Professional Misconduct

An advocate is the most accountable, privileged and erudite person of the society and his act are role model for the society, which are necessary to be regulated. Professional misconduct is the behaviour outside the bounds of what is considered acceptable or worthy of its membership by the governing body of a profession.[1] Professional misconduct refers to disgraceful or dishonourable conduct not befitting an advocate[2].Chapter V of the Advocate Act, 1961, deals with the conduct of Advocates. It describes provisions relating to punishment for professional and other misconducts. Section 35(1) of the Advocate Act, 1961, proviso says, is relevant in this context. This proviso say, where on receipt of a complain otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to it disciplinary committee. In depth the provisions are discussed in the later part. Generally legal profession is not a trade or business, it’s a gracious, the noble, and decontaminated profession of the society. Members belonging to this profession have not to encourage deceitfulness and corruption, but they have to strive to secure justice to their clients. The credibility and reputation of the profession depends upon the manner in which the members of the profession conduct themselves. It’s a symbol of healthy relationship between Bar and Bench. There is heavy responsibility on those on whom duties’ are vested by the virtue of being a part of my most credible as plausible profession of the society.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for profession misconduct because of its scope, though under Advocate Act, 1961 to take disciplinary action punishment are prescribed when the credibility and reputation on the profession comes under a clout on account of acts of omission and commission any member of the profession.

What Is The Code Of Conduct Prescribed For An Advocate?

The Bar Council Rules prescribe a strict code of conduct for advocates, it has to follow[3]:
No advertising or soliciting work, it is against an advocate’s code of ethics to solicit or advertise work and amounts to a misconduct on the part of the advocate. Both direct and indirect advertising is prohibited. An advocate may not advertise his services through circulars, advertisements, touts, personal communication or interviews not warranted by personal relations. Similarly, the following forms of indirect advertising are prohibited: (i) by issuing circulars or election manifestos by a lawyer with his name, profession and address printed on the manifestos, thereby appealing to the members of the profession practising in the lower courts who are in a position to recommend clients to counsel practising in the HC. (ii) canvassing for votes by touring in the province or sending out his clerk or agents to the various districts, which must necessarily mean directly approaching advocates practising in subordinate courts. Further, the signboard or nameplate displayed by an advocate should be of reasonable size. It should not refer to details of an affiliated by the advocate i.e. that he is or has been president or member of a bar council or of any association, or he has been a Judge or an Advocate-General, or that he specialises in a particular kind of work, or that he is or was associated with any person or organisation or with any particular cause or matter.

Not demand fees for training; An advocate is restrained from demanding any fees for imparting training to enable any person to qualify for enrolment. Not use name/services for unauthorised practice; An advocate may not allow his professional services or his name to be associated with, or be used for any unauthorised practice of law by any lay agency. Not enter appearance without consent of the advocate already engaged: an advocate is prohibited from entering appearance in a case where there is already another advocate engaged for a party except with the consent of such advocate. However if such consent is not produced, the advocate must state the reasons for not producing it, and may appear subsequently, only with the permission of the court.

Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his client but also to the court, and to the opposite party. An advocate for a party must communicate or negotiate with the other parties regarding the subject matter of controversy, only through the opposite party’s advocate. If an advocate has made any legitimate promises to the opposite party, he should fulfil the same, even if the promise was not reduced to writing or enforceable under the rules of the court. Duties of an advocate towards his client: The relationship between a lawyer and a client is highly fiduciary and it is the duty of an advocate fearlessly to uphold the interests of the client by fair and honourable means without regard to any unpleasant consequences to himself or any other person.

Procedure Followed On The Notice Of Professional Misconduct

The following is the procedure followed (1) In exercise of powers under Section 35 contained in Chapter V entitled “conduct of advocates”, on receipt of a complaint against an advocate (or suo motu) if the State Bar Council has ‘reason to believe’ that any advocate on its roll has been guilty of “professional or other misconduct”, disciplinary proceeding may be initiated against him.

(2) Neither Section 35 nor any other provision of the Act defines the expression ‘legal misconduct’ or the expression ‘misconduct’. (3) The Disciplinary Committee of the State Bar Council is authorised to inflict punishment, including removal of his name from the rolls of the Bar Council and suspending him from practice for a period deemed fit by it, after giving the advocate concerned and the ‘Advocate General’ of the State an opportunity of hearing.(4) While under Section 42(1) of the Act the Disciplinary Committee has been conferred powers vested in a civil court in respect of certain matters including summoning and enforcing attendance of any person and examining him on oath, the Act which enjoins the Disciplinary Committee to ‘afford an opportunity of hearing’ (vide Section 35) to the advocate does not prescribe the procedure to be followed at the hearing. (5) The procedure to be followed in an enquiry under Section 35 is outlined in Part VII of the Bar Council of India Rules2 made under the authority of Section 60 of the Act. (6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned parties that is to say the complainant and the concerned advocate as also the Attorney General or the Solicitor General or the Advocate General. It also enjoins that if it is considered appropriate to take oral evidence the procedure of the trial of civil suits shall as far as possible be followed.

