Holding

The Supreme Court cannot suspend or revoke an advocate's practising licence as a punishment for contempt; such power is vested exclusively in the Bar Councils under the Advocates Act, 1961.

Summary

The Supreme Court Bar Association filed a writ petition challenging the Supreme Court's order in Vinay Chandra Mishra, which suspended an advocate's licence for three years while punishing him for criminal contempt. The Court examined whether Articles 129 and 142 of the Constitution empower the Supreme Court to impose a licence suspension, a punishment that is otherwise governed by the Advocates Act, 1961. It held that the power to punish for contempt is inherent to a court of record, but the specific sanction of suspending or revoking an advocate's licence is exclusive to the Bar Councils under the Advocates Act. Consequently, the Supreme Court cannot, even under Article 142, impose such a sanction in a contempt proceeding. The earlier decision in Vinay Chandra Mishra was overruled, and the writ petition was allowed, directing that only the Bar Councils may discipline advocates for professional misconduct.

Issues considered

Whether the Supreme Court, exercising its inherent contempt jurisdiction under Article 129 read with Article 142, can suspend the practising licence of an advocate as part of the contempt punishment.
Whether the power to punish an advocate for professional misconduct, including suspension of licence, lies exclusively with the Bar Councils under the Advocates Act, 1961.
Whether the Contempt of Courts Act, 1971, limits the nature and extent of punishment that the Supreme Court may impose for contempt.

Legislation cited

Advocates Act, 1961s. 30, s. 33, s. 35, s. 36, s. 37, s. 38, s. 42, s. 49
Contempt of Courts Act, 1971s. 12, s. 15, s. 2, s. 4

Subjects

contempt of courtSupreme Court powerArticle 129Article 142Advocates Actprofessional misconductsuspension of licencejurisdiction of court of recordoverruling precedent

Judgment

SUPREME COURT BAR ASSOCIATION A
v.
UNION OF INDIA

APRIL 17, 1998

[S.C. AGRAWAL, G.N. RAY, DR. A.S. ANAND, S.P. BHARUCHA B
ANDS. RAJENDRA BABU, JJ.]

Constitution of India, 1950 :

Articles 142 and 129-Supreme Court's power of investigation for C
contempt of itself-Held: Such power is inherent and by virtue of Art. 142(2)
is subject to law made by Parliament-But such law cannot take away the
inherent jurisdiction of Supreme Court-Contempt of Courts Act does not
deal with the powers of the Supreme Court to punish a contemner-Hence,
Supreme Court exercises this power under Art. 129 rlw Art. 142-However, D
the nature of punishment prescribed under that Act may act as a guide for
the Supreme Court--But the extent of punishment prescribed under that Act
can apply only to High Court-S. 15 of the Act prescribes procedural mode
for taking cognizance of criminal contempt but is not a substantive provision-
Contempt of Courts Act, 1971, S. 15.
E
Articles 129, 142 and 144-Punishment of an advocate for contempt of
court-Jurisdiction of Supreme Court-Different from jurisdiction for
punishment of an advocate for professional misconduct-Punishment for
contempt of court is conferred on Supreme Court by Art. 129 rlw Art. 142-
Punishment for professional misconduct is conferred exclusively on Bar
Council of India or State Bar Councils under Advocates Act-While punishing F
an advocate for contempt of court, Supreme Court cannot suspend his
licence to practice-Such a punishment can only be imposed by State Bar
Councils-Supreme Court cannot impose it even under S. 38-Bar Council
should "act in aid of the Supreme Court" while proceeding against an
advocate for professional misconduct-But if Bar Council does not take any G
action Supreme Court may exercise its appellate jurisdiction under S. 38-
Advocates Act, 1961, S. 38.

Article 142-Supreme Court-Plenary Power-Nature and scope of -
Held: Supreme Court while making an order under Art. 142 cannot ignore
substantive statutory provisions dealing with the subject-It is a residuary H
795
796 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A power which is supplementarv and complementary to the powers conferred
on Supreme Court by statutes to do complete justice between parties-ft is
meant to prevent any obstruct ion to the stream of justice.

Articles 129 and 215-Contempt of court-Jurisdiction of court-Held
: Party, which brings the contumacious conduct to the notice of the court,
B is only an informant and not a litigant-It is not an adversarial litigation.

Articles 129 and 215--Contempt of court-Punishment for civil and )....
criminal contempt-Nature and type of-Held: Contempt of Courts Act, 197 I
identifies nature or types of punishments in case of established contempt-
Jt does not impinge upon the inherent powers of High Court under Art 215
C either-However, no new type of punishment can be created or assumed.

Article I 24-Supreme Court-Role of-Has always been a lawmaker
and its role travels beyond merely dispute-settling.

Words and Phrase :
D
"Court of record"-Meaning of-In the context of Art. 129 of the
Constitution of India, 1950.

In Re: Vinay Chandra Mishra, (1995] 2 SCC 584, this Court found the
contemner, an advocate, guilty of committing criminal contempt of court for
E having interfered with and "obstructing the course of justice by trying to
threaten, overawe and overbear the Court by using insulting, disrespectful
and threatening language." While awarding punishment this Court directed
that the "contemner shall stand suspended from practising as an Advocate
for a period of three years" by invoking powers under Articles 129 and 142
of the Constitution". Being aggrieved by the aforesaid direction the petitioners
F filed the present petition before this Court.

The question before the Constitution Bench was : "Whether the
punishment for established contempt of court committed by an Advocate can
include punishment to debar the concerned advocate from practice by
G suspending his licence (Sanad) for a specified period, in exercise of the
powers under Article 129 read with Article 142 of the Constitution of India".

On behalf of the petitioners it was contended that powers conferred on
this Court by Article 142, though very wide in their amplitude, could be
exercised only to "do complete justice in any case or cause pending before
H it" and since the issue of 'professional misconduct' was not the subject
S.C.B.A. v. U.0.1. 797
matter of "any cause" pending before this Court while dealing with a case A
of contempt of court, it could not make any order either under Article 142
or 129 to suspend the licence of an advocate contemner, for which punishment,
statutory provisions otherwise exist; and that a court of record under Article
129 of the Constitution did not have any power to suspend the licence of a
lawyer to practice because that was not a punishment which could be imposed
....
under its jurisdiction to punish for contempt of court and that Article 142 B
of the Constitution could not also be pressed into aid to make an order which
had the effect of assuming "jurisdiction" which expressly vested in another
statutory body constituted under the Advocates Act, 1961.

Allowing the petition, this Court
c
HELD : 1.1. Article 129 of the Constitution vests this Court with all
the powers of a court of record including the power to punish for contempt
of itself. (808-HJ

1.2. A court of record is a court, the records of which are admitted to D
be of evidentiary value and are not to be questioned when produced before any
court. The power that courts of record enjoy to punish for contempt of Court
is a part of their inherent jurisdiction and is essential to enable the courts
to administer justice according to law in a regular, orderly and effective
manner and to uphold the majesty of law and prevent interference in the due
administration of justice. (809-C) E
Jowitt: Dictionary of English Law, First Edn. (p.526), Warton 's Law
Lexicon and Nigel, Lowe and Brenda Sufrin: Law of Contempt (Third Edn.)
Butterworths, [1996], referred to.

2.1. Besides, Article 129, the power to punish for contempt is also F
....
vested in this Court by virtue of Article 142(2). The power of this Court in
respect of i11vestigatio11 or pu11isllme11t of any contempt including contempt
of itself, is expressly made "subject to the provisions of any law made in this
behalf by the Parliament" by Article 142(2). However, the power to punish
for contempt being inherent in a court of record, it follows that no act of G
Parliament can take away that i11llerem jurisdiction of the Court of Record
to punish for contempt and the Parliament's power of legislation on the
subject cannot, therefore, be so exercised as to stultify the status and dignity
of the Supreme Court and/or the High Courts, though such a legislation may
serve as a guide for the determination of the nature of punishment which this
Court may impose in the case of established contempt. The Parliament by H
798 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A virtue of Entry 77, List I is competent to enact a law relating to the powers
of the Supreme Court with regard to contempt of itself and such a law may
prescribe the nature of punishment which may be imposed on a contemner
by virtue of the provisions of Article 129 read with Article 142(2). But no
such law dealing with the powers of the Supreme Court with regard to
investigation and punishment of contempt of itself has been enacted by
B Parliament. (811-C; G-H; 812-A; 820-F-GJ

2.2. The Contempt of Courts Act, 1971 does not deal with the powers
of the Supreme court to try or punish a contemner for committing contempt
of the Supreme Court or the courts subordinate to it. This Court, therefore,
C exercises the power to investigate and punish for contempt of itself by virtue
of the powers vested in it under Articles 129 and 142(2) of the Constitution
of India. The nature a11d punishment prescribed, under the Contempt of
Courts Act, 1971, may act as a guide for the Supreme Court but the extent
of punishment as prescribed under that Act can apply only to the High
Courts, because the 1971 Act ipso facto does not deal with the contempt
D jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes
procedural mode for taking cognizance of criminal contempt by the Supreme
Court also. Section 15, however, is not a substantive provision conferring
contempt jurisdiction. The judgment in Suklidev Singh 's case as regards the
extent of "maximum punishment" which can be imposed upon a contemner
must, therefore, be construed as dealing with the powers of the High Courts
E only and not of this Court in that behalf. Therefore, the argument that the
extent ofpunishment which the Supreme Court can impose in exercise of
its inherent powers to punish for contempt of itself and/or of subordinate
Courts can also be only to the extent prescribed under the Contempt of
Courts Act, 1971 is doubtful. However, there is no necessity of expressing
p any final opinion on that question since that issue, strictly speaking, does
not arise for decision in this case. The question regarding the restriction
or limitation on the extent of punishment, which this Court may award while
exercising its contempt jurisdiction may be d2cided in a proper case, when
so raised. [820-G-H; 821-A-C]
G Smt. Puspaben v. Narandas V. Badiani, [1979) 2 SCC 394 and S.K.
Sarkar, Member, Board of Revenue v. Vinay Chandra Misra, [1981] 1 SCC
436, relied on.
Sukhdev Singh v. Hon 'ble C.JS. Teja Singh, AIR (1954) SCR 454,
referred to.
H Mohd Jkram Hussain v. State of UP, AIR (1964) SC 1625, cited.
S.C.BA V. lJ.0.1. 799
Ha/sh11rv \·Laws of England -Ith t'dn. Para 97, referred to. A
2.3. The nature and types of punishment which a comi of record can
impose, in a case of established contempt, under the common law have now
been specifically incoq1orated in the Contempt of Comis Act, 1971 in so far
as the High Comis are concerned and, therefore, to the extent the Contempt
of Comis Act, 1971 identifies the nature or types of 11unishment which can B
be awarded in the case of established contempt, it does not im11inge UJlOn the
inherent powers of the High Comi under Article 215 eithe1: No new type
of 11umshment can be created or assumed. [820-E-F)

