BCI Chairman Can't Pass Gag Orders Against Advocates: Karnataka HC

It definitely cannot be ever taken lightly under any circumstances by anyone when none other than one of the most prestigious High Courts in India that is the Karnataka High Court and one of its most eminent, erudite, experienced, senior and distinguished jurist and Judge - Hon'ble Mr Justice M Nagaprasanna in a most learned, laudable, landmark, logical and latest judgment titled S Basavaraj vs BCI & Ors in Writ Petition No. 11480 of 2024 (GM - RES) and cited in 2024 LiveLaw (Kar) 431 that was initially reserved on 10.09.2024 and then finally pronounced on 27.09.2024 has minced just no words to make it indubitably clear that the Bar Council of India (BCI) Chairman lacks the authority to impose gag orders restricting the speech of advocates. It must be disclosed here that the Karnataka High Court was hearing a plea that had been filed by senior advocate S Basavaraj who had challenged a notice that had been issued by the BCI on April 12, 2024 which had imposed certain restrictions on his practice. We need to note here that while sagaciously allowing the plea, the Single Judge Bench comprising of Hon'ble Mr Justice M Nagaprasanna minced just no words to say in no uncertain terms 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. The power of the Courts either competent Civil Court or the Constitutional Court cannot be permitted to be usurped by the Chairman of the Bar Council of India, as is done in the case at hand." No denying or disputing it!

It must be borne in mind that the Bench noted that the order directing an advocate to refrain from speaking was, on the face of it, contrary to the law and unsustainable. The Bench was most forthcoming in maintaining most unequivocally that, "The power of passing gag order, exercised by the 1st respondent 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. Issuance of gag order is not a power that can be inferred from Section 7(1)(g) of the Act…The unsustainability of the order would lead to its obliteration." It must also be disclosed here that senior advocate S Basavaraj had filed a case against the Chairman and Vice Chairman of the Karnataka State Bar Council accusing them of grossly misusing official funds during a State-level conference.

By the way, this matter was then reported to the BCI which had directed the Secretary of the State Bar Council to submit all relevant documents, receipts and financial records that pertained to the expenditures in question within 15 days. It must be mentioned that the BCI also authorized an audit to be carried out by a qualified Chartered Accountant. While the inquiry was ongoing, the BCI Chairman issued a gag order, preventing all members of the State Bar Council and any advocate from making public statements or sharing information about the incident.

It must be noted that the BCI in the notification issued in April stated clearly that, "…Pending the outcome of the inquiry proceedings, I hereby order 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 should endeavour to ensure the same. This measure is necessary to prevent further damage to the reputation and integrity of the Bar Council pending the completion of the investigation." While challenging this gag order, senior advocate S Basavaraj moved the Karnataka High Court and sought relief.

It merits noting that the Karnataka High Court conceded that Section 7(1)(g) of the Advocates Act empowers the BCI with general supervision and control over the State Bar Councils. But in the same vein, we must note that the Bench also made it indubitably clear holding that, "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." While banking on a plethora of relevant judgments in this regard, the Bench pointed out that gag orders or orders of restraint or injunction should be passed only when it is necessary to prevent substantial risk to the fairness of a trial. The Karnataka High Court thus allowed the plea of senior lawyer S Basavaraj and quashed the gag order that had been issued by the BCI. Very rightly so! No denying!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice M Nagaprasanna sets the ball in motion by first and foremost putting forth in para 1 that, "The petitioner, a practicing Advocate is knocking at the doors of this Court calling in question proceedings initiated by the 1st respondent in terms of its communication dated 12-04-2024 by which certain restrictions are imposed upon the practice of the petitioner."

To put things in perspective, the Bench envisages in para 3 that, "Facts, in brief, germane are as follows:-

The 1st respondent/Bar Council of India is a statutory body constituted under Section 4 of the Advocates Act, 1961 ('the Act' for short). Respondents 2 and 3 are Chairman and Vice-Chairman of the Karnataka State Bar Council, a Council constituted under Section 3 of the Act. The functions of the State Bar Council are as enumerated under Section 6 of the Act. Internal management and self governance are the facets of the enumeration under Section 4. The functions of the Bar Council of India are defined under Section 7 of the Act which includes general supervision and control over the State Bar Council. Certain facts which triggered registration of crime against respondents 2 and 3 in which the present petitioner is the constituent require to be succinctly observed. 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 respondents 2 and 3. All these factors form a part of the order passed in Criminal Petition No.3666 of 2024."

