Supreme Court Bar Association v. Union of India

PETITIONER:
SUPREME COURT BAR ASSOCIATION
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT: 17/04/1998
BENCH:
S.C. AGRAWAL, G.N. RAY, A.S. ANAND, S.P. BHARUCHA,S. RAJENDRA BABU

ACT

HEADNOTE

JUDGMENT

JUDGMENT DR. ANAND. J.

In Re: Vinay Chandra Mishra, (1995) 2 SCC 584, this Court found the Contemner, an advocate, guilty of committing criminal contempt of Court for having interfered with and "obstructing the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language", While awarding punishment, keeping in view the gravity of the contumacious conduct of the contemner, the Court said:

" The facts and circumstances

of the Present Case justify our

invoking the power under Article

129 read with Article 142 of the

Constitution to award to the

contemner a suspended sentence of

imprisonment together with

suspension of his practice as and

advocate in the manner directed

herein. We accordingly sentence the

contemner for his conviction for

the offence of the criminal

contempt as under:

(a) The contemner Vinay

Chandra Mishra is hereby sentenced

to undergo simple imprisonment for

a period of six weeks. However, in

the circumstances of the case, the

sentence will remain suspended for

a period of four years and may be

activated in case the contemner is

convicted for any other offence of

contempt of court within the said

period; and

(b) The contemner shall stand

suspended from practising as an

advocate fro a period of three

years from today with the

consequence that all held by him in

his capacity as an advocate, shall

stand vacated by him forthwith.

Aggrieved by the direction that the "Contemner shall stand suspended from practising as an Advocate for a period of three years" issued by this Court by invoking powers under Articles 129 and 142 of the Constitution, the Supreme Court Bar Association, through its Honorary Secretary, has filed this petition under Article 32 of the Constitution of India, seeking the following relief:

" Issue and appropriate writ,

direction, or declaration,

declaring that the disciplinary

committees of the Bar Councils set

up under the Advocates Act, 1961,

alone have exclusive jurisdiction

to inquire into and suspend or

debar an advocate from practising

law for professional or other

misconduct, arising out of

punishment imposed for contempt of

court or otherwise and further

declare that the Supreme Court of

India or any High Court in exercise

of its inherent jurisdiction has no

such original jurisdiction, power

or authority in that regard

notwithstanding the contrary view

held by this Hon’ble Court in

Contempt Petition (Crl.) No. 3 of

1994 dated 10.3.1995." On 21.3.1995, while issuing Rule in the writ petition, following order was 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 practicing lawyer from

carrying on his profession as a

lawyer for any period whatsoever,

We direct notice to issue on the

Attorney General of India and on

the respondents herein. Notice will

also issue on the application for

interim stay. Having regarding to

the importance of the aforesaid

question we further direct that

this petition be placed before a

Constitution Bench of this Court."

That is how this Writ petition has been placed before this Constitution Bench.

The only question which we are called upon to decide in this petition is whether the punishment for established contempt of Court committed by an Advocate can include punishment to debar the concerned advocate from practice by suspending his licence (sanad) for a specified period, in exercise of its powers under Article 129 read with Article 142 of the Constitution of India.

Dealing with this issue, the three judge Bench in vinay Chandra Mishra’s case (Supra), opined:

"The question now is what

punishment should be meted out to

the contemner. We have already

discussed the contempt jurisdiction

of this Court under Article 129 of

the Constitution. That jurisdiction

is independent of the statutory law

of contempt enacted by Parliament

under Entry 77 of List I of Seventh

Schedule of the Constitution. The

jurisdiction of this Court, under

Article 129 is sui generis. The

jurisdiction to take cognizance of

the contempt as well as to award

punishment for it being

constitutional, it cannot be

controlled by any statute. Neither,

therefore, the Contempt of Courts

Act, 1971 nor the Advocates Act,

1981 can be pressed into service to

restrict the 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 publishing the contemner with any of the "traditional" or "accepted" 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 Article 142 which are

supplementary in nature and are

provided to do complete justice in

any matter, are independent of the

jurisdiction and powers of this

Court under Article 129 which

cannot be trammeled in any way by

any statutory provision including

the provisions of the Advocates Act

or the contempt jurisdiction of the

court including of this Court and

the contempt of Courts Act, 1971

being a statute cannot denude,

restrict or limit the powers of

this Court to take action for

contempt under Article 129.