Contempt Of Court As Misconduct

In the recent case of B. M. Verma v. Uttrakhand Regulatory Commission[4] court noted that, it was given the wide powers available with a Court exercising contempt jurisdiction, court quoted several he Delhi HC, in the case of Court of Its Own Motion v. State [5], dealing with the contempt proceedings involving two senior advocates, observed that ‘given the wide powers available with a Court exercising contempt jurisdiction, it cannot afford to be hypersensitive and therefore, a trivial misdemeanor would not warrant contempt action. Circumspection is all the more necessary because as observed by the SC in SC Bar Association v. Union of India[6] the Court is in effect the jury, the judge and the hangman; while in M.R. Parashar H. L. Sehgal it was observed that the Court is also a prosecutor.Anil Kumar Sarkar v. Hirak Ghosh[7], reiterates this.’ In the most controversial and leading case of R.K. Ananad vs. Registrar of Delhi HC[8] facts, On 30th May, 2007 a TV news channel NDTV carried a report relating to a sting operation. The report concerned itself with the role of a defence lawyer and the Special Public Prosecutor in an ongoing Sessions trial in what is commonly called the BMW case. On 31st May, 2007 a Division Bench of this Court, on its own motion, registered a writ Petition and issued a direction to the Registrar General to collect all materials that may be available in respect of the telecast and also directed NDTV to preserve the original material including the CD/video pertaining to the sting operation. ISSUE :The question for our consideration is whether Mr. R.K. Anand and Mr. I.U. Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have committed criminal contempt of Court or not. It was observed that prima facie their acts and conduct were intended to subvert the administration of justice in the pending BMW case and in particular influence the outcome of the pending judicial proceedings.Accordingly, in exercise of powers conferred by Article 215 of the Constitution proceedings for contempt of Court (as defined in Section 2(c) of the Contempt of Courts Act, 1972) were initiated against Mr. Anand, Mr. Khan and Mr. Sri Bhagwan Sharma and they were asked to show cause why they should not be punished accordingly. HELD : court said that Courts of law are structured in such a design as to evoke respect and reverence for the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner. The very sight of an advocate, who was found guilty of contempt of court on the previous hour, standing in the court and arguing a case or cross-examining a witness on the same day, unaffected by the contemptuous behaviour he hurled at the court, would erode the dignity of the court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the courts. This necessitates vesting of power with the HC to formulate rules for regulating the proceedings inside the court including the conduct of advocates during such proceedings. That power should not be confused with the right to practise law. Thus court held that there may be ways in which conduct and actions of a malefactor who is an advocate may pose a real and imminent threat to the purity of court proceedings cardinal to any court’s functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but also the obligation to protect itself. Hence, to that end it can bar the malefactor from appearing before the courts for an appropriate period of time. In the present case since the contents of the sting recordings were admitted in the present case, there was no need for the proof of integrity and correctness of the electronic materials. Finally the SC upheld HC’s verdict making Anand guilty on the same count. On the other hand, the SC let off I U Khan, who was found guilty by the HC.

Attempt Of Murder:

In the case of Hikmat Ali khan v. Ishwar prasad arya and ors[9], FACTSIshwar Prasad Arya, respondent No. 1, was registered as an advocate with the Bar Council of Uttar Pradesh and was practising at Badaun. An incident took place on May 18, 1971 during lunch interval at about 1.55 p.m., in which respondent No. 1 assaulted his opponent Radhey Shyam in the Court room of Munsif/Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to have been fired by him at the time of incident. After investigation he was prosecuted for offences under Section 307 of the Indian Penal Code and Section 25 of the Arms Act. The 1st Temporary Civil and Sessions Judge, by his judgment dated July 3, 1972, convicted him of the said offence and sentenced him to undergo rigorous imprisonment for three years for the offence under Section 307, I.P.C. and for a period of nine months for offence under Section 25 of the Arms Act.

On the basis of the said complaint disciplinary proceedings were initiated against respondent No. 1 by the Bar Council of U.P. he was found guilty of gross professional mis-conduct by taking the benefit himself of a forged and fabricated document which had been prepared at his behest. The Disciplinary Committee of the Bar Council of U.P. directed that respondent No. 1 be debarred from practising as an advocate for a period of two years from the date of the service of the order. Respondent No. 1 filed an appeal, the said appeal was allowed by the Disciplinary Committee of the Bar Council of India by order dated June 8, 1984 and the order of the Disciplinary Committee of the Bar Council of U.P. dated January 30, 1982 was set aside on the view that there was no material on the basis of which it could reasonably be held that respondent No. 1 had prepared the document which was subsequently found forged. Further the submission of Shri Markendaya is that having regard to the gravity of the misconduct of respondent No. 1 in assaulting his opponent in the Court room with a knife and his having been committed the offence under Section 307, I.P.C. and his being sentenced to undergo rigorous imprisonment for three years in connection with the said incident, the punishment of removal of the name of respondent No. 1 from the roll of advocates should have been imposed on him and that the Disciplinary Committee of the Bar Council of U. P. was in error in imposing the light punishment of debarring respondent No. 1 from practising as an advocate for a period of three years only and that this was a fit case in which the appeal filed by the appellant should have been allowed by the Disciplinary Committee of the Bar Council of India.

HELD: The acts of mis-conduct found established are serious in nature. Under Sub-section (3) of Section 35 of the Act the Disciplinary Committee of the State Bar] Council is empowered to pass an order imposing punishment on an advocate found guilty of professional or other mis-conduct. Such punishment can be reprimand [Clause (b)], suspension from practice for a certain period [Clause (c)] and removal of the name of the advocate from the State roll of advocate [Clause (d)], depending on the gravity of the mis-conduct found established. The punishment of removal of the name from the roll of advocates is called for where the misconduct is such as to show that the advocate is unworthy of remaining in the profession. In this context, it may be pointed out that under Section 24(A) of the Act a person who is convicted of an offence involving moral turpitude is disqualified for being admitted as an advocate on the State roll of advocates. This means that the conduct involving conviction of an offence involving moral turpitude which would disqualify a person from being enrolled as an advocate has to be considered a serious misconduct when found to have been committed by a person who is enrolled as an advocate and it would call for the imposition of the punishment of removal of the name of the advocate from the roll of advocates. In the instant case respondent No. 1 has been convicted of the offence of attempting to commit murder punishable under Section 307, IPC. He had assaulted his opponent in the Court room with a knife. The gravity of the mis-conduct committed by him is such as to show that he is unworthy of remaining in the profession. The said mis-conduct, therefore, called for the imposition of the punishment of removal of the name of respondent No. 1 from the State roll of advocates and the Disciplinary Committee of the Bar Council of U. P., in passing the punishment of debarring respondent No. 1 from practising for a period of three years, has failed to take note of gravity of the misconduct committed by respondent No. 1. Having regard to the facts of the case the proper punishment to be imposed on respondent No. 1 under Section 35 of the Act should have been to direct the removal of his name from the State roll of advocates. The appeal filed by the appellant, therefore, deserves to be allowed. Finally court held that the respondents name should be removed from the rolls.

