PRACTICAL TRAINING

ASSIGNMENT

SUBMITTED BY
Sasmit Shailesh Powale

III -I - B Roll. No. 008

SUBMITTED TO
Adv./Prof. Rahul Pawar
Government Law College,
Mumbai

DATE : 27TH APRIL 2022

What are the main Object and Reasons and Preambles of
Contempt of Court Act, 1971?

Contempt of court is the offense of being defiant or disrespectful to the court

of law. Being impolite to legal authorities in the courtroom, or rebelliously
failing to follow a court order may draw Contempt of Court proceedings. A
judge can levy sanctions such as a penalty or prison for someone found
guilty of contempt of court.

Origin, History of Contempt of Courts Act, 1971

To understand the law pertaining to “Contempt of Court”, one needs to

refurbish its history regarding the great nation of India, which means
dwelling into the times of ancient India. One needs to understand that the
old laws were based on certain feudal principles wherein the king was
supreme and the people were its subjects/servants. The people could not
criticize the king who held the position of a master. As a matter of fact,
people were punished for criticizing the king. In many kingdoms, the kings
used to decide the cases (Mughal Empire), but as a king, came many added
responsibilities such as taking up cases related to administration, financial
and welfare of its people. Thus, the Kings delegated its duties to people
known as judges. Being delegated from the King himself, the judges bore
the same dignity, pompousness, aura as the king himself. The aura and the
pompousness was a result of the work they were expected to perform, such
that, to maintain obedience amongst the people, similar to that expected
from the king. So, to criticise the judge, was like criticising the king, which is
why it was punishable. Thus, it would be correct to say all state authorities
in feudal times were delegates of the king.

However, in a democracy this relationship stands reversed, earlier the kings

were supreme and its people were subordinates, whereas in a Democracy
the people are supreme and all other state authorities are servants of the
people whether it is the Chief Justice, Prime Minister, President or be it the
Judges. After understanding the change in position one needs, to observe
that “being disrespectful or disobedient towards a court of law in a form of
behaviour that opposes law or defies authority of a court of law, justice and
dignity of the court” is the only contempt that exist in modern era unlike the
feudal times.

Thus, the Origin of the concept of Contempt can be traced into Ancient
India. The other origin comes from the British Era. The origin of the law of
contempt can be traced from the English law. Britishers who were pioneers
at making laws, had from the existence of ancient times, in England
understood the importance of a court and the judges presiding in it. Thus,
the English had come about with the concept of contempt of court, which
invariably led to the imposition of their law in all the princely states,
provinces and countries under the British regime. India is no different. In
England, superior courts of records have from early times exercised the
power to commit contempt for persons who scandalised the court or the
judges. The right of the Indian High Courts to punish for contempt, was in
the first instance recognised by the judicial committee of the Privy Council
which observed that the offense of contempt of court and the powers of the
High Courts to punish it, are the same in such courts as in the Supreme
Court in England.

It will be observed from the Historical Conduct of the High Courts of

Calcutta, Madras and Bombay, that they had inherent powers to punish for
contempt. It had been judicially accepted throughout India that the
jurisdiction was a special one inherent in the very nature of the court. The
statute on the law of contempt can be traced to have been first enacted in
the year 1926. It was enacted to define and limit the powers of certain
courts in punishing contempt of courts.

During the existence of 1926 enactment many States in India had their
corresponding enactments dealing with contempt. State enactments of the
Indian States and the Contempt of Court Act, 1926 were replaced by the
Contempt of Court Act, 1952. It was observed that there was a lot of
uncertainty and undefined parameters in the aforesaid law, so an attempt
was made for the first time, for resolving and getting about a uniform law
meeting the needs of the modern times in the year 1960. An attempt was
made in April, 1960 to introduce in the Lok Sabha a bill to consolidate and
amend the law relating to contempt of court. On an examination of the bill,
the Government appears to have felt that the law relating to contempt of
court was uncertain, undefined and unsatisfactory.

Definition of Contempt of Court

Contempt of court often referred to simply as “contempt”, is the offense of

being disobedient to or disrespectful toward a court of law and its officers in
the form of behavior that opposes or defies the authority, justice and dignity
of the court. A similar attitude towards a legislative body is termed contempt
of Parliament.

There are broadly two categories of contempt:

1) Being disrespectful to legal authorities in the courtroom.

2) Willfully failing to obey a court order.

When a court decides that an action constitutes contempt of court, it can

issue an order that in the context of a court trial or hearing declares a
person or organization to have disobeyed or been disrespectful of the court’s
authority, called “found” or “held” in contempt. That is the judge’s strongest
power to impose sanctions for acts that disrupt the court’s normal process.

In some jurisdictions, the refusal to respond to subpoena, to testify, to fulfill

the obligations of a juror, or to provide certain information can constitute
contempt of the court.

Purpose and object of law of contempt

The purpose of the law of contempt is to protect the machinery of justice

and the interests of the public. It provides a mechanism to prevent
interference in the course of justice and to maintain the authority of the law,
but it is a weapon that must be used sparingly. The object of contempt
proceedings is not to protect judges personally from criticism but to protect
the public by preserving the authority of the court and the administration of
justice from undue attack; however, judges cannot use it to wreck personal
vengeance. In the case of contempt which is not committed in the face of
the court, which may be described as constructive contempt, and which
depends upon the interference of an intention to obstruct the course of
justice, guidelines for the exercise of the jurisdiction to commit for contempt
have been laid down as follows:

- Economical use of jurisdiction is desirable - Harmonization between free

criticism and the judiciary should be the goal.