Mr. Kapil Sibal, learned senior counsel appearing for the Supreme Court Bar Association, and Dr. Rajiv Dhawan, senior advocate appearing for the Bar Council of U.P. and Bar Council of India assailed the correctness of the above findings and submitted that powers conferred on this Court by Article 142, though very wide in their aptitude, can be exercised only to "do complete justice in any case or cause pending before it " and since the issue of ’professional misconduct’ is not the subject matter of "any cause" pending before this court while dealing with a case of contempt of court, it could not make any order either under Article 142 or 129 to suspend the licence of an advocate contemner, for which punishment, statutory provisions otherwise exist. According to the learned counsel, a court of record under Article 129 of the Constitution does not have any power to suspend the licence of a lawyer to practice because that is not a punishment which can be imposed under its jurisdiction to punish for contempt of Court and that Article 142 of the Constitution cannot also be pressed into aid to make an order which has the effect of assuming "jurisdiction which expressly vests in another statutory body constituted under the Advocates Act, 1961. The learned Solicitor General submitted that under Article 129 read with Article 142 of the Constitution, this Court can neither create a "jurisdiction" nor created a "punishment" not otherwise permitted by law and that since the power to punish an advocate (for "professional misconduct") by suspending his licence vests exclusively in a statutory body constituted under the Advocates Act, this Court cannot assume that jurisdiction under Article 142 or 129 or even under Section 38 of 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 shall be a court

of record and shall have all the

power of such a court including the

power of punish for contempt of

itself".

The Article on its plain language vests this Court with all the powers of a court of record including the power to punish for contempt of itself.

The expression Court of Record has not been defined in the Constitution of India. Article 129 however, declares the Supreme Court to be a Court of Record, while Article 216 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 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, Dictionary of English Law, First Edition (p. 526) 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:-

" 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. Courts of Record are of

two 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 Country Courts,

Coroner’s Courts, and other are

Inferior Courts , Coroner’s Courts,

and other are Inferior Courts,

Coroner’s Courts, and other are

Inferior Courts of Record, of which

the Country Courts are the most

important. Every superior court of

record has authority to fine and

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)

Nigel Lowe and Brenda Sufrin in their treatise on the Law of Contempt (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 the judicial function of

administering justice according to

law in a regular, orderly and

effective manner.’

Such a power is not derived

from statute nor truly from the

common law but instead flows from

the very concept of a court of

law."

----------------

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 records

have an inherent superintendent

jurisdiction to punish contempts

committed in connection with

proceedings before inferior

courts."

(emphasis ours)

Entry 77 of List I of the Seventh Schedule of the Constitution provides for:

" 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 III of the Seventh Schedule provides for legislation in respect of :

"Contempt of Court, but not including contempt of the

Supreme Court."

The language of entry 77 of List I and entry 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, to the qualification that such legislation cannot denude, abrogate or nullify, the power of the Supreme Court to punish for contempt under Articles 129 or vest that power in some other Court.

Besides, Articles 129, the power to punish for contempt is also vested 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. - (1) The

Supreme Court in the exercise of its jurisdiction may

pass such decree or make such order as is necessary for

doing complete justice in any cause or matter pending

before, it, and any decree so passed or order so made

shall to enforceable throughout the territory of India

in such manner as may be prescribed by or under any law

made by Parliament and, until provision in that behalf

is so made, in such manner as the President may by

order prescribe.

(2) Subject to the provisions of any law made in this

behalf by Parliament, the Supreme Court Shall, as

respects the whole of the territory of India, have all

and every power to make any order for the purpose of

securing the attendance of any person, the discovery or

production of any documents, or the investigation or

punishment of any contempt of itself.

It is, thus, seen that the power of this court in respect of investigation or punishment of any contempt including contempt of itself, is expressly made ’subject to the provisions of any law made in this behalf by the parliament’ by Article 142(2). However, the power to punish for contempt being inherent in a court of record, it follows that no act of parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and the Parliament’s power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which this court may impose in the case of established contempt. Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment of contempt of itself. (We shall refer to Section 15 of t he Contempt of Courts Act, 1971, later on) and this Court, therefore exercises the power to investigate and punish for contempt of itself by virtue of the powers vested in it under Articles 129 and 142(2) of the Constitution of India.

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 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: It is hereby enacted as

follows:"

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 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 Letter Patent High Courts and the Chief Courts. The doubt, as a result of conflict of judicial opinion, whether the High Court 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 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 the purview of the 1926 Act and secondly, the High Courts, including the Court of Judicial commissioner which had been excluded from the purview of the 1920 Act and Secondly, the High Courts including the court of Judicial Commissioner which had been excluded from the purview of the 1926 Act and secondly, the High Courts, including the court of a judicial Commissioner, were conferred jurisdiction to inquire into and try contempt of itself or if any court subordinate to it. irrespective of whether the contempt was alleged to have been committed within of outside 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. In the matter of imposition of punishment for contempt of courts, Section 4 of the 1952 Act Provided,

" Sec.4 Limit of punishment

for contempt 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 itself 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 Sanyal Committee and it was required:

(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 Sanyal Committee Reports, the contempt of Courts Act, 1952 was repealed and replaced by the contempt of Courts Act, 1971 which Act was enacted to "define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto". It would be proper to notice some of the relevant provisions of the 1971 Act at this stage.

