Contempt by Advocates in reference with Supreme Court Bar

Association vs Union Of India & Anr on 17 April, 1998

Tanmay Sharma
A3221518085
BBA.LLB (H)
SEM 9 SEC A

Introduction

The legal profession is a solemn and serious occupation. It is a noble calling and all those
who belong to are its honorable members. Although the entry to the profession can be had
acquiring merely the quali cation of technical competence, the honor as a professional has
to be maintained by its members, by their exemplary conduct both in and outside the court.

The object and need of the contempt jurisdiction or contempt of Court the Court has held
that the object of the contempt power is not to vindicate the dignity and honor of the
individual Judge who is personally attacked or scandalized, but to uphold the majesty of
law and administration of justice. The foundation of the Judiciary is the trust and
con dence of the people in its ability to deliver fearless and impartial justice.

The judiciary is the guardian of the rule of law. Hence judiciary is not the third pillar but the
central pillar of the democratic state. Misconduct: it is a suf ciently wide expression: it is
not necessary that it should involve moral turpitude. Any conduct which in any way renders
a man un t for the exercise of his profession or is likely to hamper or embarrass the
administration of justice maybe considered to be misconduct calling for disciplinary action.
It cannot be said that an advocate can never be punished for professional misconduct
committed by him in his personal capacity.

In Re: Vinay Chandra Mishra

In this case an advocate was found guilty of criminal contempt of Court and he was
sentenced to undergo simple imprisonment for a period of six years and suspended from
practising as an advocate for a period of three years. The punishment of imprisonment
was suspended for a period of four years and was to be activated in case of his conviction
for any other offence of contempt of Court within the said period.
The Court held that the license of an advocate to practice legal profession may be
suspended or cancelled by the Supreme Court or High Court in the exercise of the
contempt jurisdiction.

It was laid down that the Supreme Court can take cognizance of the contempt of High
Court. Being the Court of record the Supreme Court has the power to punish for the
contempt of the courts subordinate to it. Thus, the Supreme Court is fully competent to
take cognizance of the contempt of the High Courts or courts subordinate to it. It was also
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 claimed that the Judge before whom the contempt has been committed should be
excluded. This claim was not sustainable in the view of the Court. It observed further that
its contempt jurisdiction under Article 129 of the Constitution cannot be restricted or taken
away by a statute, be it the Advocates Act, 1961 or the Contempt of Courts Act, 1971. The
Court has also observed that the contempt jurisdiction of the superior Court's is not based
on the statutory provisions but it is inherent jurisdiction available to them on account of
being a court of record. As regards the procedure to be followed the Court has observed
that the Courts of record can deal with summarily with all types of contempt. With regards
to Article 142 of the Constitution the Court observed that the jurisdiction and powers of the
Supreme Court which are supplementary in nature and are provided to do complete justice
in any manner, are independent of the jurisdiction and powers of the Supreme Court under
Article 129 which cannot be trammeled in any manner by any statutory provision including
any provisions of the Advocates Act, 1961 or the Contempt of Courts Act, 1971.

The Advocates Act, 1961 has nothing to do with the contempt jurisdiction of the Court, and
the Contempt of Courts Act, 1971 being a statute cannot denude the, restrict or limit the
powers of this Court to take action for contempt under Article 129.

The Supreme Court also held that it being appellate authority under Section 38 of the
Advocates Act, 1961 can impose punishment mentioned in Section 35 of the said Act.
Thus, the Supreme Court may suspend or cancel the license of an advocate to practice his
profession for contempt of Court.
It nally said that the threat of immediate punishment is the most effective deterrent
against the misconduct. They emphasized that the time factor was crucial and dragging
the contempt proceedings means a lengthy interruption to the main proceedings which
paralyzed the Court for a long time.
This case was overruled by Supreme Court Bar Association v. Union of India and Another.

Supreme Court Bar Association v. Union of India and Another.

Facts

In Re: Vinay Chandra Mishra, this Court found the Contemner, an advocate, guilty of
committing criminal contempt of Court for having interfered with and "obstructing the
course of justice by trying to threaten, overawe and overbear the court by using insulting,
disrespectful and threatening language".
Aggrieved by the direction that the contemner shall stand suspended from practising as an
advocate for a period of three years issued by the Supreme Court by invoking powers
under Articles 129 and 142 of the Indian Constitution, the Supreme Court Bar Association,
through its Honorary Secretary, led a petition under Article 32 of the Constitution of India
seeking relief by way of issuing an appropriate writ, direction, or declaration, declaring that
the disciplinary committees of the Bar Councils set up under the Advocates Act, 1961,
alone have exclusive jurisdiction to inquire into and suspend or debar an advocate from
practising law for professional or other misconduct, arising out of punishment imposed for
contempt of court or otherwise and further declare that the Supreme Court of India or any
High Court in exercise of its inherent jurisdiction has no such original jurisdiction, power or
authority in that regard notwithstanding the contrary view held by this Hon'ble Court in In
Re: Vinay Chandra Mishra.
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Issue For Consideration

The petition was placed before a Constitutional Bench for passing the appropriate
direction, order or declaration. The bench identi ed a single question and had to decide
upon was whether the Supreme Court of India can while dealing with Contempt
Proceedings exercise power under Article 129 of the Constitution or under Article 129 read
with Article 142 of the Constitution or under Article 142 of the Constitution can debar a
practicing lawyer from carrying on his profession as a lawyer for any period whatsoever.

