IN THE

HON’BLE
SUPREME COURT OF INDIA
IN THE MATTER OF

SUPREME COURT BAR ASSOCIATION

V.
UNION OF INDIA AND ANOTHER

COUNSEL ON BEHALF OF THE PETITIONER

MUSKAN KHATRI

ROLL NO. 87
SECTION- B; SEMESTER-IV
B.A. L.L.B.(Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

MEMORANDUM ON BEHALF OF PETITIONER

i
 TABLE OF CONTENTS

 LIST OF ABBREVIATIONS..................................................................................iii

 TABLE OF AUTHORITIES...................................................................................iv

o TABLE OF CASES........................................................................................iv

o BOOKS.........................................................................................................v

o ACTS, LEGISLATIONS AND STATUTES...........................................................v

 STATEMENT OF JURISDICTION.........................................................................vi

 SYNOPSIS OF FACTS.........................................................................................vii

 ISSUES RAISED...................................................................................................ix

 SUMMARY OF ARGUMENTS...............................................................................x

 WRITTEN PLEADINGS…………………………………………………….........1

 PRAYER.............................................................................................................10

ii
 LIST OF ABBREVIATIONS

o A.I.R. All India Reporter.

o Addl. Additional
o Anr. Another
o Bom. Bombay
o C.J. Chief Justice
o Ed. Editor(S)
o Etc. Et Cetra
o H.C. High Court
o I.L.R. Indian Law Reporter
o J. Justice
o Ltd. Limited
o M.P. Madhya Pradesh
o Mad. Madras
o Ors. Others
o P. Page
o Para. Paragraph
o Rep. Report(S)
o S.C. Supreme Court
o S.C.C. Supreme Court Cases
o Sec. Section
o Supp. Supplement
o UOI Union Of India
o V. Versus
o Vol. Volume
o Www World Wide Web

iii
 TABLE OF AUTHORITIES

CASES:
1. Bonkya @ B.S. Mane & Ors. V. State Of Maharashtra.
2. In S.K. Sarkar, Member, Board Of Revenue V. Vinay Chandra Misra.
3. Mohd. Ikram Hussain V. State Of U.P.
4. O.N. Mohindroo V. The District Judge, Delhi & Anr.
5. Prem Chand Garg V. Excise Commissioner, U.P., Allahabad.
6. Sukhdev Singh V. Hon'ble C.J.S. Teja Singh & Ors.

BOOKS:

H. M. Seervai, Constitutional Law Of India Universal Law Publishing Co. Pvt.

Ltd (4th Ed. 1996).
Arvind P. Datar, Commentary On The Constitution Of India Wadhwa And
Company Nagpur (2nd Ed. 2007).
Modern Law Publications, Jagdish Swarup, Constitution Of India,
Constitutional Law Of India (2nd Ed. 2007).
Loksabha Secretariat, New Delhi, Constituent Assembly Debates (4th Ed.
2003)
Universal Law Publishing Co. Pvt. Ltd., Constitution Making Since 1950 (2nd
Ed. 2004)
Universal Law Publishing Co. Pvt. Ltd., Subhash C. Kashyap, Framing Of
India’s Constitution (2nd Ed. 2004)

ACTS / STATUTES / LEGISLATIONS:

ADVOCATES ACT, 1961.

CONTEMPT OF COURTS ACT, 1971.
THE CONSTITUTION OF INDIA, 1950.

iv
 STATEMENT OF JURISDICTION

The petitioners have approached the Hon’ble Court under Article 32 of the Constitution of
India.

v
 SYNOPSIS OF FACTS

1. That in the In Re: Vinay Chandra Mishra, the Supreme 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”.

2. That, 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:
3. That 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
4. That the contemner shall stand suspended from practising as an advocate for a period
of three years from today with the consequence that all elective and nominated
offices/posts at present held by him in his capacity as an advocate, shall stand vacated
by him forthwith.
5. That 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 for seeking
relief by way of issuing an appropriate writ, direction, or declaration.

vi
 ISSUES RAISED

1. 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?

vii
 SUMMARY OF ARGUMENTS

1. 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?

The Court cannot while publishing the contemner with any of the punishments for
contempt, also suspend his licence to practice as an advocate. Since that power is
specifically entrusted by the Advocates Act, 1961 to the disciplinary committees of the
State Bar Council and/or the Bar Council of India.

viii
 WRITTEN PLEADINGS

1. 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?

