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 provision­

Contempt 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. 142-

Punishment 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. 38-

Advocates 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 contempt-

Jt 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-on-

Record 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. ANAND, J.] 811

"Contempt of Court, but not including contempt of the Supreme A

Court."

The language of entry 77 of List I and e111ry 14 of List III of the Seventh

Schedule demonstrate that the legislative power of the Parliament and of the

State Legislature extends to legislate with respect to matters connected with

contempt of court

by the

Supreme Court or the High Court, subject however, B

to the qualification that such legislation cannot denude, abrogate or nullify,

..

the power of the Supreme Court to punish for contempt under Articles 129

A

or vest that power in some other Court.

Besides, Article 129, the power

to punish for contempt is also vested

c in the

Supreme court by virtue of Article 142(2).

Article

142 of the Constitution reads:-'' 142. Enforcement of decrees and orders of Supreme Court and orders

as

to discovery, etc.

-(I) The Supreme Court in the exercise of its

jurisdiction may pass such decree or make such order as

is necessary D .... 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

E

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

evel'.v power to make any order for the

purpose of securing the attendance of any person, the discovery or

F

._ 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

G

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 H

-

812 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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 Suprcrne Court with regard to investigation r

and punishment of contempt of itself. (We shall refer to Section 15 of the

Contempt of Courts Act. 1971. later on) and this Court, therefore. e:..:ercises

the power to investigate and punish for contempt of itself by virtue of the

B powers vested in it under Articles 129 and 142(2) of the Constitution oflndia.

The first legislation

to deal with contempt of courts in this country was

the

Contempt of courts Act. 1926. It was enacted with a view to define and

limit the powers

of certain courts for punishing contempts of court. The

C preamble to that Act stated:

'"Whereas doubts have arisen as to the powers of a High Court

of judicature to punish contempt of courts and whereas it is expedient

to resolve these doubts and to define and limit the powers exercisable

by High Courts and Chief Courts in punishing contempts of Court:

D It is hereby enacted as follows:"

E

Section 2 says :-

"Subject to the provisions of sub-section (3), the High Courts of

Judicature established

by Letters

Patent shall have and exercise the

same jurisdiction, powers and authority in accordance with the same

procedure and practice, in respect

of contempts of courts subordinate

to them as they have and exercise in respect

of contempts of

themselves."

Since, the Act was enacted with a view to 'remove doubts about the

F powers of the High Court to punish for contempt', it made no distinction

between one Letters Patent High Court and another though it did distinguish

between the Letters Patent High Courts and the Chief Courts. The doubt, as

a result

of conflict of judicial opinion, whether the High Court could punish

for contempt

of a court subordinate to it, was removed by enactment of

Section 2 of the Act (supra). The Contempt of Courts Act, 1926 was replaced

G by the contempt of Courts act, 1952. The 1952 Act made the significant

departures

from the 1926 Act, First. the expression

'"High Court" was defined

to include the courts of Judicial Commissioner which had been excluded from ..0:..-

the purview of the 1926 Act and secondly, the High Courts, including the

Court of a Judicial Commissioner, were conferred jurisdiction to inquire into

H and try contempt of itself or of any court subordinate to it. Irrespective of

"

,.

S.C.B.A. v. U.O.L [DR. ANAND. J] 813

whether the contempt was alleged to have been committed within or outside A

the local limits of its jurisdiction and irrespective of whether the person

-< alleged to be guilty of committing contempt was within or outside such limits.

A

'(

+-

In the matter of imposition of punishment for contempt of courts, Section 4

of the 1952 Act Provided.

"Sec. 4 Limit of punish111e11tjilr conte111pl of Court. Save as otherwise

expressly provided

by any law for the time being in force, 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 may be remitted on apology being made to the satisfaction

of the Court:

Provided further that not withstanding anything elsewhere

contained in any law for the time being

in force, no High Court shall

impose a sentence in excess of that specified in this section for any

contempt either in respect

of itself or of a court subordinate to

it."

Thus, under the existing legislation dealing with contempt of court, the

High Courts and Chief Courts were vested with the power to try a person

for committing contempt of court and

to punish him for established contempt.

The legislation itself prescribed the nature and type, as well as the extent

of,

punishment which could be imposed on a contemner by the High Courts or

the Chief Courts. The second proviso

to

Section 4 of the 1952 Act (supra)

expressly restricted the powers of the Courts not to "impose any sentence

in excess of what

is specified in the

section" for any contempt either of its~lf

or of a court subordinate to it.

After the Constitution

of India was promulgated in

1950, it appears that

on 1st

of April,

1960, a Bill was introduced in the Lok Sabha 'to consolidate

and amend the law relating

to contempt of court'. The Bill was examined by

the Government which felt that law relating to contempt of courts was "uncertain, undefined and unsatisfactory" and that in the light of the

constitutional changes which had taken place in the country.

it was advisable

to have to entire law on the subject scrutinised by a special committee to be

set-up for the purpose.

Pursuant to that decision, the Ministry of Law on July

29,

1961 set up a Committee under the Chairmanship of

Shri H.N. Sanyal,

Additional Solicitor General of India. The Committee came to be known as

B

c

D

E

F

G

H

814 SUPREME COURT REPORTS [1998) 2 S.C.R.

A Sanyal Committee and it was required:

B

c

D

(i) to examine the law relating to contempt of courts generally. and

in particular, the law relating

to the procedure for the punishment

thereof:

(ii)

to suggest amendments therein with a

view to clarifying and

reforming the law wherever necessary: and

(iii)

to make recommendations, for codification of the law in the

light

of the examination

made.··

The committee inter-alia opined that Parliament or the concerned

legislature has the power

to legislate in relation to the substantive law of

contempt of the

Supreme Court and the High Courts Subject only to the

qualification that the legislature cannot take away the powers

of the

Supreme

Court or the High Court, as a Court of Record, to punish for contempt nor

vest that power in some other court.

