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JUDGMENT: DR. ANAND, J.
In Re: Vinay Chandra Mishra, (1995) 2 SCC 584, 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”, While awarding punishment, keeping in view the gravity
of the contumacious conduct of the contemner, the Court said:
” The facts and circumstances of the Present Case justify our invoking the power underArticle
129 read with Article 142 of the Constitution to award to the contemner a suspended sentence of
imprisonment together with suspension of his practice as and advocate in the manner directed
herein. We accordingly sentence the contemner for his conviction for the offence of the criminal
contempt as under:
(a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for
a period of six weeks. However, in the circumstances of the case, the sentence will remain
suspended for a period of four years and may be activated in case the contemner is convicted for
any other offence of contempt of court within the said period; and
(b) The contemner shall stand suspended from practising as an advocate fro a period of three years
from today with the consequence that all held by him in his capacity as an advocate, shall stand
vacated by him forthwith.
Aggrieved by the direction that the “Contemner shall stand suspended from practising as an
Advocate for a period of three years” issued by this Court by invoking powers under Articles 129
and 142 of the Constitution, the Supreme Court Bar Association, through its Honorary Secretary,
has filed this petition under Article 32 of the Constitution of India, seeking the following relief:
” Issue and 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 Contempt Petition (Crl.) No. 3 of 1994 dated 10.3.1995.”
” The question which arises is 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, We direct
notice to issue on the Attorney General of India and on the respondents herein. Notice will also
issue on the application for interim stay. Having regarding to the importance of the aforesaid
question we further direct that this petition be placed before a Constitution Bench of this Court.”
175
That is how this Writ petition has been placed before this Constitution Bench.
The only question which we are called upon to decide in this petition is whether the punishment for
established contempt of Court committed by an Advocate can include punishment to debar the
concerned advocate from practice by suspending his licence (sanad) for a specified period, in
exercise of its powers under Article 129 read with Article 142 of the Constitution of India.
Dealing with this issue, the three judge Bench in vinay Chandra Mishra’s case (Supra), opined:
“The question now is what punishment should be meted out to the contemner. We have already
discussed the contempt jurisdiction of this Court under Article 129 of the Constitution. That
jurisdiction is independent of the statutory law of contempt enacted by Parliament under Entry 77 of
List I of Seventh Schedule of the Constitution. The jurisdiction of this Court, under Article 129 is
sui generis. The jurisdiction to take cognizance of the contempt as well as to award punishment for
it being constitutional, it cannot be controlled by any statute. Neither, therefore, theContempt of
Courts Act, 1971 nor the Advocates Act, 1981 can be pressed into service to restrict the said
jurisdiction.
What is further, the jurisdiction and powers of this Court under Article 142 which are
supplementary in nature and are provided to do complete justice in any matter, are independent of
the jurisdiction and powers of this Court under Article 129 which cannot be trammeled in any way
by any statutory provision including the provisions of the Advocates Act or the contempt
jurisdiction of the court including of this Court and the contempt of Courts Act, 1971 being a statute
cannot denude, restrict or limit the powers of this Court to take action for contempt under Article
129.
Mr. Kapil Sibal, learned senior counsel appearing for the Supreme Court Bar Association, and Dr.
Rajiv Dhawan, senior advocate appearing for the Bar Council of U.P. and Bar Council of India
assailed the correctness of the above findings and submitted that powers conferred on this Court
by Article 142, though very wide in their aptitude, can be exercised only to “do complete justice in
any case or cause pending before it ” and since the issue of ‘professional misconduct’ is not the
subject matter of “any cause” pending before this court while dealing with a case of contempt of
court, it could not make any order either under Article 142 or 129 to suspend the licence of an
advocate contemner, for which punishment, statutory provisions otherwise exist. According to the
learned counsel, a court of record under Article 129 of the Constitution does not have any power to
suspend the licence of a lawyer to practice because that is not a punishment which can be imposed
under its jurisdiction to punish for contempt of Court and that Article 142 of the Constitution cannot
also be pressed into aid to make an order which has the effect of assuming “jurisdiction which
expressly vests in another statutory body constituted under the Advocates Act, 1961. The learned
Solicitor General submitted that under Article 129 read with Article 142 of the Constitution, this
Court can neither create a “jurisdiction” nor created a “punishment” not otherwise permitted by law
and that since the power to punish an advocate (for “professional misconduct”) by suspending his
licence vests exclusively in a statutory body constituted under theAdvocates Act, this Court cannot
assume that jurisdiction under Article 142 or 129 or even under Section 38 of the Advocates Act,
1961.