It is humbly submitted that the Court cannot while publishing the contemner with any of the
punishments for contempt, also suspend his licence to practice as an advocate. Since that
power is specifically entrusted by the Advocates Act, 1961 to the disciplinary committees of
the State Bar Council and/or the Bar Council of India.

1.1. POWER OF SUPREME COURT TO PUNISH FOR CONTEMPT OF ITELF :

That Article 129 and Article 142(2) deals with power of Supreme Court for punishment of
contempt for itself.
It reads as:
129. “Supreme Court to be a court of record The Supreme Court shall be a court of record
and shall have all the powers of such a court including the power to punish for contempt of
itself”.
It is humbly submitted that Article 129 vests with Supreme Court with all powers of
including the power for punishment for contempt of itself. A court of record is a court,the
records of which are admitted to be of evidentiary value and are not to be questioned when
produced before any court. The power that courts of record enjoy to punish for contempt is a
part of their inherent jurisdiction and is essential to enable the courts to administer justice
according to law in a regular, orderly and effective manner and to uphold the majesty of law
and prevent interference in the due administration of justice.

Besides, that Articles 129, the power to punish for contempt is also vested in the Supreme
Court by virtue of Article 142(2).
142(2): “Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power to make

1
any order for the purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any contempt of itself”

It is humbly submitted that the power of this court in respect of investigation or punishment
of any contempt including contempt of itself, is expressly made 'subject to the provisions of
any law made in this behalf by the parliament' by Article 142(2). However, the power to
punish for contempt being inherent in a court of record, it follows that no act of parliament
can take away that inherent jurisdiction of the Court of Record to punish for contempt and the
Parliament's power of legislation on the subject cannot, therefore, be so exercised as to
stultify the status and dignity of the Supreme Court and/or the High Courts, though such a
legislation may serve as a guide for the determination of the nature of punishment which this
court may impose in the case of established contempt.

Though the parliament by virtue of the Entry 77 list 1, parliament can enact a law with regard
to contempt of itself and such law may prescribe the nature of punishment which may be
imposed on contemner by virtue of provisions of Article 129 read with 142(2).

It is humbly submitted that Parliament has not enacted any law dealing with the powers of the
Supreme Court with regard to investigation and punishment of contempt of itself. The
contempt of court doesn’t deal with powers of Supreme Court to try to punish the contemner
of Supreme Court or courts subordinate to it. Therefore Supreme Court exercises this virtue
by Article 129 read with 142(2). The nature of punishment prescribed under Contempt Of
Court Act, 1971 can act as guide for Supreme Court but extent of punishment prescribed
under that act can apply only to high courts, because 1971 act ipso facto doesn’t deal with
contempt jurisdiction of Supreme Court, except that Article 15 of act prescribe procedural
mode for taking cognisance of criminal contempt by Supreme Court also. Section 15,
However, is not substantive provision conferring contempt jurisdiction.
The judgment in Sukhdev Singh v. Hon'ble C.J.S. Teja Singh & Ors.1 as regards the
extent of "maximum punishment" which can be imposed upon a contemner must, therefore,
be construed as dealing with the powers of the High Courts only and not of this Court in that
behalf.
Thus it is contended that Supreme Court can punish any contemner for disregarding remarks
towards the hon’ble court under the provisions of Article 129 read with 142(2).

1
AIR 1954 SCR 454.
2
In S.K. Sarkar, Member, Board of Revenue v. Vinay chandra Misra,2 the court opined:

"Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court,
respectively, as a Court of Record which include the power to punish the contempt of itself.
As pointed out by this Court in Mohd. Ikram Hussain v. State of U.P3, there are no curbs
on the power of the High Court to punish for contempt of itself except those contained in the
Contempt of courts Act. Articles 129 and 215 do not define as to what constitutes contempt of
court. Parliament has, by virtue of the aforesaid entries in List I and List III of the Seventh
Schedule, Power to define and limit the powers of the Courts in punishing contempt of court
and to regulate their procedure in relation thereto. Indeed, this is what is stated in the
preamble of the Act of 1971"

1.2. SUPREME COURT CAN’T DEBAR A PRACTICING LAWYER FROM

CARRYING ON HIS PROFESSION AS A LAWYER FOR ANY PERIOD
WHATSOEVER, FOR COMMITTING PROFESSIONAL MISCONDUCT.

