http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 31  

PETITIONER: IN RE: VINAY CHANDRA MISHRA [THE ALLEGED CONTEMNER]

       Vs.

RESPONDENT:

DATE OF JUDGMENT10/03/1995

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KULDIP SINGH (J) VERMA, JAGDISH SARAN (J)

CITATION:  1995 AIR 2348            1995 SCC  (2) 584  JT 1995 (2)   587        1995 SCALE  (2)200

ACT:

HEADNOTE:

JUDGMENT: 1.   On  10th  March,  1994, Justice  S.K.  Keshote  of  the Allahabad High Court addressed a letter to the Acting  Chief Justice of that Court as follows - "No.SKK/ALL/8/94                10.3.94 Dear brother Actg.  Chief Justice, Though  on  9.3.94  itself  I  orally  narrated  about   the misbehaviour  of Sh.  B.C. Misra with me in the Court but  I thought it advisable to give you same in writing also. On 9.3.94 1 was sitting with Justice Anshuman Singh in Court No.38.  In  the list of fresh Cases of 9.3.94 at  Sr.   No.5 FAFO  Record  No.  22793 M/s.   Bansal  Forgings  Ltd.   Vs. ’U.P.F.Corp.  filed  by  Smt. S.V. Misra  was  listed.   Sh. B.C. Misra appeared in this case when the case was called.                   Brief facts of that case M/s.   Bansal  Forgings Ltd. took loan from  U.P.  Financial Corporation and it made default in payment of instalment  of the same.  Corporation proceeded against the Company u/s  29 of the U.P. Financial Corporation Act.  The Company filed a      596 Civil Suit against the.Corporation and it has also filed  an application for grant of temporary injunction.  Counsel  for the Corporation suo moto put appearance in the matter before Trial  Court and prayed for time for filing of  reply.   The learned  trial court passed an order on the said  date  that the  Corporation will not scize the factory of the  Company. The  Company shall pay the amount of instalment and it  will furnish  also security for the disputed amount.   The  court directed  to furnish security on 31.1.94 and case was  fixed on 15.3.94. Against  said order of the trial court this appeal has  been filed  and  arguments have been advanced that Court  has  no jurisdiction to pass the order for payment of instalment  of loan and further no security could have been ordered. I  put a question to Shri Misra under which  provision  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 31  

order has been passed.  On putting of question he started to shout and said that no question could have been put to  him. He will get me transferred or see that impeachment motion is brought  against me in Parliament.  He further said that  he has  turned up many Judges.  He created a good scene in  the court.  He asked me to follow the practice of this Court. in sum and substance it is a matter where except to abuse me of mother  and  sister he insulted me like any thing.  what  he wanted to convey to me was that admission is as a course and no arguments are heard, at this stage. It  is  not  the question of insulting of a  Judge  of  this institution  but it is a matter of institution as  a  whole. In  case dignity of Judiciary is not being  maintained  then where  this  institution  will  stand.   In  case  a  senior Advocate,  President of Bar and Chairman of Bar  Council  of India  behaves in Court in such manner what will  happen  to other advocates. Since  the day I have come here I am deciding the  cases  on merits.  In case a case has merits it is admitted but not as a matter of course. in this court probably advocates do  not like the consideration of cases on their merits at the stage of admission.  In case dignity of Judiciary is not  restored then it is very difficult for the judges to discharge  their Judicial function without fear and favour. I am submitting this matter to you in writing to bring  this mishappening  in  the Court with the hope that you  will  do something for restoration of dignity of Judiciary. Thanking you.                       Yours sincerely,                             Sd/-                    (Jus.  S.K. keshote)." 2.   The Acting Chief Justice Shri V.K. Khanna forwarded the said letter to the then Chief Justice of India by his letter of  5th  April, 1994.  The learned Chief  Justice  of  India constituted  this  Bench to hear the matter on  15th  April, 1994. 3.   On  15th  April, 1994, this Court took  the  view  that there  was a prima facie case of criminal contempt of  court committed by Shri Vinay Chandra Mishra [hereinafter referred to  as the "contemner"] and issued a notice against  him  to show cause why contempt proceedings be not initiated against him.   By  the  same order, Shri  D.P.  Gupta,  the  learned Solicitor General of India was requested to assist the Court in the matter.  Pursuant to the notice, the contemner  filed his  reply  by affidavit dated 10th May, 1994  and  also  an application seeking discharge of show 597 cause  notice, and in the alternative for an inquiry  to  be held into the incident referred to by Justice Keshote in his letter which had given rise to the contempt proceedings.  It is necessary at this stage to refer to the material portions of  both  the  affidavit and the application  filed  by  the contemner.   After  referring  to his  status  as  a  Senior Advocate  of  the Allahabad High Court and  his  connections with  the various law organisations in different  capacities to impress upon the Court that he had a deep involvement  in the purity, integrity and solemnity of judicial process,  he has  submitted  in  the  affidavit that  but  for  his  deep commitments to the norms of judicial processes as  evidenced by  his said status and connections, he would  have  adopted the usual expedient of submitting his unconditional regrets. But the facts and circumstances of this case were such which induced him to "state the facts and seek the verdict of  the Court"  whether  he had committed the  alleged  contempt  or whether it could be "a judge committing contempt of his  own

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 31  

court".  He has then stated the facts which according to him form the "genesis" of the present controversy.  They are  as follows:- "A.  A Private Ltd.  Co. had taken an instalment  loan  from U.P.   Financial  Corporation,  which  provides  under   its constituent Act (Sec. 29) for some sort of self help in case of default of instalments. B.   A   controversy  arose  between  the   said   Financial Corporation  and  the  borrower as a result  of  which,  the borrower  had  to file a civil suit  seeking  an  injunction against the Corporation for not opting for the  non-judicial sale of their assets. C.   The Civil Court granted the injunction against  putting the assets to sale, but at the same time directed furnishing security for the amount due. D.   Being   aggrieved  by  the  condition   of   furnishing security,  which in law would be tantamount to  directing  a mortgagee  to furnish security for payment of mortgage  loan even when he satisfies the Court that a stay is called for - the property mortgaged being a pre-existing security for its payment. E.The Company filed an FAFO being No. 229793/94 against  the portion of the order directing furnishing of security. F.The  said  FAFO came for preliminary came  hearing  before Hon’ble  Justice  Anshuman Singh and the Applicant  of  this petition  on  9th  March, 1994, in which I  argued  for  the debtor Company. G.   When the matter was called on Board, the Applicant took charge of the court proceedings and virtually foreclosed at- tempts made by the senior Judge to intervene.  The Applicant Judge  inquired  from me as to under what law  the  unpugned order  was  passed  to which I replied  that  it  was  under various  rules of Order 39, CPC.  That  Applicant  therefore conveyed  to  me that he was going to set aside  the  entire order,  against  a portion of which I had  come  in  appeal, because  in  his view the Lower Court was not  competent  to pass such an order as Order 39 did not apply to the facts. H.   I politely brought to the notice of the Applicant Judge that  being the appellant I’ had the dominion over the  case and  it could not be made worse, just because I had come  to High Court. I.   The Applicant Judge apparently lost his temper and told me in no unconcealed term that he would set aside the  order in toto, disregarding what I had said. J.   Being upset over, what I felt was an 598 arbitrary  approach  to judicial process 1  got  emotionally perturbed and my professional and institutional  sensitivity got  deeply wounded and I told the Applicant Judge  that  it was not the practice in this Court to dismiss cases  without hearing  or  to upset judgments or  portions  of  judgments, which  have  not been appealed against.   Unfortunately  the Applicant judge took it unsportingly and apparently lost his temper and directed the stenographer to take down the  order for setting aside of the whole order. K.   At this juncture, the Hon’ble Senior Judge  intervened, whispered something to the Applicant Judge and directed  the case to be listed before some other Bench.  It was duly done and  by an order of the other Court dated 18th  March,  1994 Hon’ble Justices B.M. Lal and S.K. Verma, the points  raised by  me before the Applicant Judge were accepted.  A copy  of the  said  order  is  reproduced  as  Annexure  1  to   this affidavit. L.   I  find it necessary to mention that the exchange  that took  place between me and the Applicant Judge got a  little

