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 precedents
Courts cannot suspend the license of an advocate as a punishment for contempt
In 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 contempt
The 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 or Tribunals", the Court said.
The Court observed that in a given case, an Advocate found guilty of committing contempt of court may at the same time be guilty of committing "professional misconduct" but the two jurisdictions are separate, distinct and exercisable by different fora by following different procedures. Exclusive power for punishing an Advocate for professional misconduct is with Bar Councils.
In this regard, it is relevant to refer to the decision of the apex court in Bar Council of India vs High Court of Kerala (2004) 6 SCC 311.
There, the Bar Council of India had challenged the constitutionality of Rule 11 of the Rules framed by the High Court of Kerala forbidding a lawyer from "appearing, acting or pleading in any court till he got himself purged of the Contempt by an order of the appropriate court". The BCI contended that the Rule amounted to an usurpation of the powers of the Bar Council.
While upholding the validity of Rule 11, a 2-judge bench of the SC referred to the precedent laid down by a coordinate bench in Pravin C. Shah vs K.A. Mohd. Ali (2001) 8 SCC 650, which had approved the Rule. There, the Court was considering the legality of disciplinary action taken by the Bar Council of Kerala, relying on Rule 11, to debar an advocate from appearing in Courts after he was punished for contempt.
Finding fault with the Bar Council for debarring an advocate from appearing in courts by referring to a Rule framed by the High Court, the judgment authored by Justice K T Thomas in Pravin C Shah stated :
"Rule 11 has nothing to do with all the acts done by an advocate during his practice except his performance inside the court. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by the Bar Council in exercise of its disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must have the major supervisory power. Hence the court-cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate".
The judgment also held that the power of contempt of the court and the disciplinary authority of the Bar Council were distinct jurisdictions and that the Court's action of debarring a contemnor-advocate from appearing before it does not amount to interference with the disciplinary powers of Bar Council.
In Ex-Captian Harish Uppal vs Union of India (2003) 2 SCC 45, the SC explained that appearing in court was only one of the several aspects of a legal practise, and debarring the advocate from appearing in courts does not amount to complete suspension of practise.
"...Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the Courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the Court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers".
Examples of Court invoking contempt power to debar appearance of advocates for a specified period can be found in the cases of R.K. Anand v. Registrar, Delhi High Court Court (2009) 8 SCC 106, In Re : Mr. Mathews Nedumpara(2019) etc.
Court can debar advocate's appearance only in exercise of contempt power and not otherwise
In R Muthukrishnan vs The Registrar General of High Court of Judicature at Madras and others(2019), the Supreme Court held that the High Court can debar an advocate from appearing in courts only in the exercise of its contempt powers, and cannot do so for any other acts of professional misconduct.
Holding thus, the Supreme Court quashed Rules 14A, 14B, 14C and 14D inserted in the Rules of High Court of Madras in 2016 empowering the High Court and the District Courts from debarring an advocate from practice on committing actions such as :
The Supreme Court held that Section 34 of the Advocates Act, which gives rule-making power to the High Court Act, intends to regulate the practice of the advocate in the High Court and subordinate courts. But, it does not empower it to frame the rules for disciplinary control.
The Court observed :
"Advocates Act has never intended to confer the disciplinary powers upon the High Court or upon this Court except to the extent dealing with an appeal under Section 38".
"The High Court has no power to exercise the disciplinary control. It would amount to usurpation of the power of Bar Council conferred under Advocates Act. However, the High Court may punish advocate for contempt and then debar him from practicing for such specified period as may be permissible in accordance with law, but without exercising contempt jurisdiction by way of disciplinary control no punishment can be imposed"
"The debarment cannot be ordered by the High Court until and unless advocate is prosecuted under the Contempt of Courts Act. It cannot be resorted to by undertaking disciplinary proceedings as contemplated under the Rules 14A to 14D as amended in 2016", the SC explained.
The conclusions from the SC precedents can be summed up as below :