- Confusion between the personal protection of a libeled judge and the

prevention of obstruction of public justice should be avoided.

- The press should be given free play within responsible limits, even when
the focus of its critical attention is the court.

- Judges should not be hypersensitive, even where distortions and criticism

overstep the limits.

If, after taking into account all these considerations, the court finds
contempt of court beyond condonable limits, then the strong arm of the law
must be used in the name of public interest and public justice.

Contempt of Courts Act, 1971

On 1st April, 1960, Sri Bibhuti Bhushan Das Gupta introduced in the Lok
Sabha a bill to consolidate and amend the law relating to Contempt of Courts
Act. The government after examining the bill realized the need to reform the
existing Act, and set up a special committee for scrutinizing the Act. The
Sanyal committee submitted its report on the 28th of February, 1963. The
contempt of courts Act, 1971 is mainly based on the recommendations of
the Sanyal Committee.

The committee was set up in 1961 under the chairmanship of Late Shri H.N.
Sanyal, the then additional solicitor general. The committee made a
comprehensive study of the law and the problems relating to contempt of
courts in the light of the position obtained in our own country and various
countries. The recommendations took note of the importance given to
freedom of speech in the Constitution and of the need for safeguarding the
status and dignity of courts and interests of administration of justice.

Sanyal Committee went into almost every aspect and examined various
judgments of the High Courts and the Supreme Court and also of Foreign
Courts, on the Subject. The recommendations which the Committee made,
took due note of the importance given to freedom of speech in the
Constitution and of the need for safeguarding the status and dignity of
courts and the interests of administration of justice. The recommendations
of that Committee were generally accepted by Government, after
considering the views expressed on those recommendations by the State
Governments, Union Territory Administrations, the Supreme Court, the High
Courts and the Judicial Commissioners. Based on those recommendations,
Government brought the Contempt of Courts Bill to replace and repeal the
Act of 1952. The Objects and Reasons of the Bill read as under :-

‘It is generally felt that the existing law relating to Contempt of Courts is
somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for
contempt touches upon two important fundamental rights of the citizens, namely,
the right to personal liberty and the right to freedom of expression. It was,
therefore, considered advisable to have the entire law on the subject scrutinized
by a special committee. The Contempt of Courts Act, 1971 (70 of 1971) is the
product of the Report of that Committee.’

The Act of 1971 effected significant changes in procedure as well as in

application of the enactment. ‘Contempt of Court’ has been segregated into
‘Civil’ and ‘Criminal’ contempt with their respective definitions, which the old
Act did not contain. Though the old Act could not be held ineffective in the
absence of the definition of the term ‘Contempt’, this Act modified the
definition of ‘Contempt’ to a considerable extent.

Instances of publishing and distributing any matter, interfering or tending to

interfere with or obstructing or tending to obstruct the course of justice
during pendency of the proceedings, if there are reasonable grounds for
believing that the proceedings were pending; fair and accurate reporting of a
judicial proceedings; fair criticism on merits of any case which has been
heard and finally decided, complaint or statement made in good faith against
the presiding officer; fair and accurate report of judicial proceedings held in
chambers or in camera, have been excluded from the definition.

What is the punishment for Contempt of Court?

A finding of being in contempt of court may result from a failure to obey a

lawful order of a court, showing disrespect for the judge, disruption of the
proceedings through poor behavior, or publication of material or
non-disclosure of material, which in doing so is deemed likely to jeopardize a
fair trial. A judge may impose sanctions such as a fine or jail for someone
found guilty of contempt of court, which makes contempt of court a crime.
Judges in common law systems usually have more extensive power to
declare someone in contempt than judges in civil law systems.

Both the High Court and the Supreme Court of India are bestowed with the
power to punish for the contempt of the court.

According to the Indian Penal Code Section 12 of Contempt of Court Act,

1971, contempt of court can be punished with simple imprisonment for a
term which may extend to six months, or with fine which may extend to two
thousand rupees, or with both.
Explain the duties of Advocate towards the court.

Advocate is a person who is professionally qualified to plead the cause of

another in a court of law.Section 2(1)(a) of Advocate Act 1961 defines
Advocate "means an Advocate entered in any roll under the provision The
Advocate Act 1961.'' The Advocate is an officer of the court.

The Advocate Act 1961 governs all the advocates in India. The
implementation and control of rights is vested in the Bar Council of India
which is the administrative body that manages the whole law system in
India.

“Lawyers have their duties as citizens, but they also have special duties as
lawyers. Their obligations go far deeper than earning a living as specialists in
corporation or tax law. They have a continuing responsibility to uphold the
fundamental principles of justice from which the law cannot depart.”