3.1. The 11owers of this Com1, under A11icle 129 read with A11icle 142
of the Constitution, being supplementary powers have "to be used in exercise C
of its jurisdiction" in the case under consideration by this Com1. Moreover,
a case of contem11t of com1 is not stricto sen so a cause or a matter hetween
the parties inter se. It is a matter between the cou11 and the contemner. It
is not, strictly speaking, tried as an adversarial litigation. The 11arty, which
brings the contumacious conduct of the contemner to the notice of the court, D
whether a 11rivate person or the subo1·dinate comi, is only an infonnant and
does not have the status of a litigant in the contem11t of court case.
(822-A-B)
3.2. Contempt of com1 is a s11ecial jurisdiction to be exercised sparingly
and with caution, whenever an act adversely effects the administration of E
.iu~iice or which tends to impede its course or tends to shake 11ublic confidence
in the judicial institutions. This jmisdiction may also be exercised when the
act complained of adversely affects the Majesty of Law or dignity of the
comis. The 11uriiose of contem1it jurisdiction is to u11hold the majesty and
dignity of the Courts of law. It is an unusual type of Jurisdiction combining
"the jury, the judge and the hangman" and it is so because the court is not F
adjudicating upon any claim between litigating parties. This jurisdiction is
not exercised to protect the dignity of an individual .iudge but to protect the
administration of justice from being mali:,_'Iled. In the general interest of the
community it is im11erative that the authority of courts should not be imperiled
and there should be no unjustifiable interference in the administration of G
ju~iice. It is a matter between the com1 and the contemner and third parties
cannot intervene. It is exercised in a summary manner in aid of the
administration of justice, the majesty of law and the dignity of the courts.
No such act can be permitted which may have the tendency to shake the
11uhlic confidence in the fairness and impartiality of the admini~1ration of
justice. (822-C-E] H
800 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 4.1. The plenary powers of this Court under Article 142 of the
Constitution are inherent in the Comi and are cumplementarv to those
powers which arc .1pecifically conferred 011 the Cuurt hy various statutes
though are not limited by those statutes. These powers also exist in!.lcpemlently
of the statutes with a view to !.lo complete justice between the patties. These
powers arc of very wide amplitude acd arc in the nature of supple111e111m:v
B powers. This power exists as a separate and independent basis of .imisdiction,
apart from the statutes. It stands upon the foundation, and the basis for its
exercise may be put on a different and perhaps even wider footing, to prevent
injustice in the process of litigation and to do complete justice between the
parties. This plenary Jurisdiction is, thus, the residual source of power,
C which this Comi may draw upon as necessary whenever ii is just and
equitable to do so and in particular to ensure the observance of the due
11rocess of law, to do complete justice between the parties. while administering
justice according to law. It is an indispensable adjunct to all other powers
and is free from the restraint of jurisdiction and operates as a valuable
weapon in the hands of the couri to prevent "clogging or obstruction of the
D stream of justice". (824-D-F]

4.2. However; the powe1-s conferred on the Comi b)' Article 142 being
curative in nature cannot be construed as powers which authorise the Court
to ignore the substantive rights of a litigant while dealing with a cause
E pending before it. This power cannot he used to "supplant" substantive law
applicable to the case or cause under consideration of the court. Article 142,
e''en with the width of its amplitude, cannot be used to build a new edifice
where none existed earlier, b~ ignoring express statutory provisions dealing
with a sub.iect and thereby to achieve something indirectly which cannot be
achieved directly. [824-G-H; 825-A)
F
4.3. The very nature of the power must lead the comi to set limits for
itself within which to exercise those powers and ordinarily it cannot disregard
a statutory pro\'ision governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating parties by "ironing
out the creases" in a cause or matter before it. Indeed this Court is not a
G Court of restricted jurisdiction of only dispute settling. It is well recoi,'llised
and established that this Court has always been a lawmaker and its role
travels beyond merely dispute settling. It is a "problem solver in the nebulous
areas", but the substantive statutory provisions dealing with the subject
matter of a given case, cannot be altogether ignored by this Court, while
H making an order under Article 142. Indeed, these constitutional powers
S.C.B.A. v. U.0.1. 801
cannot, in any way, be controlled by any statutory provisions but at the same A
time powers are not meant to be exercised when their exercise may come
-< directly in conflict with what has been expressly provided for in a statute
dealing expressly with the subject. [825-D-F]

K. Veeraswami v. Union ofIndia, [1991) 3 SCC 655 and Bonkya@B.S.
Mane v. State of Maharashtra, [1995] 6 SCC 447, affirmed. B
Prem Chand Garg v. Excise Commissioner, UP., [1963] Supp. l SCR
'"" -<
885, relied on.

5.1. It is not possible to agree with the observations of the majority of
the Bench in V. C. Mishra 's, case that the law laid down in Prem Chand Garg 's c
case, is "no longer a good law". In Union Carbide's, case, Delhi Judicial
Services Association's, case and Mohd Anis', case relied upon in V:C. Mishra 's,
case this Court did not say that substantive statutory provisions dealing
expressly with the subject can be ignored by this Court while exercising
powers under Article 142. The observations in Union Carbide's case, A.R.
D
Antulay 's, case and Delhi Judicail Services Association's, case go to show
("
; that they do not strictly speaking come into any conflict with the observations
of the majority made in Prem Chand Garg's, case. [832-H; C-E]

In Re: Vinay Chandra Mishra, [1995) 2 SCC 584, overruled.
E
Prem Chand Garg v. Excise Commissioner, UP., [1963] Supp. l SCR
885; Delhi Judicial Services Association Tis Hazari v. State of Gujarat,
[1991) 3 SeR 936 and Union Carbide Corpn. v. Union of India, [1991) 4
sec 584, relied on.

A.R. Antulay v. R.S. Nayak, [1988] 2 sec 602, referred to. F
,.._
~
Mohd. Anis v. Union of India, [1994] Supp. l SCC 145; Ganga Bisan
v. Jai Narain, [1986] l SCC 75; Navnit R. Kamani v. R.R. Kamani, [1988]
4 SCC 387; B.N. Nagarajan v. State of Mysore, [1966) 3 SCR 682, Special
Reference No. l of 1964; Harbans Singh v. State of UP. and K.M Nanavati
v. State of Bombay, [1961] l SCR 497, cited. G
5.2. The power of the Supreme Court to punish for contempt of court,
,,,... though quite wide, i,s yet limited and cannot be expanded to include the power
to determine whether an advocate is also guilty of" professional misconduct"
in a summary manner, giving a go bye to the procedure prescribed under the
Advocates Act, 1961. The power to do complete justice under Article 142 is H
802 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A in a way, corrective power, which gives preference to equity over law but it
cannot be used to deprive a professional lawyer of the due process contained
in the Advocates Act by suspending his licence to practice in a summary r
manner, while dealing with a case of contempt of court. [822-F-G]
6.1. In a given case, an advocate found guilty of committing contempt
of court may also be guilty for committing "professional misconduct",
B
depending upon the gravity or nature of his contumacious conduct, but the
two jurisdictions are separate and distinct and exercisable by different forums
}-
..
by following separate and distinct procedures. The power to punish an advocate,
by suspending his licence or by removal of his name from the roll of the
State Bar Council, for proved professional misconduct, vests exclusively in
c the statutory authorities under the Advocates Act, while the jurisdiction to
punish him for committing contempt of court vests exclusively in the courts.
[833-A-BJ
6.2. After the coming into force of the Advocates Act, 1961, exclusive
power for punishing an advocate for "professional misconduct" has been
D conferred on the concerned State Bar Council and the Bar Council of India.
That Act contains a detailed and complete mechanism for suspending or
revoking the licence of an advocate for his 'professional misconduct'. Since,
t
the suspension or revocation of licence of an advocate has not only civil
""
consequences but also penal consequences, the punishment being in the
nature of penalty, the provisions have to be strictly construed. Punishment
E by way of suspending the licence of an advocate can only be imposed by the
competent statutory body after the charge is established against the advocate
in a manner prescribed by the Act and the Rules framed thereunder. Since,
the jurisdiction to grant licence to a law graduate to practice as an advocate
vests exclusively in the Bar Council of the concerned State, the jurisdiction
F to suspend his licence for a specified term or to revoke it also vests in the
same body. (833-C-D; 838-D]
"" "
Bar Council of Maharashtra v. M V. Dabholkar, (1975] 2 SCC 702,
followed.

7.1. In Re: V.C. Mishra's, case the Bench relied upon its appellate
G jurisdiction under Section 38 of the Advocates Act, 1961 also to support its
order of suspending the licence of the contemner. This Court is indeed the
final appellate authority under Section 38 of the Act but it is not possible A.,
to agree with the view that this Court can in exercise of its appellate
jurisdiction, under Section 38 for the Act, impose one of the punishments,
H prescribed under that Act, while punishing a contemner advocate in a contempt
-4

S.C.B.A. v. U.0.1. 803
case. "Professional misconduct" of the advocate concerned is not a matter A
directly in issue in the contempt of court case. While dealing with the
contempt of court case, this Court is obliged to examine whether the conduct
complained of amounts to contempt of court and if the answer is in the
affirmative, then to sentence the contemner for contempt of court by imposing
any of the recognised and accepted punishments for committing contempt
of court. Keeping in view the elaborate procedure prescribed under the B
-<.
Advocates Act and the Rules framed thereunder it follows that a complaint
of "professional misconduct" is required to be tried by the disciplinary
committee of the Bar Council, like the trial of a criminal case by a court
of law and an advocate may be punished on the basis of evidence led before
the disciplinary committee of the Bar Council after being afforded an c
opportunity of hearing. The delinquent advocate may be suspended from
practice for a specified period or even removed from the rolls of the advocates
or imposeil any other punishment as provided under the Act. The enquiry is
a detailed and elaborate one and is not of a summary nature. It is, therefore,
not permissible for this Court to punish an advocate for "professional
'I"
misconduct" in exercise of the appellate jurisdiction by converting itself as D
:=:P< the statutory body exercising "original jurisdiction". Indeed, if in a given
case the concerned Bar Council, on being apprised of the contumacious and
blameworthy conduct of the advocate by the High Court or this Court, does
not take any action against the said advocate, this Court may well have the
jurisdiction in exercise of its appellate powers under Section 38 of the Act
E
read with Article 142 of the Constitution to proceed suo moto and send for
the records from the Bar Council and pass appropriate orders against the
concerned advocate. In an appropriate case, this Court may consider the
exercise of appellate jurisdiction even suo moto provided there is some cause
pending before the concerned Bar Council, and the Bar Council does "not
~ act" or fails to act, by sending for the record of that case and pass appropriate F
.... orders. (839-A; 840-B-H; 841-A]

7.2. However, the exercise of powers under the contempt jurisdiction
cannot be confused with the appellate jurisdiction under Section 38 of the
Act. The two jurisdictions are separate and distinct. It is, therefore, not
possible to subscribe to the contrary view expressed by the Bench in V C. G
Mishra 's case because in that case the Bar Council had not declined to deal
with the matter and take appropriate action against the concerned advocate.
Since there was no cause pending before the Bar Council, this Court could
not exercise its appellate jurisdiction in respect of a matter, which was never
under consideration of the Bar Council. (841-B-CI H
804 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 7.3. It must, therefore, be held that this Court cannot in exercise of its
jurisdiction under Article 142 read with Article 129 of the Constitution,
while punishing a contemner for committing contempt of court, also impose
a punishment of suspending his licence to practice, where the contemner
happens to be an Advocate. Such a punishment cannot even be imposed by
taking recourse to the appellate powers under Section 38 of the Act while
B dealing with a case of contempt of court (and not an appeal relating to
professional misconduct as such). To that extent, the law laid down in Re:
Vinay Chandra Mishra is not good law and it is overruled. [841-C-D)

O.N. Mohindroo v. District Judge, Delhi, [1971) 3 SCC 5, approved.

c In Re: Vinay Chandra Mishra, (19951 2 SCC 584, overruled.