After the submission

of the

Sonya/ Committee Report, 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

E

thereto". It would be proper to notice some of the relevant provisions of the

1971 Act at this stage.

F

G

H

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' means civil contempt or criminal contempt;

(b) 'Civil contempt' means willful disobedience to any judgment,

decree, direction, order. writ or other process of a court or wilful

breach of an undertaking given

to a court;

(c)

'criminal contempt' means the publication (whether by words.

spoken or written, or

by signs, or

by visible representations, or

othenvise) of any matter or the doing of any other act whatsoever

which-

--.(

~

j..

~ ,.,

•

S.C.B.A. v. U.0.1. [DR. ANAND, J.] 815

(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

obstrnct, 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 haYe and exercise the same 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:-

A

B

c

D

"12. Punishment for contempt of court. -(1) Save as otherwise E

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.

F

Explanation.-An apology shall not be rejected merely on the

ground that it

is qualified or conditional if the accused makes it bona G

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. H

816

A

B

c

D

E

F

SUPREME COURT REPORTS [1998] 2 S.C.R.

(3) Notwithstanding an)ihing 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

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.

(4) Where the person found guilty of contempt of court in respect

of any undertaking given to a court is a company, every person who,

at the time the contempt was committed, was in charge

of, and was

responsible

to, the company for the conduct of the business of the

company, as well as the company, shall

be deemed to be guilty of the

contempt and the punishment

may be enforced, with the leave of the

court,

by the detention in

ciYil prison of each such person:-

Provided that nothing contained in this sub-section shall render

any such person liable

to such punishment if he proves that the

contempt was committed without his knowledge or that he exercised

all

due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub-section (4), where

the contempt of court referred

to therein has been committed by a

company and it is proved that the contempt has been committed with

the consent or connivance

of, or is attributable to any neglect on the

part

of, any director, manager, secretary or other officer of the company,

such director, manager, secretary or other officer shall also be deemed

to be guilty of the contempt and the punishment may be enforced,

with the leave

of the court, by the detention in civil prison of such

director, manager, secretary or other officer.

An analysis of the above

prov1s10n shows that sub-section (1) of

G Section 12 provides that in a case of established contempt, the contemner

may be punished:

H

(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 reveals that the Act

..

-

..

. .

S.C.BA v. U.O.l. [DR. ANAND, J.] 817

places an embargo on the court not to impose a sentence in excess of the A

sentence prescribed under sub-section (I). 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. Pushpahen and another v. B

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 he imposed in normal circumstances.

The statute, however, confers special power

on the

Conrt to pass a C

sentence of imprisonment if it thinks that ends a/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 D

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 ;i 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 Article 215. The E

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 v. Vinay chandra Misra, F

[1981] 1sec436, this court opined:

.. Articles 12 9 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

pt,Jnish the contempt of itself. As pointed out by

this Court in Mohd. lkram Hussain v. State of UP., AIR (1964) SC

1625, there are no curbs on the power of the High Court to punish G

for contempt of itself except those contained in the Contempt of

Courts Act. Art.icles 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 H

818 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A 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 'hie CJ.S. Teja Singh & Ors., AIR [1954) SCR

B 454, whileifecagnising 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.

c

D

E

F

In England, according to Halsbury :~laws of England 4th Edn. Para 97:

"There is no statutory limit to the length of the term of imprisonment

which may be imposed for contempt

of court by the court of Appeal,

High Court or

Crown Court. Similarly the statutory provisions relating

to the suspension of sentences of imprisonment have no application

to committals for contempt.

Although there is no limit to the length

of the term which may be

imposed, the punishment should be commensurate

to the offence.

Thus, where contempt is committed owing to a mistaken view of the

rights

of the offender, the punishment, where imprisonment is deemed

necessary, should be for a definite period and should not be

severe."

Paras 99 and 100 to 105 of Halsbury :~Laws deal with the other

punishments which may be imposed for contempt

of court.

'"99. Fines and security for good behavior. The Court may, as an

alternative or

in addition to committing a contemner, impose a fme

or require security for good behavior.

As in the case of imprisonment, there is no statutory limit to the

G amount of a fine which the court can impose.

H

100: Other remedies. As a further alternative to ordering committal, the

court

may, in its discretion, adopt the more lenient course of granting

an injunction to restrain repetition

of the act of contempt. The court

may also penalise a party in contempt by ordering him to pay the

costs

of the application.

,

<

S.C.BA v. U.0.1. [DR. ANAND. J.] 819

103. Fine. The court may, as an alternative to committal or sequestration, A

impose a fine for civil contempt.

In assessing the amount of the fine, account should

be taken of

the seriousness of the contempt and the damage done to the public

interest. 104. Other remedies. The court may, in its own discretion, grant an

injunction, in lieu

of

co111111ittal or sequestration, to restrain the

commission or rcpetitjon

of a

civil contempt. The court may in lieu of

any other penalty require the contemner to pay the costs of the

motion on a common fund basis.

I 05. Costs. The costs of an application for committal are in the discretion

of the court, and should be asked for on the hearing of the application.

Th.., respondent can as a general rule only be ordered to pay costs

B

c

if he has been guilty of contempt. An action is maintainable in the

Queen's Beach Division to enforce an order made in the Chancery

D

Division to pay the costs of a motion for committal.,,

(emphasis supplied)

Thus, the recognised and accepted punishments for civil or criminal

contempt

of court in English Law, which have been followed and accepted E

by the courts in this country and incorporated in the Indian Law in so far as,

civil contempt is concerned are:

(i) Sequestration

of assets:

(ii) fine:

(iii) committal to prison

F

The object of punishment being both

cur~tive and corrective, these

coercions are meant

to assist an individual complainant to enforce his remedy

and there is also an element

of public policy for punishing civil contempt,

since the administration

of justice would be undermined if the order of any

court

of law is to be disregarded with impunity.

Under some circumstances, G

compliance of the order may be secured without resort to coercion, through

.,,..._ the contempt power. For example, disobedience of an order to pay a sum of

money may be effectively countered by attaching the earnings of the conternner.