Advocate is the member of bar council of India and to stick to that he has to
be lawful and moral in all aspects. Advocacy is the noble profession and an
Advocate is supposed to maintain the etiquettes and manners. Being the
officer of justice compliance with given ethical standards of the Advocacy
Act, 1961 is necessary. The advocate has to abide by the Rules established
under the Advocates Act, 1961. The conduct of Advocates is laid down in the
Advocates Act, 1961 under Chapter V. As officers of the Court as well as
agents of the client, it is the utmost duty of the advocate to adhere to a
standard of conduct which is befitting of his status and responsibility. To
serve the purpose of justice, the advocate first needs to understand the facts
and law to be applied to the case. And for that purpose, he should
be disciplined and hardworking. It will also be helpful for the development of
personality.

Being the member of society, he owes the duty towards society. The qualities
that theadvocate possesses should be such that it inculcates the sense of
duty that every professional person should abide by. This duty underlines the
professional ethics and etiquettes that are the fundamental principles on
which the profession has been built. The Bar Council of India is empowered
to make rules under S49(I) (C) of the Advocates Act, 1961 determining the
standards of professional conduct and etiquette to be followed by the
advocates. When the Chief Justice of India approves rules made by the Bar
council then only the rules come into
effect. In ascendancy, the Bar Council of India has made several rules
specifying the professional conduct and ethics of Advocates. These rules
specify the duties of an Advocate to the court, client, opponent and
colleagues etc. It deals with the canons of professional ethics while
discharging the professional duty. The main objective of incorporation of
duties is so maintain dignity of the profession.

Chief Justice Marshall has observed in this respect, ',The fundamental aim of
legal ethics is to maintain the honour and dignity of the law profession to
secure a spirit of friendly cooperation between the bench and bar in the
promotion of higher standard of justice, to establish honourable and fair
dealings of the counsel with his client, opponent and witness, to establish a
spirit of brotherhood with bar itself and to secure that lawyers discharge
their responsibilities to the community generally.''

The Conduct and etiquettes of advocate is mentioned under chapter II of

part VI of the rules includes the duties of Advocates. Its preamble asserts
that “An advocate shall, at all times, comfort himself in a manner befitting
his status as an officer of the Court, a privileged member of the community,
and a gentleman, bearing in mind that what may be lawful and moral for a
person who is not a member of the Bar, or for a member of the Bar in his
non-professional capacity may still be improper for an advocate. Without
prejudice to the generality of the foregoing obligation, an advocate shall
fearlessly uphold the interests of his client and in his conduct conform to the
rules hereinafter mentioned both in letter and in spirit.” The provisions
relating to duties of an advocate to the court are provided under rules 36 to
39 of Part VI of Bar Council of India Rules.

1.Respect the court

The court is the most important authority which serves justice. Every person
is entitled to live the life freely without any discrimination or threat. Where
there is injustice the court and in particular the judges play an important
role to make the situation just by providing proper judgment. It is the
intelligence of the judge and his understanding of law that helps the court
follow the actual truth. Therefore, it is the duty of advocates to maintain a
respectful attitude.The dignity of judicial officers is prerequisite for the
survival of a free community. The judicial officer is in incharge to serving
justice. A society without law would be anarchical. The law is necessary for
the security of people living in the society. Where there is
In the situation of insecurity there comes injustice and the court plays an
important role to uphold justice. For the fair living of every individual in the
society, the law must be upheld. It is the duty of the court and thereby of
judges and advocates to maintain lawful behavior. The advocate is required
to respect the court and maintain the decorum. While presenting the case or
otherwise acting before the court , he should conduct himself with dignity
and self respect. He shall not be servile. It is the duty of the advocate to
perform his functions in such a
manner that due to his acts the honor, dignity and integrity of the courts
shall not be affected. An advocate should speak loudly or laugh in the court
room especially when the proceedings are going on. He shall not speak ill or
make abusive remarks about the judges.If there is any serious complaint
against the judicial officer, he is vested with not only the right but also the
duty to submit the grievances to the proper authority. It is the duty of an
Advocate to show due respect towards the court and shall never behave in a
way that will amount to loss of the
confidence in the judiciary by the general public.

2.Refuse to act in illegal manner

Advocate is the officer of court which serves justice. It would be

controversial then if the advocate himself is involved in any unlawful
practices. The law provides justice and the lawful behaviour can be called as
just behaviour and therefore any unlawful behaviour or conduct on the part
of advocate becomes illegal. The person providing legal services should
necessarily adhere to the law. Acting in an illegal manner will fall short on
the legal profession and would hamper the process of justice. Therefore,
while representing the client in the court, an Advocate should refuse to do
any illegal work. The advocate should not illegally hamper the case, facts of
the case or evidence. It is the duty of the advocate to prevent himself and
his client from engaging in any unlawful practices in relation to the court or
opposing counsel. The advocate must be fair enough to refuse to represent
the client if he insists on performing unfairly and improperly. Based on his
own intelligence and knowledge he should exercise his judgment instead of
being a mere mouthpiece of his client. The conduct of the advocate
should be such that it maintains the discipline and law.The unlawful conduct
on the part of the advocate or his client would be wrong. The use of
language, avoidance of scurrilous attacks in pleadings are requisite of the
conduct of advocate. Failure of the advocate to adhere to this principle would
be harmful to the society at large. The people will lose confidence in the
judiciary if the officers of the court are found to be guilty of unfair and
unlawful practices. The duty requires the advocate to make best efforts to
restrain his client and himself from falling into any unfair practices.