Misbehaviour As Misconduct

Vinay chandra mishra, in re [10] facts; In this case a senior advocate in on being asked a question in the court started to shout at the judge and said that no question could have been put to him. He threatened to get the judge transferred or see that impeachment motion is brought against him in Parliament. He further said that he has turned up many Judges and created a good scene in the Court. He asked the judge to follow the practice of this Court. he wanted to convey that admission is as a course and no arguments are heard, at this stage. But this act was not only the question of insulting of a Judge of this institution but it is a matter of institution as a whole. In case dignity of Judiciary is not being maintained then where this institution will stand. The concerned judge wrote a letter informing the incident to the chief justice of India. A show cause notice was issued to him. ISSUE: whether the advocate had committed a professional misconduct? Is guilty of the offence of the criminal contempt of the Court for having interfered with and obstructed the course of justice by trying to threaten, overawe and overbear the Court by using insulting, disrespectful and threatening language, and convict him of the said offence. Since the contemner is a senior member of the Bar and also adorns the high offices such as those of the Chairman of the Bar Council of India, the President of the U.P. HC Bar Association, Allahabad and others, his conduct is bound to infect the members of the Bar all over the country. We are, therefore, of the view that an exemplary punishment has to be meted out to him. Thus the contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six weeks and he shall stand suspended from practising as an advocate for a period of three years.

Strike As Misconduct

Ex-capt. Harish uppal V. Union of India[11]facts, Several Petitions raise the question whether lawyers have a right to strike and/or give a call for boycotts of Court/s. In all these Petitions a declaration is sought that such strikes and/or calls for boycott are illegal. As the questions vitally concerned the legal profession, public notices were issued to Bar Associations and Bar Councils all over the country. Pursuant to those notices some Bar Associations and Bar Councils have filed their responses and have appeared and made submissions before us. ISSUE: whether the lawyers have a right to strike. ARGUMENTS: petitioners submitted that strike as a mean for collective bargaining is recognised only in industrial disputes. He submitted that lawyers who are officers of the Court cannot use strikes as a means to blackmail the Courts or the clients. He submitted that the Courts must take action against the Committee members for giving such calls on the basis that they have committed contempt of court. He submitted that the law is that a lawyer who has accepted a Vakalat on behalf of a client must attend Court and if he does not attend Court it would amount to professional misconduct and also contempt of court. He submitted that Court should now frame rules whereby the Courts regulate the right of lawyers to appear before the Court. He submitted that Courts should frame rules whereby any lawyer who mis-conducts himself and commits contempt of court by going on strike or boycotting a Court will not be allowed to practice in that Court. He further submitted that abstention from work for the redressal of a grievance should never be resorted to where other remedies for seeking redressal are available. He submitted that all attempts should be made to seek redressal from the concerned authorities. He submitted that where such redressal is not available or not forthcoming, the direction of the protest can be against that authority and should not be misdirected, e.g., in cases of alleged police brutalities Courts and litigants should not be targeted in respect of actions for which they are in no way responsible. He agreed that no force or coercion should be employed against lawyers who are not in agreement with the “strike call” and want to discharge their professional duties. Respondent submitted that lawyers had a right to go on strike or give a call for boycott. He further submitted that there are many occasions when lawyers require to go, on strike or gave a call for boycott. He submitted that this Court laying down that going on strike amounts to misconduct is of no consequence as the Bar Councils have been vested with the power to decide whether or not an Advocate has committed misconduct. He submitted that this Court cannot penalise any Advocate for misconduct as the power to discipline is now exclusively with the Bar Councils. He submitted that it is for the Bar Councils to decide whether strike should be resorted to or not. Petitioner further relied on the case of Lt. Col. S.J. Chaudhary v. State (Delhi Administration[12], the HC had directed that a criminal trial go on from day to day. Before this Court it was urged that the Advocates were not willing to attend day to day as the trial was likely to be prolonged. It was held that it is the duty of every advocate who accepts a brief in a criminal case to attend the trial day to day. It was held that a lawyer would be committing breach of professional duties if he fails to so attend. In the case of K. John Koshy and Ors. v. Dr. Tarakeshwar Prasad Shaw[13], one of the questions was whether the Court should refuse to hear a matter and pass an Order when counsel for both the sides were absent because of a strike call by the Bar Association. This Court held that the Court could not refuse to hear the matter as otherwise it would tantamount to Court becoming a privy to the strike. HELD : considering the sanctity of the legal profession the court had relied on words said in case of “In Indian Council of Legal Aid and Advice v. Bar Council of India[14], the SC observed thus : “It is generally believed that members of the legal profession have certain social obligations, e.g., to render “pro bono publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefor,e he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession.” In Re: Sanjeev Datta[15], the SC has stated thus: “The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practice it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.” In the case of SC Bar Association v. Union of India[16] it has been held that professional misconduct may also amount to Contempt of Court (para 21). It has further been held as follows: “An Advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for “professional misconduct”, on the basis of his having been found guilty of committing contempt of court.”