In the same manner, committing the person

of the defaulter to prison for

failure to comply with an order

of specific performance of conveyance of H

820

SUPREME COURT REPORTS [1998] 2 S.C.R

A property, may be met also by the court directing that the conveyance be

completed

by an appointed person. Disobedience of an undertaking may in

the like manner

be enforced through process other than committal to prison

as for example where the breach of undertaking

is to deliver possession of

property in a landlord tenant dispute. Apart from punishing the contemner the

B

Court to maintain the Majesty of Law may direct the police force to be utilised

for recovery of possession and burden the contemner with costs, exemplary

or otherwise. In

so far as criminal contempt of court is concerned, which

charge is required

to be established like a criminal charge, it is punishable by

(i) fine; or

C (ii) by fixed period of simple imprisonment or detention in a civil

prison for a specified period; or

(iii) both.

In deciding whether a contempt is serious enough

to merit imprisonment,

D

the court will take into account the likelihood of interference with the

administration

of justice and the culpability of the offender. The intention with

which the act complained

of is done is a material factor in determining what

punishment,

in a given case, would be appropriate.

The nature and types

of punishment which a court of record

can

E 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

F

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

G

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 prescrihed, under the.Contempt

of Courts Act, 1971, may act as a guide for the Supreme Court but the e"1ent

of punis~ent as prescribed under that Act can apply only to the High

Courts, because the 1971 Act ipso facto does not deal with the contempt

H

jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes

..

~

....

'

,..

,.

~

~

S.C.B.A. v. U.0.1 [DR. ANAND, J.] 821

procedural mode for taking cognizance of criminal contempt by the supreme A

Court also. Section 15, however, is not a substantive provision conferring

contempt jurisdiction. The judgment in

Sukhdev

Singh:~ 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,

B

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. c

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.

Suspending the licence to practice

of any professional like a lawyer,

doctor, chartered accountant etc. When such a professional is found guilty

D

~

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

E

State roll of advocates are both punishments specifica Uy 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

F

"'-.. Article 129 cannot take over the jurisdiction of the disciplinaq 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 'professim1al misconduct' is recorded in the manner prescribed

under the Advocates Act

and the Rules framed thereunder.

When this Court is seized

of a matter of contempt of court by an

G

advocate, there is no

'·case, cause or matter" before the Supreme Court

-;-.. 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 licence to practice law but

no issue relating to his suspension from practice is the subject matter

of the H

822

SUPREME COURT REPORTS [1998] 2 S.C.R.

A case. The powers of this Court, under Article 129 read with Article 142 of the

Constitution, being supplementary powers have "'to he used in exercise of its

jurisdiction" in the case under consideration by this Court. Moreover, a case

of contempt of court is not

stricto senso a cause or a matter between the

parties

inter se. lt is a matter between the court and the contemner. It is not, .

strictly speaking, tried as an adversarial litigation. The party, which brings the

B contumacious conduct of the contemner to the notice of the court, whether

a private person or the subordinate court,

is only an

i11for111ant and does not

have the status of a

litigant in the contempt of Court case.

The contempt of court

is a special jurisdiction to be exercised sparingly

and with caution, whenever

?n act adversely effects the administration of

C 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 corr,bining

D

"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

E justice. It is a matter between the court 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 public

confidence in the fairness and impartiality of the administration of justice.

F 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

unger Article 142 is in a

way, corrective power, which gives preference to equity over law but it cannot

G 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.

In

Re:

V.C Mishra'.1" case (supra), while imposing the punishment of

suspended simple imprisonment, the Bench, as already noticed, punished the

H contemner also by suspending his licence to practice as an advocate for a

S.C.B.A. v. U.0.1. [DR. ANAND, J.] 823

specified period. The Bench dealing with that aspect opined: A

~

It is not disputed that suspension of the advocate from practice and

his removal from the State roll of advocates are both punishments.

There

is no restriction or limitation on the nature of punishment that

this

Court may award while exercising its contempt jurisdiction and

the said punishments can be the punishments the Court may impose

B

while exercising the said jurisdiction .

•

...

(Emphasis supplied)

In taking this view, the Bench relied upon Articles 129 and 142 of the

Constitution besides Section 38 of the Advocates Act, 1961. The Bench

c

observed:

''Secondly, it would also mean that for any act

of contempt of

court,

if it also happens to be an act of professional misconduct under

the Bar

Council of India Rules, the courts including this Court, will

have

no power to take action since the Advocates Act confers exclusive

D

"'I""

power for taking action for such conduct on the disciplinary

..

committees of the State Bar Council and the Bar Council of India, as

the case may be. Such a proposition of law on the face of it observes

rejection for the simple reason that the

disciplinmy jurisdiction of the State Bar council and the Bar Council of India to take action for

professional misconduct is different from the jurisdiction

of the E

Courts to take action against the advocates for the contempt of

Court. The said jurisdiction co-exist independently of each other. The

action taken under one jurisdiction does not bar an action under the

other jurisdiction.

...

The contention is also misplaced for yet another and equally, if not F

'

more, important reason. In the matter of disciplinary under the

Advocates Act, this Court is constituted as the final Appellate

authority

under Section 38 of the act as pointed out earlier. In that

capacity

this court can impose any of the punishments mentioned in

Section 35(3) of the Act including that of removal of the name of the

G

Advocate from the

State roll and of suspending him from practice.

If that be so, there is no reason why his court while exercising its

contempt jurisdiction under Article

129 read with Article 142 cannot

impose any of the said punishments. The punishment

so imposed will

not only be not against the provisions of any statute, but in conformity

with the substantive provisions

of the advocates Act and for conduct

H

824 SUPREME COURT REPORTS [1998] 2 S.C.R.

A which is both a professional misconduct as well as the contempt of

Court. The argument has, therefore. to be rejected."

(Emphasis supplied)

These observations. as

we shall presently demonstrate and we say so

B with utmost respect, are too widely stated and do not bear closer scrutiny.

