Introductory:
1. Whether the Bar Council of a State is empowered to prohibit an Advocate from practising the profession of law, pending disposal of the disciplinary proceeding is the core issue that arises for consideration in this sub application filed in a suo motu contempt petition.
2. This application is at the instance of the contemnors in suo motu contempt petition No. 1834 of 2015 and the prayer is to stay the operation of the order passed by the Bar Council of Tamil Nadu and Pondicherry (herein after referred to as Bar Council ?) prohibiting the petitioners from practising the profession of law pending disposal of the disciplinary proceedings initiated against them pursuant to the direction in Crl. O.P. No. 30502 of 2014 (reported in 2015-2-L.W.(Crl.)258).
3. The petitioners filed a Criminal Original Petition in Crl.O.P. No.30502 of 2014 before this Court under Section 482 of the Code of Criminal Procedure on behalf of their client Mrs. Lakshmi for initiating action against the District Judge, Villupuram, Public Prosecutor, the Police and land grabbers and to protect her life and property. The learned Single Judge after perusing the materials on record decided to initiate criminal contempt proceedings against the petitioners. While dismissing the Criminal Original Petition, the learned Judge took suo motu congnizance of the contempt committed by the petitioners and placed the matter before the Honourable The Chief Justice to post the mater before a Division Bench. The learned Judge directed the Bar Council to initiate disciplinary proceedings against the petitioners for their professional misconduct.
4. The Bar Council initiated disciplinary proceedings against the petitioners in D.C.C.No.46 of 2015. The Bar Council, pending disposal of the disciplinary proceedings, prohibited the petitioners from practicing the profession of law. Feeling aggrieved, the petitioners have filed this sub application in the suo motu contempt proceedings initiated by this Court against them.
Submissions:
5. The first petitioner appeared in person and submitted that the Bar Council has no power to suspend the practice of a legal professional pending disciplinary proceedings. According to him, the impugned order has no legal sanction and as such it should be axed at the threshold.
6. We have also heard the learned counsel representing the Bar Council.
Discussion:
7. This Court initiated suo motu contempt proceedings against the petitioners pursuant to the order dated 4 August 2015 in Crl.O.P.No.30502 of 2014.
8. The Bar Council pursuant to the order in Crl.O.P.No.30502 of 2014 (reported in 2015-2-L.W. (Crl.) 258) initiated disciplinary proceedings against the petitioners. The Bar Council passed an order dated 14 September 2015, prohibiting the petitioners from practicing law in any of the Courts and Tribunals in India, till the disposal of disciplinary proceedings.
9. It is the primary contention of the petitioners that the Bar Council has no power under the Advocates Act, 1961 to pass such prohibitory orders pending disposal of disciplinary proceedings.
10. The impugned order was passed under Section 6(1) (d) of the Advocates Act, 1961.
The relevant provision: 11. Section 6 of the Advocates Act, 1961, (hereinafter referred to as the Act) deals with the functions of Bar Councils. It reads as under:
Functions of the State Bar Councils:-
(1) The functions of the State Bar Councils shall be-
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
{(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub-section (2) of section 7;}
(e) to promote and support law reforms;
(f) {(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and paper of legal interest; (eee) to organise legal aid to the poor in the prescribed manner;}
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
{(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of Section 7;}
(h) to perform all other functions conferred on it by or under this Act;
(i) to do all other things necessary for discharging the aforesaid functions. ?
12. Section 2(1)(a) defines Advocate as, Advocate entered in any roll under the provisions of Advocates Act.
13. The registration before the Bar Council under Chapter III of the Act is a mandatory requirement for practising the profession of law. The question therefore is whether the authority empowered to register an Advocate on its roll and permit him to practice, is empowered to suspend him from such practice, pending disciplinary proceedings.
14. Section 16 of the General Clauses Act provides that the power to appoint would include the power to suspend or dismiss. The power to appoint cannot be given a restrictive meaning. It would include in the case of an Advocate, his registration also. This is because Section 33 of the Advocates Act prohibits a person from practice unless he is enrolled as an Advocate under the Act. The registration before the Bar Council is therefore a condition precedent for practising the profession of law. The power to pass an interim order of suspension pending disposal of disciplinary proceedings therefore is a necessary adjunct of the power of registration as an Advocate on the rolls of the Bar Council, which is a pre-requirement for practising law.
15. Section 6(1)(c) of the Advocates Act enjoins the State Bar Councils to entertain and determine cases of misconduct against Advocates. Similarly Section 6(1)(i) of the Act enables the Bar Councils to do all other things necessary for discharging the aforesaid functions. Since the Bar Council is the statutory authority to register the Advocates and to maintain their rolls, Section 6 should be read as the source of power of the State Bar Council, to control the legal profession and take all actions necessary to preserve the glory of this noble profession.