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 31  

heated  up.  In the moment of heat the Applicant Judge  made the following observations:-               "I  am from the Bar and if need be I can  take               to goondaism.               Adding in English -               "I never opted for Allahabad.  I had opted for               Gujarat  and Himachal Pradesh.  I do not  know               why the Chief Justice of India disregarded  my               options  and  transferred me  to  this  place,               which I never liked."               Provoked  by this I asked him whether  he  was               creating  a  scene to  create  conditions  for               getting  himself  transferred as  also  talked               earlier." 4.   After  narrating the above incident, the contemner  has gone  on  to deny that he had referred to  any  impeachment, though  according  to him he did mention that "a  judge  got himself  transferred earlier on account of his inability  to command  the  goodwill  of the Bar due  to  lack  of  mutual reverence 5.   The  contemner has further denied the allegations  made by Justice Keshote that as soon as the case was called  out, he  [i.e., Justice Keshotel asked him the pro  vision  under which the impugned order was passed and that he had  replied that  the  Court  had no jurisdiction to ask  the  same  and should  admit and grant the stay order.  According  to  him, such  a reply could only be attributed to one who is "  mad" and  that considering his practice, of thirty five years  at the  Bar and his responsible status as a member of the  Bar, it  is unbelievable that he would reply in such  a  "foolish manner".   The  contemner  has further denied  that  he  had abused the learned judge since according to him he had never indulged  in  abusing  anybody.  With  regard  to  the  said allegations  against him, the contemner has stated that  the same   are  vague  and.  therefore,  "nothing  definite   is warranted to reply". 6.   He  has further contended in his affidavit that if  the learned  Judge was to be believed that he had committed  the contempt,  the  senior  Judge who was to  direct  the  court proceedings would have initiated proceedings under  "Article 129  of the Constitution" for committing contempt  in  facie curiae.   He has also stated that the learned Judge  himself did  not direct such proceedings against him which he  could have.  lie  has found fault that instead of  doing  so,  the learned Judge hat: "deferred 599 the  matter  for the next day and adopted a devious  way  of writing  to  the Acting Chief Justice  for  doing  something about it".  He has then expressed his "uncomprehension" with the learned Judge should have come to the Supreme Court when he had ample and sufficient legal and constitutional  powers to arraign him at the Bar for what was attributed to him. 7.The  contemner  has  then gone on  to  complain  that  the "language used" by the learned Judge "in the Court extending a threat to resort to goondaism is acting in a way which  is professionally  perverse  and approximating to  creating  an unfavourable   public  opinion  about  the  awesomeness   of judicial process, lowering or tending to lower the authority of any Court" which amounted to contempt by a Judge  punish- able under Section 16 of the Contempt of Courts Act, 197  1. He  has  then gone on to submit "under  compulsion  of"  his "institutional   and   professional  conscience"   and   for upholding professional standards expected of both the  Bench and  the  Bar  of this court" that this Court  may  order  a thorough investigation into the incident in question to find

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 31  

out whether a contempt has been committed by him  punishable under  "Article  215" of the Constitution or  by  the  Judge under Section 16 of the Contempt of Courts Act. 8.  He has further stated that the entire Bar  at  Allahabad knows  that he was unjustly "roughed" by the Judge  and  was being punished for taking a "fearless and non-servile stand" and  that he is being prosecuted for asserting the right  of audience and using "the liberty to express his views" when a Judge takes a course "which in the opinion of the Bar is ir- regular".   He has also contended that any Punishment  meted out to the "outspoken lawyer" will completely emasculate the freedom  of the profession and make the Bar  "a  subservient tail  wagging appendage to the judicial branch, which is  an anathema to a healthy democratic judicial system". 9.He has made a complaint that he was feeling handicapped in not being provided with the copy of the letter/report of the Acting Chief Justice of the Allahabad High Court and he  has also been unable to gauge the "rationale of the applicant in not  having  initiated  proceedings"’  against  him   either immediately  or a day following, when he chose to address  a letter  to the Acting Chief Justice.  He has then  contended that he wanted to make it clear that he was seeking a formal inquiry not for any vindication of any personal hurt but  to make  things safe for profession which in a small way  by  a quirk  of  destiny come to his keeping also.   He  has  also stated  that he would be untrue and faithless to his  office if  he subordinated the larger interests of  the  profession and  dignity  of the judicial process for a small  thing  of seeking  his little safety.  The contemner goes on to  state that  he  did  not opt for filing  a  contempt  against  the learned  Judge as in normal course of arguments,  sometimes, altercations  take  place between a Judge  and  the  arguing advocate,  which may technically be contempt on either  side but  being  no  intention, provisions of  contempt  are  not attracted.   In support of his said case, he has  reproduced an extract from Oswald’s Contempt of Court, III Edition,  by Robertson.  The said extract is as follows:               "An  advocate is at liberty,  when  addressing               the  Court  in regular course, to  combat  and               contest  strongly  any adverse  views  of  the               Judge or Judges expressed on the                  600               case  during  its argument, to object  to  and               protest aganist any course winch the Judge may               take  and winch the advocate thinks  irregular               or detrimental to the interests of his client,               and to caution juries against any interference               by the Judge with their functions, or with the               Advocate when addressing them, or against  any               strong view adverse to his client expressed by               the  presiding Judge upon the facts of a  case               before  the verdict of the jury  thereon.   An               advocate  ought  to  be  allowed  freedom  and               latitude both in speech and in the conduct  of               his  client’s case.  It is said that a  Scotch               advocate   was  arguing  before  a  Court   in               Scotland,  when one of the Judges, not  liking               his manner, said to him, "It seems to me,  Mr.               Blank, that you are endeavouring in every  way               to  show your contempt for the  Court."  "No,"               was the quick rejoinder, "I am endeavouring in               every way to conceal it." 10.  In the end, he has stated that he had   utmost  respect and regard for the courts and he never intended nor  intends not to pay due respect to the courts which under the   law

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 31  

they arc entitled to and it is for this reason that  instead of defending himself through an advocate, he had left to the mercy of this court to judge and decide the right and wrong. He  has also stated that it is for this reason that  he  had not  relied  upon the provisions of the  Constitution  under Articles  129  and  215 and Section 16 of  the  Contempt  of Courts  Act  and  to save himself on  the  technicality  and jurisdictional competence. 11.  Lastly, he has reiterated that he had always paid   due regard to the Courts and he was    paying the same and  will continue to pay     the  same and he "neither  intended  not intends to commit contempt of any Court". 12.  Along with the aforesaid affidavit was forwarded by the contemner,  a petition stating therein that he had not  gone beyond  the  legitimate  limits  of  fearless,  honest   and independent  obligations of an advocate and it  was  Justice Keshote himself who had lost his temper and extended threats to  him which was such as would be punishable under  Section 16 of the Contempt of Courts Act, 1971 [hereinafter referred to  as the "Act"].  He has prayed that the notice issued  to him  be discharged and if in any case, this Court  does  not feel  inclined to discharge the notice, he "seeks his  right to  inquiry  and  production  of  evidence  directly  or  by affidavits" as this Court may direct.  He has further stated in   that  petition  that  he  is  moving   an   independent application  for  contempt proceedings to be  drawn  against the,  learned  Judge  and it would be in  the  interests  of justice and fairplay if the two are heard together.  It  has to be noted that the contemner has throughout this affidavit as well as the petition referred to Justice Keshote as  "ap- plicant",   although  he  knew  very  well   that   contempt proceedings had been initiated suo moto by this Court on the basis of the letter written by Justice Keshote to the Acting Chief Justice of the High Court.  His manner of reference to the learned Judge also reveals the respect in which he holds the learned Judge. 13.  The  contemner has also filed another petition  on  the same day as stated in the aforesaid petition wherein he  has prayed  that on the facts stated in the reply  affidavit  to the  show cause notice for contempt proceedings against  him this  Court be pleased to draw proceedings under Section  16 of  the Act against the learned for committing  contempt  of his own court and hold an inquiry.  In this petition, he him stated  that  in his reply to the contempt  notice,  he  has brought the whole truth 601 before  this Court which according to him was  witnessed  by the senior Judge of the Bench, Justice Anshuman Singh and  a large number of advocates.  Once again referring to  Justice Keshote  as  the applicant, he has stated that  the  learned Judge  in open court conveyed to him [i.e.,  the  contemner] that  he can take to goondaism if need arises, that he  also talked disparagingly against the Chief Justice of India  for not  -transferring him to the place for which he  had  opted and talked to the contemner scurrilously and in a manner un- worthy  of a Judge and also attempted to gag  the  contemner from  discharging his duties as an advocate.  The  contemner has  further  contended  that  as  a  common  law  principle relating  to  contempt  of courts, a  Judge  is  liable  for contempt  of  his  own Court as much  as  any  other  person associated  with judicial proceedings and outside, and  that the aforesaid principle has been given statutory recognition under Section 16 of the Act.  He has further contended  that the  behaviour  of the learned Judge so  unworthy  that  the senior colleague on the Bench apart from "disregarding  with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 31  

