# SUPREME COURT BAR ASSOCIATION v. UNION OF INDIA

- **Citation:** [1998] 2 S.C.R. 795
- **Court:** Supreme Court of India
- **Decided:** 1998-04-17
- **Bench:** S.C. Agrawal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha B Ands. Rajendra Babu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-bar-association-v-union-of-india-16430
- **Pages:** 50

## Headnote

Constitution of India, 1950 :
Articles 142 and 129-Supreme Court's power of investigation for C
contempt of itself-Held: Such power is inherent and by virtue of Art. 142(2)
is subject to law made by Parliament-But such law cannot take away the
inherent jurisdiction of Supreme Court-Contempt of Courts Act does not
deal with the powers of the Supreme Court to punish a contemner-Hence,
Supreme Court exercises this power under Art. 129 rlw Art. 142-However, D
the nature of punishment prescribed under that Act may act as a guide for
the Supreme Court--But the extent of punishment prescribed under that Act
can apply only to High Court-S. 15 of the Act prescribes procedural mode
for taking cognizance of criminal contempt but is not a substantive provisionContempt of Courts Act, 1971, S. 15.
E
Articles 129, 142 and 144-Punishment of an advocate for contempt of
court-Jurisdiction of Supreme Court-Different from jurisdiction for
punishment of an advocate for professional misconduct-Punishment for
contempt of court is conferred on Supreme Court by Art. 129 rlw Art. 142Punishment for professional misconduct is conferred exclusively on Bar
Council of India or State Bar Councils under Advocates Act-While punishing F
an advocate for contempt of court, Supreme Court cannot suspend his
licence to practice-Such a punishment can only be imposed by State Bar
Councils-Supreme Court cannot impose it even under S. 38-Bar Council
should "act in aid of the Supreme Court" while proceeding against an
advocate for professional misconduct-But if Bar Council does not take any G
action Supreme Court may exercise its appellate jurisdiction under S. 38Advocates Act, 1961, S. 38.
Article 142-Supreme Court-Plenary Power-Nature and scope of -
Held: Supreme Court while making an order under Art. 142 cannot ignore
substantive statutory provisions dealing with the subject-It is a residuary H
795
796
SUPREME COURT REPORTS
[ 1998] 2 S.C.R.
A power which is supplementarv and complementary to the powers conferred
on Supreme Court by statutes to do complete justice between parties-ft is
meant to prevent any obstruct ion to the stream of justice.
Articles 129 and 215-Contempt of court-Jurisdiction of court-Held
: Party, which brings the contumacious conduct to the notice of the court,
B is only an informant and not a litigant-It is not an adversarial litigation.
Articles 129 and 215--Contempt of court-Punishment for civil and
)....
criminal contempt-Nature and type of-Held: Contempt of Courts Act, 197 I
identifies nature or types of punishments in case of established contemptJt does not impinge upon the inherent powers of High Court under Art 215
C either-However, no new type of punishment can be created or assumed.
D
Article I 24-Supreme Court-Role of-Has always been a lawmaker
and its role travels beyond merely dispute-settling.
Words and Phrase :
"Court of record"-Meaning of-In the context of Art. 129 of the
Constitution of India, 19 5 0.
In Re: Vinay Chandra Mishra, (1995] 2 SCC 584, this Court found the
contemner, an advocate, guilty of committing criminal contempt of court for
E 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 this Court directed
that the "contemner shall stand suspended from practising as an Advocate
for a period of three years" by invoking powers under Articles 129 and 142
of the Constitution". Being aggrieved by the aforesaid direction the petitioners
F filed the present petition before this Court.
The question before the Constitution Bench was : "Whether the
punishment for established contempt of court committed by an Advocate can
include punishment to debar the concerned advocate from practice by
G suspending his licence (Sanad) for a specified period, in exercise of the
powers under Article 129 read with Article 142 of the Constitution of India".
On behalf of the petitioners it was contende

## Text

_Characters 0–39,345 of 120,627. This is a partial read: ask again with offset=39345 for what follows._

SUPREME COURT BAR ASSOCIATION
A
v.
