Power Of Courts To Debar An Advocate From Practising For Contempt Of Court [Explainer]

In the context of the contempt verdict passed by the Supreme Court against Advocate Prashant Bhushan, several readers had asked doubts about the power of the courts to debar an advocate from practising.In that case, the Supreme Court imposed a substantive sentence of fine of Rupee One and held that on default to pay the fine, Bhushan will have to undergo imprisonment for three months and will be debarred from practising in the Supreme Court for three years.Here is an attempt to explain the law on the issue, based on SC precedentsCourts cannot suspend the license of an advocate as a punishment for contemptIn 1998, a constitution bench of the Supreme Court in the case Supreme Court Bar Association vs Union of India (1998) 4 SCC 409, held that courts cannot order the suspension or revocation of the enrolment of an advocate as a punishment for contempt of court.The Constitution Bench held that the enrolment of an advocate can be suspended or revoked only by the Bar Council in a disciplinary proceeding initiated under the Advocates Act, 1961 with respect to professional misconduct. The Court cannot usurp the statutory power of the Bar Council while exercising contempt jurisdiction, the Court clarified."The suspension of an Advocate from practice and his removal from the State roll of advocates are both punishments specifically provided for under the Advocates Act, 1961, for proven "professional misconduct' of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commission of contempt of court. There is no cause of professional misconduct, properly so called, pending before the Court. This Court, therefore, in exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the disciplinary committee of the Bar Council of the State or the Bar Council of India to punish an advocate by suspending his licence, which punishment can only be imposed after a finding of 'professional misconduct' is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder", the Cout said.This decision came in a writ petition filed by the Supreme Court Bar Association under Article 32 of the Constitution seeking a declaration that Bar Councils under the Advocates Act alone have the jurisdiction to remove an advocate from the rolls and that either the Supreme Court or the High Court cannot make any such direction to suspend the practise of an advocate as a punishment for contempt of court. The petition was filed in the backdrop of the SC decision in In Re: Vinay Chandra Mishra, (1995) 2 SCC 58, where the SC suspended the practice of an advocate, who was found guilty of contempt of court, for a period of three years.Agreeing with the SCBA's contention, the Constitution Bench overruled In Re: Vinay Chandra Mishra stating that suspension of practice could not have been ordered invoking powers under Article 142 of the Constitution."The power of the Supreme Court to punish for contempt of court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of "Professional misconduct" in a summary manner, giving a go bye to the procedure prescribed under the Advocates Act". "It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the constitution so as to function within the bounds of its own jurisdiction. To the extent, this Court makes the statutory authorities and other organs of the State perform their duties in accordance with law, its role is unexceptionable but it is not permissible or the Court to "take over" the role of the statutory bodies or other organs of the State and "perform" their functions".But the court may debar the appearance of an advocate found guilty of contemptThe Court in SCBA vs Union of India also clarified that the Supreme Court or the High Court can prevent the contemnor-advocate from appearing before it. The Court added that such an action was different from the suspension of the practise of the advocate."In a given case it may be possible, for this Court or the High Court, the prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practice as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-an-Record because that privilege is conferred by this court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts...

Power Of Courts To Debar An Advocate From Practising For Contempt Of Court [Explainer]

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Power Of Courts To Debar An Advocate From Practising For Contempt Of Court [Explainer]

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