Professional ethics

Module 4

4.1 The Contempt Law and Practice- Articles 129 and 215 of the Constitution of
India,Contempt of Courts Act, 1971

The Contempt Law and Practice: Articles 129 and 215 of the Constitution of India and the
Contempt of Courts Act, 1971
The concept of contempt of court is a critical aspect of ensuring the smooth functioning of the
judiciary and upholding the rule of law. It is essential for protecting the authority, dignity, and
integrity of judicial institutions in India. This essay explores the constitutional and statutory
provisions governing contempt of court, including Articles 129 and 215 of the Constitution of
India and the Contempt of Courts Act, 1971, while analyzing their scope, application, and
implications.

1. Introduction to Contempt of Court

Contempt of court refers to acts or omissions that disobey or disrespect the authority, dignity,
and decorum of the judiciary. It is broadly categorized into two types:
1. Civil Contempt: Willful disobedience of a court order or breach of an undertaking given to
a court.
2. Criminal Contempt: Actions that scandalize the court, prejudice judicial proceedings, or
obstruct the administration of justice.
The power to punish for contempt is essential to ensure the independence and effectiveness of
the judiciary. Without such a mechanism, the judiciary would be vulnerable to criticism,
obstruction, and defiance, ultimately eroding public confidence in the legal system.

2. Constitutional Provisions: Articles 129 and 215

2.1. Article 129: Supreme Court's Power

● Text of Article 129:
"The Supreme Court shall be a court of record and shall have all the powers of such a
court, including the power to punish for contempt of itself."
● Interpretation:
As a "court of record," the Supreme Court has inherent authority to maintain its records,
decide on their authenticity, and enforce discipline. The power to punish for contempt is
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intrinsic to its status as a court of record and is intended to safeguard the dignity and
authority of the apex court.
● Significance:
This provision ensures that the Supreme Court has ultimate control over proceedings
before it and can act against any person or entity that undermines its authority.

2.2. Article 215: High Courts' Power

● Text of Article 215:
"Every High Court shall be a court of record and shall have all the powers of such a court,
including the power to punish for contempt of itself."
● Interpretation:
Similar to Article 129, this provision empowers High Courts to maintain their dignity and
decorum. High Courts can act against individuals, institutions, or authorities that attempt
to obstruct or scandalize their proceedings.
● Significance:
This article reinforces the independence of High Courts and their authority over
subordinate courts within their jurisdiction.

3. The Contempt of Courts Act, 1971

3.1. Historical Background

The law governing contempt in India has evolved over centuries, drawing from British legal
traditions. Prior to independence, contempt powers were exercised under the Government of
India Act, 1935, and specific High Court acts. Post-independence, the Contempt of Courts Act,
1952, codified contempt law, but it lacked comprehensive definitions and procedural clarity. To
address these shortcomings, the Contempt of Courts Act, 1971, was enacted.

3.2. Key Features of the Contempt of Courts Act, 1971

The 1971 Act is the primary statute governing contempt of court in India. Its salient features
include:

3.2.1. Definition of Contempt (Section 2)

● Civil Contempt: Defined as willful disobedience to a court's judgment, decree, direction,
or order, or willful breach of an undertaking given to a court.
● Criminal Contempt: Includes:
○ Scandalizing or lowering the authority of any court.
○ Prejudicing or interfering with judicial proceedings.
○ Obstructing the administration of justice.

3.2.2. Punishment for Contempt (Section 12)

 ● Punishments include imprisonment for up to six months, a fine of up to ₹2,000, or both.
● Courts may discharge or remit the punishment if the contemnor tenders an apology.

3.2.3. Exceptions (Section 3)

No contempt arises if a person publishes:
● Fair and accurate reports of judicial proceedings.
● Fair criticism of judicial acts that do not interfere with the administration of justice.

3.2.4. Procedure
● Courts may initiate contempt proceedings suo motu or on a motion made by the Advocate-
General or with the court's permission.
● Contemnor is granted the opportunity to explain or defend their actions.

4. Judicial Interpretation and Landmark Judgments

4.1. Contempt as a Safeguard for Judicial Independence

● In Re: Vinay Chandra Mishra (1995): The Supreme Court emphasized that contempt
powers are essential for preserving judicial independence and ensuring respect for the
rule of law.