176
To appreciate the submissions raised at the bar, let us first notice Article 129 of the Constitution, it
reads:
” 129. Supreme Court to be a court of record.-
The Supreme Court shall be a court of record and shall have all the power of such a court including
the power of punish for contempt of itself”.
The Article on its plain language vests this Court with all the powers of a court of record including
the power to punish for contempt of itself.
” The contempt jurisdiction of courts of record forms part of their inherent jurisdiction. The power
that courts of record enjoy to punish contempts is part of their inherent jurisdiction. The juridical
basis of the inherent jurisdiction has been well described by Master Jacob as being:
‘the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering
justice according to law in a regular, orderly and effective manner.’ Such a power is not derived
from statute nor truly from the common law but instead flows from the very concept of a court of
law.”
Article 142 of the Constitution reads:-
” 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. – (1)
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending before, it, and any decree so
passed or order so made shall to enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until provision in that behalf is so
made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court Shall,
as respects the whole of the territory of India, have all and every power to make any order for the
purpose of securing the attendance of any person, the discovery or production of any documents, or
the investigation or punishment of any contempt of itself.
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 t he Contempt
of Courts Act, 1971, later on) 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.
177
After the submission of the Sanyal Committee Reports, the contempt of Courts Act, 1952 was
repealed and replaced by the contempt of Courts Act, 1971 which Act was enacted to “define and
limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in
relation thereto”. It would be proper to notice some of the relevant provisions of the 1971 Act at this
stage.
Section 2 (a), (b) and (c) of the Contempt of Courts Act, 1971 define contempt of court as follows:-
“2. Definitions. – In this Act, unless the context otherwise requires,-
(a) ‘contempt of court’ meanscivil contempt or criminalcontempt;
(b) ‘Civil contempt’ means willful disobedience to anjudgment, decree, direction,
order, writ or other process of a court or willful breach of an under taking given to a court;
(c) ‘criminal contempt’ means the publication whether by words, spoken or written, or by signs, or
by visible representations, or otherwise) of any matter or the doing of any other act whatsoever
which-
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court, or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings;
or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of
justice in any other manner.”
Section 10 provides :-
” Sec. 10. Power of High Court to punish contempts of subordinate courts. – Every High Court shall
have and exercise the same jurisdiction, powers ad authority, in accordance jurisdiction, powers and
authority, in accordance with the same procedure and practice, in respect of contempts of courts
subordinate to it as it has and exercises in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in
respect of a court subordinate to it where such contempt is an offence punishable under the Indian
Panel Code, 1860 (45 of 1860).” The punishment for committing contempt of court is provided
in Section 12 of the 1971 Act which reads:-
“12. Punishment for contempt of court.-(1) Save as otherwise expressly provided in this Act or in
any other law, a contempt of court may be punished with simple imprisonment for a term which
may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded my be remitted on apology
being made to the satisfaction of the court.
Explanation.- An apology shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide.
(2) Notwithstanding any thing contained in any law for the time being in force, no court shall
impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of
itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil
contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of
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imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he
be detained in a civil prison for such period not exceeding six months as it may think fit.