Section 2 (a), (b) and (c) of the Contempt of Courts Act, 1971 define contempt of court as follows:-

"2. Definitions. - In this

Act, unless the context otherwise

requires,-

(a) ’contempt of court’ means

civil contempt or criminal

contempt;

(b) ’Civil contempt’ means

willful disobedience to an

judgment, decree, direction, order,

writ or other process of a court or

willful breach of an under taking

given to a court;

(c) ’criminal contempt’ means

the publication whether by words,

spoken or written, or by signs, or

by visible representations, or

otherwise) of any matter or the

doing of any other act whatsoever

which-

(i) scandalises or tends to

scandalise, or lowers or tends to

lower the authority of any court,

or

(ii) prejudices, or interferes

or tends to interfere with, the due

course of any judicial proceedings;

or

(iii) interferes or tends to

interfere with or obstructs or

tends to obstruct, the

administration of justice in any

other manner."

Section 10 provides :-

" Sec. 10. Power of High Court

to punish contempts of subordinate

courts. - Every High Court shall

have and exercise the same

jurisdiction, powers ad authority,

in accordance jurisdiction, powers

and authority, in accordance with

the same procedure and practice, in

respect of contempts of courts

subordinate to it as it has and

exercises in respect of contempts

of itself:

Provided that no High Court

shall take cognizance of a contempt

alleged to have been committed in

respect of a court subordinate to

it where such contempt is an

offence punishable under the Indian

Panel Code, 1860 (45 of 1860)."

The punishment for committing

contempt of court is provided in

Section 12 of the 1971 Act which

reads:-

"12. Punishment for contempt

of court. -(1) Save as otherwise

expressly provided in this Act or

in any other law, a contempt of

court may be punished with simple

imprisonment for a term which may

extend to six months, or with fine

which may extend to two thousand

rupees, or with both:

Provided that the accused may

be discharged or the punishment

awarded my be remitted on apology

being made to the satisfaction of

the court.

Explanation.- An apology shall

not be rejected merely on the

ground that it is qualified or

conditional if the accused makes it

bona fide.

(2) Notwithstanding any thing

contained in any law for the time

being in force, no court shall

impose a sentence in excess of that

specified in sub-section (1) for

any contempt either in respect of

itself or of a court subordinate to

it.

(3) Notwithstanding anything

contained in this section, where a

person is found guilty of a civil

contempt, the court, if it

considers that a fine will not meet

the ends of justice and that a

sentence of 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 civil

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 provision shows that subsection (1) of Section 12 provides that in a case of established contempt, the contemner may be punished: (a) with simple imprisonment by detention in a civil

prison; or (b) with fine, or (c) with both. A careful reading of sub-section (2) of Section 12 reveals that the Act places an embargo on the court not to impose a sentence in excess of the sentence prescribed under subsection (1). A close scrutiny of sub-section (3) of Section 12 demonstrates that the legislature intended that in the case of civil contempt a sentence of fine alone should be imposed except where the court considers that the ends of justice make it necessary to pass a sentence of imprisonment also. Dealing with imposition of punishment under Section 12 (3) of the Act, in the case of Smt. Pushpaben and another vs. Narandas V. Badiani and another. (1979) 2 SCC 394, this Court opined:

" A close and careful

interpretation of the extracted

section (Section 12(3)) leaves no

room for doubt that the legislature

intended that a sentence of fine

alone should be imposed in normal

circumstances. The statute,

however, confers special power on

the Court to pass a sentence of

imprisonment if it thinks that ends

of justice so require. Thus before

a Court passes the extreme sentence

of imprisonment, it must give

special reasons after a proper

application of its mind that a

sentence of imprisonment along is

called for in a particular

situation. Thus, the sentence of

imprisonment is an exception while

sentence of fine is the rule."

Section 10 of the 1971 Act like Section 2 of the 1926 Act and Section 4 of the 1952 Act recognises the power which a High Court already possesses as a Court of Record for punishing for contempt of itself, which jurisdiction has now the sanction of the Constitution also by virtue of Article 215. The Act, however, does not deal with the powers of the Supreme Court to try or punish a contemner for committing contempt of the Supreme Court or the courts subordinate to it and the constitutional provision contained in Articles 142(2) and 129 of the Constitution alone deal with the subject.

In S.K. Sarkar, Member, Board of Revenue vs. Vinay chandra Misra, (1981) 1 SCC 436, this court opined:

" Articles 129 and 215

preserve all the powers of the

Supreme Court and the High Court,

respectively, as a Court of Record

which include the power to punish

the contempt of itself. As pointed

out by this Court in Mohd. Ikram

Hussain v. State of U.P. (AIR 1964

SC 1625), there are no curbs on the

power of the High Court to punish

for contempt of itself except those

contained in the Contempt of courts

Act. Articles 129 and 215 do not

define as to what constitutes

contempt of court. Parliament has,

by virtue of the aforesaid entries

in List I and List III of the

Seventh Schedule, Power to define

and limit the powers of the Courts

in punishing contempt of court and

to regulate their procedure in

relation thereto. Indeed, this is

what is stated in the preamble of

the Act of 1971".

(Emphasis supplied)

In Sukhdev Singh v. Hon’ble C.J.S. Teja Singh & Ors. AIR 1954 SCR 454, while recognising that the power of the High Court to institute proceedings for contempt and punish the contemner when found necessary is a special jurisdiction which is inherent in all courts of Record, the Bench opined that "the maximum punishment is now limited to six month’s simple imprisonment or a fine of Rs. 2,000/- or both" because of the provision of Contempt of Courts Act.