UNION OF INDIA
APRIL 17, 1998
[S.C. AGRAWAL, G.N. RAY, DR. A.S. ANAND, S.P. BHARUCHA
B
ANDS. RAJENDRA BABU, JJ.]
Constitution of India, 1950 :
Articles 142 and 129-Supreme Court's power of investigation for C
contempt of itself-Held: Such power is inherent and by virtue of Art. 142(2)
is subject to law made by Parliament-But such law cannot take away the
inherent jurisdiction of Supreme Court-Contempt of Courts Act does not
deal with the powers of the Supreme Court to punish a contemner-Hence,
Supreme Court exercises this power under Art. 129 rlw Art. 142-However, D
the nature of punishment prescribed under that Act may act as a guide for
the Supreme Court--But the extent of punishment prescribed under that Act
can apply only to High Court-S. 15 of the Act prescribes procedural mode
for taking cognizance of criminal contempt but is not a substantive provisionContempt of Courts Act, 1971, S. 15.
E
Articles 129, 142 and 144-Punishment of an advocate for contempt of
court-Jurisdiction of Supreme Court-Different from jurisdiction for
punishment of an advocate for professional misconduct-Punishment for
contempt of court is conferred on Supreme Court by Art. 129 rlw Art. 142Punishment for professional misconduct is conferred exclusively on Bar
Council of India or State Bar Councils under Advocates Act-While punishing F
an advocate for contempt of court, Supreme Court cannot suspend his
licence to practice-Such a punishment can only be imposed by State Bar
Councils-Supreme Court cannot impose it even under S. 38-Bar Council
should "act in aid of the Supreme Court" while proceeding against an
advocate for professional misconduct-But if Bar Council does not take any G
action Supreme Court may exercise its appellate jurisdiction under S. 38Advocates Act, 1961, S. 38.
Article 142-Supreme Court-Plenary Power-Nature and scope of -
Held: Supreme Court while making an order under Art. 142 cannot ignore
substantive statutory provisions dealing with the subject-It is a residuary H
795
796
SUPREME COURT REPORTS
[ 1998] 2 S.C.R.
A power which is supplementarv and complementary to the powers conferred
on Supreme Court by statutes to do complete justice between parties-ft is
meant to prevent any obstruct ion to the stream of justice.
Articles 129 and 215-Contempt of court-Jurisdiction of court-Held
: Party, which brings the contumacious conduct to the notice of the court,
B is only an informant and not a litigant-It is not an adversarial litigation.
Articles 129 and 215--Contempt of court-Punishment for civil and
)....
criminal contempt-Nature and type of-Held: Contempt of Courts Act, 197 I
identifies nature or types of punishments in case of established contemptJt does not impinge upon the inherent powers of High Court under Art 215
C either-However, no new type of punishment can be created or assumed.
D
Article I 24-Supreme Court-Role of-Has always been a lawmaker
and its role travels beyond merely dispute-settling.
Words and Phrase :
"Court of record"-Meaning of-In the context of Art. 129 of the
Constitution of India, 19 5 0.
In Re: Vinay Chandra Mishra, (1995] 2 SCC 584, this Court found the
contemner, an advocate, guilty of committing criminal contempt of court for
E 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 this Court directed
that the "contemner shall stand suspended from practising as an Advocate
for a period of three years" by invoking powers under Articles 129 and 142
of the Constitution". Being aggrieved by the aforesaid direction the petitioners
F filed the present petition before this Court.
The question before the Constitution Bench was : "Whether the
punishment for established contempt of court committed by an Advocate can
include punishment to debar the concerned advocate from practice by
G suspending his licence (Sanad) for a specified period, in exercise of the
powers under Article 129 read with Article 142 of the Constitution of India".
On behalf of the petitioners it was contended that powers conferred on
this Court by Article 142, though very wide in their amplitude, could be
exercised only to "do complete justice in any case or cause pending before
H it" and since the issue of 'professional misconduct' was not the subject
....
