IN RE : VINA Y CHANDRA MISHRA

dividuals and institutions and where the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. If the judiciary is to perform its duties and functions effectively and true to the spirit with which 1 they are sacredly entrusted to it, the dignity and authority of the courts

r have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrused with the extra-ordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disar"!ction and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.

It cannot be disputed and was not disputed before us that the acts indulged into by the contemner in the present case as stated by the learned Judge per se amount to criminal contempt of court. What was disputed, was their occurrence. We have held above that we are satisfied that the contemner did indulge in the said acts.

As held by this Court in the matter of Mr. 'G~ a Senior Advocate of the Supreme Cowt, [1955] 1 SCR 490; G

"......the Court, in dealing with cases of professional misconduct is not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their H

680 SUPREME COURT REPORTS [1995) 2 S.C.R.

A privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character ..... He (a legal practitioner) is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set B for itself and demands of him in professional matters, he is liable to disciplinary action".

In L.M. Das v. Advocate General, Orissa, [1957) SCR 167, this Court ~' observed :- I

c "A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the D Court and owes a duty to the court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open E Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalising the Court in such manner is really polluting the very fount of justice; such F conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; it brought into disrepute the whole administration of justice. From that point of view, the conduct of the appellant was highly reprehensible." G The contemner has obviously misunderstood his function both as a -~ lawyer representing the interests of his client and as an officer of the court. Indeed, he has not tried to defend the said acts in either of his capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject to remind him of his duties in both the capacities. It

IN RE: V.C. MISHRA [SAWANT, J.) 681

is, however, necessary to observe that by indulging in the said acts, he has positively abused his position both as a lawyer and as an officer of the Court, and has done distinct dis-service to the litigants in general and to the profession of law and the administration of justice in particular. It pains us to note that the contemner is not only a senior member of the legal profession, but holds the high offices of the Chairman of the Bar Council B of India, Member of the Bar Council of U.P., Chairman and Member, Executive Council and Academic Council of ·the National Law School University of India at Bangalore and President of the High Court Bar Association, Allahabad. Both as a senior member of the profession and as holder of the said high offices, special and additional duties were cast upon him to conduct himself as a model lawyer and officer of the court and to help strengthen the administration of justice by upholding the dignity and the majesty of the court. It was in fact expected of him to be zealous in maintaining the rule of law and in strengthening the people's confidence in the judicial institutions. To our dismay, we find that he has acted exactly contrary to his obligations and has in reality set a. bad example to others while at the same time contributing to weakening of the confidence of the people in the courts.

• The contemner has no doubt tendered an unconditional apology on 7th October, 1994 by withdrawing from record all his applications, peti- tions, counter affidavits, prayers and submissions made at the Bar and to the court earlier. We have reproduced that apology verbatim earlier. In the apology he has pleaded that he has deeply and regretfully realised that the situation, meaning thereby the incident, should never have arisen and the fact that it arose has subjected him to anguish and remorse and a feeling of moral guilty. That feeling has been compounded with the fact that he was a senior advocate and was holding the elective posts of the President of the High Court Bar Association and the Chairman of the Bar Council of India which by their nature show that he was entrusted by this profes- sional fraternity to set up an example of an ideal advocate. He has guiltily realised his failure to approximate to this standard resulting in the present proceedings and he was, therefore, submitting his unconditional apology for the incident in question, we have not accepted this apology, firstly because we find that the apology is not a free and frank admission of the misdemeanor he indulged in the incident in question. Is there a sincere regret for the disrespect he showed to the learned Judge and the Court, and for· the harm that he has done to the judiciary. On the other hand, the H

