This article aims to explain a few aspects of the decision of the supreme court in Supreme Court Bar Association Vs. Union of India & ANR  [1998] SCC 225

The matter came to the supreme court by way of a writ petition filed against the decision of the Supreme court in Re: Vinay Chandra Mishra (1995) 2 SCC 584. In Vinay Chandra case supreme court suspended the contemnor-Vinay Chandra from practising as an advocate for 3 years in addition to imprisonment and such imprisonment will remain suspended and will be activated if the contemnor is convicted for contempt of court once again. In Vinay Chandra case Court had held that power of Supreme Court to take cognizance of contempt and to award punishment for it under article 129 and 142(2) is independent of any statute. According to court the power to punish under article 129 and 142(2) is independent and cannot be controlled by any statute, because such power is “sui generis”.

Thus in Supreme Court Bar Association v. Union of India the decision of the court to suspend the advocate was challenged. The main contention of the petitioner was that the Supreme Court had no jurisdiction to suspend an advocate from practising, because this was the exclusive domain of the State Bar Council or the Bar Council of India, under the advocates act, 1971.

According to section 35 if the state bar council believes that an advocate is guilty of professional misconduct then it shall refer that case to its Disciplinary committee and only the disciplinary committee can punish the advocate for suchconduct

Advocates Act, 1971

According to the petitioner, the act of Vinay Chandra amounts to Professional misconduct which is different from contempt of court and punishment for misconduct can be given only under advocates act, 1961.

It was also contended that under Article 142(2) court can punish for contempt only in a cause which is pending before it and that professional misconduct is not a subject matter which is expressly pending before the court while dealing with a case of contempt.

Petitioner also contended that court cannot suspend the licence to practice of an advocate and doing so under article 142 would amount to “assuming a jurisdiction”. It said that the court cannot create a jurisdiction or punishment which has not been expressly provided by a law.

Court thus went on to discuss the nature and scope of power to punish for contempt under article 129 and 142(2).

Nature and scope of power to punish for contempt

According to the court, the Supreme Court of India and High Courts of states both being Courts of Record have an inherent power to punish for its contempt. It relied mainly on Nigel Lowe and Brenda Sufrin’s treatise on the Law of Contempt;

According to it the contempt jurisdiction of courts of record forms part of its inherent jurisdiction. All courts have an inherent jurisdiction to punish for contempt committed on their face but the inherent power to punish for contempt committed outside the court is the exclusive domain of superior courts of record.

It says that although parliament and state legislatures have the power to make law on contempt of court of Supreme Court and High court but such law cannot “denude, abrogate or nullify”, the power of the supreme court to punish for contempt under article 129 or that of High Courts under article 215 of the constitution, because that power is inherent in Supreme court and High courts, being a court of record. In simple words, it means that parliament or state legislature can make laws on contempt of court, because of Entry 77 in List 1 and Entry 14 of List 3, but such law cannot limit or restrict the power of the courts to punish for contempt.

It further observes that apart from punishing for contempt under article 129, it also has the power to investigate and punish for contempt under Article 142(2) of the constitution.

Court further holds that Contempt of courts act, 1971 applies only to the High courts and not Supreme Court. According to court, this is because the 1971 act does not ipso facto deal with the contempt jurisdiction of the Supreme Court. (This is probably because Contempt of courts act, in its definitions clause does not mention the Supreme Court of India).
Court supports this by relying on Sukhdev Singh v. Hon’ble C.J.S. Teja Singh & Ors. AIR 1954 SCR 454 in which it held that maximum punishment which can be imposed on a contemnor must be construed as dealing with the powers of the High court only and not of Supreme court.

Thus court distinguished between its power to punish for contempt under article 129 and article 142(2) of the Indian Constitution.

It also ruled that The contempt of court is a special power which must be exercised sparingly and with caution. Court said that it should be used only when the act of contempt adversely affects the administration of justice or if such activity tends to impede its course or can shake the public confidence in the judicial institutions. It said that it could be used only when the “ majesty of law or dignity of courts” is undermined.

On Suspension of licence

The court on this issue firstly holds that suspending the licence to practise of any professional including lawyer is not an accepted punishment which a court of record can give.

It further accepts the contention that while dealing with a matter of contempt by an advocate there is no case of “Professional Misconduct” pending before it and thus cannot punish under 142(2) which expressly requires for a matter be pending for adjudication before the court. This means that an act of Contempt is different from Professional Misconduct and cannot assume Professional Misconduct to be a part of an act of Contempt.

“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”.

The above viewpoint was again reiterated in the judgement in the following words-

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

It further holds that suspending an advocate from practice can be given only for “Professional misconduct” and it (supreme court)can not take over such jurisdiction, which is exclusively given to a Disciplinary committee under Advocates Act. It said that article 142 cannot be used to deprive a professional lawyer of the due process contained under advocates act. i.e. It cannot deprive an advocate of being heard and adjudicated by a disciplinary committee for professional misconduct under section 35 of the Advocates Act. By this court overruled its decision in Vinay Chandra case in which while suspending the licence of an advocate it said that there is no limitation on the power of Supreme Court to punish for contempt.

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 that the Court may impose while exercising the said jurisdiction

Further, it said that although its power to punish for contempt is independent of any statute, it cannot ignore the express statutory provision dealing with a subject. Thus it said that in dealing with contempt of court case, suspending the licence to practice is a power statutorily available only to the Bar Council of India or State Bar Council and, therefore, the court cannot in the exercise of the jurisdiction under article 142 suspend that licence. It expressly stated that the power of 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.

Author: Aksshay Sharma,Department of Laws, Panjab University Chandigarh
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