In England, according to Halsbury’s 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’s 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

fine or require security for good

behavior.

As in the case of

imprisonment, there is no

statutory limit to the amount of a

fine which the court can impose.

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.

103. Fine. The court may, as an

alternative to committal or

sequestration, impose a fine for

civil contempt.

In assessing the amount of the

fine, account should be taken of

the seriousness of the contempt and

damage done to the public interest.

104. Other remedies. The court may,

in its own discretion, grant an

injunction, in lieu of committal or

sequestration, to restrain the

commission or repetition 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.

105. 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. The respondent

can as a general rule only be

ordered to pay costs 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 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 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

The object of punishment being both curative 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, 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 contemner. 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 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 Court to maintain the Majesty of Law may direct the police force to be utilised for recover 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 (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, 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 impose, in a case of established contempt, under the common law have now been specifically incorporated in the contempt of Courts Act, 1971 in so far as the High Courts are concerned and therefore to the extent the contempt of Courts Act 1971 identifies the nature of types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 either. No new type of punishment can be created or assumed. As already noticed, the parliament by virtue of Entry 77, List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemner by virtue of the provisions of Article 129 read with Article 142(2). Since, no such law has been enacted by the parliament, the nature of punishment prescribed, under the Contempt of Courts Act, 1971, may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes procedural mode for taking cognizance of criminal contempt by the supreme Court also. Section 15, however, is not a substantive provision conferring contempt jurisdiction. The judgment in Sukhdev Singh’s case (supra) as regards the extent of "maximum punishment" which can be imposed upon a contemner must, therefore, be construed as dealing with the powers of the High Courts only and not of this Court in that behalf. We are, therefore, doubtful of the validity of the argument of the learned solicitor General that the extent of punishment which the supreme Court can impose in exercise of its inherent powers to punish for contempt of itself and/or of subordinate courts can also be only to the extent prescribed under the contempt of Courts Act, 1971. We, however, do not express any final opinion on that question since that issue strictly speaking, does not arise for our decision in this case. The question regarding the restriction or limitation on the extent of punishment, which this Court may award while exercising its contempt jurisdiction may be decided in a proper case, when so raised.

Suspending the licence to practice of any professional like a lawyer, doctor, chartered accountant etc. When such a professional is found guilty of committing contempt of court, for any specified period, is not a recognised or accepted punishment which a court of record either under the common law or under the statutory law can impose, on a contemner, in addition to any of the other recognised punishments.

The suspension of an Advocate from practice and his removal from the State roll of advocates are both punishments specifically provided for under the Advocates Act, 1961, for proven "professional misconduct’ of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commission of contempt of court. There is no cause of professional misconduct, properly so called, pending before the Court. This Court, therefore, in exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the disciplinary committee of the Bar Council of the State or the Bar Council of India to punish an advocate by suspending his licence, which punishment can only be imposed after a finding of ’professional misconduct’ is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder.

When this Court is seized of a matter of contempt of court by an advocate, there is no "case, cause or matter" before the Supreme Court regarding his "professional misconduct" even though, in a given a 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 case. The powers of this Court, under Article 129 read with Article 142 of the Constitution, being supplementary powers have "to be 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. It is a matter between the court and the contemner. It is not, strictly speaking, tried as an adversarial litigation. The party, which brings the contumacious conduct of the contemner to the notice of the court, whether a private person or the subordinate court, is only an informant 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 an act adversely effects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely effects the Majesty of Law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. It is an unusual type of jurisdiction combining "the jury, the judge and the hangman" and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperiled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. it is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice.

The power of the Supreme Court to punish for contempt of court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of "Professional misconduct" in a summary manner, giving a go bye to the procedure prescribed under the Advocates Act. The power to do complete justice under Article 142 is in a way, corrective power, which gives preference to equity over law but it cannot be used to deprive a professional lawyer of the due process contained in the Advocates Act 1961 by suspending his licence to practice in a summary manner, while dealing with a case of contempt of court.

In Re: V.C. Mishra’s case (supra), while imposing the punishment of suspended simple imprisonment, the Bench, as already noticed, punished the contemner also by suspending his licence to practice as an advocate for a specified period. The Bench dealing with that aspect opined:

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 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 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 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

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. The said jurisdiction co-

exist court. The said jurisdiction

co-exist "dependently of each

other. The action taken under one

jurisdiction does not bar an action

under the other jurisdiction.

The contention is also

misplaced for year another and

equally, if not more, important

reason. In the matter of

disciplinary under the Advocates

Act, this Court is constituted as

the fina’ 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 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 punishments 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

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 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 of the disciplinary committee of the Bar Council to 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 are inherent in the court and are complementary to those powers which are specifically conferred on the court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers also exists independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power, exists as a separate and independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the court to prevent "clogging or obstruction of the stream of justice". It, however, needs to be remembered that the powers conferred on the court by Article 142 being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant while dealing with a cause pending before it. this power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purpose of the Article viz. to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.