It is humbly submitted that 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 is regarding
commission of contempt of court. There is no cause of professional misconduct, properly so
called, pending before the Court. The 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.

It is humbly submitted that any act of contempt of court, if it also happens to be an act of
professional misconduct 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

2
(1981) 1 SCC 436.
3
AIR 1964 SC 1625.
3
observes rejection for the simple 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 court. The said jurisdiction co-exist "dependently of
each other. The action taken under one jurisdiction does not bar an action under the other
jurisdiction.

When the Court is seized of a matter of contempt of court by an advocate, there is no "case,
cause or matter" before the Supreme Court regarding his "professional misconduct" even
though, in a given a case, the contempt committed by an advocate may also amount to an
abuse of the privilege granted to an advocate by virtue of the licence to practice law but no
issue relating to his suspension from practice is the subject matter of the case. The powers of
this Court, under Article 129 read with Article 142 of the Constitution, being supplementary
powers have "to be used in exercise of its jurisdiction" in the case under consideration by this
Court. Moreover, a case of contempt of court is not stricto senso a cause or a matter between
the parties inter se.

It is humbly submitted that 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. The power to do complete
justice under Article 142 is in a way, corrective power, which gives preference to equity over
law but it cannot be used to deprive a professional lawyer of the due process contained in the
Advocates Act 1961 by suspending his licence to practice in a summary manner, while
dealing with a case of contempt of court.

Dealing with the powers of this court under Article 142, in case of Prem Chand Garg v.
Excise Commissioner, U.P., Allahabad,4 it was said by the Constitution Bench:

"In this connection, it may be pertinent to point out that the wide powers which are given to
this court for doing complete justice 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 a new point to be taken for the first time. It

4
1963, Supp.1. S.C.R. 885.
4
is plain that in exercise these and similar other powers, this Court would not be bound by the
relevant provisions of procedure if it is satisfied that a departure from the said procedure is
necessary to do complete justice between the parties.”

Indeed, these constitutional powers cannot, in any way, be controlled by any statutory
provisions but at the same time these powers are not meant to be exercised when their
exercise may come directly in conflict with what has been expressly provided for in statute
dealing expressly with the subject.

In case of Bonkya @ B.S. Mane & Ors. v. State of Maharashtra5 a bench of this court
observed:

"The amplitude of powers available to this Court under Article 142 of the Constitution of
India is normally speaking not conditioned by any statutory provision but it cannot be lost
sight of that this Court exercises jurisdiction under Article 142 of the Constitution with a
view to do justice between the parties but not in disregard of the relevant statutory
provisions."

In case of O.N. Mohindroo v. The District Judge, Delhi & Anr.6

“It has been held that an appeal to the Supreme Court under Section 38 of the Act is not a
restricted appeal. It is not an appeal on a question of law alone but also on questions of fact
and under that Section the Supreme Court has the jurisdiction to pass any order it deems fit
on such an appeal but 'no order of the Bar Council of India shall be varied by the Supreme
Court so as to prejudicially affect the person aggrieved without giving him a reasonable
opportunity of being heard”

It is humbly submitted that the 'Professional misconduct' of the advocate concerned is not a
matter directly in issue in the contempt of court case. while dealing with the contempt of
court case, this court is obliged to examine whether the conduct complained of amounts to
contempt of court and if t he answer is in the affirmative, than to sentence the contemner for
contempt of court by imposing any of the recognised and accepted punishments for
committing contempt of court. Keeping in view the elaborate procedure prescribed under

5
1995 (6) SCC 447.
6
1971 (3) SCC 5.
5
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".
Therefore, the punishment cannot 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).

In this case Bar Council had not declined to deal with the matter and take appropriate action
against the concerned advocate. Since there was no cause pending before the Bar Council, the
court cannot exercise its appellate jurisdiction in respect of a matter which was never under
consideration of the bar councils.

6
 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, arguments advanced and authorities cited, the
Petitioner, humbly prays before the Hon’ble Supreme Court, that:

1. To allow the writ petition.

2. To adjudge and declare that Supreme Court cannot under provisions of Article 129
read with Article 142(2) debar a practicing lawyer and suspend his practicing
license which should be role of statutory authority. .

The Court may also be pleased to pass any other order, which the Court may deem fit in light
of justice equity and good conscience.

All of which is most humbly prayed.

COUNSEL ON BEHALF OF PETITIONER 8th April, 2019

MUSKAN KHATRI
NEW DELHI