Solicitation Of Professional Work

Rajendra V. Pai Vs. Alex Fernandes and Ors.[17]court held that debarring a person from pursuing his career for his life is an extreme punishment and calls for caution and circumspection before being passed. No doubt probity and high standards of ethics and morality in professional career particularly of an advocate must be maintained and cases of proved professional misconduct severely dealt with; yet, we strongly feel that the punishment given to the appellant in the totality of facts and circumstances of the case is so disproportionate as to prick the conscience of the Court. Excepting the instance forming gravamen of the charge against the appellant there does not appear to have been any other occasion where the appellant may have defaulted or misconducted himself. Undoubtedly, the appellant should not have indulged into prosecuting or defending a litigation in which he had a personal interest in view of his family property being involved.

Breach Of Trust By Misappropriating The Asset Of Client

Harish Chandra Tiwari v. Baiju[18]; Court held on these fact, Appellant Harish Chandra Tiwari was enrolled as an advocate with the Bar Council of the State of UP in May 1982 and has been practising since then, mainly in the courts at Lakhimpur Kheri District in UP. Respondent Baiju engaged the delinquent advocate in a land acquisition case in which the respondent was a claimant for compensation. The Disciplinary Committee has described the respondent as “an old, helpless, poor illiterate person.” Compensation of Rs. 8118/- for the acquisition of the land of the said Baiju was deposited by the State in the court. Appellant applied for releasing the amount and as per orders of the court he withdrew the said amount on 2.9.1987. But he did not return it to the client to whom it was payable nor did he inform the client about the receipt of the amount. Long thereafter, when the client came to know of it and after failing to get the amount returned by the advocate, compliant was lodged by him with the Bar Council of the State for initiating suitable disciplinary action against the appellant. HELD, Court held that among the different types of misconduct envisaged for a legal practitioner misappropriation of the client’s money must be regarded as one of the gravest. In this professional capacity the legal practitioner has to collect money from the client towards expenses of the litigation, or withdraw money from the court payable to the client or take money of the client to be deposited in court. In all such cases, when the money of the client reaches his hand it is a trust. If a public servant misappropriates money he is liable to be punished under the present Prevention of Corruption Act, with imprisonment which shall not be less than one year. He is certain to be dismissed from service. But if an advocate misappropriates money of the client there is no justification in de-escalating the gravity of the misdemeanour. Perhaps the dimension of the gravity of such breach of trust would be mitigated when the misappropriation remained only for a temporary period. There may be justification to award a lesser punishment in a case where the delinquent advocate returned the money before commencing the disciplinary proceedings.

Informing About Bribe : Misconduct

Shambhu Ram Yadav v. Hanuman Das Khatry,[19]It was that Court upheld the order of bar council of India dated 31^st July 1999, which held that the appellant has served as advocated for 50 years and it was not expected of him to indulge in such a practice of corrupting the judiciary or offering bribe to the judge and he admittedly demanded Rs.10,000/- from his client and he orally stated that subsequently order was passed in his client’s favour. This is enough to make him totally unfit to be a lawyer by writing the letter in question. We cannot impose any lesser punishment than debarring him permanently from the practice .His name should be struck off from, the roll of advocates maintained by the Bar Council of Rajasthan. Hereafter the appellant will not have any right to appear in any Court of Law, Tribunal or any authority. Court impose a cost of Rs. 5,000/- to the appellant which should be paid by the appellant to the Bar Council of India which has to be within two months

Conclusion: The role of the lawyers in the society is of great importance. They being part of the system of delivering justice holds great reverence and respect in the society. Each individual has a well defined code of conduct which needs to be followed by the person living in the society. A lawyer in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand, more so, when there are conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a party to any deception, design or fraud. While placing the law before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client and the society.

References:

C. Rama Rao, Y. Vijayalakshmi Tayaru, Y. Nageswara Rao, Professional Ethics & Advocacy,Visakhapatnam : Gayatri Books, 1987.

Prassad Anirudh, Principles of the ethics of legal profession in India : accountancy for lawyers and bench-bar relations including contempt of court, Jaipur University Book House, 2004.

Rai. K., History of courts, legislature & legal profession in India, Faridabad : Allahabad Law Agency, 1985.

Krishnamurthy C, Legal Education and Legal Profession In India, International Journal of Legal Information, 36, no. 2, (2008): 245-26

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[1] www.businessdictionary.com/…/professional-misconduct.html accessed on 12March 2010

[2] Vincent Vs. UOI, AIR 1987 SC 990

[3] http://www.indlaw.com/display.aspx?477320d7-5e3f-406f-afb2-4c89753da052/

[4] Appeal No. 156 of 2007

[5] 151 (2008) DLT 695 (Del., DB)

[6] (1998) 4 SCC 409

[7] (2002) 4 SCC 21

[8] (2009) 8 SCC 106

[9] [1997] RD-SC 87

[10] (1995) 2 SCC 584

[11] 2003(1)ALLMR(SC)1169

[12] MANU/SC/0094/1984: 1984CriLJ340

[13] MANU/SC/1313/1998 : (1998)8SCC624

[14] [1995]1SCR304

[15] 1995CriLJ2910

[16] Supra Note 6

[17] AIR 2002 SC 1808

[18] 2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548

[19] (2001) 6 SCC 1. 165

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Special thanks to-

Swapneshwarg

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Haider Ajaz

Advocate

How to Rule--An instructions on Social, Economic and Spiritual Concerns

Government According to Imam Ali {as}

Upon appointing Malik Al-Ashtar as the governor of Eygpt, Imam Ali ibn Abi Talib [a] sent a letter advising Malik in his post. This letter is an invaluable document highlighting the Imam’s outlook towards government, societal needs and the value and rights of a human being in society. It is a message of significant importance and a reminder to Muslims today of the Islamic viewpoint towards Islamic government.