the  desire  of the applicant to dismiss the  entire  order" against  a part of which an appeal had been filed,  released the case from the board and did not think of taking recourse to  the  obvious  and  well-known  procedure  of  initiating contempt  proceedings against him for the  alleged  contempt committed  in  the  face  of  the  Court.   He  has  further contended that "the adoption of devious ways of reaching the Acting  Chief  Justice by letter and  reportedly  coming  to Delhi  for  meeting meaningful people"  is  "itself  seeking about  the infirmity of the case" of the Judge.  He  has  in the  end  reiterated  his prayer for  an  inquiry  into  the behaviour of the learned Judge if the notice of contempt was not  discharged against him in view of the denial by him  of the conduct alleged against him. 14.  This  Court  gave four weeks’ time as  desired  by  the contemner to file an additional affidavit giving more  facts and details.  The Court also made clear that the cause title of the proceedings was misleading since Justice Keshote  had not   initiated  the  proceedings.   The  proceedings   were initiated suo moto by this Court.  A direction was given  to the Registry to correct the cause title. 15.  On   30th   June,  1994,  the   contemner   filed   his supplementary/additional    counter   affidavit   in    this affidavit,  he raised objections to the maintainability  "of initiating  contempt  proceedings" against him.   His  first objection  was  to the assumption of  jurisdiction  by  this Court to punish for an act of contempt committed in  respect of another Court of record which is invested with  identical and  independent power for punishing for contempt of  itself According  to  him, this Court can take cognisance  only  of contempt committed in respect of itself He has also demanded that  in view of the point of law raised by him, the  matter be  placed before the Constitution Bench and that notice  be issued to the Attorney General of India and all the Advocate Generals  of  the States.  He has then gone on to  deny  the statements  made by the learned Judge in the letter  written to the Acting Chief Justice of the High Court and in view of the said denial by him, he has asked for the presence of the learned Judge in the court for being cross-examined by  him, i.e.,  the  contemner.  He has further stated  that  if  the contempt proceedings are taken against him, the statement of Justice Anshuman Singh who was the senior Judge on the 602 Bench  before which the incident took place, would  also  be necessary.  He has also taken exception to Justice Keshote’s speaking in the Court except through the senior Judge on the Bench, which, according to him had been the practice in  the Allahabad High Court, and has alleged that the learned Judge did  not  follow the said convention.  In the  end,  he  has reiterated  that  he has utmost respect and regard  for  the courts and he has never intended nor intends not to pay  due regard to the Courts. 16.  On 15th July, 1994, this Court passed an order  wherein it  is  recorded  that on 15th April, 1994,  the  court  had issued  a  notice to the contemner to show cause as  to  why criminal  contempt proceedings be not initiated against  him and  notice was issued on its own motion.  The  Court  heard the.  contemner  in person as well as his  learned  counsel. The  Court perused the counter affidavit and the  additional affidavit of -the contemner and was of the view that it  was a fit case where criminal contempt proceedings be  initiated against the contemner.  Accordingly, the Court directed that the proceedings be initiated against him.  The contemner was given  an  opportunity to file any material in reply  or  in defence within another eight weeks.  He was also allowed  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 31  

file the affidavit of any other person apart from himself in support  of  his  defence.  Shri  Gupta,  learned  Solicitor General  was  appointed  as the prosecutor  to  conduct  the proceedings.   The  affidavits filed by the  contemner  were directed to be sent to Justice Keshote making it clear  that he might offer his comments regarding the factual  averments in the- said affidavits. 17.  In  view  of the said order, the  Court  dismissed  the contemner’s application No.2560/94 praying for discharge  of the  notice.  The contemner thereafter desired  to  withdraw his application No.2561/94 seeking initiation of proceedings against the learned Judge for contempt of his own Court,  by stating  that he was doing so " at this stage reserving  his right to file a similar application at a later stage".   The Court  without  any  comment on the statement  made  by  the contemner, dismissed the said application as withdrawn. 18.Justice  Keshote  by  a  letter  of  20th  August,   1994 forwarded  his  comments on the counter  affidavit  and  the supplementary/additional  counter  affidavit  filed  by  the contemner.  The learned Judge denied that he took charge  of the court proceedings and virtually foreclosed the  attempts made by the senior Judge to intervene, as was alleged by the contemner.   He stated that being a member of the Bench,  he put a question to the contemner as to under which provision, the  order under appeal had been passed by the trial  court, and  upon that the contemner started shouting and said  that he  would get him transferred or see to it that  impeachment motion was brought against him in Parliament.  According  to the  learned Judge, the contemner said many more  things  as already  mentioned  by him in his letter dated  10th  March, 1994.  He further stated that the contemner created a  scene which  made it difficult to continue the  court  proceedings and  ultimately  when it became difficult to  hear  all  the slogans,  insulting  words  and threats,  he  requested  his learned  brother on the Bench to list that case  before  an- other Bench and to retire to the chamber.  Accordingly,  the order was made by the other learned member of the Bench  and both of them retired to their chambers. 603 19. The learned judge also stated that the   contemner   has made wrong statement when     he  states  "that   applicant, therefore, conveyed to me that he was going to set aside the entire order, against portion of which I had come in  appeal because,  in his view, the lower court was not competent  to pass  such  order as Order 39 did not apply to  the  facts". The  learned  Judge  stated that he neither  made  any  such statement nor conveyed to the contemner as suggested by him. He  reiterates that except one sentence, viz.,  "that  under which provision this order had been made by the trial court" nothing was said by him.  According to the learned Judge, it was  a  case where the contemner did not  permit  the  court proceedings  to be proceeded and both the Judges  ultimately had  to retire to the chambers.  The learned  Judge  alleges that  the counter affidavit manufactures a defence.  He  has denied  the  contents  of paragraph 6 [H]  and  [1]  of  the counter  affidavit  by stating that nothing of the  kind  as alleged  therein  had happened.  According  to  the  learned Judge, it was a case where the contemner lost his temper  on the  question  being put to him by him,  i.e.,  the  learned Judge.  He has stated that instead of losing his temper  and creating  a scene and threatening and terrorising  him,  the contemner  should have argued the matter and encouraged  the new junior Judge.  The learned Judge has further denied  the following  averment,  viz.,  "unfortunately,  the  applicant Judge  took it unsportingly and apparently lost  his  temper

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 31  

and  directed  the stenographer to take down the  order  for setting aside of the whole order" made in paragraph 6 [J] of the counter affidavit, as wrong.  He has pointed out that in the  Division  Bench, it is the senior member  who  dictates order/judgments.    He  has  also  denied   the   statements attributed to him in other  paragraphs  of the affidavit and in  particular,  has stated  that he did not make the following observations:  "I am from the Bar and if need be I can take to goondaism"  and has alleged that the said allegations are absolutely  wrong. He  has  also denied that he ever made  ’the  statements  as follows:  "I  never opted for Allahabad.  I  had  opted  for Gujarat  and Himachal Pradesh.  I do not know why the  Chief justice  of India disregarded my options and transferred  me to  this place which I never liked".  According to him,  the said  allegations are manufactured with a view to  create  a defence.  He has denied the allegations made against him  in the  additional/supplementary  affidavits as wrong  and  has stated  that what actually happened in the Court was  stated in his letter of 10th March, 1994. 20.  On 7th October, 1994, the contemner     filed       his unconditional written apology in the following words:               "1.  In deep and regretful realization of  the               fact  that a situation like the one which  has               given  rise  to the  present  proceedings  and               which in an ideal condition should never  have               arisen,  subjects  me  to  deep  anguish   and               remorse  and  a feeling of moral  guilt.   The               feeling has been compounded by the fact of  my               modest association with the profession as  the               senior  advocate for some time and also  being               the   President   of  the   High   Court   Bar               Association for multiple terms, (from which  I               have  resigned a week or ten days  back),  and               also being the Chairman of the Bar Council  of               India  for  the  third  five-year  term.   The               latter  two  being   posts  convey  with   its               holding an element of trust by my professional               fraternity which expectations of setting up an               example  of an ideal advocate, which  includes               generating   an   intra-professional   culture               between the Bar and the                  604               Bench,  under which the first looks  upon  the               second  with  respect  and  resignation,   the               second  upon  the  first  with  courtesy   and               consideration.  It also calls for  cultivation               of a professional attitude amongst the lawyers               to learn to be good and sporting losers.               2.    Guilty realizing my failure at  approxi-               mating   these  standards  resulting  in   the               present  proceedings, nolo contendre 1  submit               my humble and unconditional apologies for  the               happenings  in  the  Court  of  Justice   S.K.               Keshote  at Allahabad High Court on  March  9,               1994,  and submit myself at the  Hon.   Courts               sweet will.               3.    I  hereby  withdraw from record  all  my               applications,  petitions, counter  affidavits,               and  prayers made to the court earlier to  the               presented  [sic] of this statement.  1,  also,               withdraw  all  submissions  made  at  the  Bar               earlier  and rest my matter with  the  present               statement alone, and any submissions that  may               be  made in support of or in  connection  with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 31  