The Supreme Court in exercise of its jurisdiction under Article 142 has 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 covering a subject, except perhaps to balance the equities between the conflicting claims of the litgating parties by "ironing out the creases" in a cause or matter before 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. Verraswami vs. Union of 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 exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject.

In Bonkya @ B.S. Mane & Ors. Vs. State of Maharashtra (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

by any statutory provision but it

cannot be lost sight of that this

Court exercises jurisdiction under

Article 142 of the Constitution

with a view to do justice between

the parties but not in disregard of

the relevant statutory provisions."

Dealing with the powers of this court under Article 142, in Prem Chand Garg vs. Excise Commissioner, U.P., Allahabad, (1963) Supp. 1. S.C.R. 885) it was said by the Constitution Bench:

" In this connection, it may

be pertinent to point out that the

wide powers which are 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. It is plain that in

exercise 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 necessary to do complete justice

between the parties.

That takes us to the second

argument urged by the Solicitor-

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

Court by Art. 142(1) are very wide,

and the same can be exercised for

doing complete justice in any case,

as we have already observed this

Court cannot even under Art. 142(1)

make an order plainly inconsistent

with the express statutory

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 K.M. 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 Court 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 Art.

161. The possibility of a conflict

between these powers necessitated

the application of the rule of

harmonious construction. The said

rule can have no application of the

present case, because on a fair

construction of Art. 142(1), this

Court has no power 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 of

K.M. Nanavati."

(Emphasis ours)

In Re: Vinay Chandra Mishra’s case (supra), the three the three judge Bench did notice the observations in Prem Chand Garg’s 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

law. This is also pointed out by

this Court in the case of Mohammed

Anis Vs. union of India & Ors.

(1994 (Supp.1) SCC 145) 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 override 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 Carbide’s

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 of supplementary

powers and not with reference to

this Court’s power under Article

129, the said observation have been

explained by this Court in its

latter decisions in Delhi Judicial

services Association v. State of

Gujarat (supra) and Union Carbide

corporation v. Union of India

(1991) 4 SCC 574). 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

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 different

leave and of a different quality."

As we shall presently see, there is nothing said in either Delhi Judicial Service Association’s case (supra) or the Union Carbide’s case supra) from which it may be possible to hold that the law laid down in Prem Chand Garg’s case (supra) is "no longer a good law". Besides, we also find that in Mohd. Anis case referred to by the Bench, there is no reference made to Prem Chand Garg’s case at all.

In Delhi Judicial Service Association Tis Hazari vs. 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 of justice and

constituted contempt of court, and

(d) what punishment should be

awarded to the contemners found

guilty of contempt."

The Court observed:

"Article 142(1) of the constitution

provides that Supreme Court in

exercise of its jurisdiction may

pass such decree or make such order

as is necessary for doing complete

justice in any ’cause’ or ’matter’

pending before it. The expression

’cause’ or ’matter’ would include

any proceeding pending in court and

it would cover almost every kind of

proceeding in court including civil

or criminal . The inherent power of

this Court under Article 142

coupled with the plenary and

residuary powers under Articles 32

and 136 embraces power to quash

criminal proceedings pending before

any court to do complete justice in

the matter before this Court."

-----------------------

-----------------------

Mr. Nariman urged that Article

142(1) does not contemplate any

order contrary to statutory

provisions. He placed reliance on

the Courts observations in Prem

Chand Garg Vs. Excise Commissioner,

U.P. Allahabad 91963 Supp. 1 SCR

885 at 889) and A.R. Anthulay Vs.

R.S. Nayak and Anr. (1988 (2) SCC

602) where the Court observed that

though the powers conferred on this

Court under Article 142(1) are very

wide, but in exercise of that power

the court cannot make any order

plainly inconsistent with the

express statutory provisions of

substantive law. It may be noticed

that in prem Chand Garg’s and

Antulay’s case (supra) observations

with regard to the extent of this

Court’s power under Article 142(1)

were made in the context of

fundamental rights. Those

observations have no bearing on the

question in issue as there is no

provision in any substantive law

restricting this Court’s power to

quash proceedings pending before

subordinate court. This Court’s

power under Article 142(1) to do

"complete justice" is entirely of

different level and of a different

quality. Any prohibition or

restriction contained in ordinary

laws cannot act as a limitation on

the constitutional power of this

Court. Once this Court has selling

of a cause or matter before it, it

has power to issue any order or

direction to do "complete justice"

in the matter. This constitutional

power of the Apex Court cannot be

limited or restricted by provisions

contained in statutory law."