After recognising that the disciplinary jurisdiction of the

State Bar Council

and the Bar Council of India to take action for professional misconduct is

different from the jurisdiction of the courts

to take action against the advocates

for the contempt of court, how could the court invest itself with the jurisdiction

C of the disciplinary committee of the Bar

Council lo punish the concerned

Advocate for

.. professional

misconduct" in addition to imposing the

punishment of suspended sentence

of imprisonment for committing contempt

of court.

The plenary powers of this court under Article

142 of the

Constitution

D are inherent in the court and are complementary to those powers which are

specifical(v 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 are of very

wide amplitude and are in the nature of

supplementary powers. This power,

E 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

F 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

G of

justice··. It, howe\'er, 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

H to build a new edifice where none existed earlier, by ignoring express statutory

..

S.C.B.A. v. U.0.1. [DR. ANAND, J] 825

provisions dealing with a subject and thereby to achieve something indirectly A

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 pennissible

in exercise of the jurisdiction under Article 142. The construction of Article B

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.

The Supreme Court in exercise

of its jurisdiction under Article 142 has C

the power to make such order as is necessary .for doing complete justice

··

between the parties in any cause or matter pending before it. The very nature

of the power must lead the court to set limits for itself within which to exercise

those powers and ordinarily it cannot disregard a statutory provision governing

a subject, except perhaps to balance the equities between the conflicting

D

~

" claims of the litgating parties by "ironing out the creases" in a cause or

matter be.fore

it. Indeed this Court is not a court of restricted jurisdiction of

only dispute settling. It is well recognised and established that this court has

always been a law maker

and its role travels beyond merely dispute settling.

It is a

·'problem solver in the nebulous areas". (See. K. l/i?rra.1wa111i v. Union E

o.f India [1991] 3 SCC 655, but the substantive statutory provisions dealing

with the subject matter

of a given case, cannot be altogether ignored by this

court, while making

an order under Article 142. 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 F

exercise may come

direct~v in conflict with what has been expressly provided

for in statute dealing expressly with the subject.

In Bonkya @

B.S. iane & Ors. v. State o.f Maharashtra. f 1995] 6 SCC

447, a bench of this court observed:

"The amplitude of powers available to this Court under Article 142 of

the Constitution of India is normally speaking not conditioned liy any

statutory provision but it cannot be lost sight

of that this Court

exercises jurisdiction under Article 142

of the Constitution with a view

G

to do justice between the parties but not in disregard o.f the relevant H

826 SUPREME COURT REPORTS (1998] 2 S.C.R

A statutorv provisions .. ,

B

c

Dealing with the powers of this court under Article 142. in Prem Chand

(iarg v. Excise Co11111zissiune1: U.P., .4/lahahad. [1963] Supp. I. S.C.R. 885, it

was said by the Constitution Bench:

··111 this connection, it may be pertinent to point out that the wide

powers which arc given to this court for doing complete justice

between the parties, can be used by this court for instance, in adding

parties

to the proceedings pending before it, or in admitting additional

evidence,

or in remanding the case, or in allowing a new point to be

taken for the first time.

ft is plain that in exercise of these and similar

other powers, this Court would not be bound by the relevant

provisions of procedure if it is satisfied that a departure from the

said procedure is nece.1.mrv to do complete justice between the parties.

That takes us to the second argument urged by the Solicitor-

D General that Art. 142 and Art. 32 should be reconciled by the adoption

of the rule of harmonious construction. In this connection, we ought

to bear in mind that though the powers conferred on this C our! by

Art. 142(1) are verv wide, and the same can be exercised for doing

complete justice in any case, as we have already observed this Court

E

F

G

H

cannot even under Art. /.12(1) make an order plainlv inconsistent

ll'ith the express slatuto1y provisions of substantive law, much less,

inconsistent with any Constitutional provision.

There can, therefore

be no conflict between Art. 142(1) and Art. 32. In the case of KM.

Nanavati v. The State of Bombay,

[1961] 1 S.C.R. 497, on which the

Solicitor-General relies, it was conceded, and rightly, that under Art.

142(1) this Comt had the power to grant bail in cases brought before

it, and

so. there was obviously a conflict between the power vested

in this court under the said Article and that vested in the Governor

of the

State under Ari. 161. The possibility ofa conflict between these

powers necessitated the application of the rule of harmonious

construction.

The

~aid rule can have no application to the present

case, because

on a fair construction

a/Art. 1./2(/J, this Court has

no

po1rer to

circumscribe the fundamental right guaranteed under

Art.

32. The existence of the said power is itself in dispute, and so,

the present is clearly distinguishable from the case ofK.M.

Nanavati."

(Emphasis ours)

..

..

A

'("

....

<

S.C.B.A. v. U.O.l. [DR. ANAND. J.] 827

In Re: Vinay Chandra Mishra:~ case (supra), the three judge Bench did A

notice the observations in Prem Chand Gwg :~ case (supra) but opined:

··in view of the observations of the latter Constitution Bench on the

point. the observations made by the majority in Prem Chand Garg's

case (supra)

are no longer a good

la11'. This is also pointed out by

this Court in the case of Mohammed Anis v. Union of India & Ors.,

[19941 Supp. 1SCC145. by referring to the decisions of Delhi judicial

Services Vs. State of Gujarat (supra) and Union Carbide Corporation

Vs. Union of India (supra) by observing that statutory provisions

cannot O erride the constitutional provisions and Article 142( 1) being

a constitutional power it cannot

be limited or conditioned by any

statutory provision. The

Court has then observed that it is, therefore,

clear that the power

of the Apex

Court under Article 142(1) of the

Constitution Cannot be diluted by statutory provisions and the said

position in law

is now well settled by the

Constitution Bench decision

in Union Carbides, case (supra)."

