Kerala High Court allows Bar Council to proceed against KHCAA | Reason to believe suffices to initiate action | Challenge to show cause notice dismissed
Safiya Malik
The High Court of Kerala Single Bench of Justice T.R. Ravi has dismissed a writ petition challenging the issuance of a show cause notice by the Bar Council of Kerala. The Court held that the issuance of the notice, based on the Bar Council's reason to believe that professional misconduct had been committed, was legally valid and did not suffer from infirmity. The Court directed that the disciplinary proceedings initiated pursuant to the show cause notice may continue to their logical conclusion in accordance with law. The prayer to quash the show cause notice was rejected.
The matter arose from a writ petition challenging a show cause notice issued by the Bar Council of Kerala alleging professional misconduct. The petitioner, an advocate enrolled with the Bar Council, filed the writ petition contending that the show cause notice issued suo motu was unsustainable and procedurally flawed.
The Bar Council of Kerala had issued the notice based on a letter dated 9.2.2023 sent by a Judge of the High Court of Kerala. The letter alleged that the petitioner had shouted at the Court, harassed the Court, and compelled the Court to record submissions. The petitioner allegedly repeated his submissions in a louder voice and stated that he would see the Judge expelled from the seat. The notice directed the petitioner to show cause as to why action should not be taken under Section 35 of the Advocates Act, 1961.
The petitioner contended that the action was not truly suo motu as it was based on a complaint and therefore had to follow prescribed procedures applicable to complaints. The petitioner argued that the letter from the Judge was not in the prescribed format required for initiating disciplinary action, and in the absence of a formal complaint, the action could not be treated as suo motu. It was submitted that empowering the Bar Council to initiate suo motu proceedings based on letters would lead to arbitrary action against advocates.
It was further contended that no complaint had been formally served on the petitioner prior to issuance of the show cause notice. The petitioner had requested, through various letters, that a copy of the Judge's letter and the audio-video recordings of the court proceedings be provided to him, which he asserted had not been complied with.
On the issue of suo motu powers, the petitioner relied upon judgments including Tanuja Rajan v. State, In Re: An Advocate, and decisions of the Madras and Supreme Courts, arguing that such powers should be exercised sparingly and with procedural safeguards. The petitioner submitted that "suo motu" proceedings could be initiated only in the absence of a complainant or identifiable complaint. The petitioner also argued that there was insufficient time to convene a meeting of the Bar Council before the issuance of the show cause notice and that the minutes of the meeting of the Bar Council lacked details of attendees, raising doubts about the legality of the deliberations.
The Bar Council of Kerala filed a counter affidavit asserting that the writ petition was not maintainable as the petitioner was challenging only a show cause notice. It was contended that Ext.P1 notice was issued after following due process and that the petitioner had submitted his remarks. The Bar Council recorded that, on receipt of the Judge's letter, the matter was placed before the Council in its meeting on 11.2.2023, where a unanimous decision was taken to register the case and call for remarks.
The Bar Council stated that after receipt of the petitioner's remarks, a decision was taken to refer the matter to the Disciplinary Committee under Section 35 of the Advocates Act, and that notice was duly issued by the Disciplinary Committee. The Bar Council maintained that the Disciplinary Committee was competent to conduct proceedings, and that procedural requirements had been fulfilled.
The High Court also considered affidavits filed by the Registrar General of the High Court of Kerala regarding the petitioner's request for copies of video recordings and allegations of leakage of documents. It was stated that recordings were not available as the applications used did not support recording functions and that internal inquiry had found no evidence of leakage by court officials.
The respondents submitted that no illegality or procedural lapse had occurred. The Bar Council argued that the expression "reason to believe" used in Section 35 of the Advocates Act was intended as a safeguard against frivolous complaints and not as a procedural requirement for show cause notices. The respondent relied on judgments including N.G. Dastane v. Shrikant S. Shivde & Anr., Bar Council of Maharashtra v. M.V. Dabholkar, and Anjinappa v. Krishna Reddy, to submit that suo motu disciplinary actions were permissible.
The Court recorded the factual matrix and the contentions advanced. On analysing Section 35 of the Advocates Act, the Court stated: "What is required is that the State Bar Council should have reason to believe that an Advocate on its rolls has been guilty of professional or other misconduct."
The Court further recorded: "The requirement of reason to believe cannot be converted into a formalised procedural roadblock, it being essentially a barrier against frivolous enquiries."
The Court examined the precedents cited before it and observed: "In N.G. Dastane (supra), the Hon'ble Supreme Court held that the expression 'reason to believe' is employed in Section 35 of the Act only for the limited purpose of using it as a filter for excluding frivolous complaints against Advocates."
In regard to the contention that suo motu action could not be initiated when there was an identifiable complainant, the Court recorded: "The law does not appear to make any such distinction, and it is sufficient if the Bar Council forms a reason to believe that a case of misconduct is made out requiring reference to the Disciplinary Committee."
The Court referred to Bar Council of Maharashtra v. M.V. Dabholkar, observing:
"The initiation of the proceeding before the Disciplinary Committee is by the Bar Council of a State. A most significant feature is that no litigant and no member of the public can straightaway commence disciplinary proceedings against an advocate."
On the challenge to the procedural propriety of the Bar Council’s deliberations and the show cause notice, the Court observed:"In view of the law laid down by the Hon'ble Supreme Court, I do not find any illegality in the issuance of Ext.P1 notice by the Bar Council of Kerala."
Regarding the petitioner's request for access to the audio-visual recordings of the court proceedings, the Court noted:"The prayers regarding audio-video recording cannot be considered in the light of the fact that no such recording is available with the High Court."
Concluding the judicial reasoning, the Court stated: "The finding regarding the correctness of Ext.P1 show cause notice will not, in any manner, prejudice or affect the contentions of the petitioner on the merits of the issue, and the petitioner is entitled to raise all the contentions available to him before the Disciplinary Committee."
The Court dismissed the writ petition challenging the issuance of the show cause notice. The Court directed that the disciplinary proceedings before the Disciplinary Committee may continue in accordance with law. The Court held:
"Since the petitioner has already submitted his reply to Ext.P1 and has also responded to the notice issued by the Disciplinary Committee, the issue has become academic, so to speak."
The Court further ordered:
"The Disciplinary Committee may, in the above circumstances, continue the proceedings from the stage at which it had been interdicted by interim orders issued in this writ petition, and take the case to its logical conclusion, in accordance with law."
The Court clarified that:
"The finding regarding the correctness of Ext.P1 show cause notice will not, in any manner, prejudice or affect the contentions of the petitioner on the merits of the issue, and the petitioner is entitled to raise all the contentions available to him before the Disciplinary Committee."
No relief was granted in regard to the petitioner’s prayers for quashing of the proceedings or granting of copies of audio-video recordings in the light of the fact that no such recording is available with the High Court.
Advocates Representing the Parties
For the Petitioner: Yeshwanth Shenoy, Advocate (Party-in-Person)
For the Respondents: Pranoy K. Kottaram, Advocate, N.N. Sugunapalan, Senior Advocate, Sujin S., Advocate, P.K. Suresh Kumar, Senior Advocate
Case Title: Yeshwanth Shenoy v. The Bar Council of Kerala and Others
Neutral Citation: 2025:KER:33402
Case Number: W.P(C) No.7660 OF 2023
Bench: Justice T.R. Ravi
[Read/Download order]
