S. Basavaraj, Senior Advocate & Member KSBC, Bengaluru
1. The Hon’ble Supreme Court in Vinay Chandra Mishra, Re (1995) 2 SCC 584 was dealing with the contempt of court committed by Mr. Vinay Chandra Mishra, Advocate. The Supreme Court found Mr. Vinay Chandra Mishra 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’.
2. While awarding punishment, the Supreme Court invoked the power under Article 129 read with Article 142 of the Constitution to award the contemner a suspended sentence of imprisonment together with suspension of his practice of as an advocate. The Supreme Court, inter-alia, suspended the license to practice of Vinay Chandra Mishra for a period of 3 years from the date of the judgment with the consequence with all elective and nominated offices/post held by him in his capacity as an advocate shall stand vacated by him forthwith.
3. Aggrieved by the direction that the “contemner shall stand suspended from practicing as an advocate for a period of 3 years” issued by the Supreme Court, the Supreme Court Bar Association filed a petition before the Supreme Court under Article 32 of the Constitution for a declaration that the Bar Councils set up under the Advocates Act 1961, alone have exclusive jurisdiction to inquire into and suspend or debar an advocate from practicing law for professional or other misconduct, arising out of punishment imposed for contempt of court, or otherwise and for a further 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.
4. The petition Supreme Court Bar Association Vs. Union of India came up before the Division Bench of the Supreme Court on 21:03:1995 which framed the question as to 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, debar a practicing lawyer from carrying on his profession as a lawyer for any period whatsoever.
5. Subsequently the Writ Petition was placed before the Constitution Bench of the Supreme Court consisting Justices S.C. Agarwal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha and S. Rajendra Babu. The Constitution Bench considered the only question as to whether the punishment for established contempt of court committed by an advocate can include punishment to debar the advocate concerned from practice by suspend his license (sanad) for a specified period in exercise of its powers under Article 129 read with Article 142 of the Constitution of India.
6. Several legal luminaries argued the matter before the Supreme Court questioning the correctness of the earlier judgment of the Supreme Court in Vinay Chandra Mishra Re. The Supreme Court delivered its judgement in on 17 April 1998. The Supreme Court elaborately considered various legislation, provisions of the Advocates Act 1961 and the powers of the Supreme Court under the Constitution of India.
7. In paragraph 43, the Supreme Court observed that the power to punish for contempt of court, though wide, is yet limited and cannot be expanded to include the power to determine whether the advocate is also guilty of “professional misconduct” in a summary manner giving a go by to the procedure prescribed under the Advocate’s Act. The Supreme Court observed that the power of the Supreme Court cannot be used to deprive a professional lawyer of the due process contained in the Advocate’s Act, 1961 by suspending his license to practice in a summary manner while dealing with a case of contempt of court.
8. In paragraph 60, the Supreme Court observed that the Advocates Act, 1961, besides laying down an essential function of the Bar Council of India provides for the enrolment of the Advocates and set up of disciplinary authorities to chastise and, if necessary, punish members of the profession for professional misconduct. The Supreme Court elaborately considered the provisions of the Act and also the Rules framed under the Advocate’s Act, 1961.
9. The Supreme Court specifically referred to the seven Judge Bench Judgement of the Supreme Court in the Bar Council of Maharashtra Vs. M.V. Dabholkar. In paragraph 71, the Supreme Court categorically declares that after coming into force of the Advocate’s Act, 1961 with effect from 19:05:1961 matters connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the Provisions of the Advocates Act, 1961 only. Since the jurisdiction of grant license of law a graduate to practice as an advocate vests exclusively in the Bar Council of the State concerned, the jurisdiction to suspend his license for a specified term or to revoke it also vests in the same body.
10. Ultimately, the Constitutional Bench concluded that the Supreme Court cannot while punishing the contemner for committee Contempt of Court also impose the punishment of suspending his license to practice.
11. It may be noted that even if an advocate is found guilty under the Contempt of Courts Act, the power to suspend his license is again vested only with the Bar Council under Section 24 A of the Advocates Act, this section is interpreted by the Hon’ble Supreme Court bringing the conviction under the Contempt of Courts Act as conviction of an offence involving moral turpitude referred to in Section 24A (1) (a) of the Advocate’s Act, 1961. Therefore, even when an advocate is convicted under the Contempt of Courts Act, the power to take action is vested only with the Bar Council under the Advocate’s Act, 1961. Though the subsequent judgements of the Supreme Court in Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650, Harish Uppal v. Union of India, (2003) 2 SCC 45, Mahipal Singh Rana v. State of U.P., (2016) 8 SCC 335, Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160 say that when an advocate is convicted under the Contempt of Court, he cannot appear before the same Court till the contempt to purged, these judgements have no application in the present scenario which deal with suspension of license to practice.
Having regard to the legal position aforesaid, Rule 13 of the “Rules laying down the conditions subject to which an Advocate shall be permitted to practice in the High Court and the Courts
subordinate thereto (Amendment) Rules, 2024” framed by the Karnataka High Court empowering the Chief Justice to suspend the license (Sanad) of an Advocate to practice is contrary to the provisions of the Advocate’s Act, 1961 as interpreted by the Constitution Bench of the Supreme Court in Civil Court Bar Association Vs. Union of India.
S.Basavaraj, Senior Advocate
Member, Karnataka State Bar Council.
raj@dakshalegal.com. +91 9845065416
Daksha Legal 