The Madurai Bench of the Madras High Court has referred a significant legal question regarding the enrollment of law graduates as Advocates with pending criminal cases to the Chief Justice for the constitution of a Larger Bench. The Division Bench, comprising Justice G.R. Swaminathan and Justice R. Kalaimathi, observed that judicial directions cannot partake the character of a rule made under the Advocates Act, 1961, and opined that the existing ban on enrolling candidates with pending FIRs deserves to be revisited.
The core legal issue before the Court was whether the Bar Council can refuse enrollment to a law graduate solely on the ground of pending criminal cases, based on directions issued by the High Court in previous judgments, despite the Advocates Act, 1961, specifying “conviction” as a disqualification.
Finding that the previous directions issued in S.M. Anantha Murugan Vs. The Chairman and affirmed by a Full Bench might run contrary to Supreme Court precedents and the statutory scheme, the Court directed the Registry to place the papers before the Hon’ble Chief Justice to consider constituting a Larger Bench to resolve the issue.
Background of the Case
The petitioner, S. Bhaskarapandian, obtained his law degree in 1984 but did not enroll as an advocate immediately as he was appointed as a Village Administrative Officer. After retiring from service on January 30, 2014, he applied for enrollment with the Bar Council of Tamil Nadu on July 23, 2014.
However, his application was not processed due to his implication in two criminal cases:
- Crime No.28 of 2013 on the file of the District Crime Branch, Madurai.
- Crime No.94 of 2014 on the file of the Koodal Pudhur Police Station.
Consequently, the petitioner filed a Writ Petition seeking a Writ of Mandamus to direct the Bar Council to enroll him.
Arguments
The counsel for the petitioner submitted that the criminal cases registered against the petitioner have remained at the FIR stage for the last ten years. He highlighted that the “prosecution had not even taken off” and final reports were yet to be filed. It was argued that the petitioner was unable to enroll solely due to the judicial directions currently in force, which bar the enrollment of persons with pending criminal cases.
Court’s Analysis
The Court began by acknowledging the “Himalayan impediment” faced by the petitioner in the form of the decision in S.M. Anantha Murugan Vs. The Chairman (2015), where a learned Single Judge had directed the Bar Council of India not to enroll law graduates with pending criminal cases (except for specific minor offences) until amendments were brought to the Advocates Act and Rules. This direction was subsequently affirmed by a Full Bench in 2017 as a “temporary measure.”
On Statutory Provisions: The Bench referred to Article 19(1)(g) of the Constitution, which guarantees the right to practice any profession subject to reasonable restrictions. It analyzed Section 24A of the Advocates Act, 1961, which catalogues disqualifications for enrollment. The section specifically lists conviction for offences involving moral turpitude or under the Untouchability (Offences) Act as grounds for disqualification.
The Court observed:
“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 in exercise of its jurisdiction under Article 226 of the Constitution of India.”
On Judicial Overreach and Rule-Making Power: The Court cited the Supreme Court’s decision in Ashwini Kumar Upadhyay v. UOI (2019), which held that courts cannot usurp legislative functions and that restrictions on practice must be expressly stated in the Advocates Act or Rules.
The Bench expressed disagreement with a recent Division Bench order in N. Santhosh Kumar v. The Bar Council of Tamil Nadu and Puducherry (2024), which held that the judicial direction in S.M. Anantha Murugan should be construed as rules within the ambit of Section 34 of the Advocates Act.
Refuting this interpretation, Justice G.R. Swaminathan and Justice R. Kalaimathi stated:
“With the greatest of respect to the Hon’ble Division Bench, we cannot endorse the view that a judicial direction can be construed as a Rule made under Section 34 of the Advocates Act, 1961.”
Referring to the Supreme Court judgment in R. Muthu Krishnan v. High Court of Madras (2019), the Court clarified that Section 34 empowers the High Court to frame rules regulating practice in courts but does not authorize imposing conditions for enrollment or disciplinary control.
The Court further noted:
“But by no stretch of imagination, a judicial order passed by a Single Judge can partake the character of a rule made by the High Court.”
On Presumption of Innocence: The Court emphasized that when the statute specifies “conviction” as an impediment, a Writ Court cannot expand it to include “implication.”
“When the statutory provision talks about conviction as an impediment, it may not be open to the writ court to hold that even implication in a criminal case will operate as a bar for enrolment. We cannot lose sight of the fact that presumption of innocence is a human right.”
Decision
The Division Bench concluded that in view of the law declared by the Supreme Court in Ashwini Kumar Upadhyay and R. Muthu Krishnan, the directions given in the S.M. Anantha Murugan case deserve to be revisited.
However, recognizing that a coordinate Division Bench and a Full Bench had previously affirmed those directions, the Court held it was not open to them to issue a contrary direction.
“We, therefore, direct the Registry to place the papers before the Hon’ble Chief Justice to consider constituting a Larger Bench for resolving the issue.”
Case Details:
- Case Title: S. Bhaskarapandian Vs. The Chairman / Secretary, Bar Council of Tamil Nadu
- Case No: W.P(MD) No.6986 of 2015
- Coram: Justice G.R. Swaminathan and Justice R. Kalaimathi