3.No private communication with the judge

Audi Alteram Partem is the most important principle of natural justice

which means no party should be condemned unheard. Both the parties
should get equal chances to represent themselves. It is the duty of the court
and especially of the judge to listen to both sides before deciding the case.
After understanding the facts of the case and evidences provided by both the
parties, judges are required to pass the judgement which follows the truth.
The advocate should present the case in lawful manner without influencing
the decision of the
court privately. An Advocate should argue on the behalf of the client and also
respect the other party. To uphold the justice it is necessary for the advocate
to not communicate with a judge related to a case privately and tamper with
him to pass the decision in his favour. By communicating privately, the
advocate seems to influence the decision of the court in illegal and improper
means. Private communication with a judge if the case is pending in the
court are forbidden as it is unethical to the practice. It is the duty of the
advocate to cooperate with
the bench even if he can speculate that his client may lose the case. It is
necessary to not hamper the court's decision through illegal means like
communicating with judges privately as it would lead to diffidence in the
judicial system.

4.Appear in proper dress code

The advocate should be presentable and punctual. He shall appear in the

court at all times in prescribed dress while addressing the court in case. The
dress code for advocate has been defined by the Bar Council of India. Dress
Code is a Symbol of Confidence, Discipline and Profession. The black and
white dress code has its own significance. The black on one hand
signifies strength and authority whereas white on the other hand
signifies light and goodness.
The black is representing submission in the sense that lawyers are
submissive to the justice and the hope that common man possesses in the
legal system is represented by white colour.

It is the balance between authority and innocence. Rule Under Section

49(1)(GG) of The Advocates Act states ''Advocates, appearing in the
Supreme Court, High Court, subordinate courts, tribunals or authorities shall
wear the following as part of their dress which shall be sober and dignified;

Advocates other than lady advocates:

1. (a) a black buttoned-up coat, chapkan, achkan, black sherwani and white
bands with advocate’s gown, or(b) a black open breast coat, white collar,
stiff or soft, and white bands with advocates’ gowns.
In either case long trousers (white, black, striped or grey) or dhoti.

Lady advocates:
2. (a) black and full or half-sleeve jacket or blouse, white collar, stiff or soft,
and white bands with advocates’ gowns;
(b) sarees or long skirts (white or black or any mellow or subdued colour
without any print or
design) or flares (white, black or black-striped or gray):
Provided that the wearing of advocate’s gown shall be optional except when
appearing in the Supreme Court or in a High Court.Provided further that in
court other than the Supreme Court, High Court, District Court, Sessions
Court or City Civil Court, a black tie may be worn instead of bands.”

The 'Dress Code' expresses sanctity and commitment of the Lawyers

towards Judicial Institutions and enhances their responsibility for the
profession.

5.Not wear gowns and bands in public places.

The dress code emphasizes professionalism. It is the symbol of unity and

discipline. It is compulsory for the advocate to follow the dress code while
appearing before the court. The Bar Council of India has laid down the
provision for advocates to wear the gowns and bands only in the court and
wherever the Bar Council prescribes. The rule bans the wearing of gowns
and bands at public places.
The white and black symbolises power and innocence. The dignity of the
advocate lies in his personality. The dress of the person also influences the
personality. The advocate is therefore required to wear the gown and band
to represent confidence and unity. It is the identity of the advocate. It gives
respect to the profession and therefore it should not be wore in public places
or at the times where it is not required.

6. Refuse to appear in the court where the judge or member is in relation

The justice should be free from bias. It is the duty of the court to listen to
the both sides and pass the judgement fairly. Based on the interest of
opinion, the judgement should not be passed. It is possible that the
judgement passed to be biased if the person arguing in favour of one party
is related to the judge and therefore it is of great importance to forbid an
Advocate From appearing in the cases where he has relation with the judge.
The trust is the base of any
relation which creates affection towards the person. It is the tendency of the
person to see our relatives win. In such a cases, to avoid passing of partial
or bias judgement, the advocate should refrain himself from fighting the
case in the court where the judge is in relation with him. The Act states that
' an Advocate shall not enter appearance, act ,plead or practise in any way
before a court, tribunal or authority mentioned in the section 30 of the Act ,
if the sole or
any member thereof is related to the advocate as father, grandfather, son,
grandson, uncle,
brother, nephew, first cousin, husband, wife, mother, daughter, sister, niece,
aunt, father in law, mother in law, son in law, brother in law, daughter in law
or sister in law ''

The sole purpose to introduce this rule is to avoid bias against one party. The
partiality will eventually mean the injustice thereby making the advocate
follow unlawful practice and thus violating the duties mentioned by the Bar
Council of India.

7. Not appear in the matters of pecuniary interest

It deals with the administration of justice. The Advocates is required to not

appear in the matters of his pecuniary interest.

I. He should not act in a bankruptcy petition when he himself is also a

creditor of the bankrupt.

II. He should not accept a brief from a company of which he is a Director.

8. Shall not appear for or against organization, institution , society or

corporation if he is the member of executive committee of such
organisation or institute or corporation or society

The executive committee shall include any committee or body of persons

which for the time being is vested with the general management of the
affairs of the organisation or institutions, society or corporation. This is the
duty of an Advocate to not represent the case of or against an organization,
institution , society or corporation if he is the member. The rule is not
applicable to the member who is appearing as the amicus curiae.