The Bench went on to say:

"No enactment made by Central or

State Legislature can limit or

restrict the power of this Court

under Article 142 of the

constitution, the court must take

into consideration the statutory

provisions regulating the matter in

dispute. What would be the need of

"complete justice" in a cause or

matter would depend upon the facts

and circumstances of each case and

while exercising that power the

court would take into consideration

the express provisions of a

substantive statute. Once this

Court has taken seisin of a case,

cause or matter, it has power to

pass any order or issue direction

as may be necessary to do complete

justice in the matter. This has

been the consistent view of this

Court as would appear from the

decisions of this court in State of

U.P. Vs. Poosu & Anr. (1976 (3) SCR

1005; Ganga Bishan & Ors. Vs. Jai

Narain (1986 (1) SCC 75; Navnit R.

Kamani & Ors. Vs. Jai Narain (1988

(4) SCC 387); B.N. Nagarajan & Ors.

vs. State of Mysore & Ors. (1986

(3) SCR 682): Special Reference No.

1 of 1964, (supra), and Harbans

Singh vs. State of U.P. Ors.

(supra) ."

(emphasis supplied)

In AR Antulay Vs. Nayak and Anr. (1988 (2) SCC 602) a seven Judge 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.

does not also help. Article 140 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 was 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 141 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 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 for in violation of the

specific provisions of any statute.

If the provisions of the 1952 Act

had with Article 139-A and Sections

406-407 on the Cr. P.C. do not

permit the transfer of the case a

Special judge to the High Court,

that effect cannot be achieve

indirectly."

(Emphasis supplied)

In Union Carbide Corpn. Vs. Union of India, (1991) 4 SCC 584, a 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 vs. Excise Commissioner, U.P., 1963 Supp. (1) SCC 885 as well as the observations made in A.R. Antulay vs. R.S. Nayak (1988) 2 SCC 602 and observed:

"It is necessary to set at

rest certain misconceptions in the

arguments touching the scope of the

powers of this Court under Article

142(1) 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 Garg as well as

Antulay 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

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 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

considerations of public policy,

Shri sorabjee, learned Attorney

General , referring to Garg case,

said that limitation on the powers

under Article 1425 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 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 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

accuse of matter, the Apex Court

will take note of the express

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 of nullity can

arise."

(emphasis supplied)

Thus, a careful reading of the judgements in Union Carbide Corporation & Ors. Vs. 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 died 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 these cases, the observations in Prem Chand 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. Antulay’s case and Delhi 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 ’cause or matter arising out of that statute, but quite a different thing to say that 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 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 of the Bench in V.C. Mishra’s case that the low laid down by the majority in Prem Chand Garg’s case is "no longer a good law".

In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing "professional misconduct" depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an Advocate, by suspending his licence or by removal of his name from the roll of the State bar Council, for proven professional misconduct, vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts.

After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for "professional misconduct " has been conferred on the concerned state Bar Council and the Bar Council of India. That Act contains a detailed and complete mechanism for suspending or revoking the licence of an advocate for his "professional misconduct’. since, the suspension or revocation of licence of an advocate has not only civil consequence but also penal consequence, the punishment being in the nature of penalty, the provisions have to be strictly construed. Punishment by way of suspending the licence of an advocate can only be imposed by the competent statutory body after the charge is established against the Advocate in a manner prescribed by the Act and the Rules framed thereunder.

Let us now have a quick look at some of the relevant provisions of the Advocates Act, 1961.

The Act, besides laying down the essential functions of the Bar Council of India provides for the enrollment of advocates and setting up of disciplinary authorities to chastise and, if necessary, punish members of the profession for professional misconduct. The punishment may include suspension from practice for a specified period or reprimand or removal of the name from the roll of the advocates. Various provisions of the Act deal with functions of the State Bar Councils and the Bar Council of India. We need not, however, refer to all those provisions in this judgment except to the extent their reference is necessary.

According to Section 30, every advocate whose name is entered in the Stat roll of advocates shall be entitled, as of right, to practice, throughout the territories to which the Act extends, in all courts including the Supreme Court of India. Section 33 provides that no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under the Act.

Chapter V of the Act deals with the ’conduct of Advocate’. After a complaint is received alleging professional misconduct by an advocate by the Bar Council, the Bar Council entrusts the inquiry into the case of misconduct to the Disciplinary Committee constituted under Section 9 of the Act. Section 35 lays down that if on receipt of a complaint or otherwise, a state Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. Section 36, provides that where on receipt of a complaint or otherwise, the Bar Council of India has reason to believe that any advocate whose name is entered on any State roll is guilty of professional or other misconduct, it shall refer the case to the disciplinary Committee. Section 37 provides for an appeal to the Bar Council of India against an order made by the disciplinary committee of a state Bar Council. Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India may prefer an appeal to the Supreme Court of India under Section 38 of the Act.

Section 42(1) of the Act confers on the Disciplinary Committee of the Bar Council, powers of a civil court under the code of Civil procedure and section 4292) enacts that its proceedings shall be "deemed" to be judicial proceeding for the purpose mentioned therein.

Section 49 of the Act lays down that the Bar Council of India may make rules for discharging its functions under the Act and in particular such Rules may prescribe inter-alia the standards of professional conduct to be observed by the advocates and the procedure to be followed by the Disciplinary Committees of the Bar Council while dealing with a case of professional misconduct of an advocate. The Bar Council of India has framed rules called ’The Bar Council of India Rules’ (hereinafter referred to as the Rules) in exercise of its rule making power under the Advocate Act 1951.