7.4. In V:C. Mishra's case, the Bench, relied upon its inherent powers
under Article 142, to punish an advocate by suspending his licence, without
the Bar Council having been given any opportunity to deal with his case
under the Act. It is not possible to agree with that approach. Wider the
D amplitude of its power under Article 142, the greater is the need of care for
this Court to see that the power is used with restraint without pushing back
the limits of the Constitution so as to function within the bounds of its own
jurisdiction. To the extent, this Court makes the statutory authorities and
other organs of the State perform their duties in accordance with law, its
E role is unexceptionable but it is not permissible for this Court to "take over"
the role of the statutory bodies or other organs of the State and "perform"
their functions. (843-G-H; 844-A)

8.1. The Bar Council which performs a public duty and is charged with
the obligation to protect the dignity of the profession and maintain professional
F standards and etiquette is also obliged to act "in aid of the Supreme Court".
Whenever a court of record, records its findings about the conduct of an .~
.,...
Advocate while finding him guilty of committing contempt of court and
desires or refers the matter to be considered by the concerned Bar Council,
appropriate action should be initiated by the concerned Bar Council in
accordance with law with a view to maintaining the dignity of the courts and
G to uphold the majesty oflaw and professional standards and etiquette. Nothing
is more destructive of public confidence in the administration of justice than
incivility, rudeness or disrespectful conduct on the part of a counsel towards
the court or disregard by the court of the privileges of the Bar. In case the
Bar Council, even after reci:iving 'reference' from the Court, fails to take
H action against the concerned advocate, this Court might consider invoking
S.C.B.A. v. U.0.1. (DR. ANAND, J.) 805
its powers under Section 38 of the Act by sending for the record of the A
proceedings from the Bar Council and passing appropriate orders. Of course,
the appellate powers under Section 38 would be available to this Court only
'"""" and not to the High Courts. (841-H; 842-A-F)
8.2. In a given case it may be possible , for this Court or the High
Court, to prevent the contemner advocate to appear before it till he purges
B
himself of the contempt but that is much different from suspending or
... revoking his licence or debarring him to practice as an advocate. In a case
--<.
of contemptuous, contumacious, unbecoming or blameworthy conduct of an
Advocate-on-Record, this Court possesses jurisdiction, under the Supreme
Court Rules itself, to withdraw his privilege to practice as an Advocate-on-
Record because that privilege is conferred by this Court and the power to C·
grant the privilege includes the power to revoke or suspend it The withdrawal
of that privilege, however does not amount to suspending or revoking his
licence to practice af an advocate in other courts or Tribunals.
(842-G-H; 843-A)

CIVIL ORIGINAL JURISDICTION: Writ Petition (c) No. 200 of D
'I' 1995.
?<

(Under Article 32 of the Constitution of India.)

T.R. Andharujina, Solicitor General, Kapila Sibal, Dr. Rajiv Dhawan, R.S.
Suri, M.K. Giri, Ranbir Yadav, S.C. Gupta, Arun Pednekar, Vijay pandeta, E
Rajesh Kumar, Shanna, R.D. Upadhyay, Subrat Birla, P. Panneswaran, A. Subba
Rao, R.B. Misra, Kamlendra Misra, R.P. Wadhwani, (V.C. Mishra)-in-Person,
and M.M. Kashyap for the appearing parties,

The Judgment of the Court was delivered by
F
.....
DR. ANAND, J. In Re: Vinay Chandra Mishra, [1995] 2 SCC 584, this
"" Court found the Contemner, an advocate, guilty of committing criminal
contempt of Court for having interfered with and "obstructing the course of
justice by trying to threaten, overawe and overbear the court by using
insulting, disrespectful and threatening language", While awarding punishment,
keeping in view the gravity of the (;Ontumacious conduct of the contemner,
G
the Court said:
~
"The facts and circumstances of the present case justify our
invoking the power under Article 129 read with Article 142 of the
Constitution to award to the contemner a suspended sentence of H
806 SUPREME COURT REPORTS [1998] 2 S.C.R.

A imprisonment together with suspension of his practice as an
advocate in the manner directed herein. We accordingly sentence the
contemner for his conviction for the offence of the criminal contempt r
as under:

(a) The contemner Vinay Chandra Mishra is hereby sentenced to
B undergo simple imprisonment for a period of six weeks. However, in
the circumstances of the case, the sentence will remain suspended for
a period of four years and may be activated in case the contemner is
convicted for any other offence of contempt of court within the said
period; and

C (b) T.he contemner shall stand suspended from practising as an .
advocate for a period of three years from today with the consequence
that all elective and nominated offices/posts at present held by him
in his capacity as an advocate, shall stand vacated by him forthwith.

Aggrieved by. the direction that the "Contemner shall stand suspended
D from practising as an Advocate for a period of three years" issued by this
Court by invoking powers under Articles 129 and 142 of the Constitution, the
Supreme Court Bar Association, through its Honorary Secretary, has filed this
petition under Article 32 of the Constitution of India, seeking the following
relief:
E "Issue an appropriate writ, direction, or declaration, declaring that
the disciplinary committees of the Bar Councils set up under the
Advocates Act, 1961, alone have exclusive jurisdiction to inquire into
and suspend or debar an advocate from practising law for professional
or other misconduct, arising out of punishment imposed for contempt
F of court or otherwise and further declare that the Supreme Court of
India or any High Court in exercise of its inherent jurisdiction has no
such original jurisdiction, power or authority in that regard
notwithstanding the contrary view held by this Hon'ble Court in
Contempt Petition (Cr!.) No. 3of1994 dated 10.3.1995."

G On 21.3.1995, while issuing Rule in the wri~ petition, following order was
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
H . the Constitution or under Article 142 of the Constitution can debar a
S.C.B.A. v. U O.l. [DR. ANAND, J.] 807
practicing lawyer from carrying on his profession as a lawyer for any A
period whatsoever. We direct notice to issue on the Attorney General
of India and on the respondents herein. Notice will also issue on the
application for interim stay. Having regard to the importance of the
aforesaid question we further direct that this petition be placed before
a Constitution Bench of this Court."
B
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 C
practice by suspending his licence (Sanad) for a specified period. in exercise
of its powers under Article 129 read with Article 142 of the Constitution of
India.

Dealing with this issue, the three Judge Bench in vinay Chandra Mishra s D
case (supra), opined:

"The question now is what punishment should be meted out to
the contemner. We have already discussed the contempt jurisdiction
of this Court under Article 129 of the Constitution. That jurisdiction
is independent of the statutory law of contempt enacted by Parliament E
under Entry 77 of List I of Seventh Schedule of the Constitution. The
jurisdiction of this Court, under Article 129 is sui generis. The
jurisdiction to take cognizance of the contempt as well as to award
punishment for it being constitutional, it cannot be controlled by
any statute. Neither, therefore, the Contempt of Courts Act, 1971 nor
the Advocates Act, 1961 can_be pressed into service to restrict the F
said jurisdiction."

The Court repelled the arguments advanced on behalf of the contemner,
the U.P. Bar Association and the U.P. Bar Council, that the Court cannot while
punishing the contemner with any of the "traditional" or '·accepted" G
punishments for contempt, also suspend his licence to practice as an advocate.
Since that power is specifically entrusted by the Advocates Act. 1961 to the
disciplinary committees of the State Bar Council and/or the Bar Council of
India. The Bench opined:

"What is further, the jurisdiction and powers of this Court under H
),.,

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

A Article 142 which are supplementary in nature and are provided to do
complete justice in any matter, are independent of the jurisdiction and
powers of this Court under Article 129 which cannot be trammeled in .,,.....

any way by any statutory proYision including the provisions of the
Advocates Act or the Contempt of Courts Act. As pointed out earlier,
the Advocates Act has nothing to do with the contempt jurisdiction
B of the court including of this Court and the contempt of Courts Act,
1971 being a statute cannot denude, restrict or limit the powers of this 4
Joo..
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
c Council of U.P. and Bar Council of India assailed the correctness of the above
findings and submitted that powers conferred on this Court by Article 142,
though vel}' wide in their aptitude, can be exercised only to "do complete
justice in any case or cause pending before it " and since the issue of
'professional misconduct' is not the subject matter of "any cause" pending
D before this court while dealing with a case of contempt of court, it could not
make any order either under Article 142 or 129 to suspend the licence of an ·,...
'o.
advocate contenmer, for which punishment, statutory provisions otherwise
exist. According to the learned counsel, a court of record under Article 129
of the Constitution does not have any power to suspend the licence of a
lawyer to practice because that is not a punishment which can be imposed
E under its jurisdiction to punish for contempt of Court and that Article 142 of
the Constitution cannot also be pressed into aid to make an order which has
the effect of assuming "jurisdiction" which expressly vests in another statutory
body constituted under the Advocates Act, 1961. The learned Solicitor General
submitted that under Article 129 read with Article 142 of the Constitution, this
F Court can neither create a 'jurisdiction" nor create a "punishment" not _...
otherwise permitted by law and that since the power to punish an advocate ~

(for "professional misconduct") by suspending his licence vests exclusively
in a statutory body constituted under the Advocates Act, this Court cannot
assume that jurisdiction under Article H2 or 129 or even under Section 38 of
the Advocates Act, 1961.
G
To appreciate the submissions raised at the bar, let us first notice Article
129 of the Constitution, it reads:
""'
'"129. Supreme Court to be a court of record:-The Supreme Court
H shall be a court of record and shall have all the power of such a court
S.C.B.A. :>. U.0.1. [DR. ANAND, J.] 809
including the power of punish for contempt of itself'. A
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 ofRecord has not been defined in the Constitution
of India. Article 129 however, declares the Supreme Court to be a Court of B
Record, while Article 215 declares a High Court also to be a Court of Record.

A court of record is a court, the records of which are admitted to be
of evidentiary value and are not to be questioned when produced before any
court. The power that courts of record enjoy to punish for contempt is a part
of their inherent jurisdiction and is essential to enable the courts to administer C
justice according to law in a regular, orderly and effective manner and to
uphold the majesty of law and prevent interference in the due administration
of justice.

According to Jowitt, Dictiona/:v of English Law, First Edition (p. 526) D
. a court of Record has been defined as:

"A Court whereof the acts and judicial proceedings are enrolled for
a perpetual memory and testimony, and which has power to fine and
imprison for contempt of its authority."
E
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. F
• Courts of Record are oftwo classes - Superior and Inferior. Superior
Courts of Record include the House of Lords, the Judicial Committee,
the Court of Appeal, the High Court, and a few others. The Mayor's
Court of London, the County Courts, Coroner's Courts, and other are
Inferior Courts, of Record, of which the County Courts are the most
important. Every superior court of record has authority to fine and G
imprison for contempt of its authority; an inferior court of record
can only commit for contempts committed in open courts, in facie
curice."

(Emphasis Provided) H
810 SUPREME COURT REPORTS [1998] 2 S.C.R

A Nigel Lowe and Brenda Sujhn in their treatise on the Law of Contempt
(Third Edition) (Butterworths 1996), while dealing with the jurisdiction and
powers of a Courts of Record in respect of criminal contempt say:
r
"The contempt jurisdiction of courts ofrecord forms part of their
inherent jurisdiction.
B
The power that courts of record enjoy to punish contempts is part
of their inherent jurisdiction. The juridical basis of the inherent .
jurisdiction has been well described by Master Jacob as being:

'the authority of the judiciary to uphold, to protect and to fulfil
C the judicial function of administering justice according to law in a
regular. orderly and effective manner.,

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."
D

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
E courts of record.