....
S.C.B.A. v. U.0.1.
797
matter of "any cause" pending before this Court while dealing with a case A
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; and that a court of record under Article
129 of the Constitution did not have any power to suspend the licence of a
lawyer to practice because that was not a punishment which could be imposed
under its jurisdiction to punish for contempt of court and that Article 142 B
of the Constitution could not also be pressed into aid to make an order which
had the effect of assuming "jurisdiction" which expressly vested in another
statutory body constituted under the Advocates Act, 1961.
Allowing the petition, this Court
HELD : 1.1. Article 129 of the Constitution vests this Court with all
the powers of a court of record including the power to punish for contempt
of itself. (808-HJ
c
1.2. A court of record is a court, the records of which are admitted to D
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 of Court
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. (809-C)
E
Jowitt: Dictionary of English Law, First Edn. (p.526), Warton 's Law
Lexicon and Nigel, Lowe and Brenda Sufrin: Law of Contempt (Third Edn.)
Butterworths, [1996], referred to.
2.1. Besides, Article 129, the power to punish for contempt is also F
vested in this Court by virtue of Article 142(2). The power of this Court in
respect of i11vestigatio11 or pu11isllme11t 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 G
Parliament can take away that i11llerem 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. The Parliament by H
798
SUPREME COURT REPORTS
[ 1998] 2 S.C.R.
A 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). But no
such law dealing with the powers of the Supreme Court with regard to
investigation and punishment of contempt of itself has been enacted by
B Parliament. (811-C; G-H; 812-A; 820-F-GJ
2.2. The Contempt of Courts Act, 1971 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. This Court, therefore,
C 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. The nature a11d 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
D 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 Suklidev Singh 's case 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
E only and not of this Court in that behalf. Therefore, the argument 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 is doubtful. However, there is no necessity of expressing
p
any final opinion on that question since that issue, strictly speaking, does
not arise for 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 d2cided in a proper case, when
so raised. [820-G-H; 821-A-C]
G
Smt. Puspaben v. Narandas V. Badiani, [1979) 2 SCC 394 and S.K.
Sarkar, Member, Board of Revenue v. Vinay Chandra Misra, [1981] 1 SCC
436, relied on.
Sukhdev Singh v. Hon 'ble C.JS. Teja Singh, AIR (1954) SCR 454,
referred to.
H
Mohd Jkram Hussain v. State of UP, AIR (1964) SC 1625, cited.
S.C.BA V. lJ.0.1.
799
Ha/sh11rv \·Laws of England -Ith t'dn. Para 97, referred to.
2.3. The nature and types of punishment which a comi of record can
impose, in a case of established contempt, under the common law have now
been specifically incoq1orated in the Contempt of Comis Act, 1971 in so far
as the High Comis are concerned and, therefore, to the extent the Contempt
A
of Comis Act, 1971 identifies the nature or types of 11unishment which can B
be awarded in the case of established contempt, it does not im11inge UJlOn the
inherent powers of the High Comi under Article 215 eithe1: No new type
of 11umshment can be created or assumed. [820-E-F)
3.1. The 11owers of this Com1, under A11icle 129 read with A11icle 142
of the Constitution, being supplementary powers have "to be used in exercise C
of its jurisdiction" in the case under consideration by this Com1. Moreover,
a case of contem11t of com1 is not stricto sen so a cause or a matter hetween
the parties inter se. It is a matter between the cou11 and the contemner. It
is not, strictly speaking, tried as an adversarial litigation. The 11arty, which
brings the contumacious conduct of the contemner to the notice of the court, D
whether a 11rivate person or the subo1·dinate comi, is only an infonnant and
does not have the status of a litigant in the contem11t of court case.