             statement. 21.  On that day, the matter was adjourned to 24th November, 1994  to enable the learned counsel for the parties to  make further submissions on the apology and to argue the case  on all  points,  since  the Court stated that  it  may  not  be inclined  to  accept the apology as tendered.   The  learned counsel  for  all the parties including the  contemner,  Bar Council of India and the State Bar Council of U.P. [who were allowed to intervene] were heard and the matter was reserved for judgment. 22.  Thereafter,   the  State  Bar  Council  of  U.P.   also submitted  its  written submissions on 26th  November,  1994 along with an application for intervention.  We have perused the said submissions. 23.  We may first deal with the preliminary objection raised by the contender and the State Bar Council, viz., that  this Court  cannot  take cognisance of the contempt of  the  High Courts.  The contention is based on two grounds.  The  first is  that  Article  129 vests this Court with  the  power  to punish  only for the contempt of itself and not of the  High Courts.   Secondly, the High Court is also another court  of record  vested  with  identical  and  independent  power  of punishing for contempt of itself. 24.  The  contention ignores that the Supreme Court  is  not only  the  highest  Court  of  record,  but  under   various provisions  of  the Constitution, is also charged  with  the duties  and responsibilities of correcting the lower  courts and  tribunals  and  of protecting  them  from  those  whose misconduct  tends  to prevent the due performance  of  their duties.   The latter functions and powers of this Court  are independent  of  Article  129 of  the  Constitution.   When, therefore,  Article 129 vests this Court with the powers  of the  court  of  record including the  power  to  punish  for contempt  of itself, it vests such powers in this  Court  in its  capacity as the highest court of record and also  as  a court  charged with the appellate and superintending  powers over  the  lower  courts and tribunals as  detailed  in  the Constitution.  To discharge its obligations as the custodian of  the administration of justice in the country and as  the highest   court  imbued  with  supervisory   and   appellate jurisdiction over all the lower courts and tribunals, it  is inherently  deemed to have been entrusted with the power  to see that the stream of justice in the country remains  pure, that its course is not hindered or obstructed in any manner, that,  justice is delivered without fear or favour  and  for that  purpose  all the courts and  tribunals  are  protected while  discharging  their legitimate duties.   To  discharge this 605 obligation,  this  Court  has  to  take  cognisance  of  the deviation  from the path of justice in the tribunals of  the land,  and  also of attempts to cause  such  deviations  and obstruct  the  course of justice.  To hold  otherwise  would mean that although this Court is charged with the duties and responsibilities  enumerated in the Constitution, it is  not equipped with the power to discharge them. 25.  This  subject has been dealt with elaborately  by  this Court in All India Judicial Service Association, Tees Hazari Court, Delhi V. State of Gujarat & Ors. [(1991) 4 SCC  406]. We  may do no better than quote from the said  decision  the relevant extracts:               "18.  ’Mere is therefore no room for any doubt               that  this Court has wide power  to  interfere               and correct the judgment and orders passed  by               any  court  or tribunal in  the  country.   In

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 31  

             addition to the appellate power, the Court has               special  residuary power to  entertain  appeal                             against any order of any court in the  country .               The  plenary  jurisdiction of  this  Court  to               grant leave and hear appeals against any order               of  a  court  or tribunal,  confers  power  of               judicial  superintendence over all the  courts               and  tribunals in the territory of  India  in-               cluding  subordinate courts of Magistrate  and               District  Judge.  This Court  has,  therefore,               supervisory  jurisdiction over’ all courts  in               India.               19.   Article  129 provides that  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.               Article  215  contains  similar  provision  in               respect of High Court.  Both the Supreme court               as  well as High Courts are courts  of  record               having powers to punish for contempt including               the  power to punish for contempt of  itself..               The  Constitution  does not define  "Court  of               Record".   This expression is well  recognised               in juridical world.  In Jowitt’s Dictionary of               English Law, "Court of record" is defined as :               "A   court  whereof  the  acts  and   judicial               proceedings  are  enrolled  for  a   perpetual               memorial and testimony and which has power  to               fine   and  imprison  for  contempt   of   its               authority."               In Wharton’s Law of Lexicon, Court of  -record               is defined as               "Courts are either of record where  their acts               and judicial proceedingsare  enrolled for  a               perpetual memorialand  testimony  and  they               havepower to fine and unpriced; or notof               record  being courts of inferior dignity,  and               in  a less proper sense the King’s  Courts-and               these are not entrusted by law with any  power               to  fine or imprison the subject of the  realm               unless by the express provision of some Act of               Parliament.    These   proceedings   are   not               enrolled or recorded"               In  Words and Phrases (Permanent Edition  Vol.               10  page 429) "Court of Record" is defined  as               under:               "Court  of  Record is a court where  acts  and               judicial proceedings are enrolled in parchment               for a perpetual memorial and testimony,  which               rolls  are called the ’record’ of  the  court,               and   are  of  such  high   and   supereminent               authority  that  their  truth  is  not  to  be               questioned."               Halsbury’s  Laws  of England, 4th  Edn.,  Vol.               IO, para 709, page 3 19, states:               "Another manner of division is into courts  of               record  and  courts not  of  record.   Certain                             courts are expressly               606               declared  by statute to be courts  of  record.               In  the case of courts not expressly  declared               to  be  courts of record, the  answer  to  the               question whether a court is a court of  record               seems to depend in general upon whether it has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 31  

             power  to  fine  or  imprison  by  statute  or               otherwise,  for  contempt of itself  or  other               substantive offences; if it has such power, it               seems that it -is a court of record......  The               proceedings of a court of record preserved  in               its  archives  are  called  records,  and  are               conclusive evidence of that which is  recorded               therein." x       x        x        x        x 23.  The  question  whether in the absence  of  any  express provision a Court of Record has inherent power in respect of contempt  of  subordinate  or  inferior  courts,  has   been considered by English and Indian courts. x       x        x        x        x the  High Court to deal with the contempt of inferior  court was  based not so much on its historical foundation  but  on the  High  Court’s inherents jurisdiction being a  court  of record  having jurisdiction to correct the orders  of  those courts. x     x       x        x        x        x 24.  In  India  prior to the enactment of  the  Contempt  of Courts  Act, 1926, High Court’s jurisdiction in  respect  of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England.  The High Courts in the  absence  of  statutory  provision  exercised  power  of contempt to protect the subordinate courts on the premise of inherent power of a Court of record." 26.The  English and the Indian authorities are based on  the basic  foundation  of inherent power of a Court  of  Record, having  jurisdiction  to  correct  the  judicial  orders  of subordinate  courts.  The King’s Bench in England  and  High Courts  in India being superior Courts of Record and  having judicial  power  to  correct orders  of  subordinate  courts enjoyed  the  inherent  power of  contempt  to  protect  the subordinate  courts.   The Supreme, Court being a  Court  of Record  under Article 129 and having wide power of  judicial supervision over all the courts in the country, must possess and  exercise  similar jurisdiction and power  as  the  High courts had prior to contempt Legislation in 1926.   Inherent powers   of  a  superior  Court  of  Record  have   remained unaffected even after codification of Contempt Law." x x x x x x 28....The Parliament’s power to legislate in relation to law of  contempt relating to Supreme Court is limited  therefore the Act does not impinge upon this Court’s power with regard to  the contempt of subordinate courts under Article 129  of the Constitution." 29.Article 129 declares the Supreme Court a court of  record and  it further provides that the Supreme Court  shall  have all the powers of such a court including the power to punish for contempt of itself.  The expression used in Article  129 is  not restrictive instead it is extensive in  nature.   If the  Framers of the Constitution intended that  the  Supreme Court  shall  have power to punish for  contempt  of  itself only,  there  was no necessity of inserting  the  expression "including the power to punish for contempt of itself".  The Article  confers  power on the supreme Court to  punish  for contempt  of  itself  and  in  addition,  it  confers   some additional  power relating to contempt as would appear  from the expression "including".  The expres- 607 ion  "including" has been interpreted by courts,  to  extend and widen the scope of power.  The plain language of Article 129  Clearly indicates that this Court as a court of  record has  power  to  punish  for  contempt  of  itself  and  also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 31  

something  else which could fall within the inherent  juris- diction   of  a  court  of  record.   In  interpreting   the constitution, it is not permissible to adopt a  construction which would render any expression superfluous or  redundant. The courts ought not to accept any such construction.  While construing Article 129, it is not permissible to ignore  the significance and impact of the inclusive power conferred  on the  Supreme Court.  Since the Supreme Court is designed  by the  Constitution as a court of record and as  the  Founding Fathers  were  aware  that a superior court  of  record  has inherent power to indict a person for the contempt of itself as  well  as  of  courts  inferior  to  it,  the  expression "including"  was  deliberately  inserted  in  the   article. Article 129 recognised the existing in her power of a  court of  record  in  its full plenitude including  the  power  to punish for the contempt of inferior courts.  If Article  129 is  susceptible to two interpretations, we would  prefer  to accept the interpretation which would preserve the  inherent jurisdiction  of  this  Court being the  superior  court  of record, to safeguard and protect the subordinate  judiciary, which forms the very backbone of administration of  justice. The  subordinate courts administer justice at the  grassroot level,  their  protection  is  necessary  to  preserve   the confidence of people in the efficacy of courts and to ensure unsullied flow of justice at its base level. x   x        x        x        x        x 3 1. We have already discussed a number of decisions holding that  the  High Court being a court of record  has  inherent power  in  respect of contempt of itself as well as  of  its subordinate courts even in the absence of any express provision in any Act.  A fortiori the Supreme court being the Apex Court of the country and  supe- rior  court  of  record should  possess  the  same  inherent jurisdiction  and  power for taking action for  contempt  of itself  as  well  as for the  contempt  of  subordinate  and inferior courts.  It was contended that since High Court has power  of superintendence over the subordinate courts  under Article  227 of the Constitution, therefore, High Court  has power  to  punish for the contempt  of  subordinate  courts. Since the Supreme Court has no supervisory jurisdiction over the  High  Court or other subordinate courts,  it  does  not possess  powers  which High Courts have under  Article  215. This  submission is misconceived.  Article 227  confers  su- pervisory jurisdiction on the High Court and in exercise  of that  power  High  Court  may  correct  judicial  orders  of subordinate courts, in addition to that, the High Court  has administrative control over the subordinate courts.  Supreme Court’s power to correct judicial orders of the  subordinate courts  under Article 136 is much wider and  more  effective than   that  contained  under  Article  227.    Absence   of administrative power of superintendence over the High  court and  subordinate  court does not affect  this  Court’s  wide power  of judicial superintendence of all courts  in  India. Once  there  is power of judicial superintendence,  all  the courts whose orders are amenable to correction by this Court would  be subordinate courts and therefore this  Court  also possesses similar inherent power as the High Court has under Article  215  with  regard to the  contempt  of  subordinate courts.   The jurisdiction and power of a superior Court  of Record  to  punish contempt of subordinate  courts  was  not founded    on   the   Court’s   administrative   power    of superintendence,  instead  the  inherent  jurisdiction   was conceded  to superior Court of Record on the premise of  its judicial power to correct the errors of subordinate courts. 608