Superior Courts of record\' have an inherent superintendent
jurisdiction to punish contempts committed in connection with
F proceedings before inferior courts."

(emphasis ours)

Entry 77 of List I of the Seventh Schedule of the Constitution provides
for:
G
"Constitution, organisation, jurisdiction and powers of the Supreme
Court (including contempt of such Court), and the fees taken therein:
persons entitled to practice before the Supreme Court."

Entry 14 of list III of the Seventh Schedule provides for legislation in
H respect of :
S.C.B.A. v. U.0.1. [DR. ANAND, J.] 811
"Contempt of Court, but not including contempt of the Supreme A
Court."

The language of entry 77 of List I and e111ry 14 of List III of the Seventh
Schedule demonstrate that the legislative power of the Parliament and of the
State Legislature extends to legislate with respect to matters connected with
contempt of court by the Supreme Court or the High Court, subject however, B
to the qualification that such legislation cannot denude, abrogate or nullify,
.. A
the power of the Supreme Court to punish for contempt under Articles 129
or vest that power in some other Court.

Besides, Article 129, the power to punish for contempt is also vested
in the Supreme court by virtue of Article 142(2). c
Article 142 of the Constitution reads:-

'' 142. Enforcement of decrees and orders of Supreme Court and orders
as to discovery, etc. - (I) The Supreme Court in the exercise of its
jurisdiction may pass such decree or make such order as is necessary D
for doing complete justice in any cause or matter pending before it,
,. .... and any decree so passed or order so made shall to enforceable
throughout the territory of India in such manner as may be prescribed
by or under any law made by Parliament and, until provision in that
behalf is so made, in such manner as the President may by order
prescribe. E
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respects the whole of the
territory of India, have all and evel'.v power to make any order for the
purpose of securing the attendance of any person, the discovery or
F
._ production of any documents, or the investigation or punishment of
~ any contempt of itself.

It is, thus, seen that the power of this court in respect of investigation
or punishment of any contempt including contempt of itself, is expressly
made 'subject to the provisions of any law made in this behalf by the
Parliament' by Article 142(2). However, the power to punish for contempt G
being inherent in a court of record, it follows that no act of Parliament can
-~
take away that inherent jurisdiction of the Court of Record to punish for
contempt and the Parliament's power of legislation on the subject cannot,
therefore, be so exercised as to stultify the status and dignity of the Supreme
Court and/or the High Courts, though such .a legislation may serve as a guide H

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

A for the determination of the nature of punishment which this court may
impose in the case of established contempt. Parliament has not enacted any
law dealing with the powers of the Suprcrne Court with regard to investigation r
and punishment of contempt of itself. (We shall refer to Section 15 of the
Contempt of Courts Act. 1971. later on) and this Court, therefore. e:..:ercises
the power to investigate and punish for contempt of itself by virtue of the
B powers vested in it under Articles 129 and 142(2) of the Constitution oflndia.

The first legislation to deal with contempt of courts in this country was
the Contempt of courts Act. 1926. It was enacted with a view to define and
limit the powers of certain courts for punishing contempts of court. The
C preamble to that Act stated:

'"Whereas doubts have arisen as to the powers of a High Court
of judicature to punish contempt of courts and whereas it is expedient
to resolve these doubts and to define and limit the powers exercisable
by High Courts and Chief Courts in punishing contempts of Court:
D It is hereby enacted as follows:"

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
E
procedure and practice, in respect of contempts of courts subordinate
to them as they have and exercise in respect of contempts of
themselves."

Since, the Act was enacted with a view to 'remove doubts about the
F powers of the High Court to punish for contempt', it made no distinction
between one Letters Patent High Court and another though it did distinguish
between the Letters Patent High Courts and the Chief Courts. The doubt, as
a result of conflict of judicial opinion, whether the High Court could punish
for contempt of a court subordinate to it, was removed by enactment of
Section 2 of the Act (supra). The Contempt of Courts Act, 1926 was replaced
G by the contempt of Courts act, 1952. The 1952 Act made the significant
departures from the 1926 Act, First. the expression '"High Court" was defined
to include the courts of Judicial Commissioner which had been excluded from ..0:..-
the purview of the 1926 Act and secondly, the High Courts, including the
Court of a Judicial Commissioner, were conferred jurisdiction to inquire into
H and try contempt of itself or of any court subordinate to it. Irrespective of
S.C.B.A. v. U.O.L [DR. ANAND. J] 813
whether the contempt was alleged to have been committed within or outside A
the local limits of its jurisdiction and irrespective of whether the person
-< alleged to be guilty of committing contempt was within or outside such limits.
In the matter of imposition of punishment for contempt of courts, Section 4
of the 1952 Act Provided.

"Sec. 4 Limit of punish111e11tjilr conte111pl of Court. Save as otherwise B
expressly provided by any law for the time being in force, a contempt
" A 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 c
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 D
,. '( 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,
E
punishment which could be imposed on a contemner by the High Courts or
the Chief Courts. The second proviso to Section 4 of the 1952 Act (supra)
expressly restricted the powers of the Courts not to "impose any sentence
in excess of what is specified in the section" for any contempt either of its~lf
or of a court subordinate to it. F
+-
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 G
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 H
814 SUPREME COURT REPORTS [1998) 2 S.C.R.

A 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:

B (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.··

c legislature
The committee inter-alia opined that Parliament or the concerned
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.
D
After the submission of the Sonya/ Committee Report, the contempt of
Courts Act, 1952, was repealed and replaced by the Contempt of Courts Act,
1971 which Act was enacted to "define and limit the powers of certain courts
in punishing contempt of courts and to regulate their procedure in relation
E thereto". It would be proper to notice some of the relevant provisions of the
1971 Act at this stage.

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

F ··2. Definitions. - In this Act, unless the context otherwise requires,-

(a) 'contempt of court' means civil contempt or criminal contempt;

(b) 'Civil contempt' means willful disobedience to any judgment,
decree, direction, order. writ or other process of a court or wilful
G breach of an undertaking given to a court;

(c) 'criminal contempt' means the publication (whether by words.
spoken or written, or by signs, or by visible representations, or
othenvise) of any matter or the doing of any other act whatsoever
H which-
S.C.B.A. v. U.0.1. [DR. ANAND, J.] 815
(i) scandalises or tends to scandalise, or lowers or tends to lower A
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 B
obstrnct, the administration of justice in any other manner." Section
~

j.. 10 provides :-

"Sec. 10. Power of High Court to punish contempts ofsubordinate
courts. - Every High Court shall haYe and exercise the same jurisdiction,
powers and authority, in accordance with the same procedure and c
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 D
,., ~
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 E
expressly provided in this Act or in any other law, a contempt of court
may be punished with simple imprisonment for a term which may
extend to six months, or with fine which may extend to two thousand
rupees, or with both:

Provided that the accused may be discharged or the punishment
F
• 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 G
fide.

(2) Notwithstanding any thing contained in any law for the time
being in force, no court shall impose a sentence in excess of that
specified in sub-section ( 1) for any contempt either in respect of itself
or of a court subordinate to it. H
816 SUPREME COURT REPORTS [1998] 2 S.C.R.

A (3) Notwithstanding an)ihing contained in this section. where a
person is found guilty of a civil contempt, the court, if it considers
that a fine will not meet the ends of justice and that a sentence of
imprisonment is necessary, shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil prison for such
period not exceeding six months as it may think fit.
B
(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
c contempt and the punishment may be enforced, with the leave of the
court, by the detention in ciYil prison of each such person:-

Provided that nothing contained in this sub-section shall render
any such person liable to such punishment if he proves that the
contempt was committed without his knowledge or that he exercised
D 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
E
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.
F
..
An analysis of the above prov1s10n shows that sub-section (1) of
G Section 12 provides that in a case of established contempt, the contemner
may be punished:

(a) with simple imprisonment by detention in a civil prison; or
(b) with fine, or
(c) with both.
H A careful reading of sub-section (2) of Section 12 reveals that the Act
..
S.C.BA v. U.O.l. [DR. ANAND, J.] 817
places an embargo on the court not to impose a sentence in excess of the A
sentence prescribed under sub-section (I). A close scrutiny of sub-section
(3) of Section 12 demonstrates that the legislature intended that in the case
of civil contempt a sentence of fine alone should be imposed except where
the court considers that the ends of justice make it necessary to pass a
sentence of imprisonment also. Dealing with imposition of punishment under
Section 12 (3) of the Act, in the case of Smt. Pushpahen and another v. B
Narandas V Badiani and another, [1979] 2 SCC 394, this Court opined:
'·A close and careful interpretation of the extracted section (Section
12(3)) leaves no room for doubt that the legislature intended that a
sentence of.fine alone should he imposed in normal circumstances.
The statute, however, confers special power on the Conrt to pass a C
sentence of imprisonment if it thinks that ends a/justice so require.
Thus before a Court passes the extreme sentence of imprisonment, it
must give special reasons after a proper application of its mind that
a sentence of imprisonment along is called for in a particular situation.
Thus, the sentence of imprisonment is an exception while sentence of D
fine is the rule."

Section 10 of the 1971 Act like Section 2 of the 1926 Act and Section
4 of the 1952 Act recognises the power which ;i High Court already possesses
as a Court of Record for punishing for contempt of itself, which jurisdiction
has now the sanction of the Constitution also by virtue of Article 215. The E
Act, however, does not deal with the powers of the Supreme Court to try or
punish a contemner for committing contempt of the Supreme Court or the
courts subordinate to it and the constitutional provision contained in Articles
142(2) and 129 of the Constitution alone deal with the subject.
In S.K. Sarkar, Member, Board of Revenue v. Vinay chandra Misra, F
[1981] 1sec436, this court opined:

.. Articles 12 9 and 215 preserve all the powers of the Supreme
Court and the High Court, respectively, as a Court of Record which
include the power to pt,Jnish the contempt of itself. As pointed out by
this Court in Mohd. lkram Hussain v. State of UP., AIR (1964) SC
1625, there are no curbs on the power of the High Court to punish G
for contempt of itself except those contained in the Contempt of
Courts Act. Art.icles 129 and 215 do not define as to what constitutes
contempt of court. Parliament has, by virtue of the aforesaid entries
in List I and List III of the Seventh Schedule, power to define and limit
the powers of the Courts in punishing contempt of court and to H
818 SUPREME COURT REPORTS [1998] 2 S.C.R.

A regulate their procedure in relation thereto. Indeed, this is what is
stated in the preamble of the Act of 1971 "-

(Emphasis supplied)

In Sukhdev Singh v. Hon 'hie CJ.S. Teja Singh & Ors., AIR [1954) SCR
B 454, whileifecagnising that the power of the High Court to institute proceedings
for contempt and punish the contemner when found necessary is a special
jurisdiction which is inherent in all Courts of Record, the Bench opined that
"the maximum punishment is now limited to six month's simple imprisonment
or a fine of Rs. 2,000 or both" because of the provision of Contempt of Courts
Act.
c
In England, according to Halsbury :~laws ofEngland 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 ofAppeal,
High Court or Crown Court. Similarly the statutory provisions relating
D 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
E rights of the offender, the punishment, where imprisonment is deemed
necessary, should be for a definite period and should not be severe."

Paras 99 and 100 to 105 of Halsbury :~Laws deal with the other
punishments which may be imposed for contempt of court.
F '"99. Fines and security for good behavior. The Court may, as an
alternative or in addition to committing a contemner, impose a fme
or require security for good behavior.

