Supreme Court Bar Association v Union of India (1998)

This is the case that separates the two jurisdictions the whole of Module 4 turns on. An advocate who insults a judge in open court may have committed contempt of court and professional misconduct at the same time. Two different bodies deal with those two things, by two different procedures, and neither may do the other's work. It is also the rare instance on your syllabus of the Supreme Court overruling itself in terms — it held that In re Vinay Chandra Mishra (Supreme Court, 1995), decided three years earlier by three judges, was not good law.

In In re Vinay Chandra Mishra [(1995) 2 SCC 584] a three-judge Bench found an advocate guilty of criminal contempt for "obstructing the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language". Invoking Art. 129 read with Art. 142, it sentenced him to six weeks' simple imprisonment, suspended for four years, and — the part that mattered — directed that "the contemner shall stand suspended from practising as an advocate for a period of three years from today".

The Supreme Court Bar Association, through its Honorary Secretary, filed a petition under Art. 32. It did not defend the contemnor. It asked for a declaration that the disciplinary committees of the Bar Councils "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 that neither the Supreme Court nor a High Court has such original jurisdiction. The petition went to a Constitution Bench.

The Court stated the question narrowly: whether the punishment for established contempt of court committed by an advocate can include debarring him from practice by suspending his licence (his sanad) for a specified period, in exercise of the powers under Art. 129 read with Art. 142. Behind it lie three subsidiary issues. What is the source of the contempt power of a court of record? How far may Art. 142 be used where a statute occupies the field? And what, if anything, may a court do to a contemnor advocate?

The writ petition succeeded. The question was answered in the negative.

• The contempt jurisdiction of a court of record is inherent: "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." Articles 129 and 215 preserve it, do not create it and do not define contempt, and "no act of parliament can take away that inherent jurisdiction" — though Parliament, under the entries in Lists I and III, may define and limit it and regulate procedure, as the Contempt of Courts Act 1971 does.
• But the contempt power "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."
• Article 142 is a curative, supplementary power. It "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." Suspending a contemnor advocate's licence is "not permissible in exercise of the jurisdiction under Article 142."
• The two jurisdictions. "In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing 'professional misconduct'... 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... 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."
• "To that extent, the law laid down in Re: Vinay Chandra Mishra is not good law and we overrule it."
• What the court may still do. "In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence." Where the contemnor is an Advocate-on-Record, the Supreme Court may withdraw that privilege under its own Rules, since "the power to grant the privilege includes the power to revoke or suspend it".
• And if the Bar Council does nothing. "In case the Bar Council, even after receiving 'reference' from the Court, fails to take action against the advocate concerned, this Court might consider invoking its powers under Section 38 of the Act by sending for the record of the proceedings" — a power "available to this Court only and not to the High Courts."

The jurisdiction to punish an advocate for professional misconduct by suspending his licence or removing his name from the roll vests exclusively in the disciplinary authorities under the Advocates Act 1961, and the Supreme Court, while punishing him for contempt under Article 129 read with Article 142, cannot impose that punishment.

Obiter or supplementary: the passage doubting whether the punishment limits in s. 12 of the Contempt of Courts Act 1971 bind the Supreme Court at all is expressly left undecided — "we, however, do not express any final opinion on that question". The observations on the s. 38 route where a Bar Council fails to act are obiter here, but were acted on later, which is what makes them worth quoting. The passage on withdrawing the privilege of an Advocate-on-Record concerns a different power and should not be blurred into the main proposition.

Start with what Art. 142 is for. The Court accepted that the plenary power is of "very wide amplitude", "the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so". But it is supplementary and "curative in nature". It exists to do complete justice between the parties in a cause pending before the Court — and in a contempt proceeding "the contemner and the court cannot be said to be litigating parties". There was no "cause of professional misconduct, properly so called, pending before the Court" at all. So there was nothing for Art. 142 to complete.

Then look at what the Advocates Act provides. The judgment walks through the statutory machinery — s. 9 (a disciplinary committee of three), s. 35 (reference to that committee), s. 37 (appeal to the Bar Council of India), s. 38 (appeal to the Supreme Court), s. 42 (powers of a civil court; proceedings deemed judicial), s. 49, and Part VII, Chapter I of the Bar Council of India Rules, with its verified petition, show-cause notice, statement of defence, replication, enquiry fixed within thirty days, and reasoned majority finding. The object of that survey is stated plainly: "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." Because such punishment "has not only civil consequence but also penal consequence... the provisions have to be strictly construed."

And note the structural argument. "Since the jurisdiction to grant licence to a law graduate to practise 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." That is the point drawn from the seven-judge decision in Bar Council of Maharashtra v M.V. Dabholkar — the power to take away follows the power to grant. As to the Court's own role: "the 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... it is not permissible for the Court to 'take over' the role of the statutory bodies or other organs of the State and 'perform' their functions."

The case became the fixed point that every later decision on advocates and contempt is measured against.

Pravin C. Shah v K.A. Mohd. Ali (Supreme Court, 2001) worked out the "purge" power the Court had preserved. Rule 11 of the Kerala High Court Rules, framed under s. 34(1), provides that no advocate found guilty of contempt shall be permitted to appear, act or plead in any court unless he has purged himself of it. The Court upheld the rule as "a self-operating provision" needing no order of any Bar Council: on a finding of guilt "his authority to act or plead in any court stands snapped". Undergoing the penalty does not suffice — "if a contemnor is sentenced to a fine he can immediately pay it and continue to commit contempt in the same court". What is needed is real remorse, a request for pardon, an apology the court accepts as genuine, and an order of the court holding the contempt purged.

Ex-Capt. Harish Uppal v Union of India (Supreme Court, 2003) quoted this judgment at length and built on the same distinction between the right to practise and the right to appear.

Mahipal Singh Rana v State of U.P. (Supreme Court, 2016) is where the obiter about s. 38 became action. Both Bar Councils had done nothing for over ten years despite a High Court reference and this Court's notice, and the Supreme Court, "in exercise of appellate jurisdiction under Section 38", itself suspended the advocate's licence for five years — adding that what s. 38 permits it to do "is also permissible to a High Court under Article 226 of the Constitution in appropriate cases on failure of the Bar Council to take action."

R. Muthukrishnan v Registrar General, High Court of Madras (Supreme Court, 2019) applied the same logic against a High Court: rules under s. 34(1) purporting to let the Court debar advocates for professional misconduct were ultra vires — "It would amount to usurpation of the power of Bar Council conferred under Advocates Act."

Nothing here has been repealed. Articles 129 and 215, the Contempt of Courts Act 1971 and the Advocates Act 1961 are in force as written.