(822-A-B)
3.2. Contempt of com1 is a s11ecial jurisdiction to be exercised sparingly
and with caution, whenever an act adversely effects the administration of E
.iu~iice or which tends to impede its course or tends to shake 11ublic confidence
in the judicial institutions. This jmisdiction may also be exercised when the
act complained of adversely affects the Majesty of Law or dignity of the
comis. The 11uriiose of contem1it jurisdiction is to u11hold 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 F
adjudicating upon any claim between litigating parties. This jurisdiction is
not exercised to protect the dignity of an individual .iudge but to protect the
administration of justice from being mali:,_'Iled. In the general interest of the
community it is im11erative that the authority of courts should not be imperiled
and there should be no unjustifiable interference in the administration of G
ju~iice. It is a matter between the com1 and the contemner and third parties
cannot intervene. It is exercised in a 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
11uhlic confidence in the fairness and impartiality of the admini~1ration of
justice. (822-C-E]
H
800
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A
4.1. The plenary powers of this Court under Article 142 of the
Constitution are inherent in the Comi and are cumplementarv to those
powers which arc .1pecifically conferred 011 the Cuurt hy various statutes
though are not limited by those statutes. These powers also exist in!.lcpemlently
of the statutes with a view to !.lo complete justice between the patties. These
powers arc of very wide amplitude acd arc in the nature of supple111e111m:v
B powers. This power exists as a separate and independent basis of .imisdiction,
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,
C which this Comi may draw upon as necessary whenever ii is just and
equitable to do so and in particular to ensure the observance of the due
11rocess of law, to do complete justice between the parties. while administering
justice according to law. 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 couri to prevent "clogging or obstruction of the
D stream of justice". (824-D-F]
4.2. However; the powe1-s conferred on the Comi b)' 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
E pending before it. This power cannot he used to "supplant" substantive law
applicable to the case or cause under consideration of the court. Article 142,
e''en with the width of its amplitude, cannot be used to build a new edifice
where none existed earlier, b~ ignoring express statutory provisions dealing
with a sub.iect and thereby to achieve something indirectly which cannot be
achieved directly. [824-G-H; 825-A)
F
4.3. The very nature of the power must lead the comi to set limits for
itself within which to exercise those powers and ordinarily it cannot disregard
a statutory pro\'ision governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating parties by "ironing
out the creases" in a cause or matter before it. Indeed this Court is not a
G Court of restricted jurisdiction of only dispute settling. It is well recoi,'llised
and established that this Court has always been a lawmaker and its role
travels beyond merely dispute settling. It is a "problem solver in the nebulous
areas", but the substantive statutory provisions dealing with the subject
matter of a given case, cannot be altogether ignored by this Court, while
H making an order under Article 142. Indeed, these constitutional powers
S.C.B.A. v. U.0.1.
801
cannot, in any way, be controlled by any statutory provisions but at the same A
time powers are not meant to be exercised when their exercise may come
-<
directly in conflict with what has been expressly provided for in a statute
dealing expressly with the subject. [825-D-F]
K. Veeraswami v. Union of India, [ 1991) 3 SCC 655 and Bonkya@B.S.
Mane v. State of Maharashtra, [1995] 6 SCC 447, affirmed.
B
'""
-<
Prem Chand Garg v. Excise Commissioner, UP., [1963] Supp. l SCR
885, relied on.
5.1. It is not possible to agree with the observations of the majority of
the Bench in V. C. Mishra 's, case that the law laid down in Prem Chand Garg 's c
case, is "no longer a good law". In Union Carbide's, case, Delhi Judicial
Services Association's, case and Mohd Anis', case relied upon in V:C. Mishra 's,
case this Court did not say that substantive statutory provisions dealing
expressly with the subject can be ignored by this Court while exercising
powers under Article 142. The observations in Union Carbide's case, A.R. D
("
Antulay 's, case and Delhi Judicail Services Association's, case go to show
;
that they do not strictly speaking come into any conflict with the observations
of the majority made in Prem Chand Garg's, case. [832-H; C-E]
In Re: Vinay Chandra Mishra, [1995) 2 SCC 584, overruled.
Prem Chand Garg v. Excise Commissioner, UP., [1963] Supp. l SCR E
885; Delhi Judicial Services Association Tis Hazari v. State of Gujarat,
[1991) 3 SeR 936 and Union Carbide Corpn. v. Union of India, [1991) 4
sec 584, relied on.
