Supreme Court Bar Association v. Union of India
Supreme Court of India · 17 April 1998 · 5 judges
While punishing an advocate for contempt under Articles 129 and 142, the Supreme Court cannot also suspend his licence to practise, a power vested in the Bar Councils; In Re: Vinay Chandra Mishra was overruled to that extent.
Facts
In In Re: Vinay Chandra Mishra (1995), a three judge Bench found an advocate guilty of criminal contempt and, invoking Articles 129 and 142, sentenced him to six weeks' simple imprisonment suspended for four years and also suspended him from practising as an advocate for three years. The Supreme Court Bar Association filed a writ petition under Article 32 seeking a declaration that only the disciplinary committees of the Bar Councils under the Advocates Act, 1961 can suspend or debar an advocate for misconduct, including misconduct arising out of contempt. A Division Bench, issuing Rule, referred to a Constitution Bench the question whether the Supreme Court, in contempt proceedings, can debar a practising lawyer under Article 129, Article 142 or both.
Questions before the Court
- Can the Supreme Court, while punishing an advocate for contempt under Article 129 read with Article 142, also suspend his licence to practise?
- Can Article 142 be used to override express statutory provisions dealing with the subject, here the Advocates Act, 1961?
- Can the Court impose such a punishment in contempt proceedings by invoking its appellate jurisdiction under Section 38 of the Advocates Act?
What the Court held
- Suspending a professional's licence is not a recognised punishment for contempt under common law or statute. In contempt under Article 129 the only matter before the Court is the contempt; no case of professional misconduct is pending, so the Court cannot take over the Bar Council's disciplinary jurisdiction.
- Article 142 is curative and supplementary. It cannot be used to supplant substantive law or ignore express statutory provisions dealing with a subject so as to achieve indirectly what cannot be achieved directly.
- The power to suspend or remove an advocate for professional misconduct vests exclusively in the Bar Councils under the Advocates Act, 1961; contempt jurisdiction vests in the courts. The two are separate and distinct.
- Section 38 appellate powers cannot be used to impose such a punishment in a contempt case. If a Bar Council, on reference by the court, fails to act, the Supreme Court may call for its record under Section 38 read with Article 142.
- In Re: Vinay Chandra Mishra is not good law to that extent and is overruled. In a given case this Court or a High Court may prevent a contemner advocate from appearing before it until he purges the contempt, and this Court may withdraw an Advocate-on-Record's privilege under its Rules.
Why it matters
The Constitution Bench overruled In Re: Vinay Chandra Mishra on the power to suspend an advocate's licence in contempt proceedings. It sets limits on Article 142: the power is wide but cannot be used to ignore express statutory provisions on the subject or to take over the functions of statutory bodies. It reaffirms Prem Chand Garg on this point and separates contempt jurisdiction from disciplinary jurisdiction under the Advocates Act.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Thus, to conclude we are of the opinion that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner for committing contempt of court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent, the law laid down in Re: Vinay Chandra Mishra, (1995) 2 S.C.C. 584 is not good law and we overrule it.”
“It, however, needs to be remembered that the powers conferred on the court by Article 142 being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant while dealing with a cause pending before it. this power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly.”
“The power to punish an Advocate, by suspending his licence or by removal of his name from the roll of the State bar Council, for proven professional misconduct, vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts.”
Provisions interpreted
Related judgments
- Follows Prem Chand Garg v. Excise Commissioner, U.P. (1962)“We are, therefore, unable to persuade ourselves to agree with the observations of the Bench in V.C. Mishra's case that the low laid down by the majority in Prem Chand Garg's case is "no longer a good law".” (page 25)
- Explains Union Carbide Corporation v. Union of India (1991)“This Court did not lay so in Union Carbide's case either expressly or by implication and on the contrary it has been held that the apex court will take note of the express provisions of any substantive statutory law and regulate the exercise of its power and discretion accordingly.” (page 25)
- Followed in Ex-Capt. Harish Uppal v. Union of India (2002)
- Followed in Shilpa Sailesh v. Varun Sreenivasan (2023)
Case and bench
- Parties
- Supreme Court Bar Association v. Union of India
- Case
- Writ petition under Article 32 (number not printed in the file)
- Decided
- 17 April 1998
- Bench
- S.C. Agrawal, G.N. Ray, A.S. Anand, S.P. Bharucha, S. Rajendra Babu
- Opinions
- Unanimous. Judgment of the Constitution Bench delivered by Dr. A.S. Anand, J.
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