What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142

The decision

Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, (1998) 4 SCC 409, decided 17 April 1998 by a Constitution Bench of five judges, S.C. Agrawal, G.N. Ray, A.S. Anand, S.P. Bharucha and S. Rajendra Babu JJ, the judgment being delivered by Dr A.S. Anand J.

The only question, as the Court itself put it, was "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, in exercise of its powers under Article 129 read with Article 142."

Held: answered in the negative. The writ petition succeeded.

The reasoning, which is what a good answer reproduces:

The disciplinary jurisdiction is statutory and belongs to the Bar Councils. The Advocates Act confers on the disciplinary committees of the Bar Councils the power to inquire into misconduct and to suspend or remove an advocate. The Court did not create that jurisdiction and cannot assume it.

Article 142 is a power to do complete justice, not a power to supplant a statute. In the Court's words: "It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the constitution so as to function within the bounds of its own jurisdiction."

The line between compelling a statutory authority and replacing it. "To the extent, this Court makes the statutory authorities and other organs of the State perform their duties in accordance with law, its role is unexceptionable but it is not permissible for the Court to 'take over' the role of the statutory bodies or other organs of the State and 'perform' their functions."

That sentence is the ratio in one line, and it is worth memorising exactly.

On Vinay Chandra Mishra. The Court said that in that case the Bench had relied on its inherent powers under Article 142 to punish the contemner by suspending his licence without the Bar Council having been given any opportunity to deal with his case under the Act, and "We cannot persuade ourselves to agree with that approach."

What survives of Vinay Chandra Mishra

Students get this wrong in both directions, so be precise.

The conviction for criminal contempt stands. Nothing in the 1998 decision touches the finding that the advocate's conduct was contempt, or the power to punish contempt.

The direction suspending his practice does not. That part was held to be beyond the Court's power in a contempt proceeding.

So the case may be cited for what amounts to contempt in the face of the court, and for the sentence of imprisonment; it may never be cited for the proposition that the Supreme Court can suspend an advocate's licence while punishing contempt.

What the Court can still do

An answer that stops at the prohibition is incomplete. Three things remain open, and knowing them is what distinguishes a good answer.

It can punish the contempt. Imprisonment and fine under section 12 of the Contempt of Courts Act 1971, and the constitutional power under Articles 129 and 215, are untouched.

It can refer the matter to the Bar Council. Making a statutory authority perform its duty according to law is, in the Court's own words, "unexceptionable". So the proper course after a contempt conviction is a reference to the Bar Council concerned, which then proceeds under section 35.

It can suspend or remove on a section 38 appeal. Where a disciplinary case comes to it in appeal under the Advocates Act, the Court exercises the statutory appellate power and may vary the punishment, including to removal. That is what it did in Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548.

And a court can control its own audience. In Pravin C. Shah v. K.A. Mohd. Ali, AIR 2001 SC 3041, the Supreme Court upheld a High Court rule refusing audience to an advocate convicted of contempt until he purged it, holding that the right to practise and the right of audience are not the same thing, that a court has power to regulate who appears before it, and that purging is by conduct showing genuine remorse and not by the mere expiry of a sentence.

So the boundary is not between "the Court can do nothing" and "the Court can do anything". It is between exercising its own powers and exercising somebody else's.

The two jurisdictions, side by side

One act can attract both. An outburst in court can be criminal contempt under section 2(c) and professional misconduct under section 35, tried separately by different bodies under different Acts, and neither proceeding bars the other. Mahipal Singh Rana v. State of Uttar Pradesh, AIR 2016 SC 3302, is the modern case in which the Supreme Court considered how the two sit together after a contempt conviction, dealing with the consequences for the advocate's practice within the framework of the Advocates Act rather than by assuming the power the 1998 Bench had denied.

A worked example

An advocate abuses a High Court judge in open court and refuses to withdraw the remarks.

What the High Court may do. Proceed for criminal contempt under section 2(c) of the Contempt of Courts Act 1971, being contempt in the face of the court under section 14, and punish under section 12: simple imprisonment up to six months, a fine up to two thousand rupees, or both, subject to the apology proviso.

What it may not do. Suspend his licence to practise as part of that punishment. Supreme Court Bar Association v. Union of India answers that in the negative, and the reasoning applies to a High Court under Article 215 as it does to the Supreme Court under Article 129.