The Richest Treasure

Be it known to you, O, Malik, that I am sending you as Governor to a country which in the past has experienced both just and unjust rule. Men will scrutinize your actions with a searching eye, even as you used to scrutinize the actions of those before you, and speak of you even as you did speak of them. The fact is that the public speak well of only those who do good. It is they who furnish the proof of your actions. Hence the richest treasure that you may covet would be the treasure of good deeds. Keep your desires under control and deny yourself that which you have been prohibited from, for, by such abstinence alone, you will be able to distinguish between what is good to them and what is not.

Develop in your heart the feeling of love for your people and let it be the source of kindliness and blessing to them. Do not behave with them like a barbarian, and do not appropriate to yourself that which belongs to them. Remember that the citizens of the state are of two categories. They are either your brethren in religion or your brethren in kind. They are subject to infirmities and liable to commit mistakes. Some indeed do commit mistakes. But forgive them even as you would like God to forgive you. Bear in mind that you are placed over them, even as I am placed over you. And then there is God even above him who has given you the position of a Governor in order that you may look after those under you and to be sufficient unto them. And you will be judged by what you do for them.

Do not set yourself against God, for neither do you possess the strength to shield yourself against His displeasure, nor can you place yourself outside the pale of His mercy and forgiveness. Do not feel sorry over any act of forgiveness, nor rejoice over any punishment that you may mete out to any one. Do not rouse yourself to anger, for no good will come out of it.

Do not say: “I am your overlord and dictator, and that you should, therefore, bow to my commands”, as that will corrupt your heart, weaken your faith in religion and create disorder in the state. Should you be elated by power, ever feel in your mind the slightest symptoms of pride and arrogance, then look at the power and majesty of the Divine governance of the Universe over which you have absolutely no control. It will restore the sense of balance to your wayward intelligence and give you the sense of calmness and affability. Beware! Never put yourself against the majesty and grandeur of God and never imitate His omnipotence; for God has brought low every rebel of God and every tyrant of man.

Let your mind respect through your actions the rights of God and the rights of man, and likewise, persuade your companions and relations to do likewise. For, otherwise, you will be doing injustice to yourself and injustice to humanity. Thus both man and God will turn unto your enemies. There is no hearing anywhere for one who makes an enemy of God himself. He will be regarded as one at war with God until he feels contrition and seeks forgiveness. Nothing deprives man of divine blessings or excites divine wrath against him more easily than cruelty. Hence it is, that God listens to the voice of the oppressed and waylays the oppressor.

The Common Man

Maintain justice in administration and impose it on your own self and seek the consent of the people, for, the discontent of the masses sterilizes the contentment of the privileged few and the discontent of the few looses itself in the contentment of the many. Remember the privileged few will not rally round you in moments of difficulty: they will try to side-track justice, they will ask for more than what they deserve and will show no gratitude for favors done to them. They will feel restive in the face of trials and will offer no regret for their shortcomings. It is the common man who is the strength of the State and Religion. It is he who fights the enemy. So live in close contact with the masses and be mindful of their welfare.

Keep at a distance him who peers into the weaknesses of others. After all, the masses are not free from weaknesses. It is the duty of the ruler to shield them. Do not bring to light that which is hidden, but try to remove those weaknesses which have been brought to light. God is watchful of everything that is hidden from you, and He alone will deal with it. To the best of your ability cover the weaknesses of the public, and God will cover the weaknesses in you which you are anxious to keep away from their eye. Unloose the tangle of mutual hatred between the public and the administration and remove all those causes which may give rise to strained relations between them. Protect yourself from every such act as may not be quite correct for you. Do not make haste in seeking confirmation of tale-telling, for, the tale-teller is a deceitful person appearing in the garb of a friend.

The Counselors

Never take counsel of a miser, for he will vitiate your magnanimity and frighten you of poverty. Do not take counsel of a coward also, for, he will cheat you of your resolves. Do not take counsel of the greedy too: for he will instill greed in you and turn you into a tyrant. Miserliness, cowardice and greed deprive man of his trust in God.

The worst of counselors is he who has served as a counselor to unjust rulers and shared their crimes. So, never let men who have been companions of tyrants or shared their crimes be your counselors. You can get better men than these, men gifted with intelligence and foresight, but unpolluted by sin, men who have never aided a tyrant in his tyranny or a criminal in his crime. Such men will never be a burden on you. On the other hand, they will be a source of help and strength to you at all times. They will be friends to you and strangers to your enemies. Choose such men alone for companionship both in privacy and in the public. Even among these, show preference to them who have a habitual regard for truth however trying to you at times their truth may prove to be, and who offer you no encouragement in the display of tendencies which God does not like his friends to develop.

Keep close to you the upright, and the God fearing, and make clear to them that they are never to flatter you and never to give you credit for any good that you may not have done: for, the tolerance of flattery and unhealthy praise stimulates pride in man makes him arrogant.

Do not treat the good and the bad alike. That will deter the good from doing good, and encourage the bad in their bad pursuits. Recompense every one according one’s deserts. Remember that mutual trust and good will between the ruler and the ruled are bred only through benevolence, justice and service. So, cultivate good-will amongst the people; for their good-will alone will save you from troubles. Your benevolence to them will be repaid by their trust in you, and your ill-treatment by their ill-will.

Do not disregard the noble traditions set by our forbearers which have promoted harmony and progress among the people; and do not initiate anything which might minimize their usefulness. The men who had established these noble traditions have had their reward; but responsibility will be yours if they are disturbed. Try always to learn something from the experience of the learned and the wise, and frequently consult them in state matters so that you might maintain the peace and good-will which your predecessors had established in the land.

The Different Classes of People

Remember that the people are composed of different classes. The progress of one is dependent on the progress of every other; and none can afford to be independent of the other. We have the Army formed of the soldiers of God, we have our civil officers and their establishments, our judiciary, our revenue collectors and our public relation officers. The general public itself consists of Muslims and Zimmis and among them of merchants and craftsmen, the unemployed and the indigent. God has prescribed for them their several rights, duties and obligations. They are all defined and preserved in the Book of God and in the traditions of his Prophet.

