The Madras High Court has taken up a crucial legal question that has sparked debate for over ten years. Can a person with pending criminal cases be enrolled as an advocate? A division bench of the court has decided to refer this matter to a larger bench for a definitive resolution.
Case Background: A Law Graduate's Struggle
The court heard the plea of a law graduate whose application for enrolment to the Tamil Nadu Bar Council faced rejection. The council could not process his application because two criminal cases remained pending against him. These cases have stayed at the FIR stage for the last decade, with no final reports filed yet.
Historical Court Directions
In 2015, a single judge of the Madras High Court issued specific directions. The judge ordered the Bar Council of India to instruct state bar councils not to enrol any law graduate with pending criminal cases. The order made exceptions for bailable cases with punishment up to three years and compoundable offences involving matrimonial, family, or civil disputes.
The single judge stated these directions should remain in effect until changes occurred in the Advocate's Act and Bar Council of India Rules. A division bench in 2016 offered a different perspective. It observed that mere implication in a criminal case should not automatically block someone's enrolment as an advocate.
Full Bench Confirmation
The matter eventually reached a full bench of the court in 2017. The full bench confirmed the single judge's directions but clarified they were temporary measures. The petitioner's counsel informed the court that despite these rulings, the Bar Council of India had not issued any formal direction on this matter. Consequently, the single judge's order continued to influence enrolment decisions for more than a decade.
Legal Framework and Court Observations
The court examined Section 24A of the Advocates Act, 1961, which lists specific disqualifications for enrolment. These include convictions for offences involving moral turpitude, convictions under the Untouchability (Offences) Act, and dismissals from state employment involving moral turpitude.
The court emphasized that when valid legislation occupies a field, the writ court cannot prescribe additional disqualifications under Article 226 of the Constitution. "We are of the view that when a validly passed legislation is occupying the field, it may not be open to the writ court to prescribe further disqualifications," the court stated clearly.
Supreme Court Precedent
The Madras High Court referenced a Supreme Court ruling in Ashwini Kumar Upadhyay v. Union of India. In that case, the apex court addressed whether legislators could practice as advocates while serving. The Supreme Court held that the Bar Council of India regulates advocate enrolments and professional conduct.
The Supreme Court noted that the right to practice any profession is not absolute. However, restrictions must appear expressly in the Advocates Act or Rules framed under it. Without express restrictions from the Bar Council, courts cannot impose additional barriers.
Different High Court Approaches
Other High Courts have addressed similar questions with varying outcomes. In 2023, the Allahabad High Court directed the Uttar Pradesh government and state Bar Council to ensure that persons with criminal cases do not receive law practice licenses.
Contrastingly, in 2018, the Madhya Pradesh High Court imposed a Rs 5,000 fine on the State Bar Council for denying registration to someone with a pending criminal case. The court held that merely being an accused in a criminal case, where guilt remains unproven, cannot justify denying entry to the State Rolls as an Advocate.
Current Status and Future Proceedings
The Madras High Court observed that since a coordinate division bench and a full bench had affirmed the earlier direction, it could not issue any contra direction. Therefore, the court directed the registry to place the papers before the Chief Justice. The Chief Justice will constitute a larger bench to resolve this long-standing issue definitively.
This case highlights the tension between ensuring professional standards in the legal field and protecting individuals' rights before conviction. The larger bench's decision will provide much-needed clarity for law graduates across Tamil Nadu and potentially influence similar cases nationwide.
