Judicial Dictionary

Advocate-Suspension from practice

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 causeor 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 thereunder.

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.

The contempt of Court is a special jurisdiction to be exercised sparingly and with caution, whenever an act adversely affects the administration of 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 affects 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 combining “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 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.

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 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 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’s case (supra), while imposing the punishment of suspended simple imprisonment, the Bench, as already noticed, punished the contemner also by SUSPENDING his licence to practice as an advocate for a specified period. The Bench dealing with that aspect opined:

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 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:

“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 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 deserves rejection for the simple reason 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. 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 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. If that be so, there is no reason why this 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 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 with utmost respect, are to 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 of the disciplinary committee of the Bar Council to punishthe concerned Advocate for “professional misconduct” in addition to imposing the punishment of suspended sentence of imprisonment for committing contempt of Court.

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 SCC 584 is not good LAW and we overrule it.

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 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, 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 of India shall act in aid of the Supreme Court”. The Bar Council which performs a public duty 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, whenever, 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 its attention is drawn by this Court to the contumacious and unbecoming 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 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 of an Advocate while finding him guilty of committing contempt of Court and desires or refers the matter to the 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 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 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 Court. 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, to prevent the contemner Advocate to appear before it till he purges himself of the contempt but that is much different from SUSPENDING or revoking his licence 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 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 as an Advocate in other Courts or Tribunals.


Ref: AIR 1998 SC 1895 : (1998) 2 SCR 795 : (1998) 4 SCC 409 : JT 1998 (3) SC 184 : (1998) 2 SCALE 745

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