The army, by the grace of God, is like a fortress to the people and lends dignity to the state. It upholds the prestige of the Faith and maintains the peace of the country. Without it the state cannot stand. In its turn, it cannot stand without the support of the state. Our soldiers have proved strong before the enemy because of the privilege God has given them to fight for Him; but they have their material needs to fulfil and have therefore to depend upon the income provided for them from the state revenue. The military and civil population who pay revenue, both need the co-operation of others -the judiciary, civil officers and their establishment. The Qazi administers civil and criminal law; the civil officers collect revenue and attend to civil administration with the assistance of their establishment. And then there are the tradesmen and the merchants who add to the revenue of the state. It is they who run the markets and are in a better position than others to discharge social obligations. And then there is the class of the poor and the needy, whose maintenance is an obligation on the other classes. God has given appropriate opportunity of service to one and all; and then there are the rights of all these classes over the administration which the administrator has to meet with an eye on the good of the entire population, a duty which he cannot fulfill properly unless he takes personal interest in its execution and seeks help from God. Indeed it is obligatory on him to impose this duty on himself and to bear with patience the inconveniences and difficulties incidental to his task.

The Army

Be particularly mindful of the welfare of those in the army who in your opinion, are staunchly faithful to their God and Prophet and loyal to their chief, and who in the hour of passion can restrain themselves and listen coolly to sensible remonstrance, and who can succor the weak and smite the strong, whom violent provocation will not throw into violent temper and who will not falter at any stage.

Keep yourself in close contact with the families of established reputation and integrity with a glorious past, and draw to yourself men brave and upright in character, generous and benevolent in disposition; for such are the salt of society.

Care for them with the tenderness with which you care for your children, and do not talk before them of any good that you might have done to them, nor disregard any expression of affection which they show in return; for, such conduct inspires loyalty, devotion and goodwill. Attend to every little of their wants not resting content with what general help that you might have given to them, for sometimes, timely attention to a little want of theirs brings them immense relief. Surely these people will not forget you in your own hour of need.

It behooves you to select for your Commander-in-chief one who imposes on himself as a duty, the task of rendering help to his men, and who can excel in kindness every other officer who has to attend to the needs of the men under him, and look after their families when they are away from their homes; so much so, that the entire army should feel united in their joys and in their sorrows. The unity of purpose will give them added strength against the enemy. Continue to maintain a kindly attitude towards them so that they might feel attached to you. The fact is that the real happiness of the administrators and their most pleasant comfort lies in establishing justice in the state and maintaining affectionate relations with the people. Their sincerity of feeling is expressed in the love and regard they show to you, on which alone depends the safety of the administrators.
Your advices to the army will be of no avail, unless and until you show affection to both men and officers, in order that they might not regard the Government as an oppressive burden or contribute to its downfall.

Continue to satisfy their needs and praise them over and over again for what services they have rendered. Such an attitude, God willing will inspire the brave to braver actions and induce the timid to deeds of bravery.

Try to enter into the feelings of others and do not foist the mistake of one over another and do not grudge dispensing appropriate rewards. See to it you do not show favors to one who has done nothing but merely counts on his family position; and do not withhold proper rewards from one who has done great deeds simply because he holds a low position in life.

The Real Guidance

Turn to God and to His prophet for guidance whenever you feel uncertain as to what you have to do. There is the commandment of God delivered to those people who He wishes to guide aright: “O people of the Faith! Obey God and obey His prophet and those from among you who hold authority over you. And refer to God and His prophet whenever there is difference of opinion among you. To turn to God is in reality to consult the Book of God; and to turn to the prophet is t follow his universally accepted traditions.

Chief Judge

Select for your chief judge one from the people who is by far the best among them -one who is not obsessed with domestic worries, one who cannot be intimidated, one who does not err to often, one who does not turn back from a right path once he finds it, one who is not self-centered or avaricious, one who will not decide before knowing full facts, one who will weigh wit care every attendant doubt and pronounce a clear verdict after taking everything into full consideration, one who will not grow restive over the arguments of advocates and who will examine with patience every new disclosure of fact and who will be strictly impartial in his decision, one who flattery cannot mislead or one who does not exult over his position. But it is not easy to find such men.

Once you have selected the right man for the office, pay him handsomely enough, to let him live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high none can even dream of coveting it and so high that neither back-biting nor intrigue can touch him.

Subordinate Judiciary

Beware! The utmost carefulness is to be exercised in his selection: for it is this high office which adventurous self-seekers aspire to secure and exploit in their selfish interests. After the selection of your chief judge, give careful consideration to the selection of other officers. Confirm them in their appointments after approved apprenticeship and probation. Never select men for responsible posts either out of any regard for personal connections or under any influence, for, that might lead to injustice and corruption.

Of these select for higher posts men of experience, men firm in faith and belonging to good families. Such men will not fall an easy prey to temptations and will discharge their duties with an eye on the abiding good of others. Increase their salaries to give them a contented life. A contented living is a help to self-purification. They will not feel the urge to tax the earnings of their subordinates for their own upkeep. They will then have no excuse either to go against your instructions or misappropriate state funds. Keep to watch over them without their knowledge, loyal and upright men. Perchance they may develop true honesty and true concern for the public welfare. But whenever any of them is accused of dishonesty and the guilt is confirmed by the report of your secret service, then regard this as a sufficient to convict him. Let the punishment be corporal and let that be dealt in the public at an appointed place of degradation.

