NAME RAVIKANT

ROLL NO 15/ILB/038
SEMESTER 10TH
SUBJECT PROFESSIONAL ETHICS

TOPIC
CASE COMMENTS ON IN RE VINAY CHANDRA MISHRA
1995

SUBMITTED TO MR ANUJ SINGH SIR

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 ACKNOWDGEMENT

This to acknowledge that this project can

only be possible under the guidance of
our very delicated and supportive faculty
MR. ANUJ SINGH SIR.

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CONTENTS

INTRO PAGE NO 4

FACTS PAGE NO 5-6

CONCLUSION PAGE NO 7

REFERENCES PAGE NO 8

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In Re: Vinay Chandra Mishra
INTRO
In this case an advocate was found guilty of criminal contempt of Court and he was sentenced
to undergo simple imprisonment for a period of six years and suspended from practising as
an advocate for a period of three years. The punishment of imprisonment was suspended for a
period of four years and was to be activated in case of his conviction for any other offence of
contempt of Court within the said period.

The Court held that the license of an advocate to practice legal profession may be suspended or
cancelled by the Supreme Court or High Court in the exercise of the contempt jurisdiction.

It was laid down that the Supreme Court can take cognizance of the contempt of High
Court. Being the Court of record the Supreme Court has the power to punish for the
contempt of the courts subordinate to it. Thus, the Supreme Court is fully competent to take
cognizance of the contempt of the High Courts or courts subordinate to it. It was also claimed that
the Judge before whom the contempt has been committed should be excluded. This claim was not
sustainable in the view of the Court. It observed further that its contempt jurisdiction under Article
129 of the Constitution cannot be restricted or taken away by a statute, be it the Advocates Act,
1961 or the Contempt of Courts Act, 1971. The Court has also observed that the contempt
jurisdiction of the superior Court's is not based on the statutory provisions but it is inherent
jurisdiction available to them on account of being a court of record. As regards the procedure to be
followed the Court has observed that the Courts of record can deal with summarily with all types of
contempt. With regards to Article 142 of the Constitution the Court observed that the jurisdiction
and powers of the Supreme Court which are supplementary in nature and are provided to do
complete justice in any manner, are independent of the jurisdiction and powers of the Supreme
Court under Article 129 which cannot be trammeled in any manner by any statutory provision
including any provisions of the Advocates Act, 1961 or the Contempt of Courts Act, 1971.

The Advocates Act, 1961 has nothing to do with the contempt jurisdiction of the Court, and the
Contempt of Courts Act, 1971 being a statute cannot denude the, restrict or limit the powers of this
Court to take action for contempt under Article 129.

The Supreme Court also held that it being appellate authority under Section 38 of the Advocates
Act, 1961 can impose punishment mentioned in Section 35 of the said Act. Thus, the Supreme Court
may suspend or cancel the license of an advocate to practice his profession for contempt of Court.
It finally said that the threat of immediate punishment is the most effective deterrent against the
misconduct. They emphasized that the time factor was crucial and dragging the contempt
proceedings means a lengthy interruption to the main proceedings which paralyzed the Court for a
long time.

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This case was overruled by Supreme Court Bar Association v. Union of India
and Another.

Facts
In Re: Vinay Chandra Mishra, this Court found the Contemner, 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".
Aggrieved by the direction that the contemner shall stand suspended from practising as an advocate
for a period of three years issued by the Supreme Court by invoking powers under Articles 129 and
142 of the Indian Constitution, the Supreme Court Bar Association, through its Honorary Secretary,
filed a petition under Article 32 of the Constitution of India seeking relief by way of issuing 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 further declare that the Supreme
Court of India or any High Court in exercise of its inherent jurisdiction has no such original
jurisdiction, power or authority in that regard notwithstanding the contrary view held by this
Hon'ble Court in In Re: Vinay Chandra Mishra.
Issue For Consideration
The petition was placed before a Constitutional Bench for passing the appropriate direction, order or
declaration. The bench identified a single question and had to decide upon was 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 practicing lawyer from carrying on his profession as a lawyer for
any period whatsoever.

