pleaders Act for the purpose of action being taken by this Court under section 25 of the Act. We will deal first with the case of Barristers.
It is not disputed that all three Barristers were convicted by Presidency Magistrates under section 17(1) and (2) of the Criminal Law Amendment Act (XXIII of 1932) in that they had been members, and assisted, and managed the operations, of the Bombay Provincial Congress Committee Emergency Council, an Association declared unlawful by the Government of Bombay. All the Barristers were sentenced to terms of imprisonment and fine. The petitions were referred to a Tribunal of the Bar Council appointed by the Chief Justice in accordance with the terms of sections 10 and 11 of the Indian Bar Councils Act, 1926. The Tribunal, after exhaustive inquiry, reported that the Barristers had been guilty of no misconduct within the meaning of section 10 of the Indian Bar Councils Act. Mr. O'Gorman, the President of the Tribunal, did not sign the report, but expressed his own opinion that the convictions of the Barristers were evidence of misconduct within the meaning of the Act, and that the question whether such misconduct was of a nature to attract disciplinary action by the Court was not a matter for the Tribunal. The Tribunal was unanimous in finding that the Barristers had acted from what they conceived to be patriotic motives, and that no moral turpitude was involved in their convictions.
Section 10(1) of the Indian Bar Councils Act provides that the High Court may reprimand, suspend or remove from practice any Advocate of the High Court whom it Three finds guilty of professional or other misconduct.
It has been urged by counsel on behalf of the Barristers involved, and also by counsel on behalf of the Bar Council Government and the Bar Association, that the words “professional or other misconduct” in that paragraph denote only misconduct in a professional capacity, or misconduct in a private capacity which is such as to denote unfitness for the post of an Advocate. It is urged that the word ‘misconduct’ is new in relation to legislation dealing with the power of the High Court to take disciplinary action against Advocates, and that it must be assumed that the expression was used by the Legislature in the sense in which it is understood in English law in similar connection. It is true that the word ‘misconduct’ in legislation upon this subject appears for the first time in the Indian Bar Councils Act. Under Regulation II of 1827, section 56, which is the first legislative, enactment on the subject, the Court can take action against a pleader accused of a criminal offence or guilty of misbehaviour or neglect of duty; under Clause 10 of the Letters Patent, the Court can take action on reasonable cause; under the Bombay Pleaders Act of 1920, section 24, the Court can take action against a pleader convicted of a criminal offence implying a defect of character which, in the opinion of the Court, renders him unfit to be a pleader, and under section 25 the Court may take action on reasonable cause. But the fact that the Legislature has chosen to use the word ‘misconduct’ in the Indian Bar Councils Act rather than the more indefinite phrase, ‘reasonable cause,’ is no reason for restricting the natural meaning of the word. The English cases on the subject do not, in our opinion, afford much assistance. In England, disciplinary action against Barristers is taken, not by the Court, but by the Benchers of the Barrister's Inn, and the principles on which the Benchers act are not made public. In the case of Solicitors the Court takes disciplinary action. It is no doubt true that the only reported cases in which disciplinary action has been taken in relation to misconduct other than professional have been cases in which the Solicitor had been guilty of infamous conduct. There is, however, no case which decides that the Court would refuse to take action in the absence of evidence of such misconduct; and the sort of case with which we have to deal, in which an Indian Barrister conceives it to be his duty as a patriot to break certain laws, could hardly arise in England. In our opinion, the English cases provide no justification for restricting the natural meaning of the words, “professional or other misconduct” in the Indian Bar Councils Act, and that meaning is misconduct in a professional or other capacity. In our view, the Legislature intended to confer on the Court jurisdiction to take action in all cases of misconduct, and leave it to the discretion of the Court to take action only in suitable cases. We think that the convictions of the Barristers concerned of a criminal offence are evidence of misconduct, and that we have jurisdiction to take disciplinary action against them.
The next question which arises is, whether we ought to take such action; and as this is the first case with which this Court has been called upon to deal under the Indian Bar Councils Act, we will state shortly the principles on which we propose to exercise our discretion. We realise that these principles are not immutable, and that the exercise of discretion must vary with changing conditions.