Therefore the above stated rules and regulations impose a duty on an

advocate which facilitates delivery of quality justice to the masses. Justice
after all means to bind people together, and advocates are the threads which
hold society together.
Supreme Court Bar Association v. Union of India AIR
1998 SC

The legal profession is a solemn and serious occupation. It is a noble calling

and all those who belong to are its honorable members. Although the entry
to the profession can be had by acquiring merely the qualification of
technical competence, the honor as a professional has to be maintained by
its members, by their exemplary conduct both in and outside the court.

The object and need of the contempt jurisdiction or contempt of the Court
has held that the object of the contempt power is not to vindicate the dignity
and honor of the individual Judge who is personally attacked or scandalized,
but to uphold the majesty of law and administration of justice. The
foundation of the Judiciary is the trust and confidence of the people in its
ability to deliver fearless and impartial justice.

The judiciary is the guardian of the rule of law. Hence judiciary is not the
third pillar but the central pillar of the democratic state. Misconduct: it is a
sufficiently wide expression: it is not necessary that it should involve moral
turpitude. Any conduct which in any way renders a man unfit for the exercise
of his profession or is likely to hamper or embarrass the administration of
justice may be considered to be misconduct calling for disciplinary action. It
cannot be said that an advocate can never be punished for professional
misconduct committed by him in his personal capacity. In an earlier case
where the Supreme Court had found Vinay Chandra Mishra, an Advocate,
guilty of committing criminal contempt of Court for having interfered with
and obstructing the course of justice by trying to threaten, overawe and
overbear the court by using insulting, disrespectful and threatening
language. TheSupreme Court invoked its power under article 129 read with
article 142 of theConstitution and awarded the contemner a suspended
sentence of imprisonment together with suspension of his practice as an
advocate. The Court sentenced the contemner Vinay Chandra Mishra for his
conviction for the offence of the criminal contempt as under:

a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo

simple imprisonment for a period of six weeks. However, in the
circumstances of the case, the sentence will remain suspended for a period
of four years and may be activated in case the contemner is convicted for
any other offence of contempt of court within the said period; and

(b) The contemner shall stand suspended from practicing as an advocate for
a period of three years from today with the consequence that all elective and
nominated offices/posts at present held by him in his capacity as an
advocate, shall stand vacated by him forthwith.

Aggrieved by this direction suspending the contemner from practicing as an

Advocate for a period of three years, the Supreme Court Bar Association,
through its Honorary Secretary, filed a writ petition under article 32 of the
Constitution of India, seeking:

(i) an appropriate writ, direction, or declaration, declaring that the

disciplinary committees of the Bar Councils set up under the Advocates Act,
1961, alone have exclusive jurisdiction to inquire into and suspend or debar
an advocate from practicing law for professional or other misconduct, arising
out of punishment imposed for contempt of court or otherwise; and(ii)
declaration that the Supreme Court of India or any High Court in exercise of
its inherent jurisdiction has no original jurisdiction, power or authority in that
regard.

ISSUE

Whether the punishment for established contempt of court committed by an

Advocate can include punishment to debar the concerned advocate from
practice by suspending his license (Sanad) for a specified period by the
Supreme Court in exercise of its powers under article 129 read with article
142 of the Constitution of India?

JUDGMENT

Section 12(1) of the Contempts of Courts Act, 1971, provides that in a case
of established contempt, the contemner may be punished: (a) with simple
imprisonment by detention in a civil prison; or (b) with fine, or (c) with both.
A careful reading of sub-section (2) of section 12(2) reveals that the Act
places an embargo on the court not to impose a sentence in excess of the
sentence
prescribed under sub-section (1). A close scrutiny of sub-section (3) of
section 12 demonstrates that the legislature intended that in the case of civil
contempt a sentence of fine alone should be imposed except where the
Court considers that. The ends of justice make it necessary to pass a
sentence of imprisonment also.

In Smt. Pushpaben v. Narandas V. Badiani, AIR 1979 SC 1536: 1979 Cr LJ

960, it was held that a close and careful interpretation of the section 12(3)
leaves no room for doubt that the Legislature intended that a sentence of
fine alone should be imposed in normal circumstances. The statute, however,
confers special power on the Court to pass a sentence of imprisonment if it
thinks that ends of justice so require. Thus, before a Court passes the
extreme sentence of imprisonment, it must give special reasons after a
proper application of its mind that a sentence of imprisonment is called for in
a particular situation. Thus, the sentence of imprisonment is an exception
while sentence of fine is the rule. Suspending the licence to practice of any
professional like a lawyer, doctor, chartered accountant etc. when such a
professional is found guilty of committing contempt of court, for any
specified period, is not a recognised or accepted punishment which a court
of record either under the common law or under the statutory law can
impose, on a contemner, in addition to any of the other recognised
punishments. The suspension of an Advocate from practice and his
removal from the State roll of advocates are both punishments specifically
provided for under the Advocates Act, 1961, for proven ‘professional
misconduct’ of an advocate. While exercising its contempt jurisdiction
under article 129, the only cause or matter before the Court is regarding
commission of contempt of court. This Court, therefore, in exercise of its
jurisdiction under article 129 cannot take over the jurisdiction of the
disciplinary committee of the Bar Council of the State or the Bar
Council of India to punish an advocate by suspending his license,
which punishment can only be imposed after a finding of ‘professional
misconduct’ is recorded in the manner prescribed under the Advocates Act
and the Rules framed thereunder

