CASE ANALYSIS : Rakesh Tiwari, Advocate vs Alok Pandey, CJM

PSDA – LEGAL ETHICS

SUBMITTED BY

ANUSHKA SHARMA
IX-A
ENROLLMENT NO.: 03517703820/ ROLL NO.: 35

Vivekananda School of Law and Legal Studies

Ethics and the legal profession are closely related. The practice of law is a noble profession. Therefore,
conforming one’s conduct and behaviors to a certain set of professional norms is an important aspect of this
profession. Legal ethics can be simply defined as a code of conduct which may be written or unwritten. Such
a code of conduct is meant to regulate the behavior of a practicing legal professional towards the court, the
presiding judge, his client and his adversaries in the courtrooms.

The primary object of ethics in advocacy is to maintain the dignity and integrity of the legal profession.
Legal ethics ensure that the legal fraternity serves the society honestly and present each case in the most
formal way possible so that the litigants have faith on not only their legal representative or lawyer but also
on the justice system. Not only the lawyer but also the judge needs to have a sense and understanding of
legal ethics in order to maintain the functionality of Indian Courts. One of the fundamental aims of legal
ethics is to seek a spirit of friendly cooperation amongst the bar, bench and the clients. Standards of ethics
exist between the lawyer and his client, opponent and the witness being questioned and of course between
the Judge and the lawyer.
The legal profession has been created by the state to serve the litigatory needs of the public. Thus, it is not a
business it’s a profession. Consequently, there is 3 fundamental basis of legal ethics that gives an insight
into the essence of the legal profession:
1. The organisation of its members in order for the performance of their function;
2. Maintain certain standards at both the intellectual and ethical level to preserve the dignity of the
profession;
3. Pecuniary gains must be subordinate to the client’s interest.

In the instant case the advocate has acted contrary to the obligations. He has set a bad example before others
while destroying the dignity of the court and the Judge. The action has the effect of weakening of confidence
of the people in courts. The judiciary is one of the main pillars of democracy and is essential to peaceful and
orderly development of society. The Judge has to deliver justice in a fearless and impartial manner. He
cannot be intimidated in any manner or insulted by hurling abuses. Judges are not fearful saints. They have
to be fearless preachers so as to preserve the independence of the judiciary which is absolutely necessary for
survival of democracy.
 FACTS OF THE CASE

1. Sri Rakesh Tripathi, Advocate, on 21st December, 2012 during lunch hour without taking permission
from C.J.M., Allahabad entered into his chamber along with 2-3 colleagues and at the said point of
time he started hurling filthy abuses to the CJM and the matter did not end there, as he also raised his
hand to beat the Chief Judicial Magistrate and also threatened him of dire consequences.
2. The contemnor also asked the C.J.M. as to why he has not passed an order for lodging F.I.R. when
he had asked for the same. This act on the part of the contemnor constitutes criminal contempt within
the meaning of Section 2(c) of Contempt of Courts Act, 1971, as this act has not only lowered the
authority of the Court but also scandalised the Court and the same has also the tendency of
interference with the due course of administration of justice.”
3. The reply was filed by the contemnor to the effect that he had filed an application on behalf of
Akhilesh Kumar Shukla on 19.10.2012 under section 156(3) Cr.P.C. which was heard by C.J.M. of
Allahabad on 30.10.2012 and 8.11.2012 was the date fixed for passing the order. The contemnor
alleged that before pronouncement of the order on 8.11.2012 he saw one of the accused, Sharad
Tandon, General Manager, District Industries Centre, Allahabad, sitting in the chamber of the CJM.
He apprehended that his client will not get justice, hence, he moved an application on 8.11.2012
before the Chief Judicial Magistrate not to pass any order since the contemnor was willing to file a
transfer application before the District Judge, Allahabad.
4. The CJM assured not to pass any order but actually passed an order on the same day by converting
application filed under section 156(3) [Link] into a complaint case registered as Case No.13500 of
2012. The CJM took away the application from record. Thereafter, the contemnor moved an
application before the District & Sessions Judge, Allahabad on 9.11.2012 making a complaint
against the CJM, Allahabad.
5. The High Court has found the contemnor along with 2-3 junior advocates entered the chamber of the
CJM and misbehaved as well as attempted to assault him. No application was filed by him on
8.11.2012 before the CJM not to pass any order. It was a concocted story. The Magistrate did not
reject the application outright and required the complainant to adduce evidence which course was
available to him. The contemnor did not pursue the matter and got the earlier case dismissed as not
pressed and filed second application. On this the CJM has again registered the complaint case. The
matter is pending in which non- bailable warrant has been issued against the accused. The allegation
of sympathy towards accused by the Magistrate has been found to be unfounded, baseless and
figment of imagination of contemnor. The defense taken has not been substantiated by the
contemnor.
 JUDGEMENT OF THE HIGH COURT