A.R. Antulay v. R.S. Nayak, [1988] 2 sec 602, referred to.
F
,.._
~
Mohd. Anis v. Union of India, [1994] Supp. l SCC 145; Ganga Bisan
v. Jai Narain, [1986] l SCC 75; Navnit R. Kamani v. R.R. Kamani, [1988]
4 SCC 387; B.N. Nagarajan v. State of Mysore, [1966) 3 SCR 682, Special
Reference No. l of 1964; Harbans Singh v. State of UP. and K.M Nanavati
v. State of Bombay, [1961] l SCR 497, cited.
G
5.2. The power of the Supreme Court to punish for contempt of court,
,,,...
though quite wide, i,s 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, 1961. The power to do complete justice under Article 142 is H
802
SUPREME COURT REPORTS
[ 1998] 2 S.C.R.
A 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 by suspending his licence to practice in a summary
manner, while dealing with a case of contempt of court. [822-F-G]
6.1. In a given case, an advocate found guilty of committing contempt
B of court may also be guilty for 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 proved professional misconduct, vests exclusively in
c the statutory authorities under the Advocates Act, while the jurisdiction to
punish him for committing contempt of court vests exclusively in the courts.
[833-A-BJ
6.2. After the coming into force of the Advocates Act, 1961, exclusive
power for punishing an advocate for "professional misconduct" has been
D 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
E
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. Since,
the jurisdiction to grant licence to a law graduate to practice as an advocate
vests exclusively in the Bar Council of the concerned State, the jurisdiction
F to suspend his licence for a specified term or to revoke it also vests in the
same body. (833-C-D; 838-D]
Bar Council of Maharashtra v. M V. Dabholkar, (1975] 2 SCC 702,
followed.
7.1. In Re: V.C. Mishra's, case the Bench relied upon its appellate
G jurisdiction under Section 38 of the Advocates Act, 1961 also to support its
order of suspending the licence of the contemner. This Court is indeed the
r
..
}-
t
""
"" "
final appellate authority under Section 38 of the Act but it is not possible
A.,
to agree with the view that this Court can in exercise of its appellate
jurisdiction, under Section 38 for the Act, impose one of the punishments,
H prescribed under that Act, while punishing a contemner advocate in a contempt
-4
-<.
'I"
:=:P<
~
....
S.C.B.A. v. U.0.1.
803
case. "Professional misconduct" of the advocate concerned is not a matter A
directly in issue in the contempt of court case. While dealing with the
contempt of court case, this Court is obliged to examine whether the conduct
complained of amounts to contempt of court and if the answer is in the
affirmative, then to sentence the contemner for contempt of court by imposing
any of the recognised and accepted punishments for committing contempt B
of court. Keeping in view the elaborate procedure prescribed under the
Advocates Act 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 c
opportunity of hearing. The delinquent advocate may be suspended from
practice for a specified period or even removed from the rolls of the advocates
or imposeil any other punishment as provided under the Act. The enquiry is
a detailed and elaborate one and is not of a summary nature. It is, therefore,
not permissible for this Court to punish an advocate for "professional
D
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 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 E
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 case and pass appropriate F
orders. (839-A; 840-B-H; 841-A]
7.2. However, the exercise of powers under the contempt jurisdiction
cannot be confused with the appellate jurisdiction under Section 38 of the
Act. The two jurisdictions are separate and distinct. It is, therefore, not
possible to subscribe to the contrary view expressed by the Bench in V C. G
Mishra 's case because in that case the Bar Council had not declined to deal
with the matter and take appropriate action against the concerned advocate.
Since there was no cause pending before the Bar Council, this Court could
not exercise its appellate jurisdiction in respect of a matter, which was never
under consideration of the Bar Council. (841-B-CI
H
804
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A
7.3. It must, therefore, be held 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
B 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 is not good law and it is overruled. [841-C-D)
O.N. Mohindroo v. District Judge, Delhi, [1971) 3 SCC 5, approved.
c
In Re: Vinay Chandra Mishra, (19951 2 SCC 584, overruled.