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 31  

x   x        x        x        x        x 36.Advent of freedom, and promulgation of Constitution  have made  drastic  changes  in  the  administration  of  justice necessitating  new judicial approach.  The Constitution  has assigned  a new role to the Constitutional Courts to  ensure rule of law in the country.  These changes have brought  new perceptions.  In interpreting the Constitution, we must have regard  to the social, economic and political changes,  need of  the  community and the independence of  judiciary.   The court cannot be a helpless spectator, bound by precedents of colonial  days which have lost relevance.  Time has come  to have a fresh look at the old precedents and to lay down  law with the changed perceptions keeping in view the  provisions of  the  Constitution.   "Law", to use  the  words  of  Lord Coleridge,  "grows; and though the principles of law  remain unchanged,  yet their application is to be changed with  the changing  circumstances  of the time".   The  considerations which  weighed  with  the Federal  Court  in  rendering  its decision  in Gauba and Jaitly case are no more  relevant  in the context of the constitutional provisions. 37.Since  this Court has power of  judicial  superintendence and control over all the courts and tribunals functioning in the entire territory of the country, it has a  corresponding duty  to  protect  and safeguard the  interest  of  inferior courts  to ensure the flow of the stream of justice  in  the courts without any interference or attack from any  quarter. The  subordinate  and inferior courts do not  have  adequate power under the law to protect themselves, therefore, it  is necessary  that this court should protect them.   Under  the constitutional scheme this court has a special role, in  the administration  of  justice and the powers conferred  on  it under  Articles  32,  136, 141 and 142 form  part  of  basic structure  of the Constitution.  The amplitude of the  power of  this  Court  under these articles  of  the  Constitution cannot  be  curtailed  by  law  made  by  Central  or  State legislature.   If  the contention raised on  behalf  of  the contemners is accepted, the courts all over India will  have no  protection from this Court.  No doubt High  Courts  have power to persist for the contempt of subordinate courts  but that  does not affect or abridge the inherent power of  this Court  under  Article 129.  The Supreme Court and  the  High Court  both  exercise  concurrent  jurisdiction  under   the constitutional  scheme  in matters relating  to  fundamental rights  under  Articles  32 and  226  of  the  Constitution, therefore this Court’s jurisdiction and power to take action for contempt of subordinate courts would not be inconsistent to  any constitutional scheme.  ’Mere may be occasions  when attack  on Judges and Magistrates of subordinate courts  may have  wide  repercussions throughout the  country,  in  that situation it may not be possible for a High Court to contain the same, as a result of which the administration of justice in the country may be paralysed, in that situation the  Apex Court must intervene to ensure smooth functioning of courts. The Apex Court is duty bound to take effective steps  within the constitutional provisions to ensure a free and fair  ad- ministration  of  justice throughout the country,  for  that purpose it must wield the requisite power to take action for contempt  of subordinate courts.  Ordinarily the High  Court would  protect the subordinate court from any  onslaught  on their independence, but in exceptional cases,  extraordinary situation may prevail affecting the administration of public justice  or  where the entire judiciary  is  affected,  this Court   may   directly  take  cognisance  of   contempt   of subordinate  courts.   We  would like to strike  a  note  of caution that this Court will sparingly exercise its inherent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 31  

power  in taking cognisance of the contempt  of  subordinate courts, as ordinarily matters relating to contempt of 609 subordinate  courts must be dealt with by the  High  Courts. The  instant case is of exceptional nature, as the  incident created  a  situation where functioning of  the  subordinate courts  all over the country was adversely affected and  the administration  of  justice was paralysed,  therefore,  this Court took cognisance of the matter. 38....It is true that courts constituted under a law enacted by  the  Parliament or the State  legislature  have  limited jurisdiction  and  they  cannot  assume  jurisdiction  in  a matter,  not expressly assigned to them, but that is not  so in the case of a superior court of record constituted by the Constitution.   Such  a  court  does  not  have  a   limited jurisdiction  instead  it  has power to  determine  its  own jurisdiction.   No  matter is beyond the jurisdiction  of  a superior court of record unless it is expressly shown to  be so,  under  the  provisions of  the  Constitution.   In  the absence  of  any express provision in the  Constitution  the Apex Court being a court of record has jurisdiction in every matter  and  if there be any doubt, the Court has  power  to determine  its jurisdiction.  If such determination is  made by  High Court, the same would be subject to appeal to  this Court,  but if the jurisdiction is determined by this  Court it would be final. x     x        x        x        x        x Court and a superior court of record has power to  determine its  jurisdiction under Article 129 of the Constitution  and as  discussed  earlier it has jurisdiction  to  initiate  or entertain  proceedings for contempt of  subordinate  courts. This  view  does  not run counter to any  provision  of  the Constitution. 26.The  propositions of law laid down and  the  observations made  in  this decision conclusively negate  the  contention that  this  Court  cannot take cognisance  of  the  contempt committed of the High Court. 27.The contemner has also contended that notwithstanding the decision in Delhi Judicial Service Association Case [supra], the  matter  should be referred to a  larger  Bench  because according to him, the decision does not lay down the correct proposition of law when it gives this Court the jurisdiction under Article 129 of the Constitution to take cognisance  of the  contempt of the High Court.  Neither the contemner  nor the learned counsel appearing on his behalf has pointed  out to  us any specific infirmity in the said decision.  We  are not only in complete agreement with the law laid down on the point  in the said decision but are also unable to  see  how the  legal position to the contrary will be consistent  with this  Court’s wide ranging jurisdiction and its  duties  and responsibilities as the highest Court of the land as pointed out above.  Hence we reject the said request. 28.The  contemner  has  further contended that  it  will  be necessary  to hold an inquiry into the allegations  made  by the  learned  Judge  by  summoning  the  learned  Judge  for examination  to verify the version of the incident given  by him  as against that given by the contemner.   According  to him,  in  view of the conflicting versions of  the  incident given  by him and the learned Judge, it would  be  necessary for  him to cross-examine the learned Judge.  As  the  facts reveal,  the contempt alleged is in the face of  the  Court. The teamed Judge or the Bench could have itself taken action for  the  offence on the spot.  Instead, the  learned  Judge probably  thought  that  it  would not be  proper  to  be  a prosecutor, a witness and the Judge himself in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 31  