4.2. Scandalizing the Court

● E.M.S. Namboodiripad v. T.N. Nambiar (1970): The Supreme Court held that public
statements undermining public confidence in the judiciary constitute contempt. However,
it distinguished between genuine criticism and scandalization.

4.3. Civil Contempt

● T.N. Godavarman Thirumulpad v. Ashok Khot (2006): Failure to comply with Supreme
Court orders regarding forest conservation was deemed civil contempt. The Court
imposed strict penalties to enforce compliance.

4.4. Freedom of Speech vs. Contempt

● Arundhati Roy Case (2002): In this case, the Supreme Court punished the author for
criticizing the judiciary. The judgment highlighted the tension between free speech and
contempt law, affirming that freedom of expression cannot undermine judicial authority.

4.5. Fair Criticism

● Brahma Prakash Sharma v. State of Uttar Pradesh (1953): The Supreme Court held that
fair and constructive criticism of judicial decisions does not amount to contempt. The
judgment emphasized that the judiciary must remain open to public scrutiny.

5. Criticism and Controversies

5.1. Ambiguity in Definitions

The definition of "criminal contempt," particularly the phrase "scandalizing the court," is
criticized for being vague and subjective. Critics argue that it leaves room for misuse.

5.2. Conflict with Freedom of Speech

Contempt laws often clash with the fundamental right to freedom of speech and expression
under Article 19(1)(a) of the Constitution. While the right is subject to reasonable restrictions,
critics argue that contempt law imposes disproportionate limitations.

5.3. Need for Reform

● Justice V.R. Krishna Iyer in S. Mulgaokar (1978) emphasized that contempt powers should
be exercised sparingly and with restraint to prevent stifling legitimate dissent.
● Several legal experts advocate revisiting the law to balance judicial dignity with democratic
freedoms.

6. Contempt in Practice: Case Studies

6.1. Prashant Bhushan Case (2020)

The Supreme Court convicted lawyer Prashant Bhushan of criminal contempt for tweets
criticizing the judiciary. The case sparked debate over the scope of judicial accountability and
the limits of free speech.

6.2. Justice Karnan Case (2017)

Justice C.S. Karnan, a sitting High Court judge, was held guilty of contempt for making
scandalous allegations against the judiciary. The case highlighted the judiciary’s resolve to
address internal challenges to its authority.

7. Contempt and Media

The media plays a critical role in informing the public about judicial proceedings. However,
sensationalism or misreporting can interfere with justice. Courts have repeatedly emphasized
responsible journalism:
● In Re: P.C. Sen (1969): A broadcaster was held guilty of contempt for prejudicing a
pending case. The judgment stressed the media's duty to avoid interfering with sub judice
matters.
8. Comparative Analysis

8.1. United Kingdom

In the UK, the Contempt of Court Act, 1981, restricts contempt to clear and present dangers to
justice. The law places greater emphasis on freedom of speech and transparency.

8.2. United States

In the US, contempt is narrowly defined and rarely invoked. Courts prioritize the First
Amendment’s protection of free speech over contempt powers.

8.3. India

India's approach is more conservative, emphasizing judicial authority and dignity over individual
freedoms. Critics argue that this reflects colonial legacies and needs modernization.

9. Conclusion

Contempt of court laws in India serve as a vital tool for preserving judicial independence and
ensuring the effective administration of justice. Articles 129 and 215 of the Constitution empower
the higher judiciary to act decisively against contemptuous behavior, while the Contempt of
Courts Act, 1971, provides a statutory framework for addressing misconduct.
However, the evolving nature of democratic societies and the increasing demand for judicial
accountability necessitate a careful balancing of judicial dignity with constitutional freedoms.
Moving forward, reforms should aim to clarify ambiguities in contempt law, prevent misuse, and
ensure its application aligns with the principles of justice and fairness

4.2 Bar Bench relations - Role of the Bar to Strengthen Bar-Bench Relations
Bar-Bench Relations: Role of the Bar in Strengthening Bar-Bench Relations

The relationship between the Bar (lawyers) and the Bench (judiciary) is fundamental to the
effective functioning of the legal system. This dynamic and interdependent relationship forms
the cornerstone of justice delivery, ensuring that the rule of law prevails in society. Strengthening
Bar-Bench relations is crucial for upholding the integrity, independence, and efficiency of the
judicial system.
This essay explores the nature of Bar-Bench relations, the roles and responsibilities of lawyers
and judges, the challenges faced in maintaining harmonious relations, and the proactive
measures that members of the Bar can take to fortify their partnership with the Bench.