7.4. In V:C. Mishra's case, the Bench, relied upon its inherent powers
under Article 142, to punish an advocate by suspending his licence, without
the Bar Council having been given any opportunity to deal with his case
under the Act. It is not possible to agree with that approach. Wider the
D 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
E role is unexceptionable but it is not permissible for this Court to "take over"
the role of the statutory bodies or other organs of the State and "perform"
their functions. (843-G-H; 844-A)
8.1. The Bar Council which performs a public duty and is charged with
the obligation to protect the dignity of the profession and maintain professional
F standards and etiquette is also obliged to act "in aid of the Supreme Court".
Whenever a court of record, records its findings about the conduct of an
Advocate while finding him guilty of committing contempt of court and
desires or refers the matter to be considered by the concerned Bar Council,
appropriate action should be initiated by the concerned Bar Council in
accordance with law with a view to maintaining the dignity of the courts and
G to uphold the majesty oflaw and professional standards and etiquette. Nothing
is more destructive of public confidence in the administration of justice than
incivility, rudeness or disrespectful conduct on the part of a counsel towards
the court or disregard by the court of the privileges of the Bar. In case the
Bar Council, even after reci:iving 'reference' from the Court, fails to take
H action against the concerned advocate, this Court might consider invoking
.~
.,...
S.C.B.A. v. U.0.1. (DR. ANAND, J.)
805
its powers under Section 38 of the Act by sending for the record of the A
proceedings from the Bar Council and passing appropriate orders. Of course,
'""""
the appellate powers under Section 38 would be available to this Court only
and not to the High Courts. (841-H; 842-A-F)
8.2. In a given case it may be possible , for this Court or the High
Court, to prevent the contemner advocate to appear before it till he purges B
himself of the contempt but that is much different from suspending or
...
revoking his licence or debarring him to practice as an advocate. In a case
--<.
of contemptuous, contumacious, unbecoming or blameworthy conduct of an
Advocate-on-Record, this Court possesses jurisdiction, under the Supreme
Court Rules itself, to withdraw his privilege to practice as an Advocate-onRecord because that privilege is conferred by this Court and the power to C·
grant the privilege includes the power to revoke or suspend it The withdrawal
of that privilege, however does not amount to suspending or revoking his
licence to practice af an advocate in other courts or Tribunals.
(842-G-H; 843-A)
CIVIL ORIGINAL JURISDICTION: Writ Petition (c) No. 200 of D
'I'
1995.
?<
(Under Article 32 of the Constitution of India.)
T.R. Andharujina, Solicitor General, Kapila Sibal, Dr. Rajiv Dhawan, R.S.
Suri, M.K. Giri, Ranbir Yadav, S.C. Gupta, Arun Pednekar, Vijay pandeta, E
Rajesh Kumar, Shanna, R.D. Upadhyay, Subrat Birla, P. Panneswaran, A. Subba
Rao, R.B. Misra, Kamlendra Misra, R.P. Wadhwani, (V.C. Mishra)-in-Person,
and M.M. Kashyap for the appearing parties,
The Judgment of the Court was delivered by
F
.....
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, G
keeping in view the gravity of the (;Ontumacious conduct of the contemner,
the Court said:
~
"The facts and circumstances of the present case justify our
invoking the power under Article 129 read with Article 142 of the
Constitution to award to the contemner a suspended sentence of H
806
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A
imprisonment
together with suspension of his practice as an
advocate in the manner directed herein. We accordingly sentence the
contemner for his conviction for the offence of the criminal contempt
r
as under:
B
(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
C
(b) T.he 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. the direction that the "Contemner shall stand suspended
D 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:
E
F
"Issue 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
Contempt Petition (Cr!.) No. 3of1994 dated 10.3.1995."
G
On 21.3.1995, while issuing Rule in the wri~ petition, following order was
H
made by the Division Bench:
"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
S.C.B.A. v. U O.l. [DR. ANAND, J.]
