Karnataka High Court: While considering a petition filed by a practicing advocate questioning proceedings initiated by the Bar Council of India in terms of its communication dated 12-04-2024 by which certain restrictions were imposed upon the practice of the petitioner; the Bench of M. Nagaprasanna, J*., held that, the Chairman of the Bar Council of India ostensibly cannot pass any such gag order which takes away the fundamental right of any Advocate. Issuance of gag order is not a power that can be inferred from Section 7(1)(g) of the Advocates Act, 1961. Therefore, the very order directing restraint on an Advocate speaking is prima facie contrary to law and is unsustainable.
The Court further stated that power of the Courts either competent Civil Court or constitutional Court cannot be permitted to be usurped by the Chairman of the Bar Council of India, as was done in the instant case.
Background:
In August 2023, Karnataka State Bar Council organized a State Level Advocates Conference at Mysuru. Claiming certain expenditure to have been incurred which were not on record, thereby resulting in misappropriation of funds, the petitioner registered a complaint against Chairman and Vice-Chairman of KSBC.
Subsequently, the BCI issued the impugned order dated 8-4-2024, issued vide Communication dated 12-4-2024, Chairman, BCI directed setting up of an Inquiry Committee and furnishing of relevant financial documents.
However, the BCI also imposed a temporary restraint/gag on all Members of the Karnataka State Bar Council or any Advocate from making any further public statements or spreading any information related to the expenditure incurred during the State Level Conference. The Members of the Bar Council of Karnataka were directed to ensure the same.
The petitioner’s counsel contended that Bar Council of India has no power to pass gag orders, as was passed in the instant case. The fundamental right of the petitioner, i.e., the right to speech was taken away by the impugned order.
Bar Council of India did not send any representatives before the Court.
Court’s Assessment:
The Court had to consider that whether the Chairman of the Bar Council of India is empowered to pass such gag orders against the fraternity of Advocates at large, ordering them not to speak anything.
It was pointed out that issuance of gag order would amount to imposing a restraint on the speech of the Advocates. The direction, in the communication, was not against any individual, but against the community of Advocates itself.
The Court took note of S. 4 and S. 7 of the Advocates Act, 1961. Section 4 deals with the constitution of Bar Council of India, while Section 7 deals with the functions. The Court observed that Section 7(1)(g) empowers the Bar Council of India, to have general supervision and control over the State Bar Councils.
The Court opined that General supervision and control, would not clothe with any power to the Bar Council of India, to pass such gag orders, restraining the speech of Advocates or even the members of the Bar Council, as it is general supervision and control and not control over the speaking of Advocates.
The Court further enumerated several Supreme Court precedents and foreign Court decisions regarding who can issue gag orders and stated that gag orders or orders of restraint or injunction should be passed only when it is necessary to prevent substantial risk, to fairness of a trial. In the absence of any material, the Court also cannot pass any restraint/gag order.
With the afore-stated assessment, the Court thus held that the power of passing gag order, exercised by the BCI on all the Advocates on a particular topic, is de hors such power that can be exercised under the general supervision and control of the State Bar Council. Hence the Court set aside the impugned order on grounds of unsustainability.
[S. Basavaraj v. Bar Council of India, 2024 SCC OnLine Kar 104, decided on 27-9-2024]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case :
A.R. Goutham, Counsel for petitioner
Udaya Holla, Senior counsel appearing a/w T.G. Ravi, Advocate for respondents 2 and 3