1. The High Court has observed that considering the increasing tendency of the advocates in making
scurrilous allegations against the Presiding Officers of subordinate courts has to be curbed. The acts of
abusing and misbehaving are on increase. The action of the advocate amounts to lowering the dignity and
majesty of the court. A deliberate attempt to scandalise a judicial officer of subordinate court is bound to
shake the confidence of the litigant public in the system and has to be tackled strictly. Damage is not only to
the reputation of the Judge but also to the fair name of the judiciary. Judges cannot be tamed by such tactics
into submission to secure a desired order. The foundation of the system is based on independence and
impartiality of the Judges as well as responsibility to impart justice. In case their confidence, impartiality
and reputation are shaken the same is bound to adversely affect the independence of the judiciary.
2. In our opinion, an advocate is duty bound to act as per the higher status conferred upon him as an officer
of the court. He plays a vital role in preservation of society and justice delivery system. Advocate has no
business to threaten a Judge or hurl abuses for judicial order which he has passed. In case of complaint of
the Judge, it was open to the advocate to approach concerned higher authorities but there is no licence to any
member of the Bar to indulge in such undignified conduct to lower down the dignity of the Court. Such
attempts deserve to be nipped at the earliest as there is no room to such attack by a member of noble
profession.
3. The role of a lawyer is indispensable in the justice delivery system. He has to follow the professional
ethics and also to maintain high standards. He has to assist the court and also defend the interest of his cli ent.
He has to give due regard to his opponent and also to his counsel. What may be proper to others in the
society, may be improper for him to do as he belongs to an intellectual class of the society and as a member
of the noble profession, the expectations from him are accordingly higher. Advocates are held in high
esteem in the society. The dignity of court is in fact dignity of the system of which an advocate being officer
of the court. The act of the advocate in the present case is not only improper but requires gross
condemnation.
4. It has been observed by this Court in the matter of Mr. ‘G‚‘, A Senior Advocate of the Supreme Court in
AIR 1954 SC 557 that an advocate has to conduct himself in a manner befitting the high and honourable
profession. Following observations have been made in para 41 :
“41. .......
“with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and
applied to a specially priviledged class of persons who, because of their priviledged status, are subject to
certain disabilities which do not attach to other men and which do not attach even to them in a non-
professional character. ... He [a legal practitioner} is bound to conduct himself in a manner befitting the high
and honourable profession to whose privileges he has so long been admitted; and if he departs from the high
standards which that profession has set for itself and demands of him in professional matters, he is liable to
disciplinary action.”
The act stated amounts to criminal contempt of court. The High Court has noted that the concerned advocate
did not apologise and has maligned and scandalised the subordinate court. He has made bare denial and has
not shown any remorse for his misconduct. Considering the gravamen of the allegations the High Court has
imposed the imprisonment of SI for 6 months with fine of Rs.2000 and in default to pay fine or to undergo
SI for 15 days. He has been restrained from enering the judgeship of Alahabad for a period of 6 months that
was to commence from 15.7.2015 and he had been kept under watch for a period of 2 years. Considering the
nature of misconduct, while upholding the conviction for criminal contempt, we modify the sentence in the
following manner :
1. The sentence of imprisonemnt of 6 months shall remain suspended for further period of 3 years subject to
his maintaining good and proper conduct with a condition that he shall not enter the premises of the District
Judgeship, Allahabad for a further period of three years in addition to what he has undergone already. The
period shall commence from 1.7.2019 to 30.6.2022. In case of non violation of aforesaid condition the
sentence after three years shall be remitted.
2. However, sentence of imprisonment may be activated by this Court in case it is found that there is breach
of any condition made by the concerned advocate during the period of three years.
3. He shall deposit fine of Rs.2000 as imposed by the High Court. In case of failure to deposit fine he shall
not enter the premises of District Judgeship for a period of three months.
 CONCLUSION

In the instant case the advocate has acted contrary to the obligations. He has set a bad example before others
while destroying the dignity of the court and the Judge. The action has the effect of weakening of confidence
of the people in courts. The judiciary is one of the main pillars of democracy and is essential to peaceful and
orderly development of society. The Judge has to deliver justice in a fearless and impartial manner. He
cannot be intimidated in any manner or insulted by hurling abuses. Judges are not fearful saints. They have
to be fearless preachers so as to preserve the independence of the judiciary which is absolutely necessary for
survival of democracy.

An advocate is duty bound to act as per the higher status conferred upon him as an officer of the court. He
plays a vital role in preservation of society and justice delivery system. Advocate has no business to threaten
a Judge or hurl abuses for judicial order which he has passed. In case of complaint of the Judge, it was open
to the advocate to approach concerned higher authorities but there is no license to any member of the Bar to
indulge in such undignified conduct to lower down the dignity of the Court. Such attempts deserve to be
nipped at the earliest as there is no room to such attack by a member of noble profession.

The role of a lawyer is indispensable in the justice delivery system. He has to follow the professional ethics
and also to maintain high standards. He has to assist the court and also defend the interest of his client. He
has to give due regard to his opponent and also to his counsel. What may be proper to others in the society,
may be improper for him to do as he belongs to an intellectual class of the society and as a member of the
noble profession, the expectations from him are accordingly higher. Advocates are held in high esteem in the
society. The dignity of court is in fact dignity of the system of which an advocate being officer of the court.
The act of the advocate in the present case is not only improper but requires gross condemnation.