(Emphasis supplied)

Commenting upon the observations in Prem Chand Garg s case (supra)

the Bench further opined:

"Apart from the fact that these observations are made with reference

to the powers

of this

Court under Article 142 which are in the nature

B

c

D

E

of supplementary powers and not with reference to this Court's power

under Article 129, the said observations have been explained by this

Court in its latter decisions in Delhi Judicial Services Association v. F

State of Gujarat (supra) and Union Carbide Corporation v. Union of

India, [ 1991] 4 SCC 584. In paragraph 51 of the former decision. it has

been, with respect. rightly pointed out that the said observations were

made in the context

of fundamental rights. Those observations have

no bearing on the present issue. No doubt, it was further observed G

there that those observations have no bearing on the question in

issue in that case as there was

no provision in any substantive law

restricting this

Court's power to quash proceedings pending before

subordinate courts. But

it was also added there that this

Court's

power under Article 142(1) to do complete justice was entirely of H

)-

828

SUPREME COURT REPORTS (1998] 2 S.C.R

A different leave and ofa different quality."

As we shall presently see, there is nothing said in either Delhi Judicial ·r

Service Association '.I-, case (supra) or the Union Carhide '.1· case (supra) from

which it may be possible to hold that the Jaw laid down in Prem Chand Gmg '.1·

case (supra) is ·'no longer a good law". Besides, we also find that in Mohd.

B Anis case referred to by the Bench, there is no reference made to Prem Chand

Garg:~ case at all.

c

In Delhi Judicial Se1vice 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 the Contempt of Courts

Act, 1971, (c) whether the incident interfered with the due administration

D 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

E 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 elqJression '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

F 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."

G

H

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 v. Excise Commissioner. U.P.

Allahabad, [1963] Supp. 1 SCR 885 at 899, and A.R. Antu lay v. R.S.

•

S.C.B.A. v. U.0.1. [DR. ANAND, J] 829

Nayak and Anr., [1988) 2 SCC 602. where the Court observed that A

though the powers conferred on this Court under Article 142( l) are

very wide, but in exercise of that power the court cannot make any

order plainly inconsistent with the express statutorv 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 B

court's power under Article 142(1) were made in the context of

fundamental rights.

]hose observations have no bearing on the

question

in issue as there is no provision in any substantive law

restricting this Court:, 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 C

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 seisin 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 D

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, E

though while exercising power 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 F

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. v. Poosu & Anr. [1976) 3 SCR 1005; Ganga Bishan & Ors. v. G

Jai Narain [1986] l SCC 75; Navnit R. Kamani & Ors. v. R.R. Kamani,

[ 1988] 4 SCC 387, B.N. Nagarajan & Ors. v. State of Mysore & Ors.

[1966] 3 SCR 682: Special Reference No. 1of1964, (supra), and Harbans

Singh v. State of U.P. Ors. (supra) ."

(emphasis supplied) H

830

SUPREME COURT REPORTS [1998) 2 S.C.R.

A lnARAntu/ay v. R.S. Navak andA11r., [1988] 2 sec 602, a seven Judge

B

c.

D

Bench of this Court said:

·The reliance placed in this context on the provisions contained in

Articles 140 and 142 of the Constitution and Section 401 read with

Section 386

of the

Cr. P.C. docs not also help. Article l+O is only a

provision enabling parliament

to confer supplementary powers on the

Supreme

Court to enable it to deal more effectively to exercise the

jurisdiction conferred on it by or under the Constitution. Article 142

is also not

of much assistance. In the first place, the operative words

in that article, again are

·'in the exercise of its jurisdiction". The

Supreme Court was hearing an appeal from the order of discharge and

connected matters. There \vas no issue or controversy or discussion

before it as

to the comparative merits of

a trial before a Special judge

vis-a-vis one before the High Court. There was only an oral request

said

to have been made, admittedly, after the judgment was announced.

Wide as the powers under Article

14 I are, they do not in my view,

envisage an order of the type presently

in question. The Nanavati

case, to which reference was made by Shri Jethmalani, involved a

totally different

type of situation. Secondly, it is one of the contentions

of the appellant that an order of this type, far from being necessary

for doing complete justice in the cause

or matter pending before the

E court, has actually resulted in injustice, an aspect discussed a little

later. Thirdly, however wide and plenary the language

of the article,

the directions given

by the

Court should not be inconsistent with,

repugnant,

or in vjolation of the specific provisions of any statute. If

the provisions of the 1952 Act read with Article 139-A and

Sections

F

406-407 of the Cr. P.C. do not permit the transfer of the case from a

Special Judge to the High Court, 'that effect cannot be achieve

indirectly."

(Emphasis supplied)

In Union Carbide Corpn. v. Union of India, [199 I] 4 SCC 584, a

G Constitution Bench of this Court dealt with the ambit and scope of the powers

of this Court under Article 142 of the Constitution. The Bench considered the

observations

of the majority in

Prem Chand Garg v. Excise Commissioner,

UP, [ 1963] Supp. I SCC 885, as well as the observations made in A.R. Antulay

V, R.S. Nayak, [1988] 2 sec 602, and observed:

H "It is necessary to set at rest certain misconceptions in the arguments

•

S.C.BA v. U.O.L [DR. ANAND, J.] 831

touching the scope of the powers of this Court under Article 142(1) A

of the Constitution. These issues are matters of serious public

importance. The proposition that a provision in any ordinary law

irrespective of the importance of the public policy on which it

is

founded, operates to limit the powers of the Apex

Court under Article

142(1) is unsound and erroneous. In both Gard as well as Antulay

B

cases the point was one of violation of constitutional provisions and

constitutional rights. The observations

as to the effect of inconsistency

with statutory provisions were really unnecessary in those cases as

the decisions in the ultimate analysis turned on the breach

of

constitutional rights. We agree with

Shri Nariman that the power of

the Court under Article 142 insofar as quashing of criminal proceedings C

are concerned is not exhausted by Section 320 or 321 or 482 Cr. P.C.

or all ·of them put together. The power under Article 142 is at an

entirely different level and of a different quality. Prohibitions or

limitations or provisions contained in ordinary laws cannot, ipso facto,

act as prohibitions of limitations on the constitutional powers under

D

Article 142.