682 SUPREME COURT REPORTS [1995] 2 S.C.R.

A apolO'gy is couched in a sophisticated and garbed language exhibiting more an attempt to justify his conduct by reference to the circumstances in which he had indulged in it and to exonerate himself from the offence by pleading that the condition in which the "situation" had developed was not an ideal one and were it ideal, the 'situation' should not have arisen. It is a clever and disguised attempt to refurbish his image and get out of a tight situation by not only not exhibiting the least sincere remorse for his conduct but by . trying to blame the so-called circumstances which led to it. At the same time, he has attempted to varnish and re-establish himself as a valiant defender of his "alleged duties" as a lawyer. Secondly, from the very inception his attitude has been defiant and belligerent. In his affidavits and applieation, not only he has not shown any respect for the learned Judge, but has made counter-allegations against him and has asked for initiation of contempt proceedings against him. He har; even chosen to insinuate that the learned Judge by not taking contempt action on the spot and instead writing the letter to the Acting Chief Justice of the High Court, had adopted a devious way and that he had also come to Delhi to meet "meaningful" people. These allegations may themselves amount to con- tempt of court. Lastly, to accept any apology for a conduct of this kind and to condone it, would tantamount to a failure on the part of this Court to uphold the majesty of the law, the dignity of the court and to maintain the confidence of the people in the judiciary. The Court will be failing in its • E duty to protect the administration of justice from attempts to denigrate and lower the authority of the judicial officers entrusted with the sacred task of delivering justice. A failure on the part of this Court to punish the offender on an occasion such as this would thus be a failure to perform one of its essential duties solemnly entrusted to it by the Constitution and F the people. For all these reasons, we unhesitatingly reject the said so Called apology tendered by the contemner.

14Copy pinpoint14. The question now is what punishment should be meted out to the contemner. We have already discussed the contempt jurisdiction of this Court under Article 129 of the Constitution. That jurisdiction is inde- G pendent of the statutory law of contempt enacted by the Parliament under Entry 77 of List I of VII Schedule of the Constitution. The jurisdiction of this Court under Article 129. is sui generis. The jurisdiction to take cog- nisance of the contempt as well as to award punishment for it being · constitutional, it cannot be controlled by any statute. Neither, therefore, the Contempt of Courts Act, 1971 nor the Advocates Act, 1961 can be

IN RE: V.C. MISHRA [SAWANT, J.] 683

pressed into service to restrict the said jurisdiction. We have during the course of the proceedings indicated that if we convict the contemner of the offence, we may also suspend his licence to practise as a lawyer. The learned counsel for the contemner and the interveners and also the learned Solicitor General appointed amicus cwiae to assist the Court were re- quested to advance their arguments also on the said point. Pursuant to it, it was sought to be contended on behalf of the contemner an the U.P. Bar B Association and the U.P. Bar Council that the Court cannot suspend the licence which is a power entrusted by the Advocates Act, 1961 specially made for the purpose, to the disciplinary committees of the State Bar Councils and of the Bar Council of India. The argument was that even the constitutional power under Articles 129 and 142 was circumscribed by the c said statutory provisions and hence in the exercise of our power under the said provisions, the licence of an advocate was not liable either to be cancelled or suspended. A reference was made in this connection to the provisions of Sections 35 and 36 of the Advocates Act, which show that the power to punish the advocate is vested in the disciplinary committees of the State Bar Council and the Bar Council of India. Under Section 37 of the Advocates Act, an appeal lies to the Bar Council of India, when the order is passed by the disciplinary committee of the State Bar Council. Under Section 38, the appeal lies to the Court when the order is made by the disciplinary committee of the Bar Council of India, either under Section 36 or in appeal under Section 37. The power to punish includes the power to suspend the Advocate from practice for such period as the disciplinary committee concerned may deem fit under Section 35 [3) (c) and also to remove the name of the advocate from the State roll of the Advocates under Section 35 [3) (d). Relying on these provisions, it was contended that since the Act has vested the powers of suspending and removing the advocate from practice inclusively in the disciplinary committees of the State Bar Council and the Bar Council of India, as the case may be, the Supreme Court is denuded of its power to impose such punishment both under Articles 129 and 142 of the Constitution. In support of this conten- tion, reliance was placed on the observations of the majority of this Court in Prem Chand Garg v. Excise Commission, U.P., Allahabad, [1963) Supp. G 1 S.C.R. 885 relating to the powers of this Court under Article 142 which are as follows :

"In this connection, it may be pertinent to point out that the wide powers which are given to this rourt for doing complete justice H

684 SUPREME COURT REPORTS [1995) 2S.C.R.

A between the parties, can be used by this court for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing an new point to be taken for the first time. It is plain that in exercising these and similar other powers, this Court would not be bound by the relevant provisions of procedure if it is satisfied that a depar- B ture from the said procedure is necessary to do complete justice between the parties.

