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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
qualification 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 confidence 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 sufficiently wide expression: it is not
necessary
that it should involve moral turpitude. Any conduct which in any
way
renders a man unfit 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
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 finally 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, filed 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.
Issue
For Consideration
The petition was placed before a Constitutional Bench for passing
the
appropriate direction, order or declaration. The bench identified
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 findings in In
Re:
Vinay Mishra submitted that:
# although the 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 license of an advocate contemner, for which
punishment,
statutory provisions otherwise exist.
# 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
flows 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.
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 influenced
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.
References:
# In Re: Vinay Chandra Mishra (1995) 2 SCC 584
# In Re: Tulsidas Amamal Karani AIR 1941 Bom 228
# Supreme Court Bar Association of India v. Union of India (1998)
4 SCC 409
# Maneka Gandhi v. Union of India (1978) 1 SCC 248
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Supreme
Court On Contempt By Advocates
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author can be reached at:
amrinder@legalserviceindia.com /
