Supreme Court Bar Association v. Union of India
AIR 1998 SC 1895: 1998 (2) SCALE 745: (1998) 4 SCC 409: (1998) 2 SCR 795
Judges: S.C. Agrawal, G.N. Ray, A.S. Anand, S.P. Bharucha and S. Rajendra Babu, JJ.
Date of Decision: 17-4-1998
In an earlier case the Supreme Court found Vinay Chandra Mishra, 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. The Supreme Court invoked its power under article 129 read with article 142 of the Constitution and awarded the contemner a suspended sentence of imprisonment together with suspension of his practice as an advocate. The Court sentenced the contemner Vinay Chandra Mishra 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 for a period of three years from today with the consequence that all elective and nominated offices/posts at present held by him in his capacity as an advocate, shall stand vacated by him forthwith.
Aggrieved by this direction suspending the contemner from practising as an Advocate for a period of three years, the Supreme Court Bar Association, through its Honorary Secretary, has filed a writ petition under article 32 of the Constitution of India, seeking:
(i) 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
(ii) declaration that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction has no original jurisdiction, power or authority in that regard.
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 by the Supreme Court in exercise of its powers under article 129 read with article 142 of the Constitution of India?
Section 12(1) of the Contempts of Courts Act, 1971, provides that in a case of established contempt, the contemner may be punished: (a) with simple imprisonment by detention in a civil prison; or (b) with fine, or (c) with both. A careful reading of sub-section (2) of section 12(2) 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.
In Smt. Pushpaben v. Narandas V. Badiani, AIR 1979 SC 1536: 1979 Cr LJ 960, it was held that a close and careful
interpretation of the 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 is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.
Suspending the licence to practice of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not a recognised or accepted punishment which a court of record either under the common law or under the statutory law can impose, on a contemner, in addition to any of the other recognised punishments. 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 the Court is regarding commission of contempt of 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 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-by 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 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. In a case of contempt of court, the contemner and the court cannot be said to be litigating parties.
A complaint of professional misconduct is 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 the Supreme Court to punish an advocate for “professional misconduct” in exercise of the appellate jurisdiction by converting 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 blameworthy conduct of the advocate by the High Court or the Supreme Court does not take any action against the said advocate, the Supreme Court may well have the jurisdiction in exercise of its appellate powers under section 38 of the Advocates Act, 1961, read with article 142 of the Constitution to proceed suo motu and send for the records from the Bar Council and pass appropriate orders against the concerned advocate. In an appropriate case, the Supreme Court may consider the exercise of appellate jurisdiction even suo motu 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.
The Supreme 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.