1

RAYAT COLLEGE OF LAW (RCL)

SESSION: (2019-2020)

A Project file submitted to

RAYAT COLLEGE OF LAW
In Partial Fulfillment of the Requirement of
Course

B.A.LL.B (HONS.) for Semester 10th

SUBJECT: PROJECT OF PROFESSIONAL ETHICS

TOPIC: Constitutional Regulations of Contempt of Court

Under the supervision of: Submitted By:

Miss. Disha Jaskirat Singh

(ASST. PROFESSOR IN LAW) 10TH SEMESTER
ROLL NO.14169
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ACKNOWLEDGEMENT

The Project Topic Assigned as:- Constitutional Regulations of Contempt of Court

gave me a deep sense of understanding and interpretation of the concept. This project
helped me in conducting a lot of research about the said topic.
I would like to express my sincere gratitude to Miss Disha Mam ( Professor in law)
for Providing the opportunity to the said project.
Also I would like to express my gratitude to my parents and class fellows who
guided me in various phases of the completion of the project.

-Jaskirat Singh
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INDEX

SR.NO TOPICS PAGE NO.

1. INTRODUCTION 3

2. CONCEPT AND DEFINITION OF PROFESSIONAL ETHICS 5

3. CONTEMPT OF COURT AMD ITS KINDS 6-7

4. RELATIONSHIP B/W CONTEMPT OF COURT AND

CONTEMPT OF RECORD 8-9

5. ROLE OF ETHICS IN CONTEMPT OF COURT 10-11

6. SCOPE OF PUNISHMENT IN CONTEMPT OF COURT 12-16

7. SUPREME COURT BAR ASSOCIATION VS. UNION OF INDIA 16-17

8. CONCLUSION 18

9. BIBLIOGRAPHY 19
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INTRODUCTION

In India, the Legal profession originated during the British Rule. There is no evidence of the
existence of legal Profession before that ie. During the Hindu Rule and Mughal Dynasty period.
During that period, the administration of justice was in the hands of the King and the Kings court
was treated as the highest court of the country. There is no appeal against the order of the King.
Persons disobeyed the King’s order was charged with sedition. During that period
the King was respected as the representative of God who was sent by the God to render justice to
the people. In the King’s court the plaintiff has to represent his case personally and thereafter the
King will hear the other side. To assist and advice and the King in the administration of justice
there was a council of ministers and a group of educationalists.1

Anything that curtails or impairs the freedom of limits of the judicial proceedings must of necessity
result in hampering of the administration of Law and in interfering with the due course of justice.
This necessarily constitutes contempt of court. Oswald defines contempt to be constituted by any
conduct that tends to bring the authority and administration of Law into disrespect or disregard or
to interfere with or prejudice parties or their witnesses during litigation. Halsbury defines contempt
as consisting of words spoken or written which obstruct or tend to obstruct the administration of
justice. Black Odgers enunciates that it is contempt of court to publish words which tend to bring
the administration of Justice into contempt, to prejudice the fair trial of any cause or matter which
is the subject of Civil or Criminal proceeding or in anyway to obstruct the cause of Justice.

1
www.academia.edu
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CONCEPT & DEFINITION OF PROFESSIONAL ETHICS

Professional ethics are professionally accepted standards of personal and business behavior, values
and guiding principles. They are codes of professional ethics are often established by professional
organizations to help guide members in performing their job functions according to sound and
consistent ethical principles. Professional Ethics is defined as the personal and corporate rules that
govern behavior within the context of a particular profession. An example of professional ethics is
the American Bar Association's set of ethical rules that govern an attorney's moral obligations.3

Meaning

In case of India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of
court as civil contempt or criminal contempt, it is generally felt that the existing law relating to
contempt of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish
for contempt touches upon two important fundamental rights of the citizens, namely, the right to
personal liberty and the right to freedom of expression. It was, therefore, considered advisable to
have the entire law on the subject scrutinized by a special committee.

Law Point

For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which dealt
with such a concept. Article 129 and 215 of the Constitution of India empowers the Supreme Court
and High Court respectively to punish people for their respective contempt. Section 10 of The
Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its
subordinate courts. Power to punish for contempt of court under Articles 129 and 215 is not subject
to Article 19(1)(a).