Revenue Administration

Great care is to be exercised in revenue administration, to ensure the prosperity of those who pay the revenue to the state; for it is on their prosperity depends the prosperity of others, particularly the prosperity of the masses. Indeed, the state exists on its revenue. You should regard the proper upkeep of the land in cultivation as of greater importance than the collection of revenue, for revenue cannot be derived except by making the land productive. He who demands revenue without helping the cultivator to improve his land, inflicts unmerited hardship on the cultivator and ruins the State. The rule of such a person does not last long. If the cultivators ask for reduction of their land cess for having suffered from epidemics or drought or excess of rains or the barrenness of the soil or floods damaging to their barrenness of the soil or foods damaging to their crops, then, reduce the cess accordingly, so that their condition might improve. Do not mind the loss of revenue on that account for that will return to you one day manifold in the hour of greater prosperity of the land and enable you to improve the condition of your towns and to raise the prestige of your state. You will be the object of universal praise. The people will believe in your sense of justice. The confidence which they will place in you in consequence will prove your strength, as they will be found ready to share your burdens.

You may settle down on the land any number of people, but discontent will overtake them if the land is not improved. The cause of the cultivator’s ruin is the rulers who are bent feverishly on accumulating wealth at all costs, out of the fear that their rule might not last long. Such are the people who do not learn from examples or precedents.

Clerical Establishment

Keep an eye on your establishment and your scribes; and select the best among them for your confidential correspondence such among these as possess high character and deserve your full confidence, men who may not exploit their privileged position to go against you and who may not grow neglectful of their duties and who in the drafting of treaties may not succumb to external temptation and harm your interests, or fail to render you proper assistance and to save you from trouble, and who in carrying out their duties can realize their serious responsibilities, for he who does not realize his own responsibilities can hardly appraise the reprehensibilities of others. Do not select men for such work merely on the strength of your first impressions of your affection or good faith; for as a matter of fact; the pretensions of a good many who are really devoid of honesty and good breeding may cheat even the intelligence of rulers. Selection should be made after due probation which should be the test of righteousness. In making direct appointments from people, see to it that those selected possess influence with the people and who enjoy the reputation of being honest; for such selection is agreeable to God and the ruler. For every department of administration, let there be a head, whom no trying task might cause worry and no pressure of work annoy.

And remember that every weakness of any one among your establishment and scribe which you may overlook will be written down against you in your scroll of deeds.

Trade and Industry

Adopt useful schemes placed before those engaged in trade and industry and help them with wise counsels. Some of them live in towns, and some move from place to place with their wares and tools and earn their living by manual labor. Trade and Industry are sources of profit to the State. While the general public is not inclined to bear the strain, those engaged in these professions take the trouble to collect commodities from far and near, from land and from across the sea, and from mountains and forests and naturally derive benefits.

It is this class of peace loving people from whom no disturbance need be feared. They love peace and order; indeed they are incapable of creating disorder. Visit every part of the country and establish personal contact with this class, and inquire into their condition. But bear in mind that a good many of them are intensely greedy and are inured to bad dealings. They hoard grain and try to sell it at a high price; and this is most harmful to the public. It is a blot on the name of the ruler not to fight this evil. Prevent them from hoarding; for the Prophet of God -Peace be upon him – had prohibited it. And see to it that trade is carried on with the utmost ease, that the scales are evenly held and that prices are so fixed that neither the seller nor the buyer is put to a loss. And if inspite of your warning, should anyone go against your commands and commit the crime of hoarding, then deal him appropriately with severe punishment.

The Poor

Beware! Fear God when dealing with the problem of the poor who have non to patronize, who are forlorn, indigent and helpless and are greatly torn in mind -victims of the vicissitudes of Time. Among them there are some who do not question their lot in life not withstanding their misery, do not go about abegging. For God’s sake, safeguard their rights; for on you rests the responsibility of protection. Assign for their uplift a portion of the state exchequer (Baitul-mal), wherever they may be, whether close at hand or far away from you. The rights of the two should be equal in your eye. Do not let any preoccupation slip them from your mind; for no excuse whatsoever for the disregard of their rights will be acceptable to God. Do not treat their interests as of less importance than your own, and never keep them outside the purview of your important considerations, and mark the persons who look down upon them and of whose conditions they keep you in ignorance.
Select from among your officers such men as are meek and God fearing who can keep you properly informed of the condition of the poor. Make such provision for these poor people as shall not oblige you to offer an excuse before God on the Day of Judgment; for, it is this section of the people more than any other which deserves benevolent treatment. Seek your reward from God by giving to each of them what is due to him and enjoin on yourself as a sacred duty the task of meting the needs of such aged among them as have no independent means of livelihood and are averse to seek alms. And it is the discharge of this duty that usually proves very trying for ruler, but is very welcome to societies which are gifted with foresight. It is only such societies or nations who truly carry out with equanimity their covenant with God to discharge their duty to the poor.

Open Conferences

Meet the oppressed and the lowly periodically in an open conference and, conscious of the divine presence there, have a heart-to-heart talk with them, and let none from your armed guard or civil officers or members of the police or the Intelligence Department be by your side, so that the representatives of the poor might state their grievances fearlessly and without reserve. For I have the Prophet of God saying that no nation or society will occupy a high position in which the strong do not discharge their duty to the weak. Bear with composure any strong language which they may use, and do not get annoyed if they cannot state their case lucidly, even so, God will open you his door of blessings and rewards. Whatever you can give to them, give it ungrudgingly, and whatever you cannot afford to give, make that clear to them in utmost sincerity.

There are certain things which call for prompt action. Accept the recommendations made by your officers for the redress of the grievances of the clerical staff. See to it that petitions or applications that are submitted for your consideration are brought to your notice the very day they are submitted, however much your officers might try to intercede them. Dispose off the day’s work that very day, for the coming day will bring with it its own tasks.