What it should do instead. Refer the matter to the State Bar Council, which may act under section 35(1) on a complaint or otherwise, having reason to believe that an advocate on its roll has been guilty of professional or other misconduct. Making a statutory authority perform its duty is what the Court called unexceptionable.

What the Bar Council may then do. Refer to its disciplinary committee, which may reprimand, suspend or remove under section 35(3), with appeals under sections 37 and 38.

And meanwhile? The court may, under a rule made under section 34(1), decline to hear him until he purges the contempt, on Pravin C. Shah, because the right of audience is not the right to practise.

Change one fact. Suppose the matter reaches the Supreme Court not as a contempt but as an appeal under section 38 from the Bar Council of India's disciplinary committee. The Court may then remove his name from the roll, because it is exercising the appellate power the Advocates Act itself gives it. Same Court, same advocate, different source of power, different answer.

What beginners get wrong

Vinay Chandra Mishra is not wholly overruled. The contempt conviction stands; the suspension of practice does not.

The 1998 case did not weaken the contempt power. It located the disciplinary power.

Article 142 was not cut down generally. It was held not to extend to taking over a statutory body's function.

The Court can still end a practice, on a section 38 appeal.

A court can still refuse audience, on Pravin C. Shah, because that is not the same as suspending the right to practise.

The two proceedings are not alternatives. One act can be both contempt and misconduct.

Quick revision

• In Re: Vinay Chandra Mishra, (1995) 2 SCC 584: an advocate convicted of criminal contempt for trying to threaten, overawe and overbear the court; sentenced to six weeks' simple imprisonment suspended for four years and suspended from practice for three years under Articles 129 and 142, with no opportunity to the Bar Council.
• Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, 17 April 1998, Constitution Bench, Dr A.S. Anand J: the question whether the Court, in contempt proceedings, can debar a practising lawyer under Article 129 read with Article 142 was answered in the negative.
• Ratio: the disciplinary jurisdiction is conferred by the Advocates Act on the Bar Councils; the wider the amplitude of Article 142, the greater the need for restraint; and while making statutory authorities perform their duties is unexceptionable, it is not permissible for the Court to "take over" the role of statutory bodies and "perform" their functions.
• What survives: the contempt conviction and the power to punish contempt. What does not: suspension of practice as a contempt punishment.
• Still open to the Court: punish contempt under section 12; refer to the Bar Council; suspend or remove on a section 38 appeal (Harish Chandra Tiwari); and refuse audience under a section 34(1) rule until the contempt is purged (Pravin C. Shah).
• Mahipal Singh Rana, AIR 2016 SC 3302, is the modern treatment of how the two jurisdictions sit together.

Test yourself

1. What exactly was decided in Supreme Court Bar Association v. Union of India? That the punishment for an established contempt of court committed by an advocate cannot include debarring him from practice by suspending his licence for a specified period in exercise of the powers under Article 129 read with Article 142. The question was answered in the negative and the writ petition succeeded.

2. State the ratio in the Court's own terms. That to the extent the Court makes statutory authorities and other organs of the State perform their duties in accordance with law its role is unexceptionable, but it is not permissible for the Court to take over the role of the statutory bodies or other organs of the State and perform their functions.

3. Is In Re: Vinay Chandra Mishra still good law? In part. The conviction for criminal contempt stands and the case may be cited for what amounts to contempt in the face of the court. The direction suspending the advocate's practice for three years does not survive, the Constitution Bench having declined to agree with that approach because the Bar Council had been given no opportunity to deal with his case under the Act.

4. After convicting an advocate of contempt, what is the proper course if the court thinks his practice should be affected? To refer the matter to the Bar Council concerned, which may act under section 35(1) on a complaint or otherwise where it has reason to believe that an advocate on its roll has been guilty of professional or other misconduct, and whose disciplinary committee may reprimand, suspend or remove him.

5. Can the Supreme Court ever strike an advocate off the roll? Yes, on an appeal under section 38 of the Advocates Act, where it exercises the statutory appellate power and may vary the punishment. It did so in Harish Chandra Tiwari v. Baiju, enhancing a three-year suspension to removal.

6. Can a court refuse to hear an advocate convicted of contempt? Yes. In Pravin C. Shah v. K.A. Mohd. Ali the Supreme Court upheld a High Court rule refusing audience to such an advocate until he purged the contempt, holding that the right to practise and the right of audience are not the same thing and that a court may regulate who appears before it.