A careful reading of sub-section (2) of Section 12 reveals that the Act places an embargo on the
court not to impose a sentence in excess of the sentence prescribed under sub- section (1). A close
scrutiny of sub-section (3) of Section 12 demonstrates that the legislature intended that in the case
of civil contempt a sentence of fine alone should be imposed except where the court considers that
the ends of justice make it necessary to pass a sentence of imprisonment also. Dealing with
imposition of punishment under Section 12 (3) of the Act, in the case of Smt. Pushpaben and
another vs. Narandas V. Badiani and another. (1979) 2 SCC 394, this Court opined:
” A close and careful interpretation of the extracted section (Section 12(3)) leaves no room for
doubt that the legislature intended that a sentence of fine alone should be imposed in normal
circumstances. The statute, however, confers special power on the Court to pass a sentence of
imprisonment if it thinks that ends of justice so require. Thus before a Court passes the extreme
sentence of imprisonment, it must give special reasons after a proper application of its mind that a
sentence of imprisonment along is called for in a particular situation. Thus, the sentence of
imprisonment is an exception while sentence of fine is the rule.”
Section 10 of the 1971 Act like Section 2 of the 1926 Act and Section 4 of the 1952 Act recognises
the power which a High Court already possesses as a Court of Record for punishing for contempt of
itself, which jurisdiction has now the sanction of the Constitution also by virtue of Article215. The
Act, however, does not deal with the powers of the Supreme Court to try or punish a contemner for
committing contempt of the Supreme Court or the courts subordinate to it and the constitutional
provision contained in Articles 142(2) and 129 of the Constitution alone deal with the subject.
In S.K. Sarkar, Member, Board of Revenue vs. Vinay chandraMisra, (1981) 1 SCC 436, this court
opined:
” Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court,
respectively, as a Court of Record which include the power to punish the contempt of itself. As
pointed out by this Court in Mohd. Ikram Hussain v. State of U.P. (AIR 1964 SC 1625), there are
no curbs on the power of the High Court to punish for contempt of itself except those contained in
the Contempt of courts Act. Articles 129 and 215 do not define as to what constitutes contempt of
court. Parliament has, by virtue of the aforesaid entries in List I and List III of the Seventh
Schedule, Power to define and limit the powers of the Courts in punishing contempt of court and to
regulate their procedure in relation thereto. Indeed, this is what is stated in the preamble of the Act
of 1971″.
(Emphasis supplied) In Sukhdev Singh v. Hon’ble C.J.S. Teja Singh &Ors.
AIR 1954 SCR 454, while recognising that the power of the High Court to institute proceedings for
contempt and punish the contemner when found necessary is a special jurisdiction which is inherent
in all courts of Record, the Bench opined that “the maximum punishment is now limited to six
month’s simple imprisonment or a fine of Rs. 2,000/- or both” because of the provision of Contempt
of Courts Act.
179
The nature and types of punishment which a court of record can impose, in a case of established
contempt, under the common law have now been specifically incorporated in the contempt
of Courts Act, 1971 in so far as the High Courts are concerned and therefore to the extent the
contempt of Courts Act 1971 identifies the nature of types of punishments which can be awarded in
the case of established contempt, it does not impinge upon the inherent powers of the High Court
under Article 215 either. No new type of punishment can be created or assumed. As already
noticed, the parliament by virtue of Entry 77, List I is competent to enact a law relating to the
powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the
nature of punishment which may be imposed on a contemner by virtue of the provisions of Article
129 read with Article 142(2). Since, no such law has been enacted by the parliament, the nature of
punishment prescribed, under the Contempt of Courts Act, 1971, may act as a guide for the
Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High
Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme
Court, except that Section 15 of the Act prescribes procedural mode for taking cognizance of
criminal contempt by the supreme Court also. Section 15, however, is not a substantive provision
conferring contempt jurisdiction. The judgment in Sukhdev Singh’s case (supra) as regards the
extent of “maximum punishment” which can be imposed upon a contemner must, therefore, be
construed as dealing with the powers of the High Courts only and not of this Court in that behalf.
