Gautam Buddha University

Assignment of Professional Ethics

Case Study- Vinay Chandra Mishra, In re (1995) 2 SCC 54

Submitted To,

Submitted By,

Acknowledgement
I would like to express my special thanks of gratitude to my teacher,
who gave me the golden opportunity by assigning me this case law as an assignment
and under her guidance I successfully completed this case study and was abled to
write it down and i also struck with many of the problems which helped me to learn
new experiences/ideas.

I am really thankful to you.

Secondly I would also like to thank my friends who supported and helped me a lot to
accomplish this assignment successfully.
 Contents
1. Introduction
2. Supreme Court Bar Association v. Union of India and Another .
 Facts

 Issue for Consideration

 Argument from Both Side

 The Court’s opinion

3. Conclusion
4. References
 INTRODUCTION
The legal profession is a solemn and serious occupation. It is a noble calling and all
those who belong to are its honorable members. Although the entry to the profession
can be had acquiring merely the qualification of technical competence, the honor as a
professional has to be maintained by its members, by their exemplary conduct both in
and outside the court.

The object and need of the contempt jurisdiction or contempt of Court the Court has
held that the object of the contempt power is not to vindicate the dignity and honor of
the individual Judge who is personally attacked or scandalized, but to uphold the
majesty of law and administration of justice. The foundation of the Judiciary is the
trust and confidence of the people in its ability to deliver fearless and impartial justice.

In Re: Vinay Chandra Mishra (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.

Arguments
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 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.

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.
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