Bar Council Of India Has No Power To Pass Gag Orders Restraining Speech Of Advocates: Karnataka High Court
The Karnataka High Court emphasised that the Bar Council of India (BCI) has no power to pass gag orders restraining the speech of Advocates or even the members of the Bar Council.
The Court was dealing with a writ petition preferred by Senior Advocate S. Basavaraj, challenging the proceedings initiated by the BCI in terms of its communication in April 2024 by which certain restrictions were imposed upon his practice.
A Single Bench of Justice M. Nagaprasanna held, “General supervision and control, in the considered view of the Court, 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 Bench remarked that the Chairman of the BCI ostensibly cannot pass any such gag order which takes away the fundamental right of any Advocate and that the power of the Courts either competent civil Court or the constitutional Court cannot be permitted to be usurped by the Chairman of the BCI, as is done in the case at hand.
Advocate Goutham A.R. appeared for the petitioner while Senior Advocate Udaya Holla appeared for the respondents.
Brief Facts -
In the month of August 2023, the Karnataka State Bar Council had organized a State Level Advocates Conference at Mysuru. Claiming certain expenditure to have been incurred which was not on record which resulted in misappropriation of funds, the petitioner registered a complaint against the respondents i.e., Chairman and Vice Chairman of State Bar Council. After registration of the crime by the petitioner against the said respondents, it was averred in the petition that forces inimical to him have dragged the petitioner, before the BCI.
When the cup of allegation was brewing, a letter was sent by a former Chairman in April 2024 to the BCI. Based upon the said letter, the BCI passed the impugned order and communicated it to the Secretary, Karnataka Bar Council. Challenging the said order, the petition was filed by the petitioner before the High Court. By the time the petition was filed, a crime was registered by the petitioner for the offences punishable under Sections 34, 37, 120B, 403, 406, 409, 420, 465, 468, 471, and 477A of the Indian Penal Code (IPC).
The High Court in the above regard, observed, “… gag orders or order 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.”
The Court said 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. It further noted that the 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, on the face of it, contrary to law, and is unsustainable. The unsustainability of the order would lead to its obliteration”, it added.
Accordingly, the High Court allowed the writ petition and quashed the proceedings initiated by BCI.
Cause Title- S. Basavaraj v. Bar Council of India & Ors.
Appearance:
Petitioner: Advocate Goutham A.R.
Respondents: Senior Advocate Udaya Holla and Advocate T.G. Ravi.