We are, therefore, doubtful of the validity of the argument of the learned solicitor General that the
extent of punishment which the supreme Court can impose in exercise of its inherent powers to
punish for contempt of itself and/or of subordinate courts can also be only to the extent prescribed
under the contempt of Courts Act, 1971. We, however, do not express any final opinion on that
question since that issue strictly speaking, does not arise for our decision in this case. The question
regarding the restriction or limitation on the extent of punishment, which this Court may award
while exercising its contempt jurisdiction may be decided in a proper case, when so raised.
The suspension of an Advocate from practice and his removal from the State roll of advocates are
both punishments specifically provided for under the Advocates Act, 1961, for proven “professional
misconduct’ of an advocate. While exercising its contempt jurisdiction under Article 129, the only
cause or matter before this Court is regarding commission of contempt of court. There is no cause
of professional misconduct, properly so called, pending before the Court. This Court, therefore, in
exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the disciplinary
committee of the Bar Council of the State or the Bar Council of India to punish an advocate by
suspending his licence, which punishment can only be imposed after a finding of ‘professional
misconduct’ is recorded in the manner prescribed under the Advocates Act and the Rules framed
thereunder.
The contempt of court is a special jurisdiction to be exercised sparingly and with caution, whenever
an act adversely effects the administration of justice or which tends to impede its course or tends to
shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the
act complained of adversely effects the Majesty of Law or dignity of the courts. The purpose of
contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. It is an unusual type
of jurisdiction combining “the jury, the judge and the hangman” and it is so because the court is not
adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect
the dignity of an individual judge but to protect the administration of justice from being maligned.
In the general interest of the community it is imperative that the authority of courts should not be
imperiled and there should be no unjustifiable interference in the administration of justice. It is a
matter between the court and the contemner and third parties cannot intervene. it is exercised in a
180
summary manner in aid of the administration of justice, the majesty of law and the dignity of the
courts. No such act can be permitted which may have the tendency to shake the public confidence in
the fairness and impartiality of the administration of justice.
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.
The plenary powers of this court under Article 142 of the Constitution are inherent in the court and
are complementary to those powers which are specifically conferred on the court by various statutes
though are not limited by those statutes. These powers also exist independent of the statutes with a
view to do complete justice between the parties. These powers also exists independent of the
statutes with a view to do complete justice between the parties. These powers are of very wide
amplitude and are in the nature of supplementary powers. This power, exists as a separate and
independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and the
basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice
in the process of litigation and to do complete justice between the parties. This plenary jurisdiction
is, thus, the residual source of power which this Court may draw upon as necessary whenever it is
just and equitable to do so and in particular to ensure the observance of the due process of law, to
do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of
power which this court may draw upon as necessary whenever it is just and equitable to do so and
in particular to ensure the observance of the due process of law, to do complete justice between the
parties, while administering justice according to law. There is no doubt that it is an indispensable
adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable
weapon in the hands of the court to prevent “clogging or obstruction of the stream of justice”. It,
however, needs to be remembered that the powers conferred on the court by Article 142 being
curative in nature cannot be construed as powers which authorise the court to ignore the substantive
rights of a litigant while dealing with a cause pending before it. this power cannot be used to
“supplant” substantive law applicable to the case or cause under consideration of the court. Article
142, even with the width of its amplitude, cannot be used to build a new edifice where none existed
earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve
something indirectly which cannot be achieved directly. Punishing a contemner advocate, while
dealing with a contempt of court case by suspending his licence to practice, a power otherwise
statutorily available only to the Bar Council of India, on the ground that the contemner is also an
advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The
construction of Article 142 must be functionally informed by the salutary purpose of the Article viz.
to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of
contempt of court, the contemner and the court cannot be said to be litigating parties.
- Indeed, these constitutional powers can not, in any way, be controlled by any statutory
provisions but at the same time these powers are not meant to be exercised when their exercise may
come directly in conflict with what has been expressly provided for in statute dealing expressly with
the subject.
181
In Delhi Judicial Service Association Tis Hazari v. State of Gujarat &Ors. etc. etc. (1991 (3) SCR
936) the following questions fell for determination.