The petitioner's assailed the correctness of the ndings in In Re:

# the Supreme Court can neither create a "jurisdiction" nor create a "punishment" not
otherwise permitted by law and that since the power to punish an advocate (for
"professional misconduct") by suspending his license vests exclusively in a statutory body
constituted under the Advocates Act, this Court cannot assume that jurisdiction under
Article 142 or 129 or even under Section 38 of the Advocates Act, 1961.The bench came
to the conclusion that the Supreme Court under Article 129 and the High Court under
Article 215 of the Indian Constitution declaring them court of records has the power to
punish the for contempt of itself. The Court observed that Parliament is competent to make
law in relation to Contempt of Court. After analyzing Article 246 and entry 77 of List I of the
VIIth Schedule and entry 14 of List III of the said schedule it is evident that the legislature
can make a law regarding the same, but cannot take away contempt jurisdiction from the
Courts which ows from the Courts being deemed as Courts of record which embodies the
power to punish for the contempt of itself.

With reference to Article 142 of the Constitution of India the Court observed that when this
court takes cognizance of a matter of contempt of Court by an advocate, there is no case,
cause or matter before it regarding his professional misconduct even though in a given
case, the contempt committed by an advocate may also amount to an abuse of the
privilege granted to an advocate by virtue of the license to practice law. No issue relating
to his suspension from practice is the subject matter of the case.

The Court opined that power to punish in matters of contempt of Court, though quite wide,
is yet limited and cannot be expanded to include the power to determine whether the
advocate is also guilty of professional misconduct in a summary manner giving a go by to
the procedure prescribed under the Advocates Act, 1961.

The power to do complete justice, in a way is a corrective power which gives preference to
equity over law but it cannot be used to deprive a professional lawyer of the due process
of law, contained in the Advocates Act, 1961, while dealing with a case of contempt of
Court.
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From a reading of Article 142 it is clear the statutory provisions cannot be ignored or taken
away or assumed by the Supreme Court. The Advocates Act, 1961, empowers the Bar
Council to take action against the advocate for professional misconduct. The Bar Council
is empowered under Section 35 of the Advocates Act, 1961 to punish advocates for
professional misconduct. The act contains a detailed and complete mechanism for
suspending or revoking the license of an advocate. A disciplinary committee hears the
case of the advocate concerned and then order any of the punishments listed in Section
35(3) (a-d). If the advocate is guilty of contempt of Court as well as professional
misconduct the Court must punish him for the contempt, whereas refer the professional
misconduct to the Bar. The Bar will then initiate proceedings against, this provides the
advocate with right to be heard and appropriate action is taken by the disciplinary
committee. After such proceedings if the advocate is aggrieved he may approach the
Supreme Court. Section 38 of the Advocates Act, 1961 provides for an appeal to the
Supreme Court. This Section confers upon the Court appellate jurisdiction. If once the
matter has been reported to the Bar and it does not take any action, the Court may take up
the matter. This Section can in no way be construed to give original jurisdiction to the
Court.

The Court opined that the Supreme Court makes the statutory bodies and other organs of
the State perform their duties in accordance with law, its role is unexceptionable but it is
not permissible for the Supreme Court to take over the role of the bodies and other organs
of the State and perform their functions.
There was an inherent fallacy in the case of Vinay Mishra, it was said once the matter is
before the court it can pass any order or direction. But the matter is that of contempt of
Court not of professional misconduct. The Court has jurisdiction on the matter of contempt
but professional misconduct vests with the Bar. As the Bar can suspend an advocate only
after giving him an opportunity to represent himself which is the requirement of due
process of law, after the case of Maneka Gandhi v. Union of India. The Court in Vinay's
case vested with itself with the jurisdiction that it never had.

Conclusion

The Supreme Court is vested with the right to punish those guilty of contempt of Court
under Article 129 read with Article 142 of the Constitution of India. The power to punish
contemners is also vested with the High Courts under Article 215 of the Constitution and
the Contempt of Courts Act, 1971 also governs the punishments given by the High Court.
This act in no way controls the jurisdiction of the Apex Court. The Court in In Re: Vinay
Mishra misconstrued Article 129 read with 142 and robbed the Bar to of all powers to try
and punish those for professional misconduct. It even assumed jurisdiction when Section
38 of the Advocates Act, 1961 explicitly provides only appellate jurisdiction to the Apex
Court. The Court punished Shri Mishra by suspending him thus the petition arose in the
1998 case, Supreme Court Bar Association v. Union of India.

The Court overruled the Mishra case and recognized the Bar Council's power to try and
punish all those guilty of professional misconduct. It is well settled that contempt
proceedings are brought about to protect the majesty of law and uphold the judiciary's
position, the central pillar in Indian democracy, among the public and give them reason to
keep their faith in the administration of justice. Contempt proceedings are not brought
about to restore the pride of the Judge in who's Court or against whose order their was
contempt.

In the Mishra case the Court instead of protecting the image of the Judiciary, the upholder
of the law, knowingly or un-knowingly, tried to restore the pride of the Judge by suspending
the advocate Mishra who might have been in uenced by his high position in the Bar, and
felt that appropriate punishment might not be meted out to him.

In the Supreme Court Bar Association case the court took a very objective view and taking
the help of law and construing it in the right way came to the conclusion that the power to
punish for any professional misconduct rests with the Bar, whereas to punish for contempt
only it has jurisdiction for itself and subordinate courts. No statute can take contempt
jurisdiction away from the Supreme as well as the High Court.


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