1. Introduction to Bar-Bench Relations

The term "Bar-Bench relations" encapsulates the professional, respectful, and cooperative
interaction between legal practitioners (the Bar) and the judiciary (the Bench). While the Bar
represents the litigants and acts as their voice, the Bench adjudicates disputes impartially and
upholds constitutional values. The interplay between the two is vital to maintaining public trust in
the judicial system.

1.1. Significance of Bar-Bench Relations

● Ensuring Fair Justice: A respectful and constructive relationship ensures that justice is
delivered impartially and efficiently.
● Maintaining Professional Integrity: Positive relations enhance mutual respect and
understanding between the judiciary and advocates.
● Strengthening Rule of Law: Cooperation between the Bar and the Bench reinforces public
confidence in the justice delivery system.

1.2. Constitutional Context

The legal profession and judiciary are constitutionally protected entities under the Advocates
Act, 1961, and Articles 129, 215, and 50 of the Constitution of India, which emphasize judicial
independence and accountability.

2. Role of the Bar in Strengthening Bar-Bench Relations

Lawyers, as officers of the court, have a pivotal role in fostering respectful and productive
relations with the judiciary. Their conduct, professionalism, and adherence to ethical standards
play a significant role in maintaining harmony with the Bench.

2.1. Advocating Professionalism and Ethical Conduct

● Adherence to Professional Ethics: Lawyers must adhere to the professional standards laid
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down by the Bar Council of India Rules.
● Honesty and Integrity: Truthfulness and ethical advocacy strengthen trust between the
Bar and the Bench.
● Avoiding Misconduct: Advocates must avoid actions such as misrepresentation,
disrespectful behavior, or frivolous litigation, which can strain relations.

2.2. Assisting the Bench in Delivering Justice

● Providing Accurate Legal Assistance: Lawyers should present well-researched and
cogent arguments to assist the Bench in decision-making.
● Avoiding Delays: Prompt and effective representation prevents unnecessary delays in
judicial proceedings.
● Promoting Transparency: Advocates must disclose all relevant facts, even those
unfavorable to their case, to enable fair adjudication.

2.3. Upholding Judicial Independence

● Respecting Judicial Authority: Lawyers must respect the independence and impartiality
of judges.
● Protecting Judges from External Influences: The Bar should oppose attempts to
undermine judicial authority through undue influence or corruption.

2.4. Enhancing Communication and Collaboration

● Participating in Judicial Training: Collaborative workshops and seminars involving both
lawyers and judges can bridge gaps in understanding.
● Feedback Mechanisms: Constructive feedback from the Bar can help the judiciary
improve its processes.

3. Challenges in Bar-Bench Relations

Despite their mutual dependence, Bar-Bench relations are not immune to friction. Several factors
can strain this relationship, affecting the overall functioning of the legal system.

3.1. Misconduct by Lawyers

● Disrespectful Behavior: Instances of unruly conduct or personal attacks against judges
can damage relations.
● Professional Misconduct: Ethical lapses, such as filing frivolous cases, fabricating
evidence, or attempting to mislead the court, erode trust.

3.2. Judicial Overreach or Bias

● Perceived Partiality: Allegations of favoritism or bias in judicial decisions can lead to
tension between the Bar and the Bench.
● Lack of Communication: Insufficient interaction between the two can lead to
misunderstandings or misinterpretations.
3.3. Delays and Inefficiencies
● Delays in Justice Delivery: Lawyers seeking frequent adjournments and courts taking
extended time to decide cases contribute to friction.
● Overburdened Judiciary: High caseloads and limited resources often exacerbate
tensions.

3.4. Lack of Mutual Respect

● Erosion of Civility: Disrespectful remarks, whether from the Bar or the Bench, can
escalate conflicts.
● Generational Gaps: Differences in approaches between senior and junior members of the
Bar and Bench may create friction.