” (a) whether the Supreme Court has inherent jurisdiction or power to punish for contempt of
subordinate or inferior courts under Article 129 of the Constitution, (b) whether the inherent
jurisdiction and power of the Supreme Court is restricted by theContempt of Courts Act, 1971, (c)
whether the incident interfered with the due administration of justice and constituted contempt of
court, and
(d) what punishment should be awarded to the contemners found guilty of contempt.”
The Court observed:
“Article 142(1) of the constitution provides that Supreme Court in exercise of its jurisdiction may
pass such decree or make such order as is necessary for doing complete justice in any ’cause’ or
‘matter’ pending before it. The expression ’cause’ or ‘matter’ would include any proceeding pending
in court and it would cover almost every kind of proceeding in court including civil or criminal .
The inherent power of this Court under Article 142 coupled with the plenary and residuary powers
under Articles 32 and 136 embraces power to quash criminal proceedings pending before any court
to do complete justice in the matter before this Court.”
Mr. Nariman urged that Article 142(1) does not contemplate any order contrary to statutory
provisions. He placed reliance on the Courts observations in Prem Chand Garg Vs. Excise
Commissioner, U.P. Allahabad 91963 Supp. 1 SCR 885 at 889) and A.R. Anthulay Vs. R.S. Nayak
and Anr. (1988 (2) SCC
602) where the Court observed that though the powers conferred on this Court under Article
142(1) are very wide, but in exercise of that power the court cannot make any order plainly
inconsistent with the express statutory provisions of substantive law. It may be noticed that in prem
Chand Garg’s and Antulay’s case (supra) observations with regard to the extent of this Court’s power
under Article 142(1) were made in the context of fundamental rights. Those observations have no
bearing on the question in issue as there is no provision in any substantive law restricting this
Court’s power to quash proceedings pending before subordinate court. This Court’s power
under Article 142(1) to do “complete justice” is entirely of different level and of a different quality.
Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the
constitutional power of this Court. Once this Court has selling of a cause or matter before it, it has
power to issue any order or direction to do “complete justice” in the matter. This constitutional
power of the Apex Court cannot be limited or restricted by provisions contained in statutory law.”
The Bench went on to say:
“No enactment made by Central or State Legislature can limit or restrict the power of this Court
under Article 142 of the constitution, the court must take into consideration the statutory provisions
regulating the matter in dispute. What would be the need of “complete justice” in a cause or matter
would depend upon the facts and circumstances of each case and while exercising that power the
court would take into consideration the express provisions of a substantive statute. Once this Court
has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may
be necessary to do complete justice in the matter. This has been the consistent view of this Court as
would appear from the decisions of this court in State of U.P. Vs. Poosu&Anr. (1976 (3) SCR 1005;
Ganga Bishan &Ors.Vs. Jai Narain (1986 (1) SCC 75; Navnit R. Kamani&Ors.Vs. Jai Narain (1988
(4) SCC 387); B.N. Nagarajan &Ors.vs. State of Mysore &Ors. (1986 (3) SCR 682): Special
Reference No. 1 of 1964, (supra), and Harbans Singh vs. State of U.P. Ors. (supra) .”
182
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.
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 consequence but also penal consequence, 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.
Let us now have a quick look at some of the relevant provisions of the Advocates Act, 1961.
The Act, besides laying down the essential functions of the Bar Council of India provides for the
enrollment of advocates and setting up of disciplinary authorities to chastise and, if necessary,
punish members of the profession for professional misconduct. The punishment may include
suspension from practice for a specified period or reprimand or removal of the name from the roll
of the advocates. Various provisions of the Act deal with functions of the State Bar Councils and
the Bar Council of India. We need not, however, refer to all those provisions in this judgment
except to the extent their reference is necessary.
According to Section 30, every advocate whose name is entered in the Stat roll of advocates shall be
entitled, as of right, to practice, throughout the territories to which the Act extends, in all courts
including the Supreme Court of India. Section 33 provides that no person shall, on or after the
appointed day, be entitled to practice in any court or before any authority or person unless he is
enrolled as an advocate under the Act.