2
https://en.wikipedia.org/wiki/Professional_ethics
3
http://www.yourdictionary.com/professional-ethics
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What Is Contempt Of Court?

Article 129 declares that the supreme court as a “Court of record” and that it shall have all the
powers of a court of record including the power to punish for its contempt of itself.

Further Article 142(2) empowers the Supreme Court to investigate and punish for any contempt
of itself i.e. contempt of Supreme court of itself.

Similarly, Article 215 declares High courts as a “Court of record” and that it shall have all the
powers of such a court including the powers to punish for contempt for itself.

Power to punish for contempt of both the High court and the Supreme Court has been given by the
Constitution as well as by Contempt of Courts Act, 1971.

Contempt of Courts Act, 1971 does not define what is contempt, it simply explains the types of
contempt: Civil contempt and Criminal contempt

Essentials

The elements generally needed to establish a contempt are:

1. the making of a valid court order,

2. knowledge of the order by respondent,

3. ability of the respondent to render compliance, and 4

wilful disobedience of the order.

Kinds Of Contempt Of Court

The Contempt of courts Act, 1971 (hereinafter “1971 Act”) regulates the contempt of court and
provides for 2 types of contempt.
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 Civil contempt [Section 2(b)]

According to section 2(b), civil contempt means wilful disobedience of any judgement or a decree
of a court or a wilful breach of any undertaking given to a court.

The definition of civil contempt is simple enough for a reasonable man with ordinary prudence to
conclude as to what action will constitute civil contempt. Determination of civil contempt in
objective and is not based on the subjective understanding of anyone. If there is a judicial order
and if such order has been wilfully disobeyed then that fact of disobedience will constitute civil
contempt.

 Criminal contempt [Section 2(c)]

Section 2(c) defined criminal contempt as the publication of any matter which either Scandalises
or lowers the authority of the court, or that such matter interferes or prejudices any judicial
proceeding, Interferes or obstructs the administration of justice in any manner. Further, an act or
publication will constitute contempt if it even tends to scandalize the authority of the court or it
tends to interfere with any judicial proceeding or administration of justice.

The expression “scandalizes the authority of court” depends to a great degree on the discretion of
the judge as no law in India has defined what constitutes scandalizing the court. Proceeding for
criminal contempt has been initiated against citizens even for criticizing the Judges of Supreme
court and high courts.
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RELATIONSHIP BETWEEN CONTEMPT OF COURT AND COURTS

BEING THE COURT OF RECORD
Both the High court and Supreme court are courts of record and as a court of record, they have
the power to punish for contempt of itself respectively as well as contempt of courts which are
subordinate to it.

Nigel Lowe and Brenda Suffrin in the Law of Contempt (3rd edition), have explained that the
jurisdiction and power of the court of record write that contempt jurisdiction of courts of record
forms part of their inherent jurisdiction, all courts of record have the power to punish for
contempt committed in their face, but the inherent power to punish for contempts outside the
courts reside only in superior courts of record.

In Re: Vinay Chandra Mishra v. The Unknown (1995), the Supreme court said that contempt
jurisdiction of the superior court is not based on law, but it is inherent in the court because it is a
court of record. Thus power to contempt resides in the Supreme Court and High courts because
they are deemed as a court of record by the constitution.1
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IMPORTANCE OF CONTEMPT OF COURT

Contempt in law means being disobedient to a court of law or towards it ruling. The recognition
of contempt of court and to punish for contempt is essential for a nation such as India which is
based on the concept of rule of law, which requires supremacy of law, since the judiciary is
considered, as the last bastion of hope and justice for the citizens of any nation.2

According to the Supreme court bar association v. Union of India (1995), The object of
punishment is both curative and corrective and these coercions are meant to assist an individual
complainant to enforce his remedy and there is also an element of public policy for punishing
civil contempt since the administration of justice would be undermined if the order of any court
of law is to be disregarded with impunity.

ROLE OF ETHICS IN THE CONTEMPT OF COURT AND ANALYSIS OF

CRIMINAL CONTEMPT OF THE COURTS

As stated earlier, the determination of what constitutes criminal contempt is very subjective and
overly-broad. Law is said to be overly-broad when its language is such that it restricts even
speech that is and should be constitutionally protected like free speech, legitimate criticism.
There are no specific rules or circumstances which could justify criminal contempt.

