3.

SUMMER INTERNSHIP PROGRAM, 2022

A CASE ANALYSIS ON
“Supreme Court Bar Association of India v. Union of India (1998) 4
SCC 409”

SUBMITTED TO:
MR. ADITYA TOMAR

ASSISTANT PROFESSOR (ILS)

SUBMITTED BY:

SUSHALI SHRUTI
ROLL NO.-

18FLICDDN01144
BATCH (2018-2023)

DATE OF SUBMISSION: 28TH JULY, 2022

ICFAI LAW SCHOOL,

ICFAI UNIVERSITY, DEHRADUN
 DECLARATION

I, Sushali Shruti, student of ICFAI Law School, Dehradun, hereby declare that the project
work entitled “Supreme Court Bar Association of India v. Union of India (1998) 4 SCC
409” submitted to the ICFAI Law School, ICFAI University, Dehradun is a record of
an original work done by me under the guidance of Mr. Aditya Tomar, SIP Invigilator, ICFAI
Law School, ICFAI University, Dehradun.

Date:28th July, 2022 Name: Sushali Shruti

Roll No. 18FLICDDN01144

Batch: 2018-202

i
 ACKNOWLEDGEMENTS

I would specially like to thank my SIP Invigilator, Mr. Aditya Tomar, without whose
constant support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
ICFAI Law School, ICFAI University, Dehradun.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name: Sushali Shruti

Roll no: 18FLICDDN01144

Batch: 2018-2023

ii
 LIST OF ABBREVIATIONS

AIR All India Reporter

Cri. LJ Criminal Law Journal

HINDU L.R. Hindu Law Reporter

SCC Supreme Court Cases

iii
 TABLE OF CASES

1. In Re: Vinay Chandra Mishra (1995) 2 SCC 584 2

2. Supreme Court Bar Association of India v. Union 2
of India (1998) 4 SCC 409
3. In Re: Tulsidas Amamal Karani AIR 1941 Bom
6
228
4. Smt. Pushpaben v. Narandas V. Badiani, AIR 1979
5
SC 1536: 1979 Cr LJ 960

iv
 CONTENTS

TOPIC PAGE NO.

 DECLARATION i

 CERTIFICATE ii

 ACKNOWLEDGMENT iii

 LIST OF ABBREVIATIONS iv

 TABLE OF CASES v

CHAPTER-I: FACTS OF THE CASE

2-3

CHAPTER-II: ISSUES
4

CHAPTER-III: JUDGEMENT
5-7
CHAPTER-IV: HELD
8

MAJOR FINDINGS
9

CONCLUSION
10

SUGGESTIONS
11

BIBLIOGRAPHY
12

1
FACTS OF THE CASE:

In an earlier case1 the Supreme Court found Vinay Chandra Mishra, 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. The Supreme Court invoked its power under article
129 read with article 142 of the Constitution and awarded the contemner a suspended
sentence of imprisonment together with suspension of his practice as an advocate. The Court
sentenced the contemner Vinay Chandra Mishra for his conviction for the offence of the
criminal contempt as under:

(a) The contemner Vinay Chandra Mishra is hereby sentenced to 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

(b) The contemner shall stand suspended from practicing 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 this direction suspending the contemner from practicing as an Advocate for a
period of three years, the Supreme Court Bar Association, through its Honorary Secretary,
has filed a writ petition under article 32 of the Constitution of India2, seeking:

(i) 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 of court or otherwise; and

1
In Re: Vinay Chandra Mishra (1995) 2 SCC 584
2
Supreme Court Bar Association of India v. Union of India (1998) 4 SCC 409

2
(ii) declaration that the Supreme Court of India or any High Court in exercise of its
inherent jurisdiction has no original jurisdiction, power or authority in that regard.

3
ISSUES OF THE CASE:

Whether the punishment for established contempt of court committed by an Advocate can
include punishment to debar the concerned advocate from practice by suspending his licence
(Sanad) for a specified period by the Supreme Court in exercise of its powers under article
129 read with article 142 of the Constitution of India1?

JUDGEMENT OF THE CASE:

1
Supra.

4
Section 12(1) of the Contempts of Courts Act1, 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. A careful reading of sub-section (2) of section
12(2) reveals that the Act places an embargo on the court not to impose a sentence in excess
of the sentence prescribed under sub-section (1). 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.

In Smt. Pushpaben v. Narandas V. Badiani 2, it was held that a close and careful interpretation
of the section 12(3) leaves no room for doubt that the Legislature intended that a sentence of
fine alone should be imposed in normal circumstances. The statute, however, confers special
power on the Court to pass a sentence of imprisonment if it thinks that ends of 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 is called
for in a particular situation. Thus, the sentence of imprisonment is an exception while
sentence of fine is the rule.

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 recognized 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 recognized 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
the Court is regarding commission of contempt of 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

1
1971
2
AIR 1979 SC 1536: 1979 Cr LJ 960

5
‘professional misconduct’ is recorded in the manner prescribed under the Advocates Act and
the Rules framed thereunder.

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-by to the
procedure prescribed under the Advocates Act. The power to do complete justice under
article 142 is 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 Act1, by suspending his licence to practice in a summary manner, while dealing
with a case of contempt of court.