That takes us to the second argument urged by the Solicitor- General that Art.142 and Art.32 should be reconciled by the c adoption of the rule of harmonious construction. In this connection, we ought to bear in mind that though the powers conferred on this Court by Art. 142(1) are very wide, and the same can be exercised for doing complete justice in any case, as we have already observed, this Court cannot even under Art.142(1) make an order plainly inconsistent with the express statutory provisions of substantive law, much less, invonsistent with any Constitutional provisions. There can, therefore, be no conflict between Art. 142( 1) and Art, 32. In the case of KM. Nanavati v. The State of Bombay, [1961] 1 S.C.R. 497 on which the Solicitor-General relies, it was conceded, and rightly, that under Art.142(1) this Court had the power to grant bail in cases brought before it, and so, there was obviously a conflict between the power vested in this court under ~he said Article and that vested in ~he Governor of the State under Art.161. The possibility of ·a conflict between these powers necessitated the application of the rule of harmonious construction. The said rule can have no application to the present case, because on a fair construction of Art.142(1), this Court has no power to circumscribe ' the fundamental right guaranteed under Art.32. The existence of the said power is itself in dispute, and so, the present case is clearly distinguishable from the case of KM. Nanavati."

15Copy pinpoint15. Apart form the fact that these observations are made with refer- ence to the powers of this Court under Article 142 which are in the nature r of supplementary powers and not with reference to this Court's pqwer -~ under Article 129, the said observations have been explained by thi{court in its latter decisions in Delhi Judicial Services Association v. State of H Gujarat [supra] and Union CadJide Corporation v. Union of India, (1991)_

INRE:V.C.MISHRA (SAWANT,J.] 685

sec 584. In paragraph 51 of the former decision, it has been, with respect, rightly pointed out that the said observations were made with regard to the extent of this Cour,t's power under Article 142 (11 in the context of fundamental rights. Those observations have no bearing on the present issue. No doubt, it was further obstrved there that those observations have no bearing on the question in issue in that case as there was no provision in any substantive law restricting this Court's power to quash proceedings pending before subordinate courts. But it was also added there that this Court's power under Article 142 [11 to do complete justice was entirely of different level and of a different quality. Any prohibition or restriction · contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court is in seisin of a matter before it, it has power to issue any order or direction to do complete justice in the r matter. A reference was made in that connection to the concurring opinion of Justice A.N. Sen in Harbans Singh v. State·of U.P., [1982) 2 SCC 101, where the learned Judge observed as follows :

"Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from· the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extra-ordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional cir- cumstances for furthering the ends of justice."

The Court has then gone on to observe there that no enactment made by Central or State legislature can limit or restrict the power of this Court F under Article 142 of the Constitution, though the Court under Article 142 of the Constitution, though the Court must take into consideration the statutory provisions regulating the matter in dispute. What would be the need of complete justice in a cause or matter, would depend upon the facts and circumstance$ of each case. G In the latter case, i.e., the Union Carbide's case [supra], the Constitu- tion Bench in paragraph 83 stated as follows:

"It is necessary to set at rest certain misconceptions in the argi· oients touching the scope of the powers of this Court r·

IN RE: V.C. MISHRA [SAWANT, J.]

matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise." .,.- . i In view of these observations of the latter Constitution Bench on the r point, the observations made by the majority in Prem Chand Garg's case [supra) are no longer a good law. This is also pointed out by this Court in the case of Mohammed Anis v. Union of India & Ors., [1994] Suppl.1 SCC 145 by referring to the decision of Delhi Judicial Services v. State of Gujarat (supra) and Union Carbide Corporation v. Union of India (supra) by observing that statutory provisions cannot override the constitutional provisions and Article 142 [1) being a constitutional power it cannot be limited or conditioned by any statutory provision. The Court has then observed that it is, therefore, clear that the power of the Apex Court under Article 142 [1) of the Constitution cannot be diluted by statutory provisions and the said position in law is now well settled by the Constitution_ Bench decision in Union Carbide's case [supra]. E

16Copy pinpoint16. The consequence of accepting the said contention advanced on behalf of the contemner and the other parties, will be two-fold. This Court while exercising its power under Article 142(1) would not even be entitled to reprimand the Advocate for his professional misconduct which includes exhibition of disrespect to the Court as per Rule 2 of Section 1 of Chapter p II of Part VI of the Bar Council of India Rules made under the Advocates Act, which is also a contempt of court, since the reprimand of the advocate is a punishment which the disciplinary committees of the State Bar Council and of the Bar Council of India are authorised to administer under Section 35 of the Advocates Act. Secondly, it would also mean that for any act of contempt of court, if it also happens to be an act of professional miscon- G duct under the Bar Council of India Rules, the courts including this Court, will have no power to take action since the Advocates Act confers exclusive power for taking action for such conduct on the disciplinary committees of the State Bar Council and the Bar Council of India, as the case may be. Such a proposition of law on the face of it deserves rejection for the simple H

688 SUPREME COURT REPORTS [1995] 2 S.C.R.

A reason that the disciplinary jurisdiction of the State Bar Council and the Bar Council of India to take action for professional misconduct is different from the jurisdiction of the courts to take action against the advocates for the contempt of court. The said jurisdiction co-exist independently of each other. The action taken under one jurisdiction does not bar an action under B the other jurisdiction.

17Copy pinpoint17. The contention is also misplaced for yet another and equally, if not more, important reason. In the matter of disciplinary jurisdiction under the Advocates Act, this Court is constituted as the final Appellate authority under Section 38 of the Act as pointed out earlier. In that capacity this C Court can iinpose any of the punishments mentioned in Section 35 {3) of · the Act including that of removal of the name of the Advocate from the State roll and of suspending him from practice. If that be so, there is no reason why this Court while exercising its contempt jurisdiction under Article 129 read with Article 142 cannot impose any of the said punish- ments. The punishment so imposed will not only be not against the D provisions of any statute, but in conformity with the substantive provisions of the Advocates Act and for conduct which is both a professional miscon- duct as well as the contempt of court. The argument has, therefore, to be rejected.

18Copy pinpoint18. What is further, the jurisdiction and powers of this Court under Article 142 which are supplementary in nature and are provided to do - complete justice in any matter, are independent of the jurisdiction and powers of this Court under Article 129 which cannot be trammeled in any way by any statutory provision including the provisions of the Advocates F Act or the Contempt of Courts Act. As pointed out earlier, the Advocates Act has nothing to do with. the contempt jurisdiction of the court including of this Court and the Contempt of Courts Act, 1971 being a statute cannot denude, restrict or limit the powers of this Court to take action for contempt under Article 129. It is not disputed that suspension of the advo.::ate from practice and his removal from the State roll of advocates G are both punishments. There is no restriction or limitation on the nature of punishment that this Court may award while exercising its contempt ' jurisdiction and the said punishments can be the punishments the Court ~- may impose while exercising the said jurisdiction.