16. It is not as if in all cases of complaints against lawyers, the Bar Council would initiate disciplinary proceedings. The Bar Council must arrive at a prima facie satisfaction before referring the complaint to the disciplinary committee. Section 35 of the Advocates Act makes it clear that the Bar Council must have reason to believe that the Advocate concerned has been guilty of professional misconduct. Therefore there is a procedural check before referring the matter to the disciplinary committee. The question of suspension of practice of such Advocates pending disciplinary proceedings would be decided thereafter by the Bar Council, taking into account the nature of charges, seriousness of the misconduct and the possible injury to the legal profession in case of permitting such advocates to practice the profession.
17. The disciplinary proceedings is essentially a time consuming process. The disciplinary committee has to examine the complainant and his witness and the concerned advocate should be given opportunity for cross examination. Thereafter the advocate should be given reasonable time to prove his defence. In case misconduct is proved and the Advocate concerned is punished, he is given a right to file appeal to the Bar Council of India and thereafter to the Supreme Court. The Disciplinary committee of the Bar Council of the State is vested with the power to stay the order of punishment pending initiation of appeal under Section 40(2) of the Act. Similar power is conferred on the appellate authority under sub-clause (1) of Section 40 of the Act. The disciplinary proceedings would therefore take considerable time to attain finality.
18. In case the Bar Council of the view that it would not be in public interest or in the larger interest of the members of the legal profession to permit the Advocate against whom disciplinary proceeding is pending, to practice during the currency of statutory proceedings before the Disciplinary Committee, it is within its authority to pass appropriate interim orders including temporary suspension of practice. Such measures would promote dignity to this noble profession and would help to maintain decency and decorum. It would also deter the advocate concerned from committing similar illegal acts constituting misconduct during the currency of disciplinary proceedings. We are therefore not in a position to subscribe to the view that the state Bar Council has no power to order interim suspension even in such gave cases and should await the ultimate decision in the disciplinary proceedings. The parliament while giving disciplinary powers to the State Bar Council and Bar council of India appears to have not contemplated a situation warranting immediate interim suspension of practice pending disciplinary proceedings. It is the bounden duty of the Courts to discern legislature's intention and interpret the statutes. In short, Courts interpretation to translate the wishes of the legislature into action.
Supreme Court's views on role of Bar Council:-
19. The Supreme Court in Supreme Court Bar Assn. V. Union of India ((1998) 4 SCC 409), indicated the exclusive jurisdiction of Bar Council to suspend the licence to practice.
71. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19-5-1961, matters connected with the enrolment of advocated as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant licence to law graduate to practise as an advocate vests exclusively in the Bar Council of the state concerned, the jurisdiction to suspend his license for a specified term or to revoke it also vests in the same body. ?
20. The role of Bar Council to preserve the purity and dignity of legal profession was indicated by the Supreme Court in Bar Council of Maharashtra v. M. V. Dabholkar ((1975) 2 SCC 702). The Supreme Court observed that the role of Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics.
30. The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. High traditions of the noble profession. The grievance of the Bar Council is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the Disciplinary Committee of the Bar Council of India is according to the state Bar council such as will lower the standards and imperil the high traditions and values in the profession, the State Bar Coucil is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bihar. ?
21. Mr. Justice V.R. Krishna Iyer in His Lordship's concurring judgement in M.V. Dabholkar (cited supra) observed:
52. The Bar is not a private guild, like that of barbers, butchers and candlestick-makers but, by bold contrast, a public institution committed to public justice and pro bono public service. The grant of a monopoly licence to practice law is based on three assumptions: (1) There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself not more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice. ?
22. In Bar Council of Maharashtra v. M.V. Dabholkar ((1976) 2 SCC 291), the Supreme Court observed that canons of conduct cannot be crystallised into rigid rules.
15. Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitioners as right. ?
23. The Supreme Court in R.K. Anand v. Registrar, Delhi High Court ((2009) 8 SCC 106), while expressing the hope that Bar Council would pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society observed as under:
333. We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a Bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people. ?
24. In view of the reasons aforesaid, we reject the argument that the Bar Coucil has no right to suspend practice pending disposal of disciplinary proceedings.
25. Our answer to the question:
We hold that the power of the Bar Council to revoke the licence to practice permanently or suspend it for a fixed term would also include the incidental power of interim suspension pending disposal of disciplinary proceedings for professional misconduct.
26. In the upshot, we dismiss the sub application. No costs.