Supreme Court Bar Association vs. Union of India and Another AIR 1998 SC 1895=1998(4) SCC 409

  (Whether in contempt proceedings the Advocate contemner can be awarded the punishment of removing his name from the Registry of the Bar Council?)

 

                     Writ Petition (Civil) No.200 of 1995 dated: 17.4.1998

 

Context:

 

The Supreme Court Bar Association raised a substantial question of law. That question is “Whether the Supreme Court of India can while dealing with contempt proceedings exercise power under Article 129 of the Constitution or under Article 129 read with Article 142 of the Constitution or under Article 142 of the Constitution can debar a practising Advocate from carrying on his profession as a lawyer for any period whatsoever ?”

 

Article 129 reads as follows:

 

“Supreme Court to be a Court of Record:-  The Supreme Court shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself.

 

Article 142 reads as follows:

 

Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.:——(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

 

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. 

 

The contention raised was that when there is a special procedure provided for disciplinary action against an Advocate for professional misconduct, it is not open to the Supreme Court to award punishment of removing the Advocate from the rolls of Bar Council for the offence of contempt of Court which cannot be called a professional misconduct and if it is so construed, the proper authority is the Bar Council. 

 

The Court while upholding this contention held:

 

“The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power, exists as a separate and independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, 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 of obstruction of the stream of justice”. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannon 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 expression statutory provisions with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner Advocate, while dealing with a contempt of Court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an Advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes 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 the litigating parties.”

 

And the Court further held:

 

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

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

 

When this Court is seized of a matter of contempt of Court by an Advocate, there is no “case, cause or matter” before the Supreme Court regarding his “professional misconduct” even though, in a given case, the contempt committed by an Advocate may also amount to an abuse of the privilege granted to an Advocate by virtue of the licence to practice law but no issue relating to his suspension from practice is the subject-matter of the case. The powers of this Court, under Article 129 read with Article 142 of the Constitution, being supplementary powers have “to be used in exercise of its jurisdiction” in the case under consideration by this Court. Moreover, a case of contempt of Court is not “stricto sensu” a cause or a matter between the parties inter Se. It is a matter between the Court and the contemner. It is not, strictly speaking, tried as an adversarial litigation. The party, which brings the contumacious conduct of the contemner to the notice of the Court, whether a private person or the subordinate Court, is only an informant and does not have the status of a litigant in the contempt of Court case.”

 

Comment:

 

Advocates and other professionals such as Doctors, Company Secretaries and Cost Accountants are governed in respect of their professional conduct by their respective enactments which govern their profession. The question whether a particular person has committed any breach of professional conduct which makes him liable to punished by removal of his name from the Registers to practice the profession, has to be determined by a body concerned with the profession. Any other authority exercising jurisdiction in this regard is naturally incompetent. No Court can be authorised to take such disciplinary action in matters which are not concerned with the professional conduct. If a person is accused of domestic violence against his wife is found to be guilty, he cannot be found to have committed any professional misconduct. This judgment accordingly holds that in a case which does not involve professional misconduct of an Advocate, no other authority other than Bar Council can take any action relating to his rights to carry on the profession. No Court can even suspend the licence to practice however brief the suspension may be.

 

UNDERSTAND YOUR CASE IN SHORT:- The Supreme Court Bar Association raised a substantial question of law. That question is “Whether the Supreme Court of India can while dealing with contempt proceedings exercise power under Article 129 of the Constitution or under Article 129 read with Article 142 of the Constitution or under Article 142 of the Constitution can debar a practising Advocate from carrying on his profession as a lawyer for any period whatsoever ?”

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