The powers conferred on the Court by article 142 being curative in nature cannot be
construed as powers which authorize 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. 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 purpose of the
article viz., to do complete justice between the parties. It cannot be otherwise. In a case of
contempt of court, the contemner and the court cannot be said to be litigating parties.

A complaint of professional misconduct is 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 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. It

1
1961

6
is therefore, not permissible for the Supreme Court to punish an advocate for “professional
misconduct” in exercise of the appellate jurisdiction by converting itself as 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 the Supreme Court does not take any action against the said advocate, the Supreme
Court may well have the jurisdiction in exercise of its appellate powers under section 38 of
the Advocates Act1, read with article 142 of the Constitution to proceed Suo motu and send
for the records from the Bar Council and pass appropriate orders against the concerned
advocate. In an appropriate case, the Supreme Court may consider the exercise of appellate
jurisdiction even Suo motu 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
cause and pass appropriate orders.

HELD:

1
Ibid.

7
The Supreme 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 Advocate1.

MAJOR FINDINGS OF THE PROJECT

8
It was concluded that this court cannot in exercise of its jurisdiction under Article 142 read
with Article 129 of the Constitution, punish a contemner for committing contempt of court
and 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 Vinay Chandra Mishra case1, was overruled.

It’s the power of the Bar Council of the State or Bar Council of India to punish that Advocate
who is found guilty of contempt of court and of professional misconduct by either debarring
him from practice or suspending his licence, as may be warranted, in the facts and
circumstances of each case.

1
Ibid.

9
 CONCLUSION

The Supreme Court is vested with the right to punish those guilty of contempt of Court under
Article 129 read with Article 142 of the Constitution of India. The power to punish
contemners is also vested with the High Courts under Article 215 of the Constitution and the
Contempt of Courts Act, 1971 also governs the punishments given by the High Court. This
act in no way controls the jurisdiction of the Apex Court. The Court in In Re: Vinay Mishra
misconstrued Article 129 read with 142 and robbed the Bar to of all powers to try and punish
those for professional misconduct. It even assumed jurisdiction when Section 38 of the
Advocates Act, 1961 explicitly provides only appellate jurisdiction to the Apex Court. The
Court punished Shri Mishra by suspending him thus the petition arose in the 1998 case,
Supreme Court Bar Association v. Union of India.

The Court overruled the Mishra case and recognized the Bar Council's power to try and
punish all those guilty of professional misconduct. It is well settled that contempt proceedings
are brought about to protect the majesty of law and uphold the judiciary's position, the central
pillar in Indian democracy, among the public and give them reason to keep their faith in the
administration of justice. Contempt proceedings are not brought about to restore the pride of
the Judge in who's Court or against whose order there

+was contempt.

In the Mishra case the Court instead of protecting the image of the Judiciary, the upholder of
the law, knowingly or un-knowingly, tried to restore the pride of the Judge by suspending the
advocate Mishra who might have been influenced by his high position in the Bar, and felt that
appropriate punishment might not be meted out to him.

In the Supreme Court Bar Association case the court took a very objective view and taking
the help of law and construing it in the right way came to the conclusion that the power to
punish for any professional misconduct rests with the Bar, whereas to punish for contempt
only it has jurisdiction for itself and subordinate courts. No statute can take contempt
jurisdiction away from the Supreme as well as the High Court.

10
 SUGGESTIONS

The legal profession is a solemn and serious occupation. It is a noble calling and all those
who belong to are its honourable members. Although the entry to the profession can be had
acquiring merely the qualification of technical competence, the honour as a professional has
to be maintained by its members, by their exemplary conduct both in and outside the court.

The object and need of the contempt jurisdiction or contempt of Court the Court has held that
the object of the contempt power is not to vindicate the dignity and honour of the individual
Judge who is personally attacked or scandalized, but to uphold the majesty of law and
administration of justice. The foundation of the Judiciary is the trust and confidence of the
people in its ability to deliver fearless and impartial justice.

The judiciary is the guardian of the rule of law. Hence judiciary is not the third pillar but the
central pillar of the democratic state.

Misconduct: it is a sufficiently wide expression: it is not necessary that it should involve

moral turpitude. Any conduct which in any way renders a man unfit for the exercise of his
profession or is likely to hamper or embarrass the administration of justice maybe considered
to be misconduct calling for disciplinary action. It cannot be said that an advocate can never
be punished for professional misconduct committed by him in his personal capacity.

11
 BIBLIOGRAPHY

 Books:
 Professional Ethics: Need for the 21st Century by Subramaniam

 Articles:
 ‘Contempt of Court: An Overview’ by Priya Jagdeesh (2013)
 John Charles Fox “The Nature of Contempt of Court” 37 L.Q.R., 191, 194 (1921).
 Soli J. Sorabjee, “Truth and Law of Contempt” 1985, Supreme Court Weekly
Reporter II (Jnl.) 17

 Websites:

 LAWSUIT
 MANUPATRA
 SSRN.COM
 LEGALSERVICES.COM
 INDIAN KANOON

*********

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