610 matter  and  decided to report the incident to  the  learned Acting Chief Justice of his Court.  There is nothing unusual in  the  course  the learned  Judge  adopted,  although  the procedure adopted by the learned Judge has resulted in  some delay in taking action for the contempt [see Balogh v. Crown Court  at  St. Albans [(1975) QB 73, (1974) 3 All  ER  283]. The  criminal  contempt of court undoubtedly amounts  to  an offence but it is an offence sui generis and hence for  such offence, the procedure adopted both under the common law and the  statute  law  even  in this  country  has  always  been summary.  However, the fact that the process is summary does not  mean  that the procedural requirement,  viz.,  that  an opportunity  of  meeting  the  charge,  is  denied  to   the contemner.   The degree of precision with which  the  charge may  be stated depends upon the circumstances.  So  long  as the  gist  of  the specific allegations  is  made  clear  or otherwise the contemner is aware of the specific allegation, it  is  not always necessary to formulate the  charge  in  a specific  allegation.   The consensus of opinion  among  the judiciary  and  the  jurists  alike  is  that  despite   the objection that the Judge deals with the contempt himself and the  contemner  has little opportunity  to  defend  himself, there is a residue of cases where not only it is justifiable to  punish on the spot but it is the only realistic  way  of dealing  with  certain offenders.  This procedure  does  not offend against the principle of natural justice, viz.,  Nemo judex  in  sua causa since the prosecution is not  aimed  at protecting   the   Judge  personally  but   protecting   the administration   of  justice.   The  threat   of   immediate punishment  is  the most effective  deterrent  against  mis- conduct.   The  Judge has to remain in full control  of  the hearing  of  the case and he must be able to take  steps  to restore  order  as early and quickly as possible,  The  time factor  is crucial.  Dragging out the  contempt  proceedings means  a lengthy interruption to the main proceedings  which paralyses  the court for a time and indirectly  impedes  the speed  and  efficiency with which justice  is  administered. Instant justice can never be completely satisfactory yet  it does   provide  the  simplest,  most  effective  and   least unsatisfactory method of dealing with disruptive conduct  in Court.  So long as the contemner’s interests arc  adequately safeguarded  by giving him an opportunity of being heard  in his defence, even summary procedure in the case of  contempt in the face of the Court is commended and not faulted. 29.In the present case, although the contempt is in the face of the court, the procedure adopted is not only not  summary but  has adequately safeguarded the  contemner’s  interests. The  contemner  was  issued  a  notice  intimating  him  the specific   allegations  against  him.   He  was   given   an opportunity to counter the allegations by filing his counter affidavit and additional counter/supplementary affidavit  as per  his  request, and he has filed the same.  He  was  also given  an  opportunity  to file an affidavit  of  any  other person that he chose or to produce any other material in his defence,  which he has not done.  However, in the  affidavit which  he has filed, he has requested for an examination  of the learned Judge.  We have at length dealt with the  nature of  in  facie  curiae contempt  and  the  justification  for adopting summary procedure and punishing the offender on the spot.   In such procedure, there is no scope  for  examining the  Judge, or Judges of the court before whom the  contempt is  committed.  To give such a right to the contemner is  to destroy not only the raison 611

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 31  

d’etre for taking action for contempt committed in the  face of  the court but also to destroy the very  jurisdiction  of the Court to adopt proceedings for such conduct.  It is  for these  reasons that neither the common law nor  the  statute law  countenances the claim of the offender for  examination of  the  Judge  or  Judges  before  whom  the  contempt   is committed.   Section  14 of our Act, i.e., the  Contempt  of Courts Act, 1971 deals with the procedure when the action is taken for the contempt in the face of the Supreme Court  and the  High Court.  Subsection [3] of the said  Section  deals with a situation where in facie curiae contempt is tried  by a Judge other than the Judge or Judges in whose presence  or hearing the offence is alleged to have been committed.   The provision in specific terms and for obvious reasons,  states that  in such cases it shall not be necessary for the  Judge or  Judges  in  whose presence or  hearing  the  offence  is alleged  to have been committed, to appear as a witness  and the  statement  placed  before the Chief  Justice  shall  be treated  as the evidence in the case.  The statement of  the learned  Judge has already been furnished to  the  contemner and  he  has replied to the same.  We  have,  therefore,  to proceed  by treating the statement of the learned Judge  and the affidavits filed by the contemner and the reply given by the teamed Judge to the said affidavits, as evidence in  the case. 30.  We may now refer to the matters in dispute  to  examine whether  the contemner is guilty of the contempt  of  court. Under  the  common law definition, "contempt  of  court"  is defined  as an act or omission calculated to interfere  with the  due  administration of justice.  This  covers  criminal contempt [that is, acts which so threaten the administration of justice that they require punishment] and civil  contempt [disobedience of an order made in a civil cause].  Section 2 [a] [b] and [c] of the Act defines the contempt of court  as follows:               "2.Definitions.  -  In this  Act,  unless  the               context otherwise requires, -               [a]  "contempt of court" means civil  contempt               or criminal contempt;               [b] "civil contempt" means wilful disobedience               to any judgment decree, direction, order, writ               or  other process of a court or wilful  breach               of an undertaking given to a court;               [c]   "criminal  contempt"   the   publication               [whether  by words, spoken or written,  or  by               signs,  or  by  visible  representations,   or               otherwise]  of any matter or the doing of  any               other act whatsoever which -               [i] scandalises or tends to or lowers or tends               to lower the authority of any court; or               [ii]  prejudices,  or interferes or  tends  to               interfere with, the due course of any judicial               proceedings, or               [iii]   interferes  or  tends  to   with,   or               obstructs   or   tends   to   obstruct,    the               administration     of  justice  in  any  other               manner" 31.  From  the facts which have been narrated above,  it  is clear  that the allegations against the contemner, if  true, would amount to criminal contempt as defined under Section 2 [c]  of the Act.  It is in the light of this  definition  of the "criminal contempt" that we have to examine the facts on record. 32. The essence of the contents of Justice Keshote’s  letter is that when he put a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 31  

                           612 question  to the contemner as to under which  provision  the order was passed by the lower court, the contemner  "started to  shout and said that no question could have been  put  to him".   The  contemner further said that he  would  get  the learned Judge transferred or see that impeachment motion was brought against him in Parliament.  He also said that he had "turned  up  many judges".  He also created a scene  in  the Court.   The learned Judge has further stated in his  letter that  in sum and substance it was a matter where "except  to abuse  him  of  mother and sister", he  insulted  him  "like anything".   The contemner, according to the learned  Judge, wanted  to  convey  to him that admission was  a  matter  of course and no arguments were to be heard at that stage.  The learned  Judge has given his reaction to the entire  episode by  pointing out that this is not a question of insulting  a Judge  but the institution as a whole.  In case the  dignity of  the judiciary was not maintained then he "did  not  know where   the  institution  would  stand,  particularly   when contemner who is a senior advocate, President of the Bar and Chairman of the Bar Council of India behaved in the court in such manner which will have its effect on other advocates as well".   He has further stated that in case the  dignity  of the  judiciary is not restored, it would be  very  difficult for  the Judges to discharge the judicial  function  without fear  or favour.  At the end of his letter, he has  appealed to  the  learned Acting Chief Justice  for  "restoration  of dignity of the judiciary’ 33.The  contemner,  as  pointed  out  above,  by  filing  an affidavit has denied the version of the episode given by the learned Judge and has stated that when the matter was called on,  the  learned  Judge  [he has referred  to  him  as  the ’applicant’] took charge of the court proceedings and virtu- ally  foreclosed  the attempts made by the senior  Judge  to intervene.  The learned Judge enquired from the contemner as to  under which law the impugned order was passed  to  which the latter replied that it was under various rules of  Order 39,  CPC.  The learned Judge then conveyed to the  contemner that  he  was going to set aside the entire  order  although against  a  portion  of  it only  he  had  come  in  appeal. According to the contemner, he them politely brought to  the notice of the learned Judge that being the appellant, he had the  dominion over the case and it could -not be made  worse just  because he had come to High Court.  According  to  the contemner, the learned Judge then apparently lost his temper and  told  him  that he would set aside the  order  in  toto disregarding what he had said.  The contemner has then  pro- ceeded to state that "being upset over what" he felt was  an arbitrary  approach to judicial process he "got  emotionally perturbed"   and   "his   professional   and   institutional sensitivity  got deeply wounded" and he told the  applicant- Judge  that  "it  was not the practice"  of  that  Court  to dismiss  case  without  hearing or  to  upset  judgments  or portions of judgments which have not been appealed  against. According  to  the contemner, "unfortunately  the  applicant Judge  took it unsportingly and apparently lost  his  temper and  directed  the Stenographer to take down the  order  for setting  aside of the whole order.  The contemner  has  then stated  that  he  "found it necessary to  mention  that  the exchange that took place between him and the applicant-Judge got  a  little  heated  up".  In  the  moment  of  heat  the applicant-Judge made the following observations: "I am  from the Bar and if need be I can take to goondaism. 613 never  opted  for Allahabad.  I had opted  for  Gujarat  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 31  

