Disqualification and Removal from Roll

Disqualification bars entry into the profession; removal terminates an existing membership. Both serve the same goal: protecting the public and maintaining the profession's integrity. The Advocates Act provides for both pre-enrolment disqualification (S.24A) and post-enrolment removal (S.35(3)(d)).

Legal Framework

Correction: the earlier table placed removal in S.35(3)(c) (it is (d)), "interim suspension" in S.38 (S.38 is the appeal to the Supreme Court), "cessation of right to practise" in S.44 (S.44 is review) and "restoration" in S.35(4) (S.35(4) is the effect of suspension).

Pre-Enrolment Disqualification (S.24A)

Grounds

No person shall be admitted to a State roll (S.24A(1)):

S.24A(2): the bar does not apply to a person found guilty but dealt with under the Probation of Offenders Act, 1958.

Correction: "previously removed from roll" is not a S.24A ground, and S.24A(1)(c) needs dismissal from State service for a moral turpitude charge, not any dismissal for misconduct.

Moral Turpitude: Included and Excluded Offences

The Act does not define moral turpitude. In Pawan Kumar v State of Haryana, JT 1996 (5) SC 155 (partly verified: confirmed through later High Court judgments on Indian Kanoon), the Supreme Court described it as conduct that is "inherently base, vile, depraved". The test is the facts behind the conviction, not the label of the offence.

Why: Advocates hold client money and documents and are officers of the court; dishonesty or depravity destroys the trust the profession needs.

Example (moral turpitude): X, a government legal officer, is convicted under the Prevention of Corruption Act for taking a bribe and applies for enrolment. The offence involves moral turpitude. X cannot be enrolled until two years after release (S.24A(1)(a)).

Example (not moral turpitude): Advocate Y is convicted of rioting (BNS S.191; was IPC S.147) during a political protest that turned violent. It is serious, but it does not of itself show dishonesty or depravity. The Bar Council must look at the facts.

Example (grey zone): Advocate Z is convicted of defamation (BNS S.356; was IPC S.500) for a speech criticising a public official. Deliberate fabrication points towards moral turpitude; an exaggerated political statement probably does not.

Post-Enrolment Removal (S.35(3)(d))

When Removal is Appropriate

Correction: Hikmat Ali Khan is not a misappropriation case, In re P (1963) is a bill-of-costs case (removal from the rolls for five years, not a moral turpitude conviction), and Dabholkar is about touting. The "2+ years sentence" row had no source and has been dropped.

Process of Removal

1. Complaint or other information; State Bar Council forms "reason to believe" (S.35(1)).
2. Reference to the disciplinary committee.
3. Notice to the advocate and the Advocate-General; specific charge; hearing (S.35(2), (3)).
4. Finding of guilt beyond reasonable doubt (Re An Advocate, 1989).
5. Order under S.35(3)(d).
6. Name struck off the State roll and certificate recalled (S.41); the BCI is informed for its common roll.
7. Appeal to the BCI (S.37) and Supreme Court (S.38), each within 60 days.

Administrative Removal (S.26A)

S.26A is short. A State Bar Council may remove the name of an advocate:

Correction: the earlier table added enrolment on another roll, fraudulent entry and salaried employment. None is in S.26A. Transfer is under S.18; a salaried employee is expected to suspend practice under BCI Rule 49 and Chapter III Rule 5; fraudulent enrolment is a matter for disciplinary action.

Effect of Removal

Practising After Removal or Suspension (Gap Fill)

Rule: Once removed, the person is no longer an advocate. Appearing, or practising in chambers, breaches S.33 and BCI Ch III Rule 6, is punishable under S.45, and is further misconduct. Where a court has barred him from appearing until he purges contempt, appearing again also invites contempt.

Cases:

• Pravin C. Shah v K.A. Mohd. Ali (2001) 8 SCC 650: an advocate found guilty of contempt cannot appear in any court until he purges the contempt by a sincere apology; this works independently of the Bar Council.
• Bar Council of India v High Court of Kerala (2004) 6 SCC 311 Bar Council of India v High Court of Kerala 2004: such a bar is valid because courts control audience.
• Supreme Court Bar Association v Union of India (1998) 4 SCC 409: the licence itself can be suspended or removed only by the Bar Councils (and the Supreme Court on appeal under S.38), not in contempt jurisdiction.
• Mahipal Singh Rana v State of UP (2016) 8 SCC 335: the advocate's enrolment stood suspended under S.24A after his contempt conviction; the Court suspended his licence for a further five years and barred him from the Etah courts until he purges the contempt.

Note: no reported Supreme Court case was found that directly punishes a removed advocate for practising afterwards. The answer rests on the statute and the four cases above. Do not cite a case for that exact point.

Restoration After Removal

The Advocates Act has no restoration provision. S.35(4) is about the effect of suspension, not restoration. Points to make:

Unverified: whether any State Bar Council rule sets a minimum wait before a removed advocate may apply again. Check the State's rules before relying on a period. The earlier "5 years", "BCI concurrence" and "S.35(4) restoration" points had no source and are dropped.

Answer Plan (16 marks)

1. Introduction: entry control versus exit control.
2. S.24A: three grounds, two-year bar, probation exception; moral turpitude (Pawan Kumar, partly verified); post-enrolment use (Mahipal).
3. S.26A: death or request only.
4. S.35(3)(d) removal: process, standard of proof, illustrations (Hikmat Ali Khan, D.P. Chadha).
5. Effect: S.41, S.33, Rule 6, S.45; practising after removal; courts' power over audience (Pravin C. Shah, BCI v HC Kerala, SCBA).
6. Restoration: no statutory provision; fresh application.
7. Conclusion.

Recall Check

1. Distinguish disqualification (S.24A) from removal (S.35(3)(d)).
2. What are the only two grounds for removal under S.26A?
3. What happens if a removed advocate keeps practising? Cite the provisions and cases.
4. Does the Advocates Act provide for restoration after removal?

Key Cases

Hikmat Ali Khan v Ishwar Prasad Arya AIR 1997 SC 864 Hikmat Ali Khan v Ishwar Prasad Arya 1997
Held: An advocate convicted of attempted murder for a knife attack in the court room, who then evaded his sentence with a forged letter and kept practising, was removed from the State roll.

Mahipal Singh Rana v State of UP (2016) 8 SCC 335 Mahipal Singh Rana v State of UP 2016
Held: S.24A applies after enrolment too; licence suspended for five more years; barred from Etah courts until he purges the contempt.

Pravin C. Shah v K.A. Mohd. Ali (2001) 8 SCC 650 Pravin C Shah v KA Mohd Ali 2001
Held: A contemnor advocate cannot appear until he purges the contempt by a sincere apology.

Supreme Court Bar Association v Union of India (1998) 4 SCC 409 Supreme Court Bar Association v Union of India 1998
Held: Suspension or removal of a licence belongs to the Bar Councils; Vinay Chandra Mishra overruled on this point.

Prahlad Saran Gupta v Bar Council of India (1997) 3 SCC 585 Prahlad Saran Gupta v Bar Council of India 1997
Held: Retaining Rs 1,500 received in execution was misconduct; the one-year suspension was reduced to a reprimand. Correction: the earlier note said this case required every removal order to fix a period for restoration and gave a 5-year restoration period. The judgment says nothing of the kind.

Removed: Baldev Raj v Bar Council of UP (2008) is untraceable and is treated as fake.

Distinctions

Flashcards