Concept of opportunity of hearing as early as humanity: Karnataka High Court quashes BCI order suspending lawyer

The Karnataka High Court recently quashed an order passed by the Bar Council of India (BCI) that suspended Advocate KB Naik for professional misconduct without having heard him. [KB Naik v. Bar Council of India and Ors.].In his order, Justice M Nagaprasanna highlighted the concept of audi alteram partem (let the other side be heard as well), which forms the bed rock of the principles of natural justice."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," he said..An advocate had filed a complaint against 63-year-old Naik with the Karnataka State Bar Council. This, after a trial court and the appellate court made certain observations in cases where Naik was accused of misusing a client's signature to obtain a General Power of Attorney (GPA) to sell his property.Naik told the State Bar Council that he had appealed against the order of the courts, following which the Karnataka High Court had stayed both of them. The State Bar Council, therefore, closed the proceedings initiated against Naik.Thereafter, the complainant moved the BCI under Section 48A of Advocates Act for revision of the State Bar Council's order. The BCI subsequently sent Naik a video conference link, but he failed to appear.Without hearing Naik, the BCI passed an order suspending him for professional misconduct..Appearing for Naik, Senior Advocate PP Hedge contended that Section 48A of the Act itself mandates that no order which is prejudicially affecting any person shall be passed without giving him a reasonable opportunity of being heard.He, therefore, argued that the BCI's order was not in consonance with sub-section (2) of Section 48A of the Act as it is in blatant violation of the principles of natural justice..Advocate Shridhar Prabhu for the BCI had no response to the query of the Court with regard to an opportunity being afforded to the petitioner.Advocate Gautham AR for the Karnataka Stata Bar Council argued that since the order of suspension was only an interim order, an opportunity of hearing need not be given..The issued that fell for consideration of the Court was whether an interim order suspending the practice of an advocate in any court of law could have been passed without hearing him..The Court noted that after the order was passed without hearing, it was not even communicated to Naik, and was only communicated to the complainant, his lawyers and the State Bar Council."The impugned order which has grave civil consequence on the petitioner is passed at the outset, without hearing him and even communicating it to him. The petitioner comes to know of it when the order reaches the State Bar Council," it recorded.Further, it held that the submission with respect to the order being only an interim order was flawed, as even an interim order could cause prejudice."The submission that the order is only an interim order, it would not become an order that is depicted in sub-section (2) of Section 48A, is noted only to be rejected, as it is fundamentally flawed. Order, would mean, each and every order that would prejudicially affect any person. The prejudice caused in the case at hand is, taking away the livelihood of the petitioner as he is barred from practicing in any Court of law. Therefore, an order as observed in subsection (2) of Section 48A would mean any order either interim or final which would prejudicially affect the person," it stated.Therefore, the Court quashed the BCI's order and remitted the matter so that Naik could be heard before orders were passed against him in accordance with law..[Read Order]