Part VII of the Rules deals with disciplinary proceedings against the advocates. In chapter I of the part VII provisions have been made to deal with complaints of professional misconduct received against advocates as well as for the procedure to be followed by the Disciplinary committees of the State Bar Council and the Bar Council of India to deal with such complaints received under Sections 35 and 36 of the Act. Rule 1 of Chapter I of part VII of the Rules provides that a complaint against an advocate shall be in the form of a petition duly signed and verified as required under the code of Civil procedure, and shall be accompanied by the fees as prescribed by the Rules. On the complaint being found to be in order the same shall be registered and place before the Bar Council for such order as it may deem it to pass. Sub-rule (2) provides that before referring a complaint made under Section 35(1) of the Act, to one of its disciplinary committees the Bar Council may require the complainant to furnish better particulars and the Bar Council "may also call for the comments from the advocate complained against ."

Rules 3 and 4 of Chapter I and VII provide for the procedure to be followed in dealing with such complaints. These rules read:

" 3.(1) After a complaint has been

referred to a Disciplinary

Committee by the Bar Council, the

registrar shall expeditiously send

a notice to the Advocate concerned

requiring him to show cause within

a specified date on the complaint

made against him and to submit the

statement of defence, documents and

affidavits in support of such

defence, and further informing him

that in case of his non-appearance

on the date of hearing fixed, the

matter shall be heard and

determined in his absence.

Explanation: Appearance includes,

unless otherwise directed,

appearance by an Advocate or

through duly authorised

representative.

(2) If the Disciplinary Committee

requires or termites, a complainant

may file a replication within such

time as may be fixed by the

committee.

(3) The Chairman of the

Disciplinary Committee Hall fix the

date, hour and place of the enquiry

which shall not ordinarily be later

than thirty days from the receipt

of the reference. The Registrar

shall give notice of such date,

hour and piece to the complainant

or other person aggrieved. The

advocate concerned and the Attorney

General or He Additional Solicitor

General of India or the Advocate

General as the case may be, and

shall also serve on them copies of

the complaint and such other

documents mentioned in Rule 24 of

this Chapter as the Chairman of the

Committee may direct at least ten

days before the date fixed for the

enquiry.

Rules 5, 6 and 7 deal with the manner of service of notice, summoning of witnesses and appearance of the parties before the disciplinary committee. At any stage of the proceedings, the disciplinary committee may appoint an advocate to appear as amicus curiae and in case either of the parties absent themselves, the committee may; proceed ex parte against the absenting party and decide the case.

Sub-rule (1) of Rule 8 provides:

" This Disciplinary Committee shall

hear the Attorney General or the

Additional Solicitor General of

India or the Advocate General, as

the Case may be or their Advocate,

and parties or their Advocates, if

they desire to be heard, and

determine the matter on documents

and affidavits unless it is of the

opinion that it should be in the

interest of justice to permit cross

examination of the deponents or to

take oral evidence, in which case

the procedure for the trial of

civil suits shall as far as

possible be followed."

Rules 9 and 10 deal with the manner of recording evidence during the enquiry into a complaint of professional misconduct and the maintenance of record by the committee.

Rule 14(1) lays down as follows:

"The finding of the majority of the

numbers of the Disciplinary

Committee shall be the finding of

the Committee. The reason given in

support of the finding may be given

in the form of a judgement, and in

the case of a difference of

opinion, any member dissinting

shall be entitled to record his

dissent giving his own reason. It

shall be competent for the

Disciplinary Committee to award

such costs as it thinks fit. "

Rule 16 provides:

" 16(1). The Secretary of a State

Bar Council shall send to the

Secretary of the Bar Council India

quarterly sentiments complaints

received and the stage of the

proceedings before the state Bar

Council and Disciplinary Committees

in such manner as may be specified

from time to time.

(2) The Secretary of the Bar

Council of India may however call

for such further statements and

particulars as he considers

necessary."

An appeal from the final order of the disciplinary committee of the Bar Council of a State is provided to the Bar Council of India under Section 37 of the Act and the procedure for filing such an appeal is detailed in Rules 19(2) to 31.

The object of referring to the various provisions of the Advocates Act, 1961 and the Rules framed thereunder is to demonstrate that an elaborate and detailed procedure, almost akin to that of a regular trial of a case by a court, has been prescribed to deal with a complaint of professional misconduct against an advocate before he can be punished by the Bar Council by revoking or suspending his licence or even for reprimanding him.

In Bar Council of Maharashtra Vs. 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 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 preserved.

The Bar Councils therefore

entertain cases of misconduct

against advocates. The Bar Councils

are to safeguard the rights,

privilege and interests of

advocates. The Bar Councils is a

body corporate. The disciplinary

committees are constituted by the

Bar Council. The Bar Council is not

the same body as its disciplinary

committee. One of the principal

functions of the Bar Council in

regard to standards of professional

conduct and etiquette of advocates

is to receive complaints against

advocates and if the Bar Council

has reason to believe that any

advocate has been guilty of

professional or other misconduct it

shall refer the case for disposal

to its disciplinary committee. The

Bar Councils of a State may also 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 advocate has been guilty of

professional or other misconduct.