4. Measures to Strengthen Bar-Bench Relations

Strengthening Bar-Bench relations requires collective efforts from lawyers, judges,

and institutional stakeholders. Proactive steps can help bridge gaps and promote mutual
respect.

4.1. Promoting Legal Education and Training

● Continuing Legal Education: Regular training programs for lawyers and judges can foster
a deeper understanding of each other’s roles.
● Workshops and Seminars: Joint participation in legal workshops and conferences can
improve collaboration and communication.

4.2. Strengthening Ethical Oversight

● Code of Conduct: Strict adherence to the Bar Council’s code of conduct ensures ethical
behavior by lawyers.
● Disciplinary Mechanisms: Effective disciplinary action against misconduct by advocates
or judges can deter unethical practices.

4.3. Encouraging Dialogue and Feedback

● Regular Meetings: Periodic meetings between Bar associations and judges can address
grievances and improve understanding.
● Feedback Channels: Creating formal mechanisms for constructive feedback enhances
cooperation.

4.4. Leveraging Technology

● E-Courts: Digitalization of court records and proceedings can reduce delays and improve
efficiency.
● Online Dispute Resolution: Technology-driven solutions can ease the workload on both
the Bar and the Bench.

4.5. Building Public Trust

 ● Transparency: Both lawyers and judges must work towards making judicial processes
transparent and accessible.
● Outreach Programs: Engaging with the public through legal awareness initiatives can
reinforce the credibility of the legal system.

5. Landmark Cases on Bar-Bench Relations

Several judicial pronouncements have addressed the importance of Bar-Bench relations and set
precedents for maintaining harmony.

5.1. R.K. Anand v. Delhi High Court (2009)

The Supreme Court upheld the dignity of the judiciary and emphasized that lawyers, as officers
of the court, must act with integrity and professionalism.

5.2. In Re: Vinay Chandra Mishra (1995)

This case highlighted the consequences of contemptuous behavior by an advocate towards the
judiciary. The Supreme Court stressed that lawyers must respect the Bench to preserve judicial
decorum.

5.3. Bar Council of Maharashtra v. M.V. Dabholkar (1976)

The Supreme Court observed that advocates have a dual role as professionals and
officers of the court. The judgment reinforced the importance of ethical conduct in fostering Bar-
Bench relations.

6. Comparative Analysis of Bar-Bench Relations

6.1. United States

The legal system in the U.S. emphasizes robust advocacy, with strict ethical standards governing
lawyer-judge interactions. Regular judicial conferences facilitate dialogue between the Bar and
the Bench.

6.2. United Kingdom

In the UK, barristers and judges share a collegial relationship, rooted in shared professional
training and traditions. The Inns of Court play a pivotal role in nurturing this relationship.
6.3. India

In India, while Bar-Bench relations have traditionally been respectful, instances of tension
highlight the need for ongoing efforts to strengthen mutual understanding and collaboration.

7. Role of Bar Associations in Bar-Bench Relations

Bar associations are instrumental in fostering positive Bar-Bench relations. They serve as a
bridge between advocates and the judiciary, addressing grievances, promoting dialogue, and
upholding professional standards.

7.1. Advocacy and Representation

Bar associations represent the collective interests of lawyers and provide a platform for raising
concerns with the judiciary.

7.2. Professional Development

They organize training programs, seminars, and workshops to enhance the skills and knowledge
of advocates.

7.3. Mediation in Conflicts

Bar associations act as mediators in resolving disputes between lawyers and judges, ensuring
that conflicts do not escalate.