The power of the Supreme Court to punish for contempt of court, though
quite wide, is yet limited and cannot be expanded to include the power to
determine whether an advocate is also guilty of “professional misconduct” in
a summary manner, giving a go-by to the procedure prescribed under the
Advocates Act. The power to do complete justice under article 142 is in a
way, corrective power, which gives preference to equity over law but it
cannot be used to deprive a professional lawyer of the due process
contained in the Advocates Act, 1961 by suspending his licence to practice in
a summary manner, while dealing with a case of contempt of court.

The powers conferred on the Court by article 142 being curative in nature
cannot be construed as powers which authorise the Court to ignore the
substantive rights of a litigant while dealing with a cause pending before it.
This power cannot be used to “supplant” substantive law applicable to the
case or cause under consideration of the court. Article 142, even with the
width of its amplitude, cannot be used to build a new edifice where
none existed earlier, by ignoring express statutory provisions dealing with
a subject and thereby to achieve something indirectly which cannot be
achieved directly. Punishing a contemnor advocate, while dealing with a
contempt of court case by suspending his license to practice, a power
otherwise statutorily available only to the Bar Council of India, on the ground
that the contemner is also an advocate, is, therefore, not permissible in
exercise of the jurisdiction under article 142. The construction of article 142
must be functionally informed by the salutary purpose of the article viz., to
do complete justice between the parties. It cannot be otherwise. In a case of
contempt of court, the contemner and the court cannot be said to be
litigating parties.
The power of the Supreme Court to punish for contempt of court, though
quite wide, is yet limited and cannot be expanded to include the power to
determine whether an advocate is also guilty of “professional misconduct” in
a summary manner, giving a go-by to the procedure prescribed under the
Advocates Act. The power to do complete justice under article 142 is in a
way, corrective power, which gives preference to equity over law but it
cannot be used to deprive a professional lawyer of the due process
contained in the Advocates Act, 1961 by suspending his license to practice in
a summary manner, while dealing with a case of contempt of court.
Legal Profession in British India

Legal profession during Edward I’s period (1272-1307)

Initially, both the pleaders and attorneys assisting the litigants were
amateurs. However, over time, these individuals began to appear repeatedly
to assist litigants. Thus these individuals developed expertise as a result of
their experience and were sought out by litigants and they charged for their
services.

In the middle of the 12th century, and particularly through the 13th century,
famous legal figures such as Ranulf Glanvill and Ralph de Hengham
emerged. Thus, identifiable precursors or predecessors of professional
lawyers emerged in the early 13th century.

In the 1280s, a group called Apprentices of the Common Bench emerged.

Initially, apprentices were individuals studying to become serjeants. They
functioned under the supervision of serjeants or senior apprentices. By the
end of the 13th century, the apprentices were also representing clients and
practising law. However, they were essentially practising as attorneys and
not pleaders.
In the early 17th century, the influence of serjeants as a professional group
declined. As a result of this, apprentices became the more important group
of pleaders and were the predecessors of today’s barristers. By the middle of
the 14th century, they created the Inns of Court. Although an attorney was a
lawyer who represented the client in Court on the client’s behalf, he was not
allowed to plead. An attorney appeared on behalf of his client. This would be
clear from the French verb attorner, which means ‘to assign or depute for a
particular purpose’. The attorneys’ primary function was to appear in Court
to manage the litigation of the clients.

Separation between attorneys and serjeants model for solicitor-barrister

separation. The formal division of the English legal profession into solicitors
and barristers can be traced back to the separation between the attorneys
and the serjeants. Attorneys were the predecessors of the serjeants.

The education of pleaders through apprentices who were studying to become

serjeants was the backbone of legal education. They were taught to
regularly attend Court and judicially encouraged to observe the working of
Courts as well as serjeants. That is how the Inns of Court were established.

The regulation of the legal profession incorporated principles of discipline,

definition of malpractice and other civil liability to injured clients, judicial and
institutional controls, and legislative approaches. In England, solely the
Judges imposed discipline. Hence, there did not exist any separate
disciplinary authorities and regulatory agencies. Moreover, judicial sanctions
were commonly imposed. These sanctions were imposed to give effect to
statutes and ordinances, as well as inherent judicial power.

Legal Profession in India

The history of the legal system in British India opened with the
establishment of the East India Company. The EIC was incorporated in
England by the charter of 1600. All the members of the company constituted
themselves as General Court. The General Court was to elect the court of
directors annually. The court of directors consisted of a governor and 24
directors. The court of directors were to be elected by the general court for
one year but anyone of them could be removed from his office even before
the expiry of his term in the office by the general court.
The history of the legal profession in India can be traced back to the
establishment of the First British Court in Bombay in 1672 by Governor
Aungier. The admission of attorneys was placed in the hands of the
Governor-in-Council and not with the Court. Prior to the establishment of
theMayor’s Courts in 1726 in Madras and Calcutta, there were no legal
practitioners.