The Bar Council has very important

part to play, first in the

reception of complaints, second, in

forming reasonable belief of quilt

of professional or other misconduct

and finally in making reference of

the case to its disciplinary

committee. The initiation of the

proceeding before the disciplinary

committee is by the Bar Council of

a State. A most significant feature

is that no litigant and no member

of the public can straightway

commence disciplinary proceedings

against an advocate. It is the Bar

Council of a State which initiates

the disciplinary proceedings.

Thus, after the coming into force of the Advocates Act, 1961 with effect from 19th May 1961, matters connected with the enrollment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively in the Bar Councils of the concerned State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.

The Letters Patent of the Chartered High Courts as well of the other 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 any High Court and of any other law" in so far as they related to the admission and enrollment of a legal practitioner or confer on the legal practitioner the right to practice in any court 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 powers now vest exclusively, under the Advocates Act, in the Bar Council of the Concerned State. Even in England the Courts of justice are 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 procedure has been laid therefor.

In Re. V.C. Misra’s case, the Bench relied upon its appellate jurisdiction 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’s case (supra) observed.

"Where a right of appeal to courts

against an administrative or

judicial decision is created by

statute, the right is invariably

confined to a person aggrieved or a

person who claims to be aggrieved.

The meaning of the words "a person

aggrieved" may very according to

the context of the statute. One of

the meanings is that a person will

be held to be aggrieved by a

decision if that decision is

materially adverse to him.

Normally, one is required to

establish that one has been denied

or deprived of something to which

one is legally entitled in order to

make one "a person aggrieved".

Against a person is aggrieved if a

legal burden is imposed on him, the

meaning of the words " a 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 the Advocates Act is

comparable to the role of a

guardian in professional ethics.

The words "persons aggrieved is

sections 37 and 38 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 words "person

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."

(Emphasis supplied)

In O.N. Mohindroo Vs. 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 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.

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 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 t he answer is in the affirmative, than to sentence the contemner for contempt of court by imposing any of the recognised and accepted punishments for committing contempt of court. Keeping in view the elaborate procedure prescribed under the Advocates Act 1961 and the Rules framed thereunder it follows that a complaint of professional misconduct is required to be tried by the disciplinary committee of the Bar Council, like the trial of a criminal case by a court of law and an advocate may be punished on the basis of evidence led before the disciplinary committee of the Bar Council after being afforded an opportunity of hearing. The delinquent advocate may be suspended from the rolls of the advocates or imposed any other punishment as provided under the Act. 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 misconduct" in exercise of the appellate jurisdiction by convening itself as the statutory body exercising "original jurisdiction". Indeed, if in a given case the concerned Bar Council on being apprised of the contumacious and blame worthy conduct of the advocate by the High Court or this Court does not take any action against the said advocate, this court may well have the jurisdiction in exercise of its appellate powers under Section 38 of the Act read with Article 142 of the Constitution to proceed suo moto and send for the records from the Bar Council and pass appropriate orders against the concerned advocate. in an appropriate case, this Court may consider the exercise of appellate jurisdiction even suo moto provided there is some cause pending before the concerned Bar Council, and the Bar Council does "not act" or fails to act, by sending for the record of that cause and pass appropriate orders.

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 V.C. Mishra’s case because in that case the Bar Council had not declined to deal with the matter ad 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, while punishing a contemner for committing contempt of court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in Re: Vinay Chandra Mishra, (1995) 2 S.C.C. 584 is not good law and we overrule it.

An Advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned 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, 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 of India shall act in aid of the Supreme Court". The Bar Council which performs a public duty 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, whenever, 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 its attention is drawn by this Court to the contumacious and unbecoming 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 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 the 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 of an Advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the concern 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 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 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 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 withdraw his privilege to practice as an Advocate-an-Record because that privilege is conferred by this court and the power to 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 as an advocate in other courts or Tribunals.

We are conscious of the fact that the conduct of the contemner of VC Misra’s 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 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 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 appellate jurisdiction under Section 38 of the Act read with Article 142 of the Constitution of India, 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 committed 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.

In V.C. Mishra’s case, the Bench, relied upon its inherent powers under Article 142, to punish him by suspending his licence, without the Bar Council having been given any opportunity to deal with his case under the Act. We cannot persuade ourselves to agree with that approach. It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the constitution so as to function within the bounds of its own jurisdiction. To the extent, this Court makes the statutory authorities and other organs of the State perform their duties in accordance with law, its role is unexceptionable but it is not permissible or the Court to "take over" the role of the statutory bodies or other organs of the State and "perform" their functions.

Upon the basis of what we have said above, we answer the question posed in the earlier part of this order, in the negative. The writ petition succeeds and is ordered accordingly.