As it turned out, the Bench then enunciates in para 4 that, "After registration of the crime by the petitioner against respondents 2 and 3, it is the averment in the petition that forces inimical to him have dragged the petitioner, before the 1st respondent/Bar Council of India. When the cup of allegation, was brewing, it appears that a letter is sent by a former Chairman on 05-04-2024 to the Bar Council of India. Based upon the said letter, the 1st respondent passes the impugned order on 12-04-2024 and communicates it to the Secretary, Karnataka Bar Council. Challenging the said order, the subject petition is preferred. By the time the petition was filed, a crime had been registered by the petitioner, which had become a crime in Crime No.37 of 2024 for offences punishable under Sections 34, 37, 120B, 403, 406, 409, 420, 465, 468, 471 and 477A of the IPC. The crime so registered in Crime No.37 of 2024 becomes the subject matter of Criminal Petition No.3666 of 2024. The communication of the Bar Council of India becomes the challenge in the subject petition."

It is worth noting that the Bench notes in para 10 that, "The issue now would be, 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. This, on the face of it, would amount to imposing a restraint on the speech of the Advocates. The direction, in the communication, is not against any particular individual, but against the community of Advocates itself, as the words deployed are "I hereby order a temporary restraint/gag on all Members of the Karnataka State Bar Council or any Advocate from making any further public statements…." The said gag order is the kernel of this conundrum."

Briefly stated, the Bench states in para 11 that, "Section 7(1)(g) empowers the Bar Council of India, to have general supervision and control over the State Bar Councils. 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."

To put it briefly, the Bench further postulates in para 12 that, "What would unmistakably emerge from the afore-quoted judgments of the Apex Court or that of the High Court of Delhi is that, 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 Chairman of the Bar Council of India ostensibly cannot pass any such gag order which takes away the fundamental right of any Advocate. The power of the Courts either competent civil Court or the constitutional Court cannot be permitted to be usurped by the Chairman of the Bar Council of India, as is done in the case at hand." The relevant judgments that are cited in para 12 are -

1. Romesh Thappar vs State of Madras 1950 SCC OnLine SC 19;

2. Anuradha Bhasin vs Union of India (2020) 3 SCC 637;

3. Mohammed Zubair vs State of NCT of Delhi 2022 SCC OnLine SC 897;

4. Bloomberg Television Production Services India (P) Ltd vs Zee Entertainment Enterprises Ltd 2024 SCC OnLine SC 426;

5. Ajay Kumar v. Union of India 2024 SCC OnLine Del 579;

6. Tata Sons Limited v. Green Peace International 2011 SCC OnLine Del 466."

Most significantly, the Bench then encapsulates in para 13 what constitutes the cornerstone of this notable judgment mandating that, "The power of passing gag order, exercised by the 1st respondent 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. Issuance of gag order is not a power that can be inferred from Section 7(1)(g) of the Act. 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."

Be it noted, the Bench then notes in para 14 stating that, "The 1st respondent though served, has remained absent throughout the hearing of this petition till the day it was pronounced. Therefore, the petition is answered on the contentions and averments in the petition."

Finally, the Bench then concludes by holding in para 15 that, "For the aforesaid reasons, the following:

O R D E R

(i) Writ petition is allowed.

(ii) Proceedings initiated by the 1st respondent by order dated 08-04-2024 communicated through letter dated 12-04-2024 stand quashed.

Consequently, I.A.No.1 of 2024 also stands disposed."

In conclusion, it is the bounden duty of the Bar Council of India to pay heed and comply fully, firmly and finally with what the Karnataka High Court has held so explicitly, elegantly, eloquently and effectively in this leading case. Of course, it is made indubitably clear by the Karnataka High Court in its historic judgment that the Bar Council of India definitely cannot issue gag orders restraining speech of advocates or its members. No denying or disputing it!