1998 Supreme(SC) 492

1998(4) Supreme 251
Supreme Court of India
(Civil Original Jurisdiction)
S.C. Agrawal, G.N. Ray, A.S. Anand, S.P. Bharucha & S. Rajendra Babu, JJ.
Supreme Court Bar Association —Petitioner
versus
Union of India & Anr. —Respondents
Writ Petition (Civil) No. 200 of 1995
Decided on 17-4-1998
Counsel for the Parties :
For the SCBA : Kapil Sibal, Sr. Advocate.
For Bar Council of U.P. and Bar Council of India : Dr. Rajiv Dhawan, Sr. Advocate.

Important Point
Power of the Supreme Court under Articles 129 r/w 142 of Constitution to punish for its contempt is very wide but it cannot be expanded to include the power to debar offending advocate to practice or suspend his licence in a summary manner while dealing with a case of contempt of court.

Headnote:(i) Constitution of India—Arts. 32, 129 and 142—Punishment for established contempt of court—In re: Vinay Chandra Mishra, Mishra, former Bar Council Chairman was found guilty in 1995 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’—Petition by SCBA against decision of the Court debarring him from practice—Whether the punishment for established contempt of court committed by an advocate can include debarring him from practice by suspending his licence (sanad) for a specified period in exercise of its powers under Articles 129 read with 142 of the Constitution? (Advocates Act, 1961 and Bar Council of India Rules).

       Held : The power of the Supreme Court to punish for contempt of court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of “profes­sional misconduct” in a summary manner, giving a go bye to the proce­dure prescribed under the Advocates Act. The power to do complete justice under Article 142 is in a way, corrective power, which gives preference to equity over law but it cannot be used to deprive a professional lawyer of the due process contained in the Advocates Act 1961 by suspending his licence to practice in a summary manner, while dealing with a case of contempt of court. (Para 45)

       In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing “professional misconduct”, depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an Advocate, by suspending his licence or by removal of his name from the roll of the State bar Council, for proven profes­sional misconduct, vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts. (Para 59)

       After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for ‘pro­fessional misconduct” has been conferred on the concerned State Bar Council and the Bar Council of India. That Act contains a detailed and complete mechanism for sus­pending or revoking the licence of an advocate for his ‘professional misconduct’. Since, the suspension or revocation of licence of an advocate has not only civil consequences but also penal consequences, the punishment being in the nature of penalty, the provisions have to be strictly construed. Punishment by way of suspending the licence of an advocate can only be imposed by the competent statutory body after the charge is established against the Advocate in a manner prescribed by the Act and the Rules framed thereunder. (Para 60)

       The object of referring to the various provisions of the Advocates Act, 1961 and the Rules framed thereunder is to demonstrate that an elaborate and detailed procedure, almost akin to that of a regular trial of a case by a court, has been prescribed to deal with a com­plaint of professional misconduct against an advocate before he can be punished by the Bar Council by revoking or suspending his licence or even for reprimanding him. (Para 74)

       Held in conclusion : Thus, to conclude we are of the opinion that this Court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner for committing con­tempt of court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an Advocate. Such a pun­ishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of con­tempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in Re: Vinay Chandra Mishra, ­(1952) 2 SCC 584 is not good law and we overrule it. (Para 83)

       In V.C. Mishra’s case, the Bench, relied upon its inherent powers under Article 142, to punish him by suspending his licence, without the Bar Council having been given any opportunity to deal with his case under the Act. We cannot persuade ourselves to agree with that approach. It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the constitution so as to function within the bounds of its own jurisdiction. To the extent, this Court makes the statutory au­thorities and other organs of the State perform their duties in accordance with law, its role is unexceptionable but it is not permis­sible for the Court to “take over” the role of the statutory bodies or other organs of the State and “perform” their functions. (Para 87)

       Held finally : Upon the basis of what we have said above, we answer the question posed in the earlier part of this order, in the negative. The Writ Petition succeeds and is ordered accordingly. (Para 88)

       (1995) 2 SCC 584 overruled.

       (ii) Supreme Court Rules and Section 38 (Proviso) of Advocates Act, 1961—Appellate Powers u/s. 38 available to Supreme Court alone and not to High Courts—Supreme Court has jurisdiction to with­draw the privilege to practice as an advocate on record but it does not include power to suspend or revoke licence to practice as an advocate. (Paras 84 & 85)

       (iii) Constitution of India—Art. 129—Court of Record—Meaning.

       Held : A court of record is a court, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court. The power that courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice. (Para 12)

       (iv) Constitution of India—Arts. 142(2) r/w 129—Power of Supreme Court in respect of investigation or punishment of any contempt.

       Held : It is, thus, seen that the power of this court in respect of investigation or punishment of any contempt including contempt of itself, is expressly made “subject to the provisions of any law made in this behalf by the Parliament” by Article 142(2). However, the power to punish for contempt being inherent in a court of record, it follows that no act of Parliament can take away that inherent juris­diction of the Court of Record to punish for contempt and the Parlia­ment’s power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which this court may impose in the case of established contempt. Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment of contempt of itself, (we shall refer to Section 15 of the Contempt of Courts Act, 1971, lateron) and this Court therefore, exercises the power to investigate and punish for contempt of itself by virtue of the powers vested in it under Articles 129 and 142(2) of the Constitution of India. (Para 20)