Savvy Thakur
Published on: 22 November 2022 at 18:26 IST
An order issued by the Bar Council of India (BCI) suspending Advocate KB Naik for professional misconduct without having heard him was recently overturned by the Karnataka High Court.
Justice M. Nagaprasanna emphasized in his order the foundational idea of natural justice, audi alteram partem, or “let the other side be heard as well.”
“It is evolved beyond the dim mist of eternity. It is said, God himself did not pass any sentence on Adam before calling upon him to make his defence for the act of having consumed the proscribed fruit in the Eden Garden.”
“Therefore, God himself gave an opportunity of hearing to Adam and Eve before passing the sentence for consumption of the forbidden fruit. The principle has emerged since then. Thus, it is not today that this concept exists; it is as early as humanity,”
A advocate had recorded a grievance against 63-year-old Naik with the Karnataka State Bar Committee. This is because a trial court and an appellate court made some observations in cases where Naik was accused of using a client’s signature improperly to get a General Power of Attorney (GPA) to sell his property.
The Karnataka High Court stayed both of them after Naik informed the State Bar Council that he had appealed the court’s decision. As a result, Naik’s criminal case was closed by the State Bar Council.
Following that, the complainant filed a Section 48A Advocates Act motion with the BCI for a revision of the State Bar Council’s order. After that, the BCI sent Naik a link to the video conference, but he didn’t show up.
The BCI issued an order suspending Naik for professional misconduct without first consulting Naik.
Senior Advocate PP Hedge, who testified on behalf of Naik, argued that Section 48A of the Act itself stipulates that no person shall be denied a reasonable opportunity to be heard by any order.
As a result, he argued that the BCI’s order violated the principles of natural justice and did not comply with sub-section (2) of Section 48A of the Act.
The BCI’s Advocate Shridhar Prabhu did not respond to the Court’s question regarding the petitioner’s opportunity.
Advocate Gautham AR of the Karnataka Stata Bar Council argued that because the suspension order was only an interim one, there should not have been an opportunity for a hearing.
The question that came up for the Court’s consideration was whether an interim order suspending an advocate’s practice in any court of law could have been made without first hearing him.
The Court noted that the order was only given to the complainant, his attorneys, and the State Bar Council after it was given without a hearing. It was not even given to Naik.
“The challenged order, which has severe civil consequences for the petitioner, is issued at the outset without first hearing him or even informing him of it. When the order reaches the State Bar Council, the petitioner is made aware of it,” it was recorded.
In addition, the court ruled that the argument that the order was only an interim one was incorrect because even an interim order could prejudice someone.
“The submission that the order is only an interim order and would not become an order as depicted in sub-section (2) of Section 48A is noted only as being rejected due to its fundamental flaw.”
“The term “order” refers to each and every order that would have a negative impact on any individual. The petitioner’s livelihood is threatened by the prejudice in this case, as he is prohibited from practicing law in any court.”
As a result, “any order, whether interim or final, that would prejudicially affect the person would be considered an order as observed in subsection (2) of Section 48A,” it stated.
The court overturned the BCI’s order and remanded the case so that Naik could be heard before legal orders were issued against him.