Chapter V of the Act deals with the ‘conduct of Advocate’. After a complaint is received alleging
professional misconduct by an advocate by the Bar Council, the Bar Council entrusts the inquiry
into the case of misconduct to the Disciplinary Committee constituted under Section 9 of the
Act. Section 35 lays down that if on receipt of a complaint or 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 its disciplinary committee. Section 36, provides that where on
receipt of a complaint or otherwise, the Bar Council of India has reason to believe that any advocate
whose name is entered on any State roll is guilty of professional or other misconduct, it shall refer
the case to the disciplinary Committee. Section 37 provides for an appeal to the Bar Council of
India against an order made by the disciplinary committee of a state Bar Council. Any person
aggrieved by an order made by the disciplinary committee of the Bar Council of India may prefer
an appeal to the Supreme Court of India under Section 38 of the Act.
183
Section 42(1) of the Act confers on the Disciplinary Committee of the Bar Council, powers of a
civil court under the code of Civil procedure and section 4292) enacts that its proceedings shall be
“deemed” to be judicial proceeding for the purpose mentioned therein.
Section 49 of the Act lays down that the Bar Council of India may make rules for discharging its
functions under the Act and in particular such Rules may prescribe inter-alia the standards of
professional conduct to be observed by the advocates and the procedure to be followed by the
Disciplinary Committees of the Bar Council while dealing with a case of professional misconduct
of an advocate. The Bar Council of India has framed rules called ‘The Bar Council of India Rules’
(hereinafter referred to as the Rules) in exercise of its rule making power under the Advocate Act
1951.
Part VII of the Rules deals with disciplinary proceedings against the advocates. In chapter I of the
part VII provisions have been made to deal with complaints of professional misconduct received
against advocates as well as for the procedure to be followed by the Disciplinary committees of the
State Bar Council and the Bar Council of India to deal with such complaints received
under Sections 35 and 36 of the Act. Rule 1 of Chapter I of part VII of the Rules provides that a
complaint against an advocate shall be in the form of a petition duly signed and verified as required
under the code of Civil procedure, and shall be accompanied by the fees as prescribed by the Rules.
On the complaint being found to be in order the same shall be registered and place before the Bar
Council for such order as it may deem it to pass. Sub-rule (2) provides that before referring a
complaint made under Section 35(1) of the Act, to one of its disciplinary committees the Bar
Council may require the complainant to furnish better particulars and the Bar Council “may also
call for the comments from the advocate complained against .”
Rules 3 and 4 of Chapter I and VII provide for the procedure to be followed in dealing with such
complaints. These rules read:
” 3.(1) After a complaint has been referred to a Disciplinary Committee by the Bar Council, the
registrar shall expeditiously send a notice to the Advocate concerned requiring him to show cause
within a specified date on the complaint made against him and to submit the statement of defence,
documents and affidavits in support of such defence, and further informing him that in case of his
non-appearance on the date of hearing fixed, the matter shall be heard and determined in his
absence. Explanation: Appearance includes, unless otherwise directed, appearance by an Advocate
or through duly authorised representative.
(2) If the Disciplinary Committee requires or termites, a complainant may file a replication within
such time as may be fixed by the committee.
(3) The Chairman of the Disciplinary Committee Hall fix the date, hour and place of the enquiry
which shall not ordinarily be later than thirty days from the receipt of the reference. The Registrar
shall give notice of such date, hour and piece to the complainant or other person aggrieved. The
advocate concerned and the Attorney General or He Additional Solicitor General of India or the
Advocate General as the case may be, and shall also serve on them copies of the complaint and such
other documents mentioned in Rule 24 of this Chapter as the Chairman of the Committee may
direct at least ten days before the date fixed for the enquiry.
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Rules 5, 6 and 7 deal with the manner of service of notice, summoning of witnesses and appearance
of the parties before the disciplinary committee. At any stage of the proceedings, the disciplinary
committee may appoint an advocate to appear as amicus curiae and in case either of the parties
absent themselves, the committee may; proceed ex parte against the absenting party and decide the
case.
