The Karnataka High Court recently remarked that the Bar Council of India (BCI) Chairman lacks the authority to impose gag orders restricting the speech of advocates.
The Court was hearing a plea filed by Senior Advocate S Basavaraj challenging a notice issued by the BCI on April 12 this year, which imposed certain restrictions on his practice.
While allowing the plea, a Bench of Justice M Nagaprasanna observed,
"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 Court noted that the order directing an advocate to refrain from speaking was, on the face of it, contrary to the law and unsustainable.
"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," the Court added.
Basavaraj had filed a case against the Chairman and Vice-Chairman of the Karnataka State Bar Council, accusing them of misusing official funds during a state-level conference. This was reported to the BCI, which had directed the Secretary of the State Bar Council to submit all relevant documents, receipts and financial records related to the expenditures in question within 15 days.
The BCI also authorised 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.
"...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," the notification issued in April stated.
Challenging the same, Basavaraj moved the High Court.
The Court noted that Section 7(1)(g) of the Advocates Act empowers the BCI with 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."
Relying on several judgments, the Court noted 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.
With these observations, the Court allowed the plea and quashed the gag order issued by the BCI against Basavaraj.
Advocate Goutham AR appeared for Basavaraj.
Senior Advocate Udaya Holla along with Advocate TG Ravi appeared for the State Bar Council office bearers.
[Read Order]