Urgent need to review regulatory mechanism for the legal profession: SC [Read Judgment]

Legal profession being the most important component of justice delivery system, it must continue to perform its significant role and regulatory mechanism and should not be seen to be wanting in taking prompt action against any malpractice, the Bench observed.

The Supreme Court in Mahipal Singh Rana vs. State of Uttar Pradesh,has observed that there is an urgent need to review the provisions of the Advocates Act dealing with regulatory mechanism for the legal profession. Three Judge Bench comprising of Justices Anil R. Dave, Kurian Joseph and Adarsh Kumar Goel has requested the Law commission and Government of India to take appropriate steps in this regard.

The Court also held that, what is permissible for this Court by virtue of statutory appellate power under Section 38 of the Advocates Act is also permissible to a High Court under Article 226 of the Constitution in appropriate cases on failure of the Bar Council to take action after its attention is invited to the misconduct.

These observations were made while disposing of an appeal againstAllahabad High Court order convicting an Advocate finding him guilty of Criminal Contempt for intimidating and threatening a Civil Judge. The Apex Court has upheld the conviction and the direction by the High Court that the advocate shall not be permitted to appear in courts in District Etah until he purges himself of contempt. The Court also held that under Section 24A of the Advocates Act, the enrolment of the contemnor Advocate will stand suspended for two years. The Court also said that, as a disciplinary measure for proved misconduct, the licence of the contemnor will remain suspended for further five years. The Court has however set aside the imprisonment imposed on the Advocate.

The Court also held that Section 24A of the Advocates Act which debars a convicted person from being enrolled applies to an advocate on the rolls of the Bar Council for a period of two years, if convicted for contempt.

SECTION 24A ADVOCATES ACT ALSO DEBARS AN ADVOCATE CONVICTED FOR CONTEMPT

Referring to Section 24 A of the Advocates Act, the Court said “we do not find any reason to hold that the bar applicable at the entry level is wiped out after the enrollment. Having regard to the object of the provision, the said bar certainly operates post enrollment also. However, till a suitable amendment is made, the bar is operative only for two years in terms of the statutory provision. In these circumstances, Section 24A which debars a convicted person from being enrolled applies to an advocate on the rolls of the Bar Council for a period of two years, if convicted for contempt.”

URGENT NEED TO REVIEW REGULATORY MECHANISM FOR THE LEGAL PROFESSION

Urging the need to amend the provisions of Advocates Act, the court after referring to three decade old judgment by Gujarat High Court to Bar Council of India in C. versus Bar Council, said: “a person convicted of even a most heinous offence is eligible to be enrolled as an advocate after expiry of two years from expiry of his sentence. This aspect needs urgent attention of all concerned.”

The Court further observed : “Legal profession being the most important component of justice delivery system, it must continue to perform its significant role and regulatory mechanism and should not be seen to be wanting in taking prompt action against any malpractice. We have noticed the inaction of the Bar Council of Uttar Pradesh as well as the Bar Council of India inspite of direction in the impugned order of the High Court and inspite of notice to the Bar Council of India by this Court. We have also noticed the failure of all concerned to advert to the observations made by the Gujarat High Court 33 years ago. Thus there appears to be urgent need to review the provisions of the Advocates Act dealing with regulatory mechanism for the legal profession and other incidental issues, in consultation with all concerned.”

HIGH COURTS UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IN IN APPROPRIATE CASES CAN EXERCISE APPELLATE POWER UNDER SECTION 38 OF ADVOCATES ACT

The Court added: “We may now come to the direction to be issued to the Bar Council of Uttar Pradesh or to the Bar Council of India. In the present case, inspite of direction of the High Court as long back as more than ten years, no action is shown to have been taken by the Bar Council. Notice was issued by this Court to the Bar Council of India on 27th January, 2006 and after all the facts having been brought to the notice of the Bar Council of India, the said Bar Council has also failed to take any action. In view of such failure of the statutory obligation of the Bar Council of the State of Uttar Pradesh as well as the Bar Council of India, this Court has to exercise appellate jurisdiction under the Advocates Act in view of proved misconduct calling for disciplinary action. As already observed, in SCBA case (supra), this Court observed that where the Bar Council fails to take action inspite of reference made to it, this Court can exercise suo motu powers for punishing the contemnor for professional misconduct. The appellant has already been given sufficient opportunity in this regard. We may add that what is permissible for this Court by virtue of statutory appellate power under Section 38 of the Advocates Act is also permissible to a High Court under Article 226 of the Constitution in appropriate cases on failure of the Bar Council to take action after its attention is invited to the misconduct.”

Read the Judgment here.

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  • Tapan Kr. Kar says:

    If BCI not protest against such a matter, then lawyers may be effected….protest through revision and agitation….to protect the lawyers..

  • Adv.JEEVAN.D says:

    This judgment sets a dangerous trap for practising advocates, against which the Bar Council of India should immediately file a review petition to protect the independence of legal profession. In para 42 of this judgment, it is stated that pre enrolment disqualification of previous conviction in an offence of moral turpitude operates automatically at post enrolment stage also. This means that in order to get an advocate debarred from legal practice, the police and the state can foist a false case and get him convicted (at least at the lower court level) so that for two years he will be automatically out of practice. The statutory protection from automatic disqualification, given to a practising lawyer, due to conviction in a criminal case is taken away by the court without any sound legal reasoning. The legal fraternity should rise up against scenario and act appropriately to protect the independence of our profession.

  • Shobha Shinde Ghule says:

    The Bar Counsel urgently needs pulling up. My complaint made in 2004 and arguments heard 10 years ago — is todate pending judgement from the elected Pune member of the Maharadhtra Bar Counsel.

  • Sukant says:

    there is also an urgent need to form transparent mechanism for appointment of Judges and to ensure accountability…

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