In cases of professional misconduct it may sometimes be necessary, that the Court should impose a penalty which is intended to be punitive, and to serve as a warning to other Advocates. But in the case of misconduct which is not professional, in our opinion, the element of punishment should not enter into our consideration at all. It is no part of our duty to impose penalties for misconduct, unconnected with the exercise of the profession, which is either not punishable or has been, or can be, punished under the law of the land. The State imposes suitable penalties for the infringement of its laws, and provides proper sanctions for the enforcement of such penalties, and we see no reason why the disciplinary jurisdiction vested in this Court should be employed merely in aid of the Criminal law.
Advocates, however, are a privileged class enjoying a monopoly of audience in the Courts, and their position gives them considerable opportunities for good or evil. It is of the highest importance that the High Court should be invested with power to ensure that only Advocates of good character shall be upon the Roll, but it is also important that power be in no way abused. In cases of misconduct involving moral turpitude the Court has to see whether the Advocate has shown himself to be unworthy of the confidence of the Court, or unfit to be entrusted with the business of his client, or a person with whom his professional brethren cannot be expected to associate. But in our opinion cases involving moral turpitude are not the only ones in which the Court may be called upon to take disciplinary action. The Court has a right to expect a high standard of loyalty to the Court and co-operation from the Advocates on its Roll. Cases may arise in which it is proved that an Advocate has been engaged in revolutionary activities designed to destroy the system of which this Court forms part, or activities likely to hamper or embarrass the administration of justice by this Court or any of the Courts subordinate thereto. Courts of law can only function under a stable Government, and the destruction of Government by revolutionary and unconstitutional means must of necessity involve the destruction of the Courts, or the grave impairing of their efficiency. What we have to consider in all these cases is the conduct of the Advocate as it affects his position as an Advocate and his relations to the Court. This Court will not tolerate upon its Rolls an Advocate who is endeavouring to destroy or undermine the authority of the Courts. Anyone who elects to engage in activities of that nature must do so without the authority and prestige attached to the position of an Advocate.
Various Indian cases were referred to by counsel. We do not think it necessary to discuss the decisions of other High Courts, because, if we are right in thinking that the question involved is as to the principles on which the Court should exercise its discretion under the Indian Bar Councils Act, that matter is one which each High Court must determine for itself. The only decision of this High Court to which it is necessary to refer is Jivanlal Varajray Desai, In re. In that case the Advocates involved had signed a pledge whereby they bound themselves to refuse civilly to obey certain specified laws and such other laws as a committee to be thereafter appointed might think fit. The facts of the case are, therefore, clearly distinguishable from those in the present case. But we do not find ourselves in agreement with much of the reasoning upon which that decision is based. Both Sir Norman Macleod and Mr. Justice Heaton seemed to consider that an Advocate, who for conscientious reasons had elected to disobey particular laws, would be embarrassed in giving advice to his clients. Our own experience at the bar does not induce us to think that any such embarrassment would ensue, and this view seems to be supported by recent experience in India. Many Advocates who took part in the civil disobedience movement of 1930, and were convicted of various offences, have since returned to practice, and no case has been brought to our attention in which such Advocates have proved less fitted than formerly to advise their clients properly. Nor are we prepared to accept what Sir Norman Macleod described as a very sound principle, namely, that those who live by the law should keep the law. In our opinion, the obligation of obedience to the law is neither greater nor less in the case of lawyers than of other citizens. If the so-called principle means that those who earn their living by the practice of the law must cease so to do if they break the law the condition is one which should be imposed under legislative authority when the Advocate is admitted and not invented afterwards by the Courts.