According to Fali S Nariman “Criminal contempt has fallen into disuse in most of the civilized
countries around the world, but not in India”. The legal profession is a noble profession and
advocates are considered as officers of the court and the nobility of the legal profession is
ensured by complying with the code of conduct laid down by the Advocate’s Act. Chapter 2 Part
V of the

1
https://www.google.com/amp/s/blog.ipleaders.in/contempt-court-professional-ethics/amp/
2
https://blog.ipleaders.in/contempt-court-professional-ethics /
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Bar Council of India rules provides the code of ethics which is to be followed by advocates. A
part of the rules deals with the Advocate’s duty towards the court. For the purpose of this article
rules which are important include: Advocate has to keep in mind the dignity of the judge.

It is the duty of the advocate to perform his function in such a manner that due to his acts the
honor and integrity of the court are not affected.

According to Chief Justice Marshall, the fundamental aim of Legal ethics is to maintain the
honor and dignity of the law profession. However, what acts constitute to mar the dignity of
courts and judges is not specified and this has been criticized by many imminent lawyers. A
fundamental question arises, whether criticizing the judge in his personal capacity amounts to an
act, which is against the ethics of the legal profession and scandalizes the authority of the court.3

SCOPE OF PUNISHMENT FOR CONTEMPT OF COURTS

The Supreme Court in Supreme Court bar association v. Union of India (1998) discussed
the power of courts to punish for contempt. It said that although parliament or state legislature
has the power to make law in contempt of court, such legislation cannot denude, abrogate or
nullify the power of the Supreme Court to punish under article 129 or vest that power in some
other court. This, it said because the Supreme Court is a court of record and being a court of
record it has an inherent power to punish and no law can take away this inherent jurisdiction
(power) of a court of record. In simple words, it means that the Supreme Court and the High
Court being courts of record, no law can take away the inherent jurisdiction.

It further differentiated between the power of the High court and that of the Supreme Court to
punish for contempt. It said that 1971 does not deal with the power of the Supreme Court to
punish for contempt of itself and only article 142(2) and 129 deals with it. This is because in the
definitions clause of the Contempt of Courts Act, 1971 there is no mention of the Supreme Court
and as the Supreme Court said that section 15 only deals with the procedure by which the
Supreme Court can take cognizance of an act of contempt. Thus it said that the nature of
punishment under Contempt of Courts Act, 1971 may act as a guide for the Supreme Court
but the extent (quantum) of

3
https://blog.ipleaders.in/contempt-court-professional-ethics /
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punishment under the act can apply only to the High courts. This is because according to the
court, the1971 act ipso facto does not deal with the contempt jurisdiction of the 4Supreme Court.

In Re: Vinay Chandra Mishra

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 practicing 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

4
https://blog.ipleaders.in/contempt-court-professional-ethics /
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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.5

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

SUPREME COURT BAR ASSOCIATION V. UNION OF INDIA AND

ANOTHER.

FACTS

In Re: Vinay Chandra Mishra, this Court found the Contemnor, 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

5
http://www.legalserviceindia.com
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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.6

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 contemnor, for which punishment,
statutory provisions otherwise exist.

6
http://www.legalserviceindia.com
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# 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 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.7

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.8

7
http://www.legalserviceindia.com
8
http://www.legalserviceindia.com
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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.9

9
http://www.legalserviceindia.com
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JUDGMENT OF SUPREME COURT BAR ASSOCIATION V. UNION OF

INDIA (AIR 1998 SC 1895)

FACTS:

In this case 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 contemnor a simple sentence of imprisonment for a
period of six weeks together with suspension from practising as an advocate for a period of three
years.

Aggrieved by this direction of suspension the Supreme Court Bar Association, through its
Honorary Secretary, has filed a writ petition under article 32 of the Constitution of India.

JUDGEMENT:

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 case, 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
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practice or suspending his licence, as may be warranted, in the facts and circumstances of each
case.10

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.
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10
www.lawbharat.com
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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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BIBLIOGRAPHY

Websites

1. www.legalbites.in

2. www.soolegal.com

3. Blog.ipleaders.in

4. www.legalservicesindia.com

5. Casemine.com

Books

1. THE CONTEMPT OF COURTS ACT, 1971