The Author, Gaurav Thote is an Advocate practising in the Bombay High Court.
On October 12, the Madras High Court imposed Rs. 5 lakhs as costs on a lawyer for having filed a vexatious petition alleging that the Registrar (Vigilance) of the High Court was not educationally qualified to hold her post.
Apart from dismissing the plea, the bench of Chief Justice AP Sahi and Justice Senthilkumar Ramamoorthy also initiated Criminal Contempt Proceedings against the lawyer pursuant to the false allegations coupled with the conduct of the Petitioner Advocate B Sathishkumar.
The Court also issued a direction suspending/debarring the lawyer to practise law until further orders or until permitted by the bench. It was directed-
“36. For the above reasons, we find that it is necessary to protect the judiciary from such onslaught from Advocates like the Petitioner and therefore, we direct that the Petitioner Mr. B. Sathish Kumar shall not practice as a lawyer until further orders, or until permitted by this Court in the Criminal Contempt Proceedings that have been initiated by us.”
This Article contemplates a crucial question of law-
Do Courts (Supreme Court and High Courts) possess the power and jurisdiction to suspend or debar Advocates from practising law for professional or other misconduct arising out of contempt of court proceedings?
Just a few months ago, the Supreme Court took Suo Motu action against Mr. Prashan Bhushan for his tweets against the CJI and initiated Contempt of Court Proceedings against him. Subsequently, Mr. Bhushan was found guilty of Contempt and was sentenced to pay a fine of Re. 1/- and in default, to undergo 3 months of imprisonment and further be debarred from practising in the Supreme Court for a period of three years. The Bar Council is examining the issue on whether the Contemner should be debarred/suspended from practising law.
In Vinay Chandra Mishra’s case, the Supreme Court found the Contemner – 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", While awarding punishment, keeping in view the gravity of the contumacious conduct of the contemner, the Court said-
“The facts and circumstances of the Present Case justify our invoking the power under Article 129 read with Article 142 of the Constitution to award to the contemner a suspended sentence of imprisonment together with suspension of his practice as an advocate in the manner directed herein. We accordingly sentence the contemner for his conviction for the offence of the criminal contempt as under:
(a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six weeks. However, in the circumstances of the case, the sentence will remain suspended for a period of four years and may be activated in case the contemner is convicted for any other offence of contempt of court within the said period; and
(b) The contemner shall stand suspended from practising as an advocate for a period of three years from today with the consequence that all held by him in his capacity as an advocate, shall stand vacated by him forthwith.”
Aggrieved by the direction stated in (b) above, the Supreme Court Bar Association through its Honorary Secretary preferred a petition under Article 32 of the Constitution of India seeking to challenge the legality of the direction on the ground that only the Bar Councils set up under the Advocates Act, 1961 had the exclusive power and 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.
The division bench dealing with the matter issued a notice for interim stay of the direction and referred the matter to a constitution bench to expound the query. Pursuant to the reference, a five-judge-bench of the Supreme Court (comprising of Justices SC Agrawal, GN Ray, AS Anand, SP Bharucha & S Rajendra Babu) was constituted which delivered its verdict on April 17, 1998 holding-
“Keeping in view the elaborate procedure prescribed under the Advocates Act 1961 and the Rules framed thereunder it follows that a complaint of professional misconduct is required to be tried by the disciplinary committee of the Bar Council, like the trial of a criminal case by a court of law and an advocate may be punished on the basis of evidence led before the disciplinary committee of the Bar Council after being afforded an opportunity of hearing. The delinquent advocate may be suspended from the rolls of the advocates or imposed any other punishment as provided under the Act. The enquiry is a detailed and elaborate one and is not of a summary nature. It is therefore, not permissible for this court to punish an advocate for "professional misconduct" in exercise of the appellate jurisdiction by convening itself as the statutory body exercising "original jurisdiction".
Thus, to conclude we are of the opinion that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner for committing contempt of court, 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 Re: Vinay Chandra Mishra, (1995) 2 S.C.C. 584 is not good law and we overrule it.”
In this backdrop, the Constitution Bench held that the Court could not have invoked its powers under Article 142 to suspend the licence of an Advocate as the power to suspend or debar an Advocate from practising law for contempt of court lied exclusively with the Bar Councils. However, the bench also observed that in case the concerned Bar Council, on being apprised of the contumacious and blame worthy conduct of the advocate by the Supreme Court or High Courts, did not take any action against the said advocate, the Supreme Court had the jurisdiction in exercise of its appellate powers under Section 38 of the Advocates Act read with Article 142 of the Constitution to proceed suo moto and call for the records from the Bar Council and pass appropriate orders against the concerned advocate. As Section 38 only empowers the Supreme Court to take action in its appellate jurisdiction, it manifests that the High Courts would not be empowered to take action against the concerned Advocate.
Coming back to the decision of the Madras High Court – The decision refers to a catena of judgments including the recent Prashant Bhushan Case, however, it does not take into consideration the constitution bench ruling on the issue which unequivocally states that only the Bar Councils are empowered to suspend/debar an Advocate from practising law after following the due procedure. Surprisingly, the Madras High Court proceeded to suspend/debar the Advocate from practising law until further orders or until permitted by the bench.
Although the actions of the lawyer may have been highly contumacious and unpardonable, bearing the above stated discussion in mind, is the Madras High Court justified?