Such prohibitions or limitations in the statutes might

embody and reflect the scheme

of a particular law, taking into account

the nature and status of the authority or the court on which conferment

of powers -limited in some appropriate way is contemplated. The

limitations may not necessarily reflect or

be based on any fundamental E

considerations of public policy,

Shri sorabjee, learned Attorney General,

referring

to Garg 'case, said that limitation on the powers under Article

142 arising from 'inconsistency' with express statutory provisions of

substantive law' must really mean and be understood as some express

prohibition contained in any substantive statutory

law. He suggested

that

if the expression ·prohibition' is read in place of 'provision' that F

would perhaps convey the appropriate idea. But we think that such

prohibition should also be shown

to be based on some underlying

fundamental and general issues of public policy and not merely

incidental to a particular statutory scheme or pattern.

It will again be

wholly incorrect

to say that powers under Article 142 are subject to G

such express statutory prohibitions. That would convey the idea that

statutory provisions override a constitutional provision.

Perhaps,

the proper way of expressing the idea is that in exercising powers

under Article

142 and in assessing the needs of 'complete justice' of

cause

of matter, the Apex

Court will take note of the express H

832

A

B

SUPREME COURT REPORTS [1998] 2 S.C.R.

prohibitions in any substantive statutory provision based on some

fundamental principles of public policy and regulate the exercise of its

power and discretion accordingly. The proposition does not relate

to the powers of the

Court under Article 142, but only to what is or

is not 'complete justice' of a cause or matter and in the ultimate

analysis of the propriety of the exercise of the

power. No question of

lack of jurisdiction

or

pf nullity can arise."

(Emphasis supplied)

Thus, a careful reading of the judgements in

Union Carbide Corporation

C &

Ors. v. Union of India & Ors. the Delhi judicial Services Association case

and Mohd. Anis Case (supra) relied upon in V.C. Mishra's case (supra) show

that the court did not actually doubt the correctness of the observations in

Prem Chand Garg s, case (supra). As a matter of fact, it was observed that

in the established facts of those cases, the observations in

Prem Chand

D Garg

's case had "no relevance". This Court did not say in any of those cases

that substantive statutory provisions dealing expressly with the subject can

be ignored by this

Court while exercising powers under Article 142.

As a matter of fact, the observations on which emphasis has been

placed by

us from the Union

Carbide's case, A. R. Antu lay 's case and Delhi

E Judicial Services Association case (supra) 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 (supra). It is one thing to say that "prohibitions

or limitations in a statute" cannot come in the way of exercise of jurisdiction

under Article

142 to do complete justice between the parties in the pending

F 'cause or matter arising out of that statute, but quite a different thing to say

t11at while exercising jurisdiction under Article 142, this

Court can altogether

ignore the substantive provisions of a

statute, dealing with the subject and

pass orders concerning an

issue which can be settled only through a mechanism

prescribed in another statute. This

Court did not lay so in Union Carbide's

G case either expressly or by implication and on the contrary it has been held

that the apex court

will take note of the express provisions of any substantive

statutory

law and regulate

the exercise of its power and discretion accordingly.

We are, therefore, unable to persuade ourselves to agree with the observations

oft11e Bench in V.C. Mishra 's case that the law laid down by the majority in

H Prem Chand Garg's case is "no longer a good law".

'

"r

r

. ....

~

...

S.C.B.A. v. U.0.1. [DR. ANAND, J.] 833

In a given case, an advocate found guilty of committing contempt of A

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 B

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

~he courts.

After the coming into force of the Advocates Act, 1961, exclusive

C

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 D

consequences but also penal consequences,

the punishment being in the

nature of penalty, the provisions have to be strictly construed. Punishment

by way of suspending the licence of an advocate can only be imposed by

the competent statutory body after the

charge is established against the

Advocate

in a manner prescribed by the Act and the Rules framed thereunder. E

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 p

authorities to chastise and, if necessary, punish members of the profession

for professional misconduct. That 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 G

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

State 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

H

834 SUPREME COURT REPORTS (1998] 2 S.C.R

A Court of India. Sectio~ 33 proYides that no person shall, on or after the

appointed

day, be entitled to practice in any court or before any authority or

person unless

h.: 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

B 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

3 5 lays down that

if on receipt of a complaint or

othenvise, 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

C disciplinary committee. Section 36, provides that where on receipt of a

complaint or othenvise, 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 3 7 provides for an appeal to the Bar Council of India against an order

D 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.

Section 42(1) of the Act confers on the Disciplinary Committee of the

E Bar Council, powers of a civil court under the code of Civil Procedure and

section 42(2) enacts that its proceedings shall be "deemed" to be judicial

proceeding for the purposes mentioned therein.

Section 49 of the Act lays down that the Bar Council of India may make

F 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 pmfessional

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

G 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 Part \111 provisions have been made to deal with

complaints

of professional misconduct received against advocates as well as

H for the procedure to be followed by the Disciplinary

Committees of the State

S.C.BA v. U.O.L [DR. ANAND, J.] 835

Bar Council and the Bar Council of India to deal with such complaints A

received under Sections 35 and 36 of the Act. Rule I of Chapter I of part VII

of the Rules provides that a complaint against an advocate shalJ be in the

form

of a petition duly signed and verified as required under the code of Civil Procedure, and shalJ be accompanied by the fees as presc~ibed by the Rules.

On the complaint being found to be in ord.or, the same shall be registered and B

placed before the Bar Council for such order as it may deem it to pass. Sub­

mle (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 a !so

call for the comments from the advocate complained against . "

Rules 3 and 4 of Chapter I Part VII provide for the procedure to be

followed in dealing with such complaints. These mies read:

"3. (I) After a complaint has been referred to a Disciplinary Committee

by the Bar Council, the Registrar shall elqJeditiously send a notice to

c

the Advocate concerned requiring him to show cause within a specified D

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

appearance by an Advocate or through

representative.

otherwise directed,

duly authorised

E

(2) If the Disciplinary Committee requires or permits. a complainant F

may file a replication within such time as may be fixed by the committee.