Himachal  Pradesh.  I do not know why the Chief  Justice  of India  disregarded  my options and transferred  me  to  this place, which I never liked".  According to the contemner, he was "provoked by this" and asked the learned Judge  "whether he  was  creating a scene to create conditions  for  getting himself transferred as also talked earlier".  The  contemner has denied that he had referred to any impeachment  although according  to  him,  he did say that "a  Judge  got  himself transferred  earlier on account of his inability to  command the  goodwill of the Bar due to lack of  mutual  reverence". He has also denied that when the learned Judge asked him  as to  under  which  provision the order  was  passed,  he  had replied  that the Court had no jurisdiction to ask the  same and  should  admit and grant the stay order.  He  has  added that such a reply could only be attributed to one who is mad and  it  is  unbelievable that "he would  reply  in  such  a foolish manner".  He has also denied that he had abused  the learned  Judge and the allegations made against him in  that behalf  were vague.  According to the contemner, if  he  had committed the contempt, the senior member of the Bench would have  initiated  proceedings  under  "Article  129"  of  the Constitution  for committing contempt in facie  curiae.   He has  also stated that even the learned Judge  himself  could have  done so but he did not do so and deferred  the  matter for  the next day and "adopted a devious way of  writing  to the acting Chief Justice for doing something about it" which shows that the version of the episode was not correct.   The contemner has also then expressed his " uncomprehension" why the learned Judge should have come to this Court when he had ample  and  sufficient legal and  constitutional  powers  to arraign  the contemner at the "Bar for what was  attributed" to him. 34.Before  we refer to the other contentions raised  by  the contemner, the question is which of the two versions has  to be  accepted as correct.  The contemner has no  doubt  asked for an inquiry and an opportunity to produce evidence.   For reasons  stated  earlier, we declined his request  for  such inquiry, but gave him ample opportunity to produce  whatever material   he  desired  to,  including  the  affidavits   of whomsoever  he desired.  Our order dated 15th July, 1994  is clear  on  the  subject.  Pursuant to the  said  order,  the contemner has not filed his further affidavit or material or the  affidavit of any other person.  Instead he  tendered  a written  apology  dated  7th October,  1994  which  will  be considered at the proper place.  In his earlier counter  and additional counter, he has stated that it is not he who  had committed  contempt  but  it is the learned  Judge  who  had committed contempt of his own court.  According to him,  the learned Judge had gagged him from discharging his duties  as an advocate and the statement of senior member of the  Bench concerned  was  necessary.  He has taken  exception  to  the learned  Judge  speaking  in the Court  except  through  the senior  Judge of the Bench which according to him, had  been the  practice  in the said High Court and has  also  alleged that the learned Judge did not follow the said convention. 35.Normally,  no  Judge  takes action for  in  facie  curiae contempt against the lawyer unless he is impelled to do  so. It  is  not  the heat generated in  the  arguments  but  the language  used,  the  tone and the manner  in  which  it  is expressed and the 615 use  disrespectful,  derogatory or threatening  language  or exhibit  temper  which  has the effect  of  overbearing  the court.   Cases are won and lost in the court daily.  One  or the  other side is bound to lose.  The remedy of the  losing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 31  

lawyer  or the litigant is to prefer an appeal  against  the decision  and  not to indulge in a running battle  of  words with  the  court.  That is the least that is expected  of  a lawyer.  Silence on some occasions is also an argument.  The lawyer  is  not entitled to indulge  in  unbecoming  conduct either by showing his temper or using unbecoming language, 36.The incident had undoubtedly created a scene in the court since even according to the contemner, the exchange  between the  learned Judge and him was a little heated up"  and  the contemner  asked the learned Judge "whether he was  creating scene  to create conditions for getting himself  transferred as also talked earlier".  He had also to remind the  learned Judge  that  "a  Judge got himself  transfeffed  earlier  on account of his inability to command the goodwill of the  Bar due to lack of mutual reverence".  He has further stated  in his  affidavit that "the entire Bar at Allahabad" knew  that he  was  unjustly  " roughed" by the  Judge  and  was  being punished  for taking "a fearless and nonservile  stand"  and that  he  was being prosecuted for "asserting"  a  right  of audience and ’using the liberty to express his views when  a Judge  takes  a course which in the opinion of  the  Bar  is irregular".   He has also stated that any  punishment  meted out to the "outspoken" lawyer will completely emasculate the freedom  of  the profession and make the Bar  a  subservient tail  wagging appendage to the judicial branch which  is  an anathema  to a healthy democratic judicial system.   He  has further stated in  his  petition  for taking contempt  action  against  the learned  Judge that the incident was "witnessed by  a  large number of advocates". 37.We have reproduced the contents of the letter written  by the  teamed Judge and his reply to the affidavits  filed  by the contemner.  The learned Judge’s version is that when  he put  the  question  to  the  contemner  as  to  under  which provision, the lower court had passed the order in question, the  contemner  started shouting and said that  no  question could have been put to him.  The contemner also stated  that he would get him transferred or see that impeachment  motion was brought against him in Parliament.  He further said that he  had "turned up" many judges and created a good scene  in the  Court.  The contemner further asked him to  follow  the practice of the Court.  The learned Judge has stated that in sum  and substance, it was a matter where except "’to  abuse of  his  mother  and  sister", he  had  insulted  him  "like anything".   The learned Judge has further stated  that  the contemner  wanted to convey to him that admission  of  every matter was as a matter of course and no arguments were heard at the admission stage.  He has reiterated the said  version in his reply to the affidavits and in particular, has denied the  allegations made against him by the contemner.  He  has defended  his asking the question to the contemner since  he was  a  member of the Bench.  The learned judge  has  stated that  the  contemner took exception to is  asking  the  said question  as  if  he had committed some  wrong  and  started shouting.  He has further stated that he had asked only  the question referred to above and the contemner had created the scene on account of his putting the said question to him, 616 and  made it difficult to continue the court’s  proceedings. Ultimately,  when  it  became impossible  to  hear  all  the slogans  and insulting words and threats, he  requested  the senior learned member of the Bench to list that case  before another Bench and to retire to the chamber.  Accordingly, an order was made by the senior member of the Bench and both of them  retired to the chamber.  The learned Judge has  denied

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 31  

that  he had conveyed to the contemner that he was going  to set  aside the entire order against a portion of  which  the contemner  had come in appeal.  He has stated that it was  a case   where  the  contemner  did  not  permit   the   court proceedings  to  be proceeded and both the  members  of  the Bench had ultimately to retire to the chambers.  The learned Judge  has  stated that the defence of the  conduct  of  the contemner in the counter affidavit "was a manufactured" one. He  has there dealt with each paragraph of  the  contemner’s counter  affidavit.   He has also stated that there  was  no question  of  his having directed the stenographer  to  take down  the order for setting aside of the whole  order  since that  function  was performed by the senior  member  of  the Bench.   He  has  also stated that the  contemner  has  made absolutely wrong allegations when he states that he had made the following remarks : "I am from the bar and if need be  I can  take  to goondaism".  He has also denied  that  he  had said: "I never opted for Allahabad.  I had opted for Gujarat and  Himachal Pradesh.  I do not know why the Chief  Justice of  India disregarded my options and transferred me to  this place,  which  I  never  liked".  He  has  stated  that  the contemner has made false allegations against him. 38.We  have,  by referring to the relevant portions  of  the affidavit and the counter affidavit filed by the  contemner, pointed  out  the  various  statements  made  in  the   said affidavits  which  clearly  point to  the  veracity  of  the version  given  by  the  learned  Judge  and  the  attempted rationalisation  of his conduct by the contemner.  The  said averment& also lend force and truthfulness to the content of the   learned   Judge’s  letters.   We  are,   taking   into consideration all the circumstances on record, of the.  view that the version of the incident given by the learned  Judge has to be accepted as against that of the contemner. 39.To  resent  the  questions  asked  by  a  Judge,  to   be disrespectful  to him, to question his authority to ask  the questions,  to shout at him, to threaten him  with  transfer and  impeachment, to use -insulting language and abuse  him, to  dictate the order that he should pass, to create  scenes in the Court, to address him by losing temper, are all  acts calculated  to  interfere with and obstruct  the  course  of justice.   Such  acts  tend to over-awe  the  court  and  to prevent  it from performing its duty to administer  justice. Such  conduct  brings  the authority of the  court  and  the administration of justice into disrespect and disrepute  and undermines  and erodes the very foundation of the  judiciary by  shaking the confidence of the people in the  ability  of the court to deliver free and fair justice. 40.The  stance  taken  by  the  contemner  is  that  he  was performing  his duty as an outspoken and fearless member  of the   Bar.   He  seems  to  be  labouring  under   a   grave misunderstanding.   Brazenness  is  not  outspokenness   and arrogance is not fearlessness.  Use of intemperate  language is  not  assertion  of right nor is a  threat  an  argument. Humility is not servility and cour- 617 tesy and politeness are not lack of dignity.  Self-restraint and  respectful attitude towards the Court  presentation  of correct  facts  and  law with a balanced  mind  and  without overstatement, suppression, distortion or embellishment  are requisites of good advocacy.  A lawyer has to be a gentleman first.  His most valuable asset is the respect and  goodwill he enjoys among his colleagues and in the Court. 41.  The  rule of law is the foundation  of  the  democratic society.  The judiciary is the guardian of the rule of  law. Hence  judiciary  is  not only the  third  pillar,  but  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 31  

central pillar of the democratic State.  In a democracy like ours,  where there is a written Constitution which is  above all  individuals  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 they are  sacredly entrusted to it, the dignity and authority  of the courts 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 entrusted with the extraordinary  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 founda- tion  itself  is  shaken  by  acts  which  tend  to   create disaffection  and disrespect for the authority of the  court by  creating  distrust in its working, the  edifice  of  the judicial system gets eroded. 42.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. 43. As held by this Court in the matter of Mr. ’G, a  Senior Advocate of the Supreme Court [(1955) 1 SCR 490]:               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   privileged               status,  am  subject to  certain  disabilities               which  do no 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  befitting  the               high and honourable profession               618               to  whose  privileges  he  has  so  long  been               admitted  and  if  he departs  from  the  high               standards  which that profession has  set  for               itself  and  demands of  him  in  professional               matters, he is liable to disciplinary action".               44.In  L.M.  Das v. Advocate  General,  Orissa               [(1957) SCR 167], this Court observed               "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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 31  