8. Conclusion

Bar-Bench relations are the bedrock of a functional legal system. The Bar’s role in strengthening
this relationship is indispensable, as lawyers act as intermediaries between the judiciary and
society. By adhering to ethical standards, assisting the Bench in delivering justice, and fostering
mutual respect, the Bar can ensure a harmonious and efficient partnership with the Bench.
A collaborative approach, supported by regular dialogue, professional development, and a
shared commitment to justice, can further enhance Bar-Bench relations, contributing to the
robust administration of justice in India.
4.3 Accountancy for Lawyers

i.Amount due to the client or amount due by the client;

ii.Penalty for not keeping Account Books;

iii.Bar council Rules relating to accounting.

iv.Basic principles of accounting, financial statements, balance sheet, income statement

Accountancy for Lawyers:

Accountancy is a critical skill for legal professionals, especially for those managing their
practices or handling client funds. Lawyers, as fiduciaries, are entrusted with financial dealings
that require precision, transparency, and adherence to ethical guidelines. Understanding
accounting principles and practices not only ensures compliance with regulations but also
enhances the credibility and trustworthiness of legal professionals.

This essay provides a comprehensive analysis of accountancy for lawyers, covering essential
aspects such as amounts due to or by clients, penalties for non-compliance with accounting
requirements, Bar Council rules regarding accounting, and the fundamental principles of
accounting, including financial statements like the balance sheet and income statement.

1. Amount Due to the Client or Amount Due by the Client

1.1. Introduction

In legal practice, lawyers often manage client funds for purposes such as court fees,
settlements, or holding funds in escrow. Proper accounting of these transactions is crucial to
avoid disputes and ensure fiduciary responsibilities are met.
1.2. Amount Due to the Client
● Definition: This refers to the funds held by the lawyer that must be returned to the client,
either as unused fees, settlements, or other balances.
● Examples:
○ Refunds for unutilized court fees or retainers.
○ Settlement amounts received on behalf of the client.
○ Overpayments made by the client during the course of litigation.
● Record-Keeping:
○ Maintain detailed client ledgers showing amounts received, utilized, and due.
○ Issue receipts and maintain correspondence regarding transactions.

1.3. Amount Due by the Client

● Definition: Amounts owed by the client to the lawyer for services rendered, court fees, or
other expenses incurred.
● Examples:
○ Unpaid legal fees or retainers.
○ Reimbursement for out-of-pocket expenses such as travel or document
procurement.
● Collection Practices:
○ Clearly communicate fee structures and payment schedules.
○ Issue periodic invoices with itemized breakdowns of services rendered and amounts
due.

1.4. Importance of Proper Accounting

● Transparency: Proper documentation of transactions avoids misunderstandings and
enhances client trust.
● Legal Compliance: Ensures adherence to the Bar Council’s ethical standards and prevents
allegations of misappropriation.

2. Penalty for Not Keeping Account Books

2.1. Legal Requirements for Maintaining Account Books

Under the Advocates Act, 1961, and the rules established by the Bar Council of India, lawyers
are required to maintain accurate records of their financial transactions. These records must
include:
● Client ledgers.
● General account books.
● Receipts and vouchers for all monetary transactions.

2.2. Consequences of Non-Compliance

Failure to maintain proper account books can have serious consequences, including:
● Disciplinary Action:
 ○ The Bar Council may initiate disciplinary proceedings against lawyers found guilty of
negligence or misappropriation.
○ Penalties include suspension of the right to practice or even disbarment in severe
cases.
● Financial Penalties:
○ Fines may be imposed for non-compliance with accounting regulations.
○ Additional costs may arise from legal proceedings initiated by aggrieved clients.
● Reputational Damage:
○ Allegations of financial impropriety can tarnish a lawyer's professional reputation.
○ Loss of trust can lead to reduced client retention and referrals.

2.3. Examples of Non-Compliance

● Failing to issue receipts for client payments.
● Misappropriating client funds for personal use.
● Not maintaining clear records of funds held in escrow.

2.4. Preventive Measures

● Regular audits of account books.
● Training in basic accounting principles.
● Adoption of accounting software to automate record-keeping and minimize errors.

3. Bar Council Rules Relating to Accounting

3.1. Overview

The Bar Council of India has established specific rules to govern the financial practices of
lawyers. These rules aim to ensure transparency, accountability, and ethical behavior in handling
client funds.

3.2. Key Rules

● Rule 28: Lawyers must maintain separate accounts for client funds and personal funds.
● Rule 29: A lawyer must maintain detailed records of all transactions involving client funds,
including amounts received, disbursed, and balances.
● Rule 30: Client funds must be deposited in a separate client account, and withdrawals
must only be made with the client's consent or authorization.
● Rule 31: Lawyers are prohibited from using client funds for personal purposes or
advancing loans from client funds.

