Why Bar Council Should Not Punish Prashant Bhushan

Seeking to punish Prashant Bhushan by disbarring him as an advocate is a hasty act and will have a chilling effect on free speech, writes RAHUL MACHAIAH.

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In mid-September, the Bar Council of Delhi issued a notice to the Supreme Court advocate Prashant Bhushan asking him to explain why it should not initiate disciplinary proceedings against him under Sections 24A and 35 of the Advocates Act, 1961. The notice specified that it was concerned with his tweets on the judiciary and his conviction for contempt of the Supreme Court. By invoking Section 24A, the Bar Council seems to imply that Prashant Bhushan is guilty of an offence involving moral turpitude and the reference to Section 35 indicates that the Council finds it necessary to enquire into the alleged 'professional or other misconduct'.

There are certain legal issues that arise out of this notice. Firstly, does contempt of court involve moral turpitude? Secondly, is an advocate guilty of misconduct if he commits contempt of court?

Moral Turpitude and Contempt of Court

Section 24A of the Advocates Act states that a person convicted of an offence involving moral turpitude cannot be enrolled as an advocate. This applies till two years elapsing since the expiry of the sentence. While it is a disqualification for enrolment, the Supreme Court has held that if the disqualification is incurred after enrolment then the advocate is disbarred for two years.

The term 'moral turpitude' has not been defined in the Advocates Act, 1961 but the Supreme Court and the High Courts have interpreted the term in numerous decisions.

In Pawan Kumar v. State of Haryana, the Supreme Court interpreted 'moral turpitude' as follows:

"Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity."

The Supreme Court has also approved the following test to identify if an offence involves moral turpitude:

"a) Whether the act leading to a conviction was such as could shock the moral conscience or society in general; b) Whether the motive for the crime was a base one; and c) Whether on account of the act having been committed, the perpetrators could be considered to be of a depraved character or a person who was to be looked down upon by the society"

The intention of this test is to ensure that 'moral turpitude' is not loosely invoked to impose disabilities on convicted persons.

A provision of law meant to prevent depraved persons from practicing law has no application to Prashant Bhushan's case. It is hard to conclude that Bhushan's criticism of the judiciary and the Chief Justice of India shocks the conscience of the society and has been committed by a depraved person pursuant to his vile instincts.

The Supreme Court has held in one case that contempt of court could be construed as an offence involving moral turpitude. However, in that particular case, the advocate had threatened the judge of dire consequences in open court!

The Supreme Court has held that deciding on 'moral turpitude' would depend extensively on the facts of each case. Therefore, it is implied that all cases of contempt of court cannot be classified as offences involving moral turpitude."

Contempt and Misconduct

Section 35 of the Advocates Act empowers the Bar Council to initiate disciplinary proceedings if it has reasons to believe that an advocate is guilty of 'professional or other misconduct'.

It is a settled position of law that not all cases of contempt can amount to misconduct.

The Supreme Court has acknowledged that whether contempt of court amounts to misconduct would depend on the "gravity and nature of the contumacious conduct". The term 'misconduct' has not been defined in the Advocates Act. While dealing with cases pertaining to misconduct, the Supreme Court and the High Courts have applied the following test:

"The test to be applied in all such cases is whether the proved misconduct on the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession to which he has been admitted and unfit to be entrusted with the responsible duties that an advocate is called upon to perform."

Prashant Bhushan's conviction for committing contempt of court does not in any way render him unworthy of being an advocate or unfit to be entrusted with the duties of an advocate. In his submissions, Bhushan's counsel Rajeev Dhawan pointed out that Bhushan has been involved in a number of public interest litigations and has been appreciated by the courts for his efforts. A single conviction in a contempt case, against which a Review Petition filed on September 14 is pending, cannot render Bhushan unfit to be entrusted with the duties of an advocate.

While the Standards of Professional Conduct and Etiquette prescribed by the Bar Council of India imposes a duty on the advocate to maintain a respectful attitude towards the court, this rule should not be construed in a manner that creates a chilling effect on free speech.

The Bar Council has acted hastily by not waiting for the Supreme Court to decide the Review Petition filed by Bhushan against his conviction.

It is pertinent to note that the Supreme Court has not directed the Bar Council to initiate disciplinary proceedings.

Although the Bar Council may initiate such proceedings suo moto, unlike in other contempt cases like Mahipal Rana, there was no specific direction from the court. Its zeal to punish members of the legal fraternity must be reserved for serious cases that render the advocates unworthy of acting as advocates. The Bar Council should bear in mind that stifling criticism of the judiciary can be detrimental to the quality of justice dispensation in the country.

(Rahul Machaiah completed his LLM from Azim Premji University. Views are personal.)