The Mayor’s Courts, established in the three presidency towns, were Crown
Courts with right of appeal first to the Governor-in-Council and a right of
second appeal to the Privy Council. In 1791, Judges felt the need of
experience, and thus the role of an attorney to protect the rights of his client
was upheld in each of the Mayor’s Courts. This was done in spite of
opposition from Council members or the Governor.

A second principle was also established during the period of the Mayor’s
Courts. This was the right to dismiss an attorney guilty of misconduct. The
firstexample of dismissal was recorded by the Mayor’s Court at Madras which
dismissed attorney Jones. The Supreme Court of Judicature was established
by a Royal Charter in 1774. The Supreme Court was established as there
was dissatisfaction with the weaknesses of the Court of the Mayor. Similar
Supreme Courts were established in Madras in 1801 and Bombay in 1823.
The first barristers appeared in India after the opening of the Supreme Court
in Calcutta in 1774. As barristers began to come into the Courts on work as
advocates, the attorneys gave up pleading and worked as solicitors. The two
grades of legal practice gradually became distinct and separate as they were
in England. Madras gained its first barrister in 1778 with Mr. Benjamin
Sullivan.

Thus, the establishment of the Supreme Court brought recognition, wealth

and prestige to the legal profession. The charters of the Court stipulated that
the Chief Justice and three puisne Judges be English barristers of at least 5
years standing.

The charters empowered the Court to approve, admit and enrol advocates
and attorneys to plead and act on behalf of suitors. They also gave the Court
the authority to remove lawyers from the roll of the Court on reasonable
cause and to prohibit practitioners not properly admitted and enrolled from
practising in the Court. The Court maintained the right to admit, discipline
and dismiss attorneys and barristers. Attorneys were not admitted without
recommendation from a high official in England or a Judge in India.
Permission to practice in Court could be refused even to a barrister.

In contrast to the Courts in the presidency towns, the legal profession in the
mofussil towns was established, guided and controlled by legislation. In the
Diwani Courts, legal practice was neither recognized nor controlled, and
practice was carried on by vakils and agents. Vakils had even been
appearing in the Courts of the Nawabs and there were no laws concerning
their qualification, relationship to the Court, mode of procedure of ethics or
practice.

There were two kinds of agents – a. untrained relatives or servants of the

parties in Court and b. Professional pleaders who had training in either Hindu
or Muslim law.

Bengal Regulation VII of 1793 was enacted as it was felt that in order to
administer justice, Courts, must have pleading of causes administered by a
distinct profession Only men of character and education, well versed in the
Mohamedan or Hindu law and in the Regulations passed by the British
Government, would be admitted to plead in the Courts. They should be
subjected to rules and restrictions in order to
discharge their work diligently and faithfully by upholding the client’s trust.

Establishment of the High Courts

In 1862, the High Courts started by the Crown were established at Calcutta,
Bombay and Madras. The High Court Bench was designed to combine
Supreme Court and Sudder Courttraditions. This was done to unite the legal
learning and judicial experience of the English barristers with the intimate
experience of civil servants in matters of Indian customs, usages and laws
possessed by the civil servants. Each of the High Courts was given the power
to make rules for the qualifications of proper persons, advocates, vakils and
attorneys at Bar. The admission of vakils to practice before the High Courts
ended the monopoly that the barristers had enjoyed in the Supreme Courts.
It greatly extended the practice and prestige of the Indian laws by giving
them opportunities and privileges equal to those enjoyed for many years by
the English lawyers.

The learning of the best British traditions of Indian vakils began in a

guru-shishya tradition:

“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S.
Subramania Ayyar were quick to learn and absorb the traditions of the
English Bar from their English friends and colleagues in the Madras Bar and
they in turn as the originators of a long line of disciples in the Bar passed on
those traditions to the disciples who continued to do the good work.”

Additional High Courts were established in Allahabad (1886), Patna (1916),

and Lahore (1919).

There were six grades of legal practice in India after the founding of the High
Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d)
Pleaders, e) Mukhtars, f) Revenue Agents.

The Legal Practitioners Act of 1879 in fact brought all the six grades of the
profession into one system under the jurisdiction of the High Courts. The
Legal Practitioners Act and the Letters Patent of the High Courts formed the
chief legislative governance of legal practitioners in the subordinate Courts in
the country until the Advocates Act, 1961 was enacted.
In order to be a vakil, the candidate had to study at a college or university,
master the use of English and pass a vakil’s examination. By 1940, a vakil
was required to be a graduate with an LL.B. from a university in India in
addition to three other certified requirements. The certificate should be proof
that a. he had passed in the examination b. read in the chamber of a
qualified lawyer and was of a good character. In fact, Sir Sunder Lal,
Jogendra Nath Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils
who were raised to the rank of an Advocate.
What is a Bar according to law?

In law, the bar is the legal profession as an institution. The term is a

metonym for the line (or "bar") that separates the parts of a courtroom
reserved for spectators and those reserved for participants in a trial such as
lawyers.