             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 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 unputations of  partiality  and               unfairnesss against the Munsif in open  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  ofjurisdiction  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 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. 45.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 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 disservice 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  profes- sion, but holds the high offices of the Chairman of the  Bar Council of India, Member of the Bar Council of U.P.,  Chair- man  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  adminis- tration 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. 46.The  contemner  has no doubt  tendered  an  unconditional apology on 7th October, 1994 by withdrawing from record  all his applications, petitions, counter affidavits, prayers and submissions made 619 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 31  

arisen  and  the  fact that it arose has  subjected  him  to anguish  and  remorse and a feeling of  moral  guilt.   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 his professional 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.  Nor 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 apology is couched in a  sophisticated  and  garbed language  exhibiting  more  an attempt  to  justify his conduct by reference  to  the  cir- cumstances  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 application, not only he has not shown any respect for the learned Judge, but  has made counterallegations against him and  has  asked for initiation of contempt proceedings against him.  He  has 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 contempt 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  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  the people.  For all  these  reasons,  we unhesitatingly reject the said so called apology tendered by the contemner. 47.  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  independent  of  the statutory law of contempt enacted by the Parliament 620 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 cognisance  of the  contempt as we 11 as to award punishment for  it  being constitutional,  it  cannot be controlled  by  any  statute.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 31  

Neither, therefore, the Contempt of Courts Act, 1971 nor the Advocates Act, 1961 can be pressed into service to  restrict the  said  jurisdiction.  We had, 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 curiae to assist the Court were requested to  advance their arguments also on the said point.  Pursuant to it,  it was  sought to be contended on behalf of the  contemner  and the  U.P. Bar 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 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 this 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  [31  (d). Relying on these provisions, it was contended that since the Act  has  vested the powers of suspending and  removing  the advocate  from  practice  exclusively  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 contention, reliance  was placed on the observations of the majority  of this  Court in Prem Chand Garg v. Excise Commissioner,  UP., Allahabad  [(1963)  Supp.   I S.C.R. 8851  relating  to  the powers of this Court under Article 142 which are as follows: .lm15 "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 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  departure 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 621 Art. 142 and Art.32 should be reconciled by the 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 31  

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,  in- consistent  with  any Constitutional provisions  There  can, therefore,  be no conflict between Art. 142(1) and Art.  32. In the case of KM.  Nanavafi v. The State of Bombay f(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 the said Article and that vested  in  the Governor of the State under Art. 16 I., The possibility of a conflict between these powers necessitiated 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  Art142(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 K.M.  Nanavati." 48.  Apart  from the fact that these observations  arc  made with reference to the powers of this Court under Article 142 which are in the nature of supplementary powers and not with reference to this Court"s power under Article 129, the  said observations have been explained by this Court in its latter decisions in Delhi Judicial Services Association v. State of Gujarat  [supra] and Union Carbide Corporation v.  Union  of India  [(1991)4  SCC 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 Court’s power under Article 142 [1]  in  the context  of fundamental rights.  Those observations have  no bearing  on  the present issue.  No doubt,  it  was  further observed  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  [1]  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 matter.  A reference was made in that connection to  the concurring  opinion of Justice A.N. Sen in Harbans Singh  v. State  of  UP. [(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               circumstances    for  furthering the  ends  of               justice. The  Court  has  then  gone on  to  observe  there  that  no enactment made by Central 622

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 31  

or State legislature can limit or restrict the power of this 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 cause or matter, would  depend  upon the facts and circumstances of each case. 49.  In  the  latter case, i.e., the  Union  Carbide’s  Case [supra],  the Constitution Bench in paragraph 83  stated  as follows:               "It  is necessary to set at rest certain  mis-                             conceptions in the arguments touching the scop e               of  the powers of this Court under  Art.142(1)               of the Constitution.  These issues are matters               of serious public importance.  The proposition               that   a   provision  in  any   ordinary   law               irrespective  of the importance of the  public               policy on which it is founds operates to limit               the powers of the apex Court under Art. 142(1)               is  unsound  and erroneous.  In both  Garg  as               well  as  Antulay cases the point was  one  of               violation  of  constitutional  provisions  and               constitutional rights.  The observations as to               the  effect  of inconsistency  with  statutory               provisions  were really unnecessary  in  those               cases   as  the  decisions  in  the   ultimate               analysis    turned    on   the    breach    of               constitutional  rights.   We agree  with  Shri               Nariman  that  the power of  the  Court  under               Article  142 insofar as quashing  of  criminal               proceedings are concerned is not exhausted  by               Section  320 or 321 or 482 Cr.P.C. or  all  of               them  put together.  The power  under  Article               142 is at an entirely different level and of a               different     quality.     Prohibitions     or               limitations   or   provisions   contained   in               ordinary  laws  cannot,  ipso  facto,  act  as               prohibitions    or    limitations    on    the               constitutional powers under Article 142.  Such               prohibitions  or limitations in  the  statutes               might  embody  and  reflect the  scheme  of  a               particular law, taking into account the nature               and  status of the authority or the  court  on               which conferment of powers - limited in  sonic               appropriate   way  -  is  contemplated.    The               limitations may not necessarily reflect or  be               based  on  any fundamental  considerations  of               public   policy.    Shri   Sorabjee,   learned               Attorney General, referring to Garg Case, said               that  limitation on the powers  under  Article               142  arising from "inconsistency with  express               statutory provisions of substantive law"  must               really mean and be understood as some  express               prohibition   contained  in  any   substantive               statutory  law.   He  suggested  that  if  the               expression  ’prohibition’ is read in place  of               ’provision’   that  would  haps   convey   the               appropriate  idea.   But we  think  that  such               prohibition  should also be shown to be  based               on  some  underlying fundamental  and  general               issues   of  public  policy  and  not   merely               incidental to a particular statutory scheme or               pattern.  It will again be wholly incorrect to               say that powers under Article 142 are  subject               to such express statutory prohibitions.   That

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 31  

             would  convey  the idea  that  statutory  pro-               visions  override a constitutional  provision.               Perhaps, the proper way of expressing the idea               is that in exercising powers under Article 142               and  in  assessing  the needs  of  "  complete               justice" of a cause or 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  no t               ’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." 50.In view of these observations of the latter  Constitution Bench on the point, the observations made by the majority in Prem 623 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) Supp.  1  SCC  1451  by referring  to  the decisions of Delhi Judicial  Services  v. Stale  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]. 51.  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 11 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.   Sec- ondly,  it would also mean that for 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 cue  may  be. Such a proposition of law on the  face  of  it deserves   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  mis- conduct is different from the jurisdiction of the courts  to take action against the advocates for the contempt of court. The said jurisdictions co-exist independently of each other. The  action  taken under one jurisdiction does  not  bar  an action under the other jurisdiction. 52.  The  contention is also misplaced for yet  another  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 31  

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  ca- pacity  this  Court  can  impose  any  of  the   punishments mentioned  in Section 35 (3) of the Act including  that,  of removal of the name of the Advocate from the St-ate 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 punishments.   The  punishment  so imposed  will not only be not against the provisions of  any statute,  but in conformity with the substantive  provisions of  the Advocates Act and for conduct which is both  a  pro- fessional misconduct as well as the contempt of court.   The argument has, therefore, to be rejected. 53.  What  is further, the jurisdiction and powers  of  this Court under Article 142                             624 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 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 advocate from practice and  his  removal from  the  State  roll of advocates  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. 54.  Shri P.P. Rao, learned counsel appearing     for    the High Court Bar Association of Allahabad    contended    that Articles  19 [1] (a) and 19 [2], and 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 contempt of court as well.  Article 19  [1] (g)  guarantees the right to practise any profession  or  to carry on any occupation, trade or business and is subject to the provisions of Article 19 [6] which empowers the State to make  a  law imposing reasonable restrictions,  in  the  in- terests of general public, on the exercise of the said right and,  in  particular,  is  subject  to  a  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 Article 129 is subject to the provisions of Articles 19 [1] (a) and 19  [1] (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 31  

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  pro- fession.   The  freedom of speech and expression  cannot  be used  for  committing contempt of court nor  can  the  legal profession be practised by committing the contempt of court. The right to continue to practise, is subject to 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 Article  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] respectively. 625 55.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 custodian  ofjustice  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  a  failure  to discharge the duty.  In this connection, we may refer to the following  extract from the decision of this Court in  Chief Controlling  Revenue Authority and Superintendent of  Stamps v. Maharashtra Sugar Mills Ltd. [(1950) SCR 536]: .lm15 public  authority  there may be circumstances  which  couple with  the power a duty 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 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’." 56.For  the reasons discussed above, we find the  contemner, Shri  Vinay  Chandra Mishra, guilty of the  offence  of  the criminal  contempt of the Court for having  interfered  with and obstructed the course of of in the above terms.  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  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. 57.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 criminal contempt as under:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 31  

             [a]  The  contemner Vinay  Chandra  Mishra  is               hereby   sentenced  to  undergo   simple   im-               prisonment   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 elective and nominated  offices/posts               at  present held by him in his capacity as  an               advocate, shall vacated by him forthwith. 58.  The  contempt  petition  is disposed of  in  the  above terms. 629