Applying these principles to the case of the Barristers before us, they were, as we have said, convicted of being members and assisting and managing the operations of an Association declared unlawful by the Local Government. We cannot go behind the convictions, but we are entitled to consider the grounds on which such convictions were based, in order, to determine whether they involve any conduct implying unfitness on the part of the Barristers for the exercise of their profession. No evidence of this nature has, however, been adduced by Government. The notification by Government declaring the Association unlawful merely recited, in the words of the Criminal Law Amendment Act, that in the opinion of Government the Association had for its object the interference with the administration of the law or with the maintenance of law and order and constituted a danger to the public peace. But we do not know what the facts were which induced Government to form this opinion. The activities of the Association might be of a general revolutionary character, or might be such as to promote local breaches of the peace. Nor is there any reliable evidence as to what the particular activities of these Barristers were in relation to the Association. In two of the petitions it is alleged by the Advocate General that the Barrister in question had taken a leading part in the publication of the Bombay Congress Bulletin, and extracts from that Bulletin were annexed to the petitions. Those extracts contain matter of a very revolutionary character, but the Advocate advocate General admits that he did not succeed in proving the of Bombay connection of the Advocates with those extracts, and he did not, therefore, rely on the extracts, or indeed refer to them in opening the petitions; and we, therefore, need not refer to them. It is enough to say that in our opinion merely having been members, or assisted the operations, or managed the, affairs, of an unlawful Association does not render the Advocate unfit for the exercise of his profession. Such conduct does not necessarily involve moral turpitude, or any attack upon the system of which this Court forms part, or embarrass in any way the administration of justice by the Courts of this Presidency.
We deal now with the case of the pleaders. The case of Mr. P.G Mehta, who practises at Mahad, has been reported to us by the District Judge of Thana. His sanad was granted on January 31, 1918, in the statutory form given in Regulation II of 1827. Below the signature of the Registrar is attached a printed note, which is not signed by anybody, in the following terms:
“It will be considered a breach of the condition of good behaviour if the holder takes part in any disloyal movement.”
It is clear that note can only operate as a warning in terrorem. It was not competent for the authority which granted the sanad to commit future Judges of the High Court to the construction which ought to be placed on the sanad. The charge against the pleader is that he was a dictator of the Kolaba District Congress Committee, which body had been declared an unlawful Association by Government, and that as such dictator he allowed a printed bulletin under the title of the Kolaba Satyagraha Patrika to be printed and published under his signature. He was convicted under section 21 of the Emergency Powers Ordinance No. II of 1932, and sentenced to a term of imprisonment and fine. A few days before the report of the District Judge was signed, the pleader gave a purshis stating that he did not intend to take part in the Civil Disobedience Movement.
The case of the pleader Motilal Hargovandas was reported to this Court by the District Judge of Broach. His sanad was granted on August 20, 1915, and is in the same form as the sanad granted to Mr. Mehta. He was convicted under section 17(1) of the Criminal Law Amendment Act as having been a member and assisted the operations of an Association declared unlawful by Government.
The Act under which we are empowered to take disciplinary action against pleaders is the Bombay Pleaders Act (XVII of 1920). As already noticed, under section 24 of that act the High Court may suspend or remove from practice a pleader who has been convicted by any criminal Court in British India of a criminal offence implying a defect in his character which in the opinion of the High Court renders him unfit to be a pleader. Section 25 provides, so far as material, that on the application of the Government Pleader in the High Court, or on a report from a District Court or Court of Session, the High Court may suspend or remove from practice, or may fine or reprimand, a pleader on reasonable cause. Section 26 enables the District Judge to initiate proceedings, where a pleader has been guilty of neglect of duty or violation of any of the provisions of the Act, or of any other improper conduct. The difference in phraseology in the three sections is curious, but the section under which we are asked to take action, which is section 25, empowers us only to take action on reasonable cause. In our opinion there is no substantial difference between a case dealt with under the Bombay Pleaders Act on reasonable cause, and a case dealt with under the Indian Bar Councils Act for misconduct. We cannot conceive of a cause being considered reasonable for taking disciplinary action against a pleader unless the pleader had been guilty of misconduct, and if misconduct is proved, that amounts to reasonable cause. In our opinion, we have jurisdiction to take action against these pleaders who have been convicted as above stated, but, exercising our discretion upon the principles mentioned above, we think no action is called for.
In the result we propose to make no order as to costs or otherwise in any of the matters.
B.K.D
Criminal Law Amendment Act,