Unconstitutional restriction: Karnataka High Court grants relief after state bar council refuses lawyer’s re-registration

“This case does not arise out of disciplinary proceedings or professional misconduct. No finding of unfitness, disqualification, or moral turpitude attaches to the petitioner. In such circumstances, permanent exclusion from the profession would be wholly arbitrary and constitutionally impermissible,” the court held.

Karnataka High Court directed the state bar council to restore the registration. (Image generated using AI)

Background

Hameed was a practising advocate who had practised for more than 25 years, having registered himself with the Karnataka State Bar Council.

During the COVID-19 pandemic, he had submitted an application for surrender of his Sanad (right to practice) and requested the state bar council to make payment of the monies as provided for under the Karnataka Advocates Welfare Fund Act, 1983. The surrender of Sanad (right to practice) was accepted.

Subsequently, the petitioner submitted a representation for cancellation of the withdrawal. The said representations were, however, not considered by the bar council.

‘Fundamental right’

The court observed that the right to practise any profession is a fundamental right guaranteed under Article 19(1)(g) of the constitution.

The court further noted that the state bar council had rejected the request solely on the ground that the Karnataka Advocates Welfare Fund Act, 1983 does not expressly contemplate withdrawal of surrender once made.

“Such rejection proceeds on the erroneous assumption that statutory silence amounts to statutory prohibition,” the court noted.

‘Statutory silence not disabling prohibition’

It further added that statutory silence cannot be construed as a disabling prohibition, particularly when such construction results in permanent deprivation of a fundamental right.

“The refusal to permit re-enrolment results in a complete and irreversible deprivation of the petitioner’s right to practise law,” the court held.

The court further observed that the regulatory power of the Karnataka State Bar Council cannot be exercised in a manner that results in extinguishment of a fundamental right in the absence of express statutory sanction.

“The Karnataka State Bar Council cannot refuse withdrawal of surrender and reregistration/Restoration of registration of an advocate solely on the ground that there is no express enabling provision under the Karnataka Advocates Welfare Fund Act, 1983,” the order read.

The court, therefore, directed the Karnataka State Bar Council to consider the representation of the petitioner and restore his registration or reregister him on its rolls subject to the refund of the benefits received owing to surrender.