The petitioner's assailed the correctness of the findings in In Re:

Vinay Mishra submitted that:
# although the powers conferred on this Court by Article 142, though very wide in their aptitude, can
be exercised only to "do complete justice in any case or cause pending before it "and since the issue
of 'professional misconduct' is not the subject matter of "any cause" pending before this court while
dealing with a case of contempt of court, it could not make any order either under Article 142 or 129
to suspend the license of an advocate contemner, for which punishment, statutory provisions
otherwise exist.

# the Supreme Court can neither create a "jurisdiction" nor create a "punishment" not otherwise
permitted by law and that since the power to punish an advocate (for "professional misconduct") by
suspending his license vests exclusively in a statutory body constituted under the Advocates Act, this
Court cannot assume that jurisdiction under Article 142 or 129 or even under Section 38 of the
Advocates Act, 1961.The bench came to the conclusion that the Supreme Court under Article 129
and the High Court under Article 215 of the Indian Constitution declaring them court of records
has the power to punish the for contempt of itself. The Court observed that Parliament is
competent to make law in relation to Contempt of Court. After analyzing Article 246 and entry 77 of
List I of the VIIth Schedule and entry 14 of List III of the said schedule it is evident that the legislature

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can make a law regarding the same, but cannot take away contempt jurisdiction from the Courts
which flows from the Courts being deemed as Courts of record which embodies the power to punish
for the contempt of itself.

With reference to Article 142 of the Constitution of India the Court observed that when this court
takes cognizance of a matter of contempt of Court by an advocate, there is no case, cause or matter
before it 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 license to practice law. No issue relating to his suspension from practice is the subject
matter of the case.

The Court opined that power to punish in matters of contempt of Court, though quite 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 Advocates Act, 1961.

The power to do complete justice, in a way is a corrective power which gives preference to equity
over law but it cannot be used to deprive a professional lawyer of the due process of law, contained
in the Advocates Act, 1961, while dealing with a case of contempt of Court.

From a reading of Article 142 it is clear the statutory provisions cannot be ignored or taken away or
assumed by the Supreme Court. The Advocates Act, 1961, empowers the Bar Council to take action
against the advocate for professional misconduct. The Bar Council is empowered under Section 35 of
the Advocates Act, 1961 to punish advocates for professional misconduct. The act contains a
detailed and complete mechanism for suspending or revoking the license of an advocate. A
disciplinary committee hears the case of the advocate concerned and then order any of the
punishments listed in Section 35(3) (a-d). If the advocate is guilty of contempt of Court as well as
professional misconduct the Court must punish him for the contempt, whereas refer the
professional misconduct to the Bar. The Bar will then initiate proceedings against, this provides the
advocate with right to be heard and appropriate action is taken by the disciplinary committee. After
such proceedings if the advocate is aggrieved he may approach the Supreme Court. Section 38 of the
Advocates Act, 1961 provides for an appeal to the Supreme Court. This Section confers upon the
Court appellate jurisdiction. If once the matter has been reported to the Bar and it does not take any
action, the Court may take up the matter. This Section can in no way be construed to give original
jurisdiction to the Court.

The Court opined that the Supreme Court makes the statutory bodies and other organs of the State
perform their duties in accordance with law, its role is unexceptionable but it is not permissible for
the Supreme Court to take over the role of the bodies and other organs of the State and perform
their functions.
There was an inherent fallacy in the case of Vinay Mishra, it was said once the matter is before the
court it can pass any order or direction. But the matter is that of contempt of Court not of
professional misconduct. The Court has jurisdiction on the matter of contempt but professional
misconduct vests with the Bar. As the Bar can suspend an advocate only after giving him an
opportunity to represent himself which is the requirement of due process of law, after the case of
Maneka Gandhi v. Union of India. The
Court in Vinay's case vested with itself
with the jurisdiction that it never had.

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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 their 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.

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References:
# In Re: Vinay Chandra Mishra (1995) 2 SCC 584
# In Re: Tulsidas Amamal Karani AIR 1941 Bom 228
# Supreme Court Bar Association of India v. Union of India (1998) 4
SCC 409
# Maneka Gandhi v. Union of India (1978) 1 SCC 248

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