(3) The Chairman of the Disciplinary Committee shall

fix the date, hour

and place

of the

enquily 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 place to the complainant or other person G

aggrieved, the advocate concerned and the Attorney General or the

Additional Solicitor General

of India

01 the Advocate General as the

ca~e may be, and shall also serve on them cooies 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

H

836 SUPREME COURT REPORTS [1998] 2 S.C.R.

A fixed for the enquiry.

Rules

5. 6 and 7 deal with the manner of service of notice, summoning

-r

of witnesses and appearance of the parties before the disciplinary committee.

B

At any stage of the proceedings, the disciplinary committee may appoint an

advocate

to appear as

al/lieus 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

C 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

D evidence, in which case the procedure for the trial of civil suits shall

as far as possible be

followed."

E

F

G

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 members 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 dissenting 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 ofa State Bar Council shall send to tl1e Secretary

of the Bar Council India quarterly statements of tl1e 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

H to time.

)..

,..

S.CBA. v. U.O.I. [DR. ANAND, J.] 837

(2) The Secretary of the Bar Council of India may however call for A

such farther 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

!9(2)to

31. B

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 C

against an advocate before he can be punished by the Bar

Council by

revoking or suspending his licence or even for reprimanding him.

In Bar Council of Maharashtra v. M. V Dabholkar & Ors., (1975] 2 SCC

702, a Seven Judge Bench of this Court analysed the scheme of the Advocates

Act

1961 and inter alia observed:

··The scheme and the provisions of the Act indicate that the constitution

D

of State Bar Councils and Bar Council of India is for one of the

principal purposes

to see that the standards of professional conduct

and etiquette laid down

by the Bar

Council of India are observed and E

presen-ed. 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 Council is a body

corporate. The disciplinary committees are constituted

by the Bar Council. The Bar Council is not the same body as its disciplinary

committ.::c. One of the principal junctions of the Bar Council in F

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 rr>fer the case for disposal

to its disciplinary committee. The Bar Councils of a State may also G

of its own motion if it 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. It is apparent that a state

Bar

Council not only receives a complaint but is required to apply its

mind

to find out whether there is any reason to believe that any H

838 SUPREME COURT REPORTS [1998] 2 S.C.R.

A advocate has been guilty of professional or other misconduct. The

Bar Council

of a

State acts on that reasoned belief. The Bar Council

B

c

has a vei:v important part to play, first in the reception of complaints, -r

second, in forming reasonable beliefofguilt ofprofessional or other

misconduct and jinal~v in making reference of the case to its

disciplinarv committee.

The initiation of the proceeding before the

disciplinary committee is by the Bar

Council of a State. A most

signijica/11 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

disciplinm:v proceedings.

Thus, after the coming into force of the Advocates Act,

1961

with effect

from 19th May 1961, matters connected with the enrolment

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

D 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.

E

The Letters

Patent of the Chartered High Courts as well of the other

High Courts earlier did vest power in those High Courts

to admit an advocate

to practice. The power of suspending from practice being incidental

to that

of admitting to practice being incidental to that of admitting to practice also

vested

in the High

Courts. However. by virtue of Section 50 of the Advocates

Act, with effect from the date when a State Bar Council is constituted under

the Act, the provisions of the Letters patent

of ar.y High

Court and ·'of any

F other law" in so far as they related to the admission and enrolment of a legal

practitioner or confer

on the legal practitioner the right to practice in any court

y

or before any authority or a person as also the provisions relating to the

"suspension or removal" of legal practitioners, whether under the letters

patent

of any High Court or of any other law, have been repealed. These

G powers now vest exclusively, under the Advocates Act, in the Bar Council

of the concerned

State. Even in England the Courts of Justice 2re now

relieved

from disbarring advocates from practice after the power of calling to

the Bar has been delegated to the Inns of Court. The power to disbar the

advocate also

now vests exclusively in the Inns of Court and a detailed

H procedure has been laid therefor.

...

S.C.B.A. v. U.0.1. [DR. ANAND, J.] 839

In Re. VC. lvfisra ~·, case the Bench relied upon its appellate jurisdiction A

under Section 38 (supra) also to support its order of suspending the licence

of the contemner.

Dealing with the right of appeal, conferred

by Sections 37 and 38 of the

Act, the

Constitution Bench in M V Dabholkar :~, case (supra) observed.

B

"Where a right of appeal to courts against an administrative or

judicial decision is created by statute, the right is invariab(v confined

to a person aggrieved or a person who claims to he aggrieved. The

meaning of the words .. a person aggrieved" may vary according to the I

context of the statute. One of the meanings is that a person will be C

held to be aggrieved by a decision if that decision is materially

adverse

to him. Normally, one is required to

cstab}.ish that one has

been denied or deprived of something

to which one is legally entitled

in order

to make one

"a person aggrieved". Again a person is aggrieved

if a legal burden

is imposed on him, the meaning of the words

"a D

person aggrieved" is sometimes given a restricted meaning in certain

statutes which provide remedies for the protection

of private legal

rights. The restricted meaning requires denial or deprivation of legal

rights. A more liberal approach is required in the background

of

statutes which do not deal with property rights but deal with

professional conduct and morality. The role of the Bar

Council under E

the Advocates Act is comparable to the role of a guardian in

professional ethics. The words "persons aggrieved in sections 37 and

3 8 of the Act are

of wide import and should not be subjected to a

restricted interpretation

of possession or denial of legal rights or

burdens or financial interests.