As in the case of imprisonment, there is no statutory limit to the
G amount of a fine which the court can impose.
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
H costs of the application.
S.C.BA v. U.0.1. [DR. ANAND. J.] 819

103. Fine. The court may, as an alternative to committal or sequestration, A
impose a fine for civil contempt.

In assessing the amount of the fine, account should be taken of
the seriousness of the contempt and the damage done to the public
interest.
B
104. Other remedies. The court may, in its own discretion, grant an
injunction, in lieu of co111111ittal or sequestration, to restrain the
commission or rcpetitjon of a civil contempt. The court may in lieu of
any other penalty require the contemner to pay the costs of the
motion on a common fund basis.
c
I 05. Costs. The costs of an application for committal are in the discretion
of the court, and should be asked for on the hearing of the application.
Th.., respondent can as a general rule only be ordered to pay costs
if he has been guilty of contempt. An action is maintainable in the
Queen's Beach Division to enforce an order made in the Chancery D
< Division to pay the costs of a motion for committal.,,

, (emphasis supplied)

Thus, the recognised and accepted punishments for civil or criminal
contempt of court in English Law, which have been followed and accepted E
by the courts in this country and incorporated in the Indian Law in so far as,
civil contempt is concerned are:

(i) Sequestration of assets:
(ii) fine:
(iii) committal to prison F

The object of punishment being both cur~tive and corrective, these
coercions are meant to assist an individual complainant to enforce his remedy
and there is also an element of public policy for punishing civil contempt,
since the administration of justice would be undermined if the order of any
court of law is to be disregarded with impunity. Under some circumstances, G
compliance of the order may be secured without resort to coercion, through
.,,..._ the contempt power. For example, disobedience of an order to pay a sum of
money may be effectively countered by attaching the earnings of the conternner.
In the same manner, committing the person of the defaulter to prison for
failure to comply with an order of specific performance of conveyance of H
820 SUPREME COURT REPORTS [1998] 2 S.C.R

A property, may be met also by the court directing that the conveyance be
completed by an appointed person. Disobedience of an undertaking may in
the like manner be enforced through process other than committal to prison
as for example where the breach of undertaking is to deliver possession of
property in a landlord tenant dispute. Apart from punishing the contemner the
Court to maintain the Majesty of Law may direct the police force to be utilised
B for recovery of possession and burden the contemner with costs, exemplary
or otherwise. In so far as criminal contempt of court is concerned, which ..
charge is required to be established like a criminal charge, it is punishable by

(i) fine; or

C (ii) by fixed period of simple imprisonment or detention in a civil
prison for a specified period; or

(iii) both.

In deciding whether a contempt is serious enough to merit imprisonment,
D the court will take into account the likelihood of interference with the
administration of justice and the culpability of the offender. The intention with ~
....
which the act complained of is done is a material factor in determining what
punishment, in a given case, would be appropriate.

The nature and types of punishment which a court of record can
E impose, in a case of established contempt, under the common law have now
been specifically incorporated in the contempt of Courts Act, 1971 in so far
as the High Courts are concerned and therefore to the extent the contempt '
of Courts Act 1971 identifies the nature of types of punishments which can
be awarded in the case of established contempt, it does not impinge upon the
inherent powers of the High Court under Article 215 either. No new type of
F 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
G of Article 129 read with Article 142(2). Since, no such law has been enacted
by the Parliament, the nature of punishment prescrihed, under the.Contempt
of Courts Act, 1971, may act as a guide for the Supreme Court but the e"1ent ~

of punis~ent as prescribed under that Act can apply only to the High
Courts, because the 1971 Act ipso facto does not deal with the contempt
H jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes
~

S.C.B.A. v. U.0.1 [DR. ANAND, J.] 821
procedural mode for taking cognizance of criminal contempt by the supreme A
Court also. Section 15, however, is not a substantive provision conferring
contempt jurisdiction. The judgment in Sukhdev Singh:~ case (supra) as
regards the extent of '"maximum punishment" which can be imposed upon a
contemner must, therefore, be construed as dealing with the powers of the
High Courts only and not of this Court in that behalf. We are, therefore,
doubtful of the validity of the argument of the learned Solicitor General that B
the extent ofpunishment 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
c
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 D
of committing contempt of court, for any specified period, is not a recognised
~
~ or accepted punishment which a court of record either under the common law
or under the statutory law can impose, on a contemner, in addition to any of
the other recognised punishments.
The suspension of an Advocate from practice and his removal from the
State roll of advocates are both punishments specifica Uy provided for under E
the Advocates Act, 1961, for proven "'professional misconduct' of an advocate.
While exercising its contempt jurisdiction under Article 129, the only cause
or matter before this Court is regarding commission of contempt of court.
There is no cause of professional misconduct, properly so called, pending
before the Court. This Court, therefore, in exercise of its jurisdiction under F
"'-.. Article 129 cannot take over the jurisdiction of the disciplinaq committee of
the Bar Council of the State or the Bar Council of India to punish an advocate
by suspending his licence, which punishment can only be imposed after a
finding of 'professim1al misconduct' is recorded in the manner prescribed
under the Advocates Act and the Rules framed thereunder.
When this Court is seized of a matter of contempt of court by an
G
advocate, there is no '·case, cause or matter" before the Supreme Court
-;-.. regarding his ·'professional misconduct" even though, in a given case, the
contempt committed by an advocate may also amount to an abuse of the
privilege granted to an advocate by virtue of the licence to practice law but
no issue relating to his suspension from practice is the subject matter of the H
822 SUPREME COURT REPORTS [1998] 2 S.C.R.

A case. The powers of this Court, under Article 129 read with Article 142 of the
Constitution, being supplementary powers have "'to he used in exercise of its
jurisdiction" in the case under consideration by this Court. Moreover, a case
of contempt of court is not stricto senso a cause or a matter between the
parties inter se. lt is a matter between the court and the contemner. It is not, .
strictly speaking, tried as an adversarial litigation. The party, which brings the
B contumacious conduct of the contemner to the notice of the court, whether
a private person or the subordinate court, is only an i11for111ant and does not
have the status of a litigant in the contempt of Court case.
The contempt of court is a special jurisdiction to be exercised sparingly
and with caution, whenever ?n act adversely effects the administration of
C justice or which tends to impede its course or tends to shake public confidence
in the judicial institutions. This jurisdiction may also be exercised when the
act complained of adversely effects the Majesty of Law or dignity of the
courts. The purpose of contempt jurisdiction is to uphold the majesty and
dignity of the Courts of law. It is an unusual type of jurisdiction corr,bining
D "the jury, the judge and the hangman" and it is so because the court is not
adjudicating upon any claim between litigating parties. This jurisdiction is not
exercised to protect the dignity of an individual judge but to protect the
administration of justice from being maligned. In the general interest of the
community it is imperative that the authority of courts should not be imperiled
and there should be no unjustifiable interference in the administration of
E justice. It is a matter between the court and the contemner and third parties
cannot intervene. It is exercised in a summary manner in aid of the
administration of justice, the majesty of law and the dignity of the courts. No
such act can be permitted which may have the tendency to shake the public
confidence in the fairness and impartiality of the administration of justice.
F The power of the Supreme Court to punish for contempt of court,
though quite wide, is yet limited and cannot be expanded to include the power
<' to determine whether an advocate is also guilty of ''Professional misconduct"
in a summary manner, giving a go bye to the procedure prescribed under the
Advocates Act. The power to do complete justice unger Article 142 is in a
way, corrective power, which gives preference to equity over law but it cannot
G be used to deprive a professional lawyer of the due process contained in the
Advocates Act 1961 by suspending his licence to practice in a summary
manner, while dealing with a case of contempt of court.
In Re: V.C Mishra'.1" case (supra), while imposing the punishment of
suspended simple imprisonment, the Bench, as already noticed, punished the
H contemner also by suspending his licence to practice as an advocate for a
S.C.B.A. v. U.0.1. [DR. ANAND, J.] 823
specified period. The Bench dealing with that aspect opined: A
It is not disputed that suspension of the advocate from practice and
~
his removal from the State roll of advocates are both punishments.
There is no restriction or limitation on the nature of punishment that
this Court may award while exercising its contempt jurisdiction and
the said punishments can be the punishments the Court may impose B
while exercising the said jurisdiction .
• ...
(Emphasis supplied)

In taking this view, the Bench relied upon Articles 129 and 142 of the
Constitution besides Section 38 of the Advocates Act, 1961. The Bench
observed:
c
''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 D
.. "'I""
committees of the State Bar Council and the Bar Council of India, as
the case may be. Such a proposition of law on the face of it observes
rejection for the simple reason that the disciplinmy jurisdiction of the
State Bar council and the Bar Council of India to take action for
professional misconduct is different from the jurisdiction of the E
Courts to take action against the advocates for the contempt of
Court. The said jurisdiction co-exist independently of each other. The
action taken under one jurisdiction does not bar an action under the
other jurisdiction.

The contention is also misplaced for yet another and equally, if not F
...
more, important reason. In the matter of disciplinary under the
'
Advocates Act, this Court is constituted as the final Appellate
authority under Section 38 of the act as pointed out earlier. In that
capacity this court can impose any of the punishments mentioned in
Section 35(3) of the Act including that of removal of the name of the
Advocate from the State roll and of suspending him from practice. G
If that be so, there is no reason why his court while exercising its
contempt jurisdiction under Article 129 read with Article 142 cannot
impose any of the said punishments. The punishment so imposed will
not only be not against the provisions of any statute, but in conformity
with the substantive provisions of the advocates Act and for conduct H
824 SUPREME COURT REPORTS [1998] 2 S.C.R.

A which is both a professional misconduct as well as the contempt of
Court. The argument has, therefore. to be rejected."

(Emphasis supplied)

These observations. as we shall presently demonstrate and we say so
B with utmost respect, are too widely stated and do not bear closer scrutiny.
After recognising that the disciplinary jurisdiction of the State Bar Council ..
and the Bar Council of India to take action for professional misconduct is
different from the jurisdiction of the courts to take action against the advocates
for the contempt of court, how could the court invest itself with the jurisdiction
C of the disciplinary committee of the Bar Council lo punish the concerned
Advocate for .. professional misconduct" in addition to imposing the
punishment of suspended sentence of imprisonment for committing contempt
of court.

The plenary powers of this court under Article 142 of the Constitution
D are inherent in the court and are complementary to those powers which are
specifical(v conferred on the court by various statutes though are not limited
by those statutes. These powers also exist independent of the statutes with
a view to do complete justice between the parties. These powers are of very
wide amplitude and are in the nature of supplementary powers. This power,
E exists as a separate and independent basis of jurisdiction, apart from the
statutes. It stands upon the foundation, and the basis for its exercise may be
put on a different and perhaps even wider footing, to prevent injustice in the
process of litigation and to do complete justice between the parties. This
plenary jurisdiction is, thus, the residual source of power which this Court
may draw upon as necessary whenever it is just and equitable to do so and
F in particular to ensure the observance of the due process of law, to do
complete justice between the parties, while administering justice according to
law. There is no doubt that it is an indispensable adjunct to all other powers
and is free from the restraint of jurisdiction and operates as a valuable weapon
in the hands of the court to prevent ''clogging or obstruction of the stream
G of justice··. It, howe\'er, needs to be remembered that the powers conferred
on the court by Article 142 being curative in nature cannot be construed as
powers which authorise the court to ignore the substantive rights of a litigant
while dealing with a cause pending before it. this power cannot be used to
.. supplant" substantive law applicable to the case or cause under consideration
of the court. Article 142, even with the width of its amplitude, cannot be used
H to build a new edifice where none existed earlier, by ignoring express statutory
S.C.B.A. v. U.0.1. [DR. ANAND, J] 825
provisions dealing with a subject and thereby to achieve something indirectly A
which cannot be achieved directly. Punishing a contemner advocate, while
dealing with a contempt of court case by suspending his licence to practice.
a power otherwise statutorily available only to the Bar Council of India, on
the ground that the contemner is also an advocate, is, therefore, not pennissible
in exercise of the jurisdiction under Article 142. The construction of Article B
142 must be functionally informed by the salutary purpose of the Article viz.
to do complete justice between the parties. It cannot be otherwise. As
already noticed in a case of contempt of court, the contemner and the court
cannot be said to be litigating parties.