H Shri P.P. Rao, learned counsel appearing for the High Court Bar

INRE:V.C.MISHRA [SAWANT,J.) 689 ..., -'( Association of Allahabad contended that Article 19 [1) (a) and 19 (2), and A 19(1) (g) and 19[6) have to be read together and thus read the power to suspend a member of the legal profession from practice or to remove him from the roll of the State Bar Council is not available to this Court under Article 129. We have been unable to appreciate this contention. Article 19(1) (a) guarantees freedom of speech and expression which is subject to the provisions of Article 19(2) and, therefore, to the law in relation to the B contempt of court as well, Article 19 (1) (g) guar!llltees the right to practise ~ any profession or to carry on any occupation, trade or business and is T subject to the provisions of Article 19 [6) which empowers the State to make a law imposing reasonable restrictions, in the interests of general y public, on the exercise of the said right and, in particular, is subject to a c law prescribing technical or professional qualifications necessary for prac- tising the profession or carrying on the occupation, trade or business. On our part we are unable to see how these provisions of Article 19 can be pressed into service to limit the power of this Court to take cognisance of and punish for the contempt of court under Article 129. The contention that the power of this Court under ~ticle 129 is subject to the provisions of Articles 19 (1) (a)and 19 [l)(g), is unexceptional. However, it is not pointed out to us as to how the action taken under Article 129 would be violative of the said provisions, since the said provisions are subject to the law of contempt and the law laying down technical and professional qualifications necessary for practising any profession, which includes the legal profession. The freedom of speech and expression cannot be used of committing contempt of court nor can the legal profession be practised by committbg the contempt of court. The right to continue to practise, is subject t.::. the law of contempt. The law does not mean merely the statute

~· law but also the constitutional provisions. The right, therefore, is subject to the restrictions placed by the law of contempt as contained in the statute - in the present case, the Contempt of Courts Act, 1971 as well as to the jurisdiction of this Court and of the High Court to take action under _;7 Articles 129 and 215 of the Constitution respectively. We! therefore, do not see any conflict between the provisions of Articles 129 and 215, and Article 19 (1) (a) and Article 19(1)(g) read with Articles 19(2) and 19(6) respec- G ,JI tively.

19Copy pinpoint19. When the Constitution vests this Court with a special and specific power to take action for contempt not only of itself but of the lower courts and tribunals, for discharging its constitutional obligations as the highest H

690 SUPREME COURT REPORTS [1995) 2 S.C.R.

A custodian of justice in the land, that power is obviously coupled with a duty ,. to'protect all the limbs of the administration of justice from those whose >- actions create interference with or obstruction to the course of justice. Failure to exercise the power on such occasions, when it is invested specifically for the purpose, is ~ failure to ·discharge the duty. In this connection, we may refer to the following extract from the decision of this B Court in Chief Controlling Revenue Authority and Superintendent of Stamps v. Maharashtra Sugar Mills Ltd., [1950) SCR 536.

"..... But when a capacity or power is given to a public authority there may be circumstances which couple with the power a duty c to exercise it. To use the language of Lord Cairns in the case of Julius v.. Bishop of Oxford: 'There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the D power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so'."

20Copy pinpoint20. For the reason discussed above, we find the contemner, Shri E Vinay Chandra Mishra, guilty of the offence of the criminal contempt of the Court for having interfered with and obstructed the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language, and convict him of the said offence. Since the contemner is a senior member of the Bar and also adorns the F high offices such as those of the Chairman of the Bar Council of India, the President of the U.P. High Court Bar Association, Allahabad and others, his conduct is bound to infect the members of the Bar all over the country. We are, therefore, of the view that an exemplary punishment has to be meted out to him.

21Copy pinpoint21. The facts and circumstances of the present cas~ justify our invoking the power under Article 129 read with Article 142 of the Con- stitution 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 H · for the offence of criminal contempt as under :

IN RE: V.C. MISHRA [SAWANT, J. J 691

(11.1) The contemner is sentenced to undergo simple imprionment for a period of six weeks. However, in the circumstance!> 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,

(11.2) The contemner shall stand suspended from practising as an advocate for a period of three years from today with the conse- quence that all elective and nominated offices/posts at presents held by him in his capacity as an advocate, shall stand vacated by him forthwith.

The contempt petition is disposed of in the above terms. c B.K.M. Petition disposed of.