A division bench of Madras High Court has referred to a larger bench the question whether a person with pending criminal cases can be enrolled as an advocate.
Justices G R Swaminathan and R Kalaimathi passed the directions on a plea by a law graduate whose application for enrolment as an advocate in the Bar council of Tamil Nadu could not be processed due to two criminal cases pending against him.
The high court noted that in 2015 its single bench had passed an order to the Bar Council of India to direct state bar councils not to enrol any law graduate with pending criminal cases except bailable cases attracting punishment up to three years and compoundable offences involving matrimonial, family and civil disputes till the changes are brought in the Advocate’s Act and Bar Council of India Rules.
Division bench’s ruling and reference to full bench
Later in 2016 a division bench of the court observed that mere implication in a criminal case will not come in the way of one’s enrolment as an advocate. Thereafter, the matter was referred to the full bench of the court.
The full bench in 2017 confirmed the directions passed by the single judge, however, it took the view that the directions were a temporary measure.
Observations
The petitioner’s counsel informed the court that since the last ten years, the criminal cases registered against the petitioner continued to remain at the FIR stage and the final reports were yet to be filed.
The court noted that the petitioner was unable to enrol himself as an advocate on account of the aforesaid direction issued by the Single Judge which was confirmed by the Full Bench.
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It however observed that since the Bar Council of India had not issued any direction in this regard, the direction of the single judge continued to hold the field for more than a decade.
While referring to the Advocates Act, 1961 which contains provisions for disqualification for enrolment, the court said it may not be open to the court to prescribe further disqualifications.
“We are of the view that when a validly passed legislation is occupying the field, it may not be open to the writ court to prescribe further disqualifications in exercise of its jurisdiction under Article 226 of the Constitution of India,” the court said.
It emphasised that the courts cannot add to what has already been set out as disqualification in Section 24A of the Advocates Act, 1961.
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Supreme court’s ruling
The court referred to the Supreme Court ruling in Ashwini Kumar Upadhyay v. UOI in which the plea was filed seeking to debar the legislators from practising as advocates during the period when they are legislators.
The apex court had held that the Bar Council of India has been bestowed with the function and duty to regulate enrolments of advocates and the terms and conditions of professional conduct of advocates.
While observing that the right to practise any profession is not an absolute right, the supreme court had noted that the restriction must be expressly stated in the Advocates Act, 1961 or the Rules framed thereunder.
“When there is no express provision in the Act or the Rules framed thereunder imposing restriction on legislators to continue to practise as advocates, in the absence of an express restriction in that behalf, it is not open to the Court to debar the elected people’s representatives from practising during the period when they are legislators,” the apex court had held.
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It noted that without any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief claimed by the petitioner could not be countenanced.
High court’s directions
The court observed that since a coordinate division bench and a full bench had affirmed the said direction, it would not be open for it to issue any contra direction. Therefore, it directed the registry to place the papers before the Chief Justice for constituting a larger bench for resolving the issue.
What have different High Court’s held?
In 2023, the Allahabad High Court had directed the Uttar Pradesh government and the state Bar Council to ensure that a person having criminal cases against him or her does not get the licence to practice law.
In 2018, the Madhya Pradesh High Court had imposed a fine of Rs 5,000 on the State Bar Council for denying registration to a person because a criminal case was pending against him. The court held that the petitioner merely being an accused in the criminal case for offences where guilt is yet to be proved cannot be denied entry into the State Rolls as an Advocate.
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What does the law say?
Section 24A of the Advocates Act catalogues the disqualifications for enrolment.
It says that-
(1) No person shall be admitted as an advocate on a State roll- (a) If he is convicted of an offence involving moral turpitude; (b) If he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955); (c) If he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.
Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his (release or dismissal or, as the case may be, removal).