The Supreme Court in exercise of its jurisdiction under Article 142 has C
the power to make such order as is necessary .for doing complete justice ··
between the parties in any cause or matter pending before it. The very nature
of the power must lead the court to set limits for itself within which to exercise
those powers and ordinarily it cannot disregard a statutory provision governing
a subject, except perhaps to balance the equities between the conflicting D
~
" claims of the litgating parties by "ironing out the creases" in a cause or
matter be.fore it. Indeed this Court is not a court of restricted jurisdiction of
only dispute settling. It is well recognised and established that this court has
always been a law maker and its role travels beyond merely dispute settling.
It is a ·'problem solver in the nebulous areas". (See. K. l/i?rra.1wa111i v. Union E
o.f India [1991] 3 SCC 655, but the substantive statutory provisions dealing
with the subject matter of a given case, cannot be altogether ignored by this
court, while making an order under Article 142. Indeed, these constitutional
powers can not, in any way, be controlled by any statutory provisions but
at the same time these powers are not meant to be exercised when their F
exercise may come direct~v in conflict with what has been expressly provided
for in statute dealing expressly with the subject.

In Bonkya @ B.S. i\fane & Ors. v. State o.f Maharashtra. f 1995] 6 SCC
447, a bench of this court observed:
G
"The amplitude of powers available to this Court under Article 142 of
the Constitution of India is normally speaking not conditioned liy any
statutory provision but it cannot be lost sight of that this Court
exercises jurisdiction under Article 142 of the Constitution with a view
to do justice between the parties but not in disregard o.f the relevant H
826 SUPREME COURT REPORTS (1998] 2 S.C.R

A statutorv provisions .. ,

Dealing with the powers of this court under Article 142. in Prem Chand
(iarg v. Excise Co11111zissiune1: U.P., .4/lahahad. [1963] Supp. I. S.C.R. 885, it
was said by the Constitution Bench:

··111 this connection, it may be pertinent to point out that the wide
B
powers which arc given to this court for doing complete justice
between the parties, can be used by this court for instance, in adding
parties to the proceedings pending before it, or in admitting additional
evidence, or in remanding the case, or in allowing a new point to be
taken for the first time. ft is plain that in exercise of these and similar
c other powers, this Court would not be bound by the relevant
provisions of procedure if it is satisfied that a departure from the
said procedure is nece.1.mrv to do complete justice between the parties.

That takes us to the second argument urged by the Solicitor-
D General that Art. 142 and Art. 32 should be reconciled by the adoption
of the rule of harmonious construction. In this connection, we ought
to bear in mind that though the powers conferred on this C our! by
Art. 142(1) are verv wide, and the same can be exercised for doing
complete justice in any case, as we have already observed this Court
cannot even under Art. /.12(1) make an order plainlv inconsistent
E ll'ith the express slatuto1y provisions of substantive law, much less,
inconsistent with any Constitutional provision. There can, therefore
be no conflict between Art. 142(1) and Art. 32. In the case of KM.
Nanavati v. The State of Bombay, [1961] 1 S.C.R. 497, on which the
Solicitor-General relies, it was conceded, and rightly, that under Art.
F 142(1) this Comt had the power to grant bail in cases brought before
it, and so. there was obviously a conflict between the power vested
in this court under the said Article and that vested in the Governor
of the State under Ari. 161. The possibility ofa conflict between these
powers necessitated the application of the rule of harmonious
construction. The ~aid rule can have no application to the present
G
case, because on a fair construction a/Art. 1./2(/J, this Court has
no po1rer to circumscribe the fundamental right guaranteed under
Art. 32. The existence of the said power is itself in dispute, and so,
the present is clearly distinguishable from the case ofK.M. Nanavati."

H (Emphasis ours)
S.C.B.A. v. U.O.l. [DR. ANAND. J.] 827
In Re: Vinay Chandra Mishra:~ case (supra), the three judge Bench did A
notice the observations in Prem Chand Gwg :~ case (supra) but opined:

··in view of the observations of the latter Constitution Bench on the
point. the observations made by the majority in Prem Chand Garg's
case (supra) are no longer a good la11'. This is also pointed out by
B
this Court in the case of Mohammed Anis v. Union of India & Ors.,
.. A
[19941 Supp. 1SCC145. by referring to the decisions of Delhi judicial
Services Vs. State of Gujarat (supra) and Union Carbide Corporation
Vs. Union of India (supra) by observing that statutory provisions
cannot O\ erride the constitutional provisions and Article 142( 1) being
a constitutional power it cannot be limited or conditioned by any
c
statutory provision. The Court has then observed that it is, therefore,
clear that the power of the Apex Court under Article 142(1) of the
Constitution Cannot be diluted by statutory provisions and the said
position in law is now well settled by the Constitution Bench decision
in Union Carbides, case (supra)." D
.. '("
(Emphasis supplied)

Commenting upon the observations in Prem Chand Garg s case (supra)
the Bench further opined:
E
"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 observations have been explained by this
Court in its latter decisions in Delhi Judicial Services Association v. F
....
< State of Gujarat (supra) and Union Carbide Corporation v. Union of
India, [ 1991] 4 SCC 584. In paragraph 51 of the former decision. it has
been, with respect. rightly pointed out that the said observations were
made in the context of fundamental rights. Those observations have
no bearing on the present issue. No doubt, it was further observed G
there that those observations have no bearing on the question in
issue in that case as there was no provision in any substantive law
restricting this Court's power to quash proceedings pending before
subordinate courts. But it was also added there that this Court's
power under Article 142(1) to do complete justice was entirely of H
\

)-

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

A different leave and ofa different quality."

As we shall presently see, there is nothing said in either Delhi Judicial ·r
Service Association '.I-, case (supra) or the Union Carhide '.1· case (supra) from
which it may be possible to hold that the Jaw laid down in Prem Chand Gmg '.1·
case (supra) is ·'no longer a good law". Besides, we also find that in Mohd.
B Anis case referred to by the Bench, there is no reference made to Prem Chand
Garg:~ case at all.

In Delhi Judicial Se1vice Association Tis Hazari v. State of Gujarat &
Ors. etc. etc., [1991) 3 SCR 936, the following questions fell for determination.
c "(a) whether the Supreme Court has inherent jurisdiction or power to
punish for contempt of subordinate or inferior courts under Article
129 of the Constitution, (b) whether the inherent jurisdiction and
power of the Supreme Court is restricted by the Contempt of Courts
Act, 1971, (c) whether the incident interfered with the due administration
D of justice and constituted contempt of court, and (d) what punishment
should be awarded to the contemners found guilty of contempt."

The Court observed:

"Article 142(1) of the Constitution provides that Supreme Court in
E exercise of its jurisdiction may pass such decree or make such order
as is necessary for doing complete justice in any 'cause' or 'matter'
pending before it. The elqJression 'cause' or 'matter' would include
any proceeding pending in court and it would cover almost every kind
of proceeding in court including civil or criminal . The inherent power
F of this Court under Article 142 coupled with the plenary and residuary
powers under Articles 32 and 136 embraces power to quash criminal
proceedings pending before any court to do complete justice in the
matter before this Court."

G

Mr. Nariman urged that Article 142(1) does not contemplate any order
contrary to statutory provisions. He placed reliance on the Courts
observations in Prem Chand Garg v. Excise Commissioner. U.P.
Allahabad, [1963] Supp. 1 SCR 885 at 899, and A.R. Antulay v. R.S.
H
S.C.B.A. v. U.0.1. [DR. ANAND, J] 829
Nayak and Anr., [1988) 2 SCC 602. where the Court observed that A
though the powers conferred on this Court under Article 142( l) are
very wide, but in exercise of that power the court cannot make any
order plainly inconsistent with the express statutorv provisions of
substantive law. It may be noticed that in prem Chand Garg's and
Antulay's case (supra) observations with regard to the extent of this B
court's power under Article 142(1) were made in the context of
• fundamental rights. ]hose observations have no bearing on the
question in issue as there is no provision in any substantive law
restricting this Court:, power to quash proceedings pending before
subordinate court. This Court's power under Article 142(1) to do
"complete justice" is entirely of different level and of a different C
quality. Any prohibition or restriction contained in ordinary laws
cannot act as a limitation on the constitutional power of this Court.
Once this Court has seisin of a cause or matter before it, it has power
to issue any order or direction to do "complete justice" in the matter.
This constitutional power of the Apex Court cannot be limited or D
restricted by provisions contained in statutory law."

The Bench went on to say:

"No enactment made by Central or State Legislature can. limit or
restrict the power of this Court under Article 142 of the Constitution, E
though while exercising power under Article 142 of the constitution,
the court must take into consideration the statutory provisions
regulating the matter in dispute. What would be the need of"complete
justice" in a. cause or matter would depend upon the facts and
circumstances of each case and while exercising that power the court
would take into consideration the express provisions of a substantive F
statute. Once this Court has taken seisin of a case, cause or matter,
it has power to pass any order or issue direction as may be necessary
to do complete justice in the matter. This has been the consistent view
of this Court as would appear from the decisions of this court in State
of U.P. v. Poosu & Anr. [1976) 3 SCR 1005; Ganga Bishan & Ors. v. G
Jai Narain [1986] l SCC 75; Navnit R. Kamani & Ors. v. R.R. Kamani,
[ 1988] 4 SCC 387, B.N. Nagarajan & Ors. v. State of Mysore & Ors.
[1966] 3 SCR 682: Special Reference No. 1of1964, (supra), and Harbans
Singh v. State of U.P. Ors. (supra) ."

(emphasis supplied) H
830 SUPREME COURT REPORTS [1998) 2 S.C.R.

A lnARAntu/ay v. R.S. Navak andA11r., [1988] 2 sec 602, a seven Judge
Bench of this Court said:
·The reliance placed in this context on the provisions contained in
Articles 140 and 142 of the Constitution and Section 401 read with
Section 386 of the Cr. P.C. docs not also help. Article l+O is only a
B 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
c. connected matters. There \vas no issue or controversy or discussion
before it as to the comparative merits of a trial before a Special judge
vis-a-vis one before the High Court. There was only an oral request
said to have been made, admittedly, after the judgment was announced.
Wide as the powers under Article 14 I are, they do not in my view,
D envisage an order of the type presently in question. The Nanavati
case, to which reference was made by Shri Jethmalani, involved a
totally different type of situation. Secondly, it is one of the contentions
of the appellant that an order of this type, far from being necessary
for doing complete justice in the cause or matter pending before the
E court, has actually resulted in injustice, an aspect discussed a little
later. Thirdly, however wide and plenary the language of the article,
the directions given by the Court should not be inconsistent with,
repugnant, or in vjolation of the specific provisions of any statute. If
the provisions of the 1952 Act read with Article 139-A and Sections
406-407 of the Cr. P.C. do not permit the transfer of the case from a
F Special Judge to the High Court, 'that effect cannot be achieve
indirectly."