Sub-rule (1) of Rule 8 provides:
” This Disciplinary Committee shall hear the Attorney General or the Additional Solicitor General
of India or the Advocate General, as the Case may be or their Advocate, and parties or their
Advocates, if they desire to be heard, and determine the matter on documents and affidavits unless
it is of the opinion that it should be in the interest of justice to permit cross examination of the
deponents or to take oral evidence, in which case the procedure for the trial of civil suits shall as far
as possible be followed.”
Rules 9 and 10 deal with the manner of recording evidence during the enquiry into a complaint of
professional misconduct and the maintenance of record by the committee.
Rule 14(1) lays down as follows:
“The finding of the majority of the numbers of the Disciplinary Committee shall be the finding of
the Committee. The reason given in support of the finding may be given in the form of a judgement,
and in the case of a difference of opinion, any member dissinting shall be entitled to record his
dissent giving his own reason. It shall be competent for the Disciplinary Committee to award such
costs as it thinks fit. “
Rule 16 provides:
” 16(1). The Secretary of a State Bar Council shall send to the Secretary of the Bar Council India
quarterly sentiments complaints received and the stage of the proceedings before the state Bar
Council and Disciplinary Committees in such manner as may be specified from time to time.
(2) The Secretary of the Bar Council of India may however call for such further statements and
particulars as he considers necessary.”
An appeal from the final order of the disciplinary committee of the Bar Council of a State is
provided to the Bar Council of India under Section 37 of the Act and the procedure for filing such
an appeal is detailed in Rules 19(2) to 31.
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.
The Bar Councils therefore entertain cases of misconduct against advocates. The Bar Councils are
to safeguard the rights, privilege and interests of advocates. The Bar Councils is a body corporate.
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The disciplinary committees are constituted by the Bar Council. The Bar Council is not the same
body as its disciplinary committee. One of the principal functions of the Bar Council in regard to
standards of professional conduct and etiquette of advocates is to receive complaints against
advocates and if the Bar Council has reason to believe that any advocate has been guilty of
professional or other misconduct it shall refer the case for disposal to its disciplinary committee.A
most significant feature is that no litigant and no member of the public can straightway commence
disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the
disciplinary proceedings.
Thus, after the coming into force of the Advocates Act, 1961 with effect from 19th May 1961,
matters connected with the enrollment of advocates as also their punishment for professional
misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to
a law graduate to practice as an advocate vests exclusively in the Bar Councils of the concerned
State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the
same body.
Keeping in view the elaborate procedure prescribed under the Advocates Act1961 and the Rules
framed thereunder it follows that a complaint of professional misconduct is required to be tried by
the disciplinary committee of the Bar Council, like the trial of a criminal case by a court of law and
an advocate may be punished on the basis of evidence led before the disciplinary committee of the
Bar Council after being afforded an opportunity of hearing. The delinquent advocate may be
suspended from the rolls of the advocates or imposed any other punishment as provided under the
Act.
It is therefore, not permissible for this court to punish an advocate for “professional misconduct” in
exercise of the appellate jurisdiction by convening itself as the statutory body exercising “original
jurisdiction”.Indeed, if in a given case the concerned Bar Council on being apprised of the
contumacious and blame worthy conduct of the advocate by the High Court or this Court does not
take any action against the said advocate, this court may well have the jurisdiction in exercise of its
appellate powers under Section 38 of the Act read with Article 142 of the Constitution to proceed
suo moto and send for the records from the Bar Council and pass appropriate orders against the
concerned advocate. in an appropriate case, this Court may consider the exercise of appellate
jurisdiction even suo moto provided there is some cause pending before the concerned Bar Council,
and the Bar Council does “not act” or fails to act, by sending for the record of that cause and pass
appropriate orders.
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, (1995) 2 S.C.C. 584 is not good law and we
overrule it.
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
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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.
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 or the Court to “take over” the role of the
statutory bodies or other organs of the State and “perform” their functions.
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.