The meaning of bar in law is an association or group of lawyers who are

licensed with the State Bar Council to practice in the courts. Originally, the
term bar has been propagated in England and the term bar is used with
intent to separate the lawyers and the court officers of the court.

Bar :Bar is a collective term for the attorneys who are licensed to practice in
the Courts, or a particular court, of any state.

The term 'Bar' was originated in England with the partition of Bar fixed for
dividing the court hall into two parts for the purpose of separating lawyers
and officers of the court from suitors and other general public. Black's Law
dictionary defines 'Bar' as the railing that separates the front area where the
judge, court personnel, lawyers and witness conduct court business, from
the back area which provides seats for observers. The same dictionary has
also defined the ‘Bar’ as the whole body of lawyers qualified to practice in a
given court or jurisdiction; the legal
profession or an organized sub-set of it.

“Encyclopedia of American explains that the term ‘Bar’ as a court room

applied to the area impliedly reserved for the principals of the court. i.e. the
judge, the attorneys, the court officer and members of the jury.

At present Bar means a particular part of court room where lawyers sit.
Bench:- – Bench means all the judges taken together as distinguished from
the ‘Bar’ the name for all the members of the legal profession- bench is that
part of the court considered in its official capacity, while the judges are
sitting. The earlier meaning of Bar contained the part of Bench also at the
present term ‘Bar’ is applied for the attorneys part of the court and the term
is used for the judicial officers part of the Court.

The Bar and Bench play an important role in the administration of justice in
Courts. A bar association is a professional association of lawyers as generally
organized in countries following the Anglo-American types of jurisprudence.
The word bar is derived from the old English/European custom of using a
physical railing to separate the area in which court business is done from the
viewing area for the general public.

Some bar associations are responsible for the regulation of the legal
profession in their jurisdiction; others are professional organizations
dedicated to serving their members; in many cases, they are both. In many
Commonwealth jurisdictions, the bar association comprises lawyers who are
qualified as barristers or advocates in particular, versus solicitors (see bar
council). Membership in bar associations may be mandatory or optional for
practicing attorneys, depending on jurisdiction.

The use of the term bar to mean "the whole body of lawyers, the legal
profession" comes ultimately from English custom. In the early 16th century,
a railing divided the hall in the Inns of Court, with students occupying the
body of the hall and readers or benchers on the other side.
Students who officially became lawyers crossed the symbolic physical barrier
and were "admitted to the bar". Later, this was popularly assumed to mean
the wooden railing marking off the area around the judge's seat in a
courtroom, where prisoners stood for arraignment and where a barrister
stood to plead. In modern courtrooms, a railing may still be in place to
enclose the space which is occupied by legal counsel as well as the criminal
defendants and civil litigants
who have business pending before the court.

In India under the legal framework set established under the Advocates Act,
1961, a law graduate is required to be enrolled with the Bar Council of India.
The process of enrollment is delegated by the Bar Council of India to the
state Bar Councils wherein almost each state has a Bar Council of its own.
Once enrolled with a State Bar Council, the law graduate is recognized as an
Advocate provisionally for a period of two years, within which they must
clear the All India Bar Examination (AIBE) conducted by the Bar Council of
India. Once the advocate clears the AIBE test, they are entitled to appear
and practice before any court of law in India.

There is no formal requirement for further membership of any Bar

Association. However, Advocates do become members of various local or
national bar associations for reasons of recognition and facilities which these
associations offer. Some well-known Bar Associations in India include the
Supreme Court Bar Association, Delhi High Court Bar Association, Bombay
Bar Association, Delhi Bar Association, National Bar Association of India, All
India Bar Association, etc.

In the United Kingdom, the term "the Bar" refers only to the professional
organisation for barristers (advocates in Scotland); the other type of UK
lawyer, solicitors, have their own body, the Law Society. Correspondingly,
being "called to the Bar" refers to admission to the profession of barristers,
not solicitors.

The origin of the term bar is from the barring furniture dividing a medieval
European courtroom. In the US, Europe and many other countries referring
to the law traditions of Europe, the area in front of the barrage is restricted
to participants in the trial: the judge or judges, other court officials, the jury
(if any), the lawyers for each party, the parties to the case, and witnesses
giving testimony. The area behind the bar is open to the public. This
restriction is enforced in nearly all courts.

In most courts, the bar is represented by a physical partition: a railing or

barrier that serves as a bar. The bar commonly refers to the legal profession
as a whole. With a modifier, it may refer to a branch or division of the
profession: as, for instance, the tort bar—lawyers who specialize in filing civil
suits for damages.

In conjunction with bench, bar may differentiate lawyers who represent

clients (the bar) from judges or members of a judiciary (the bench). In this
sense, the bar advocates and the bench adjudicates. Yet, judges commonly
remain members of the bar and lawyers are commonly referenced as
Officers of the Court.

The phrase bench and bar denotes all judges and lawyers collectively.

The Bar Council of India is a statutory body established under the section 4
of Advocates Act 1961 that regulates the legal practice and legal education
in India. Its members are elected from amongst the lawyers in India and as
such represents the Indian bar.

The Bar Council of India is a statutory body created by Parliament to

regulate and represent the Indian bar. BCI perform the regulatory function
by prescribing standards of professional conduct and etiquette and by
exercising disciplinary jurisdiction over the bar.