3.3. Ethical Obligations

● Fiduciary Duty: Lawyers must act in the best interest of their clients and avoid conflicts of
interest.
● Transparency: Clients must be informed of all financial transactions involving their funds.
● Accountability: Lawyers must be prepared to provide detailed accounts of all transactions
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upon request.

3.4. Enforcement Mechanisms

● The Disciplinary Committees of State Bar Councils and the Bar Council of India have the
authority to investigate complaints of financial impropriety.
● Penalties for violations include fines, suspension, or disbarment.

4. Basic Principles of Accounting

Accounting principles are the foundation of financial management and reporting. Lawyers must
understand these principles to maintain accurate and compliant financial records.

4.1. Definition and Importance

● Definition: Accounting principles are standardized guidelines for recording and reporting
financial transactions.
● Importance:
○ Ensures consistency and accuracy in financial records.
○ Facilitates compliance with legal and ethical requirements.
○ Provides a clear financial picture for decision-making.

4.2. Fundamental Accounting Principles

4.2.1. Accrual Principle

● Revenue and expenses are recognized when they are incurred, not when cash is received
or paid.
● Example: Legal fees are recorded as income when services are rendered, regardless of
when the payment is received.

4.2.2. Matching Principle

● Expenses must be matched with the revenues they generate.
● Example: Expenses incurred in preparing a case are recorded in the same period as the
corresponding legal fees.

4.2.3. Consistency Principle

● Accounting methods and practices must remain consistent over time.
● Example: If a lawyer uses cash-based accounting, they should not switch to accrual
accounting without valid reasons.

4.2.4. Prudence Principle

● Anticipate losses and liabilities but do not recognize profits until they are realized.
● Example: Anticipate bad debts from clients who may not pay their dues.
4.2.5. Materiality Principle
● Focus on recording significant financial information that impacts decision-making.
● Example: Minor out-of-pocket expenses may be recorded in aggregate rather than
individually.

4.3. Financial Statements

Financial statements provide a summary of financial performance and position. They are
essential tools for decision-making and compliance.

4.3.1. Balance Sheet

● Definition: A statement showing the financial position of a lawyer's practice at a specific
point in time.
● Components:
○ Assets: Resources owned, such as office equipment and client funds held.
○ Liabilities: Obligations, such as unpaid client refunds or loans.
○ Equity: The net worth of the practice (Assets - Liabilities).
● Example: A balance sheet may show office equipment worth ₹2,00,000, client funds of
₹5,00,000, and liabilities of ₹3,00,000.

4.3.2. Income Statement

● Definition: A statement showing revenues and expenses over a specific period.
● Components:
○ Revenues: Legal fees, retainers, and other earnings.
○ Expenses: Salaries, office rent, court fees, and miscellaneous costs.
○ Net Income: The difference between revenues and expenses.
● Example: An income statement may show revenues of ₹10,00,000, expenses of ₹7,50,000,
and a net income of ₹2,50,000.

4.3.3. Cash Flow Statement

● Definition: A statement showing the inflows and outflows of cash during a period.
● Components:
○ Operating Activities: Cash flows from core legal services.
○ Investing Activities: Cash flows from purchasing or selling assets.
○ Financing Activities: Cash flows from loans or investments.
● Example: A cash flow statement may show ₹3,00,000 received as retainers, ₹1,50,000
paid for office rent, and ₹50,000 spent on equipment.

4.4. Relevance to Legal Practice

● Decision-Making: Financial statements help lawyers evaluate the profitability and
sustainability of their practices.
● Compliance: Proper financial reporting ensures adherence to Bar Council rules and tax
regulations.
● Client Relations: Transparent financial practices build trust with clients.
5. Conclusion

Accountancy for lawyers is not merely a technical requirement but an integral aspect of ethical
and professional practice. By maintaining accurate records of client funds, adhering to Bar
Council rules, and applying basic accounting principles, lawyers can ensure compliance, foster
trust, and enhance the credibility of their profession. A sound understanding of accounting also
enables lawyers to manage their practices more effectively, contributing to the overall efficiency
and integrity of the legal system