(Emphasis supplied)

In Union Carbide Corpn. v. Union of India, [199 I] 4 SCC 584, a
G Constitution Bench of this Court dealt with the ambit and scope of the powers
of this Court under Article 142 of the Constitution. The Bench considered the
observations of the majority in Prem Chand Garg v. Excise Commissioner,
UP, [ 1963] Supp. I SCC 885, as well as the observations made in A.R. Antulay
V, R.S. Nayak, [1988] 2 sec 602, and observed:

H "It is necessary to set at rest certain misconceptions in the arguments
S.C.BA v. U.O.L [DR. ANAND, J.] 831
touching the scope of the powers of this Court under Article 142(1) A
of the Constitution. These issues are matters of serious public
importance. The proposition that a provision in any ordinary law
irrespective of the importance of the public policy on which it is
founded, operates to limit the powers of the Apex Court under Article
142(1) is unsound and erroneous. In both Gard as well as Antulay B
cases the point was one of violation of constitutional provisions and
• constitutional rights. The observations as to the effect of inconsistency
with statutory provisions were really unnecessary in those cases as
the decisions in the ultimate analysis turned on the breach of
constitutional rights. We agree with Shri Nariman that the power of
the Court under Article 142 insofar as quashing of criminal proceedings C
are concerned is not exhausted by Section 320 or 321 or 482 Cr. P.C.
or all ·of them put together. The power under Article 142 is at an
entirely different level and of a different quality. Prohibitions or
limitations or provisions contained in ordinary laws cannot, ipso facto,
act as prohibitions of limitations on the constitutional powers under D
Article 142. Such prohibitions or limitations in the statutes might
embody and reflect the scheme of a particular law, taking into account
the nature and status of the authority or the court on which conferment
of powers - limited in some appropriate way is contemplated. The
limitations may not necessarily reflect or be based on any fundamental E
considerations of public policy, Shri sorabjee, learned Attorney General,
referring to Garg 'case, said that limitation on the powers under Article
142 arising from 'inconsistency' with express statutory provisions of
substantive law' must really mean and be understood as some express
prohibition contained in any substantive statutory law. He suggested
that if the expression ·prohibition' is read in place of 'provision' that F
would perhaps convey the appropriate idea. But we think that such
prohibition should also be shown to be based on some underlying
fundamental and general issues of public policy and not merely
incidental to a particular statutory scheme or pattern. It will again be
wholly incorrect to say that powers under Article 142 are subject to G
such express statutory prohibitions. That would convey the idea that
statutory provisions override a constitutional provision. Perhaps,
the proper way of expressing the idea is that in exercising powers
under Article 142 and in assessing the needs of 'complete justice' of
cause of matter, the Apex Court will take note of the express H
'
"r
832 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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
B
lack of jurisdiction or pf nullity can arise."

(Emphasis supplied)

Thus, a careful reading of the judgements in Union Carbide Corporation
C & Ors. v. Union of India & Ors. the Delhi judicial Services Association case
and Mohd. Anis Case (supra) relied upon in V.C. Mishra's case (supra) show
that the court did not actually doubt the correctness of the observations in
Prem Chand Garg s, case (supra). As a matter of fact, it was observed that
in the established facts of those cases, the observations in Prem Chand
D Garg 's case had "no relevance". This Court did not say in any of those cases
that substantive statutory provisions dealing expressly with the subject can
r. ....
be ignored by this Court while exercising powers under Article 142.

As a matter of fact, the observations on which emphasis has been
placed by us from the Union Carbide's case, A. R. Antu lay 's case and Delhi
E Judicial Services Association case (supra) go to show that they do not
strictly speaking come into any conflict with the observations of the majority
made in Prem Chand Garg 's case (supra). It is one thing to say that "prohibitions
or limitations in a statute" cannot come in the way of exercise of jurisdiction
under Article 142 to do complete justice between the parties in the pending
F 'cause or matter arising out of that statute, but quite a different thing to say
~
t11at while exercising jurisdiction under Article 142, this Court can altogether ...
ignore the substantive provisions of a statute, dealing with the subject and
pass orders concerning an issue which can be settled only through a mechanism
prescribed in another statute. This Court did not lay so in Union Carbide's
G case either expressly or by implication and on the contrary it has been held
that the apex court will take note of the express provisions of any substantive
statutory law and regulate the exercise of its power and discretion accordingly.
We are, therefore, unable to persuade ourselves to agree with the observations
oft11e Bench in V.C. Mishra 's case that the law laid down by the majority in
H Prem Chand Garg's case is "no longer a good law".
S.C.B.A. v. U.0.1. [DR. ANAND, J.] 833
In a given case, an advocate found guilty of committing contempt of A
court may also be guilty of committing ·'professional misconduct" depending
upon the gravity or nature of his contumacious conduct, but the two
jurisdictions are separate and distinct and exercisable by different forums by
following separate and distinct procedures. The power to punish an Advocate,
by suspending his licence or by removal of his name from the roll of the State B
Bar Council, for proven professional misconduct, vests exclusively in the
statutory authorities created under the Advocates Act, 1961, while the
jurisdiction to punish him for committing contempt of court vests exclusively
in ~he courts.

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

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

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

According to Section 30, every advocate whose name is entered in the
State roll of advocates shall be entitled, as of right, to practice, throughout
the territories to which the Act extends, in all courts including the Supreme H
834 SUPREME COURT REPORTS (1998] 2 S.C.R

A Court of India. Sectio~ 33 proYides that no person shall, on or after the
appointed day, be entitled to practice in any court or before any authority or
person unless h.: is enrolled as an advocate under the Act.

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

Section 42(1) of the Act confers on the Disciplinary Committee of the
E Bar Council, powers of a civil court under the code of Civil Procedure and
section 42(2) enacts that its proceedings shall be "deemed" to be judicial
proceeding for the purposes mentioned therein.

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

Part VII of the Rules deals with disciplinary proceedings against the ~
advocates. In chapter I of Part \111 provisions have been made to deal with
complaints of professional misconduct received against advocates as well as
H for the procedure to be followed by the Disciplinary Committees of the State
S.C.BA v. U.O.L [DR. ANAND, J.] 835
Bar Council and the Bar Council of India to deal with such complaints A
received under Sections 35 and 36 of the Act. Rule I of Chapter I of part VII
of the Rules provides that a complaint against an advocate shalJ be in the
form of a petition duly signed and verified as required under the code of Civil
Procedure, and shalJ be accompanied by the fees as presc~ibed by the Rules.
On the complaint being found to be in ord.or, the same shall be registered and B
placed before the Bar Council for such order as it may deem it to pass. Sub-
mle (2) provides that before referring a complaint made under Section 35(1)
of the Act, to one of its disciplinary committees the Bar Council may require
the complainant to furnish better particulars and the Bar Council "may a!so
call for the comments from the advocate complained against ."
c
Rules 3 and 4 of Chapter I Part VII provide for the procedure to be
followed in dealing with such complaints. These mies read:

"3. (I) After a complaint has been referred to a Disciplinary Committee
by the Bar Council, the Registrar shall elqJeditiously send a notice to
the Advocate concerned requiring him to show cause within a specified D
date on the complaint made against him and to submit the statement
of defence, documents and affidavits in support of such defence, and
further informing him that in case of his non-appearance on the date
of hearing fixed, the matter shall be heard and determined in his
absence. E
Explanation: Appearance includes, unless otherwise directed,
appearance by an Advocate or through duly authorised
representative.

(2) If the Disciplinary Committee requires or permits. a complainant F
may file a replication within such time as may be fixed by the committee.

(3) The Chairman of the Disciplinary Committee shall fix the date, hour
and place of the enquily which shall not ordinarily be later than thirty
days from the receipt of the reference. The Registrar shall give notice
of such date, hour and place to the complainant or other person G
aggrieved, the advocate concerned and the Attorney General or the
Additional Solicitor General of India 01 the Advocate General as the
ca~e may be, and shall also serve on them cooies of the complaint and
such other documents mentioned in Rule 24 of this Chapter as the
Chairman of the Committee may direct at least ten days before the date H
836 SUPREME COURT REPORTS [1998] 2 S.C.R.

A fixed for the enquiry.

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

Sub-rule (1) of Rule 8 provides:

.. This Disciplinary Committee shall hear the Attorney General or the
C Additional Solicitor General of India or the Advocate General, as the
case may be or their Advocate, and parties or their Advocates, if they
desire to be heard, and determine the matter on documents and
affidavits unless it is of the opinion that it should be in the interest
of justice to permit cross examination of the deponents or to take oral
D evidence, in which case the procedure for the trial of civil suits shall
as far as possible be followed."

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.
E
Rule 14(1) lays down as follows:

"The finding of the majority of the members of the Disciplinary
Committee shall be the finding of the Committee. The reason given in
support of the finding may be given in the form of a judgement, and
F in the case of a difference of opinion, any member dissenting shall be )..

entitled to record his dissent giving his own reason. It shall be ,..
competent for the Disciplinary Committee to award such costs as it
thinks fit.

"Rule 16 provides:
G
"16(1). The Secretary ofa State Bar Council shall send to tl1e Secretary
of the Bar Council India quarterly statements of tl1e complaints received
and the stage of the proceedings before the state Bar Council and
.Disciplinary Committees in such manner as may be specified from time
H to time.
S.CBA. v. U.O.I. [DR. ANAND, J.] 837

(2) The Secretary of the Bar Council of India may however call for A
such farther statements and particulars as he considers necessary. ..

An appeal from the final order of the disciplinary committee of the Bar
Council of a State is provided to the Bar Council of India under Section 37
of the Act and the procedure for filing such an appeal is detailed in Rules
!9(2)to 31. B

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

In Bar Council ofMaharashtra v. M. V Dabholkar & Ors., (1975] 2 SCC
702, a Seven Judge Bench of this Court analysed the scheme of the Advocates
Act 1961 and inter alia observed: D
··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 E
presen-ed. The Bar Councils therefore entertain cases of misconduct
against advocates. The Bar Councils are to safeguard the rights,
privilege and interests of advocates. The Bar Council is a body
corporate. The disciplinary committees are constituted by the Bar
Council. The Bar Council is not the same body as its disciplinary
committ.::c. One of the principal junctions of the Bar Council in F
regard to standards of professional conduct and etiquette of
advocates is to receive complaints against advocates and if the Bar
Council has reason to believe that any advocate has been guilty of
professional or other misconduct it shall rr>fer the case for disposal
to its disciplinary committee. The Bar Councils of a State may also G
of its own motion if it has reason to believe that any advocate has
been guilty of professional or other misconduct it shall refer the case
for disposal to its disciplinary committee. It is apparent that a state
Bar Council not only receives a complaint but is required to apply its
mind to find out whether there is any reason to believe that any H
838 SUPREME COURT REPORTS [1998] 2 S.C.R.