807
practicing lawyer from carrying on his profession as a lawyer for any A
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 regard to the importance of the
aforesaid question we further direct that this petition be placed before
a Constitution Bench of this Court."
That is how this Writ petition has been placed before this Constitution
Bench.
B
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 C
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 D
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 E
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, the Contempt of Courts Act, 1971 nor
the Advocates Act, 1961 can_be pressed into service to restrict the F
said jurisdiction."
The Court repelled the arguments advanced on behalf of the contemner,
the U.P. Bar Association and the U.P. Bar Council, that the Court cannot while
punishing the contemner with any of the "traditional" or '·accepted" G
punishments for contempt, also suspend his licence to practice as an advocate.
Since that power is specifically entrusted by the Advocates Act. 1961 to the
disciplinary committees of the State Bar Council and/or the Bar Council of
India. The Bench opined:
"What is further, the jurisdiction and powers of this Court under H
),.,
808
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A
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 proYision including the provisions of the
Advocates Act or the Contempt of Courts Act. As pointed out earlier,
B
the Advocates Act has nothing to do with 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
4
Court to take action for contempt under Article 129.
Joo..
Mr. Kapil Sibal, learned senior counsel appearing for the Supreme Court
c 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 vel}' 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
D 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
·,...
'o.
advocate contenmer, 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
E
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
F 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 licence vests exclusively
in a statutory body constituted under the Advocates Act, this Court cannot
assume that jurisdiction under Article H2 or 129 or even under Section 38 of
G the Advocates Act, 1961.
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
H
shall be a court of record and shall have all the power of such a court
..
•
S.C.B.A. :>. U.0.1. [DR. ANAND, J.]
809
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 expression Court of Record has not been defined in the Constitution
A
of India. Article 129 however, declares the Supreme Court to be a Court of B
Record, while Article 215 declares a High Court also to be a Court of Record.
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 C
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.
According to Jowitt, Dictiona/:v of English Law, First Edition (p. 526) D
a court of Record has been defined as:
"A Court whereof the acts and judicial proceedings are enrolled for
a perpetual memory and testimony, and which has power to fine and
imprison for contempt of its authority."
Wharton s Law Lexicon, explains a court of record as:-
E
"Record, courts of, those whose judicial acts and proceedings are
enrolled on parchment, for a perpetual memorial and testimony; which
rolls are called the Records of the Courts, and are of such high and
supereminent authority that their truth is not to be called in question. F
Courts of Record are oftwo classes - Superior and Inferior. Superior
Courts of Record include the House of Lords, the Judicial Committee,
the Court of Appeal, the High Court, and a few others. The Mayor's
Court of London, the County Courts, Coroner's Courts, and other are
Inferior Courts, of Record, of which the County Courts are the most
important. Every superior court of record has authority to fine and G
imprison for contempt of its authority; an inferior court of record
can only commit for contempts committed in open courts, in facie
curice."
(Emphasis Provided) H
810
SUPREME COURT REPORTS
[1998] 2 S.C.R
A
Nigel Lowe and Brenda Sujhn in their treatise on the Law of Contempt
B
(Third Edition) (Butterworths 1996), while dealing with the jurisdiction and
powers of a Courts of Record in respect of criminal contempt say:
"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
C
the judicial function of administering justice according to law in a
regular. orderly and effective manner.,
D
E
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."
All courts of record have an inherent jurisdiction to punish
contempts committed in their face but the inherent power to punish
contempts committed outside the court resides exclusively in superior
courts of record.
Superior Courts of record\' have an inherent superintendent
jurisdiction to punish contempts committed in connection with
F
proceedings before inferior courts."
for:
G
(emphasis ours)
Entry 77 of List I of the Seventh Schedule of the Constitution provides
"Constitution, organisation, jurisdiction and powers of the Supreme
Court (including contempt of such Court), and the fees taken therein:
persons entitled to practice before the Supreme Court."
Entry 14 of list III of the Seventh Schedule provides for legislation in
H respect of :
r
..
..
S.C.B.A. v. U.0.1. [DR.