The test is whether the

word1' "person F

aggrieved" include "a person who has a genuine grievance because

an order has been made which prejudicially affects his interests". It

has, therefore, to be found out whether the Bar Council has a grievance

in respect of an order or decision affecting the professional conduct

and etiquette." G

(Emphasis supplied)

In O.N. Mohindroo v. The District Judge, Delhi &Anr., [1971] 3 SCC

5, it has been held that an appeal to the Supreme Court under Section 38 of

the Act is not a restricted appeal. It is not an appeal on a question of law H

840 SUPREME COURT REPORTS (1998] 2 S.C.R

A alone but also on questions of fact and under that Section the Supreme court

has the jurisdiction

to pass any order it deems fit on such an appeal but

'no

order of the Bar Council of India shall be varied by the Supreme Court so as

to prejudicially affect the person aggrieved without giving him a reasonable

opportunity

of being heard.

B

This

Court is indeed the final appellate authority under Section 38 of

the Act but

we are not persuaded to agree with the

view that this Court can

in exercise of its appellate jurisdiction, under Section 38 of the Act, impose

one

of the punishments, prescribed under that Act. while punishing a

C contemner advocate in a contempt case.

·Professional misconduct' of the

advocate concerned

is not a matter 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 contenmer for

contempt

of court by imposing any of the recognised and accepted

D punishments for committing contempt of court. Keeping in

view the elaborate

procedure prescribed under the Advocates Act

1961 and the Rules framed

'r

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

E 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. The enquiry

is a detailed and elaborate one and

is not of a

su11111ra1:v nature. It is therefore. not permissible for this court to

F punish an advocate for "professional misconduct" in exercise of the appellate

jnrisdiction

by converting itself as the statutory body exercising

'·original

jurisdiction''. Indeed, if in a given case the concerned Bar Council on being

appri,ed 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

G powers under

Section 3 8 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.

ln 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

H the Bar Council does "not act" or fails to act, by sending for the record of

..

4

~

~

-<'

S.C.B.A. v. U.0.1. [DR. ANAND, J] 841

that cause and pass appropriate orders.

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. We are. therefore. unable to persuade

ourselves

to subscribe to the contrary view expressed by the Bench in

!~C.

Mishra:~ 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 councils.

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, \Yhile 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 3 8 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 India to punish that

Advocate

by either debarring him from practice or suspending his licence, as

A

B

c

D

E

may be warranted, in the facts and circumstances of each case. The learned F

Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct

of an advocate, had initiated disciplinary proceedings against him and even

punished him for "professional misconduct", on the basis of his having been

found guilty

of committing contempt of court. We do not entertain any doubt

that the Bar

Council of the State or Bar Council of India, as the case may be, G

when apprised of the established contumacious conduct of an advocate by

the High Court or by this Court, would rise to the occasion , and take

appropriate action against such an advocate. Under Article 144 of the

Constitution ''all authorities civil and judicial, in the territory oflndia shall act

in aid

of the Supreme

Court". The Bar Council which performs a public duty H

842 SUPREME COURT REPORTS [1998] 2 S.CR.

A and is charged with the obligation to protect the dignity of the profession and

maintain professional standards and etiquette

is also obliged to act .. in aid

of the Supreme

Court ... It must. wheneyer. facts warrant rise to the occasion

and discharge its duties uninfluenced

by the position of the contemner

advocate.

It must act in accordance with the prescribed procedure, whenever

B its attention is drawn by this Court to the contumacious and U11becoming

conduct of an advocate which has the tendency to interfere with due

administration of justice. It

is possible for the High

Courts also to draw the

attention

of the Bar

Council of the State to a case of professional misconduct

of a contemner advocate

to enable the

State Bar Council to proceed in the

manner prescribed

by the Act and the rules framed thereunder. There is no

C justification to assume that the Bar

Councils would not rise to the occasion,

as they are equally responsible

to uphold the dignity of the courts and the

majesty of law and prevent any interference in the administration of justice.

Learned counsel for the parties present before us

do not dispute and rightly

so. that whenever a court of record, records its findings about the conduct

D 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 maintain the dignity of the courts and to

uphold the majesty

of law and professional standards and etiquette. Nothing

E 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 receiving 'reference' from the court, fails to take action

against the concerned advocate, this court might consider invoking its powers

F under

Section 38 of the Act by sending for the record of the 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. We, however, hope that such a situation would not arise.

In a given case it may

be possible, for this

Court or the High Court, the

G prevent the contemner advocate to appear before it till he purges 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

H withdraw his privilege to practice as an Advocate-an-Record because that

I ,,..

i

S.C.B.A. v. U.O.l. [DR. ANAND, J.] 843

privilege is conferred by this Court and the power to grant the privilege A

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

as an advocate in other courts or Tribunals.

We are conscious of the fact that the conduct of the contemner in VC

Misra'.,, case was highly contumacious and even atrocious. It was

unpardonable. the contemner therein had abused his professional privileges

while practising as an advocate.

He was holding a very senior position in the

Bar Council

of India and was expected to act in a more reasonable way. He

B

did not. These factors appear to have influenced the bench in that case to

itself punish him by suspending his licence to practice also while imposing C

a suspending sentence of imprisonment for committing contempt of court but

while doing

so this court vested itself with a jurisdiction where none exists.

The position would, have been different had a reference been made to the Bar

Council and the Bar Council did not take any action against the concerned

advocate.

In that event, as already observed, this court in exercise of its D

appellate jurisdiction under

Section 38 of the Act read with Article 142 of the

Constitution oflndia, might have exercised

suo moto powers and sent for the

proceedings from the Bar Council and passed appropriate orders for punishing

the contemner advocate for professional misconduct after putting him on

notice as required

by the proviso to

Section 38 which reads thus:-

"Provided that no order of the disciplinary committee of the Bar

Council

of India shall be varied by the

Supreme Court so as to

prejudicially affect the person aggrieved without giving

him a

reasonable opportunity of being

heard."

but it could not have done so in the first instance.

E

F

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 hDving

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

G

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 statuto.ry

authorities and other organs

of the

State perform their duties in accordance

with

law, its role is unexceptionable but it is not permissible for the Court to H

844

SUPREME COURT REPORTS (1998] 2 S.C.R

A .;take over" the role of the statutory bodies or other organs of the State and.

;·perform" their functions.

B

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.

V.S.S. Petition allowed.

-,.-

...