A advocate has been guilty of professional or other misconduct. The
Bar Council of a State acts on that reasoned belief. The Bar Council
has a vei:v important part to play, first in the reception of complaints, -r
second, in forming reasonable beliefofguilt ofprofessional or other
misconduct and jinal~v in making reference of the case to its
disciplinarv committee. The initiation of the proceeding before the
B
disciplinary committee is by the Bar Council of a State. A most
signijica/11 feature is that no litigant and no member of the public
can straightway commence disciplinary proceedings against an
advocate. It is the Bar Council of a State which initiates the
disciplinm:v proceedings.
c
Thus, after the coming into force of the Advocates Act, 1961 with effect
from 19th May 1961, matters connected with the enrolment of advocates as
also their punishment for professional misconduct is governed by the
provisions of that Act only. Since, the jurisdiction to grant licence to a law
D graduate to practice as an advocate vests exclusively in the Bar Councils of
the concerned State, the jurisdiction to suspend his licence for a specified
term or to revoke it also vests in the same body.
...

The Letters Patent of the Chartered High Courts as well of the other
High Courts earlier did vest power in those High Courts to admit an advocate
E to practice. The power of suspending from practice being incidental to that
of admitting to practice being incidental to that of admitting to practice also
vested in the High Courts. However. by virtue of Section 50 of the Advocates
Act, with effect from the date when a State Bar Council is constituted under
the Act, the provisions of the Letters patent of ar.y High Court and ·'of any
F other law" in so far as they related to the admission and enrolment of a legal
practitioner or confer on the legal practitioner the right to practice in any court y
or before any authority or a person as also the provisions relating to the
"suspension or removal" of legal practitioners, whether under the letters
patent of any High Court or of any other law, have been repealed. These
G powers now vest exclusively, under the Advocates Act, in the Bar Council
of the concerned State. Even in England the Courts of Justice 2re now
relieved from disbarring advocates from practice after the power of calling to
the Bar has been delegated to the Inns of Court. The power to disbar the
advocate also now vests exclusively in the Inns of Court and a detailed
H procedure has been laid therefor.
S.C.B.A. v. U.0.1. [DR. ANAND, J.] 839

In Re. VC. lvfisra ~·, case the Bench relied upon its appellate jurisdiction A
under Section 38 (supra) also to support its order of suspending the licence
of the contemner.

Dealing with the right of appeal, conferred by Sections 37 and 38 of the
Act, the Constitution Bench in M V Dabholkar :~, case (supra) observed.
B
"Where a right of appeal to courts against an administrative or
judicial decision is created by statute, the right is invariab(v confined
to a person aggrieved or a person who claims to he aggrieved. The
meaning of the words .. a person aggrieved" may vary according to the I
context of the statute. One of the meanings is that a person will be C
held to be aggrieved by a decision if that decision is materially
adverse to him. Normally, one is required to cstab}.ish that one has
been denied or deprived of something to which one is legally entitled
in order to make one "a person aggrieved". Again a person is aggrieved
if a legal burden is imposed on him, the meaning of the words "a D
person aggrieved" is sometimes given a restricted meaning in certain
statutes which provide remedies for the protection of private legal
rights. The restricted meaning requires denial or deprivation of legal
rights. A more liberal approach is required in the background of
statutes which do not deal with property rights but deal with
professional conduct and morality. The role of the Bar Council under E
the Advocates Act is comparable to the role of a guardian in
professional ethics. The words "persons aggrieved in sections 37 and
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 word1' "person F
aggrieved" include "a person who has a genuine grievance because
an order has been made which prejudicially affects his interests". It
has, therefore, to be found out whether the Bar Council has a grievance
in respect of an order or decision affecting the professional conduct
and etiquette." G
(Emphasis supplied)

In O.N. Mohindroo v. The District Judge, Delhi &Anr., [1971] 3 SCC
5, it has been held that an appeal to the Supreme Court under Section 38 of
the Act is not a restricted appeal. It is not an appeal on a question of law H
840 SUPREME COURT REPORTS (1998] 2 S.C.R

A alone but also on questions of fact and under that Section the Supreme court
has the jurisdiction to pass any order it deems fit on such an appeal but 'no
order of the Bar Council of India shall be varied by the Supreme Court so as ..
to prejudicially affect the person aggrieved without giving him a reasonable
opportunity of being heard.
B
This Court is indeed the final appellate authority under Section 38 of
the Act but we are not persuaded to agree with the view that this Court can
in exercise of its appellate jurisdiction, under Section 38 of the Act, impose
one of the punishments, prescribed under that Act. while punishing a
C contemner advocate in a contempt case. ·Professional misconduct' of the
advocate concerned is not a matter directly in issue in the contempt of court
case. while dealing with the contempt of court case, this court is obliged to
examine whether the conduct complained of amounts to contempt of court
and if the answer is in the affirmative, then to sentence the contenmer for
contempt of court by imposing any of the recognised and accepted
D punishments for committing contempt of court. Keeping in view the elaborate
procedure prescribed under the Advocates Act 1961 and the Rules framed 'r
thereunder it follows that a complaint of professional misconduct is required
to be tried by the disciplinary committee of the Bar Council, like the trial of
a criminal case by a court of law and an advocate may be punished on the
E basis of evidence led before the disciplinary committee of the Bar Council
after being afforded an opportunity of hearing. The delinquent advocate may
be suspended from the rolls of the advocates or imposed any other punishment
as provided under the Act. The enquiry is a detailed and elaborate one and
is not of a su11111ra1:v nature. It is therefore. not permissible for this court to
F punish an advocate for "professional misconduct" in exercise of the appellate
jnrisdiction by converting itself as the statutory body exercising '·original
jurisdiction''. Indeed, if in a given case the concerned Bar Council on being
appri,ed of the contumacious and blameworthy conduct of the advocate by
the High Court or this Court does not take any action against the said
advocate, this court may well have the jurisdiction in exercise of its appellate
G powers under Section 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. ln an appropriate case,
this Court may consider the exercise of appellate jurisdiction even suo moto
provided there is some cause pending before the concerned Bar Council, and
H the Bar Council does "not act" or fails to act, by sending for the record of
S.C.B.A. v. U.0.1. [DR. ANAND, J] 841
that cause and pass appropriate orders. A
4
~
However, the exercise of powers under the contempt jurisdiction cannot
be confused with the appellate jurisdiction under Section 38 of the Act. The
two jurisdictions are separate and distinct. We are. therefore. unable to persuade
ourselves to subscribe to the contrary view expressed by the Bench in !~C.
Mishra:~ case because in that case the Bar Council had not declined to deal
B
with the matter and take appropriate action against the concerned advocate.
~
Since there was no cause pending before the Bar Council, this court could
not exercise its appellate jurisdiction in respect of a matter which was never
under consideration of the bar councils.
c
Thus, to conclude we are of the opinion that this Court cannot in
exercise of its jurisdiction under Article 142 read with Article 129 of the
Constitution, \Yhile punishing a contemner for committing contempt of court,
also impose a punishment of suspending his licence to practice, where the
contemner happens to be an Advocate. Such a punishment cannot even be
imposed by taking recourse to the appellate powers under Section 3 8 of the
D
-<'
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
E
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 F
Solicitor General informed us that there have been cases where the Bar
Council of India taking note of the contumacious and objectionable conduct
of an advocate, had initiated disciplinary proceedings against him and even
punished him for "professional misconduct", on the basis of his having been
found guilty of committing contempt of court. We do not entertain any doubt
that the Bar Council of the State or Bar Council of India, as the case may be, G
when apprised of the established contumacious conduct of an advocate by
the High Court or by this Court, would rise to the occasion , and take
appropriate action against such an advocate. Under Article 144 of the
Constitution ''all authorities civil and judicial, in the territory oflndia shall act
in aid of the Supreme Court". The Bar Council which performs a public duty H
I
,,..

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

A and is charged with the obligation to protect the dignity of the profession and
maintain professional standards and etiquette is also obliged to act .. in aid
of the Supreme Court ... It must. wheneyer. facts warrant rise to the occasion
and discharge its duties uninfluenced by the position of the contemner
advocate. It must act in accordance with the prescribed procedure, whenever
B its attention is drawn by this Court to the contumacious and U11becoming
conduct of an advocate which has the tendency to interfere with due
administration of justice. It is possible for the High Courts also to draw the
attention of the Bar Council of the State to a case of professional misconduct
of a contemner advocate to enable the State Bar Council to proceed in the
manner prescribed by the Act and the rules framed thereunder. There is no
C justification to assume that the Bar Councils would not rise to the occasion,
as they are equally responsible to uphold the dignity of the courts and the
majesty of law and prevent any interference in the administration of justice.
Learned counsel for the parties present before us do not dispute and rightly
so. that whenever a court of record, records its findings about the conduct
D of an Advocate while finding him guilty of committing contempt of court and
desires or refers the matter to be considered by the concerned Bar Council,
appropriate action should be initiated by the concerned Bar Council in
accordance with law with a view to maintain the dignity of the courts and to
uphold the majesty of law and professional standards and etiquette. Nothing
E is more destructive of public confidence in the administration of justice than
incivility, rudeness or disrespectful conduct on the part of a counsel towards
the court or disregard by the court of the privileges of the bar. In case the
Bar Council, even after receiving 'reference' from the court, fails to take action
against the concerned advocate, this court might consider invoking its powers
F under Section 38 of the Act by sending for the record of the proceedings from
the Bar Council and passing appropriate orders. Of Course, the appellate
powers under Section 38 would be available to this Court only and not to the
High Courts. We, however, hope that such a situation would not arise.

In a given case it may be possible, for this Court or the High Court, the
G prevent the contemner advocate to appear before it till he purges himself of
the contempt but that is much different from suspending or revoking his
licence or debarring him to practice as an advocate. In a case of contemptuous,
contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record,
this court possesses jurisdiction, under the Supreme Court Rules itself, to
H withdraw his privilege to practice as an Advocate-an-Record because that
i

S.C.B.A. v. U.O.l. [DR. ANAND, J.] 843
privilege is conferred by this Court and the power to grant the privilege A
includes the power to revoke or suspend it. The withdrawal of that privilege,
'(~ however, does not amount to suspending or revoking his licence to practice
as an advocate in other courts or Tribunals.

We are conscious of the fact that the conduct of the contemner in VC
Misra'.,, case was highly contumacious and even atrocious. It was
B
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 C
a suspending sentence of imprisonment for committing contempt of court but
while doing so this court vested itself with a jurisdiction where none exists.
The position would, have been different had a reference been made to the Bar
Council and the Bar Council did not take any action against the concerned
advocate. In that event, as already observed, this court in exercise of its D
appellate jurisdiction under Section 38 of the Act read with Article 142 of the
Constitution oflndia, might have exercised suo moto powers and sent for the
proceedings from the Bar Council and passed appropriate orders for punishing
the contemner advocate for professional misconduct after putting him on
notice as required by the proviso to Section 38 which reads thus:-
E
"Provided that no order of the disciplinary committee of the Bar
Council of India shall be varied by the Supreme Court so as to
prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard."

but it could not have done so in the first instance. F
In V C. Mishra s case, the Bench, relied upon its inherent powers under Article
142, to punish him by suspending his licence, without the Bar Council hDving
been given any opportunity to deal with his case under the Act. We cannot
persuade ourselves to agree with that approach. It must be remembered that
wider the amplitude of its power under Article 142, the greater is the need of G
care for this Court to see that the power is used with restraint without
pushing back the limits of the constitution so as to function within the
bounds of its own jurisdiction. To the extent, this Court makes the statuto.ry
authorities and other organs of the State perform their duties in accordance
with law, its role is unexceptionable but it is not permissible for the Court to H
844 SUPREME COURT REPORTS (1998] 2 S.C.R

A .;take over" the role of the statutory bodies or other organs of the State and.
;·perform" their functions.
-,.-
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.
B
V.S.S. Petition allowed.

...