Communion with God

And do not forget to set apart the best of your time for communion with God, although every moment of yours is for Him only, provided it is spend sincerely in the service of your people. The special time that you give to prayer in the strict religious sense is to be devoted to the performances of the prescribed daily prayers. Keep yourself engaged in these prayers both in the day and in the night, and to gain perfect communion, do not as far as possible, let your prayers grow tiresome. And when you lead in congregational prayer, do not let your prayer be so lengthy as to cause discomfort to the congregation or raise in them the feeling of dislike for it or liquidate its effect: for in the congregation there may be invalids and also those who have to attend pressing affairs of their own.

When I had asked of the Prophet of God on receiving an order to proceed to Yaman, how I should lead the people there in prayer, he said -perform your prayers even as the weakest among you would do; and set an example of consideration to the faithful.

Aloofness not desirable

Alongside of the observance of all that I have said above bear one thing in mind. Never for any length of time keep yourself aloof from the people, for to do so is to keep oneself ignorant of their affairs. It develops in the ruler a wrong perspective and renders him unable to distinguish between what is important and what is not, between right and wrong, and between truth and falsehood. The ruler is after all human; and he cannot form a correct view of anything which is out of sight. There is no distinctive sign attached to truth which may enable one to distinguish between the different varieties of truth and falsehood. The fact is that you must be one of two things. Either you are just or unjust. If you are just, then you will not keep yourself away from the people, but will listen to them and meet their requirements. On the other hand, it you are unjust, the people themselves will keep way from you. What virtue is there in your keeping aloof? At all events aloofness is not desirable especially when it is your duty to attend to the needs of the people. Complaints of oppression by your officers or petitions for justice should not prove irksome to you.

Make this clear to yourself that those immediately about and around you will like to exploit their position to covet what belongs to others and commit acts of injustice. Suppress such a tendency in them. Make a rule of your conduct never to give even a small piece of land to any of your relations. That will prevent them from causing harm to the interests of others and save you from courting the disapprobation of God and Man.

Deal justice squarely regardless of the fact whether one is a relation or not. If any of your relations or companions violates the law, mete out the punishment prescribed by law however painful it might be to you personally; for it will be all to the good of the State. If at any time people suspect, that you have been unjust to them in any respect disclose your mind to them and remove their suspicions. In this way, your mind will get attuned to the sense of justice and people will begin to love you. It will also fulfill your wish that you should enjoy their confidence.

Peace and Treaties

Bear in mind that you do not throw away the offer of peace which your enemy may himself make. Accept it, for, that will please God. Peace is a source of comfort to the army; it reduces your worries and promotes order in the State. But Beware! Be on your guard when the peace is signed; for, certain types of enemies propose terms of peace just to lull you into a sense of security only to attack you again when you are off your guard. So you should exercise the utmost vigilance on your part, and place no undue faith in their protestations. But, if under the peace treaty you have accepted any obligations, discharge those obligations scrupulously. It is a trust and must be faithfully upheld and whenever you have promised anything, keep it with all the strength that you command, for whatever differences of opinion might exist on other matters, there is nothing so noble as the fulfillment of a promise. This is recognized even among non-Muslims, for they know the dire consequences which follow from the breaking of covenants. So never make excuses in discharging your responsibilities and never break a promise, nor cheat your enemy. For, breach of promise is an act against God, and none except the positively wicked acts against God.

Indeed divine promises are a blessing spread over all mankind. The promise of God is a refuge sought after even by the most powerful on earth; for there is no risk of being cheated. So, do not make any promise from which you may afterwards offer excuses to retract; nor do you go back upon what you have confirmed to abide by; nor do you break it, however galling it may at first prove to be. For, it is far better to wait in patience for wholesome results to follow than to break it out of any apprehensions.

Beware! Abstain from shedding blood without a valid cause. There is nothing more harmful than this which brings about one’s ruin. The blood that is willfully shed shortens the life of a state. On the Day of Judgment it is this crime for which one will have to answer first. So, beware! Do not wish to build the strength of your state on blood; for, it is this blood which ultimately weakens the state and passes it on to other hands. Before me and my God no excuse for willful killing can be entertained.

Murder is a crime which is punishable by death. If on any accord the corporal punishment dealt by the state for any lesser crime results in the death of the guilty, let not the prestige of the stage stand in any way of the deceased relations claiming blood money.

Last Instructions

Do not make haste to do a thing before its time, nor put it off when the right moment arrives. Do not insist on doing a wrong thing, nor show slackness in rectifying a wrong thing. Perform everything in its proper time, and let everything occupy its proper place. When the people as a whole agree upon a thing, do not impose your own view on them and do not neglect to discharge the responsibility that rests on you in consequence. For, the eyes of the people will be on you and you are answerable for whatever you do to them. The slightest dereliction of duty will bring its own retribution. Keep your anger under control and keep your hands and tongue in check whenever you fall into anger, try to restrain yourself or else you will simply increase your worries.

It is imperative on you to study carefully the principles which have inspired just and good rulers who have gone before you. Give close thought to the example of our prophet (peace be upon him), his traditions, and the commandments of the Book of God and whatever you might have assimilated from my own way of dealing with things. Endeavor to the best of your ability to carry out the instructions which I have given you here and which you have solemnly undertaken to follow. By means of this order, I enjoin on you not to succumb to the prompting of your own heart or to turn away from the discharge of duties entrusted to you.

I seek the refuge of the might of the Almighty and of His limitless sphere of blessings, and invite you to pray with me that He may give us together the grace willingly to surrender our will to His will, and to enable us to acquit ourselves before Him and His creation; so that mankind might cherish our memory and our work survive. I seek of God the culmination of his blessings and pray that He may grant you and me His grace and the honor of martyrdom in His cause. Verily, we have to return to Him. I invoke His blessings on the Prophet of God and his pure progeny.

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Haider Ajaz

Advocate