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Report No. 266

Chapter -X

Propriety of performing public functions by convicted persons

10.1 The Law Commission considered the desirability of suggesting modifications in section 24A of the Advocates Act which provides for disqualification for enrolment in certain cases. Section 24A provides that any person who has been convicted of an offence, may become eligible to be enrolled as an advocate after the expiry of two years from completion of the sentence. Further, it is also seen that section 26A, which makes provision for Bar Councils to remove names from the rolls, does not provide for removal of names of advocates, who stands convicted for an offence. These aspects need examination, keeping in view the judgment given by the Gujarat High Court in 'C' v. Bar Council of Gujarat34 which was quoted and reiterated by the Supreme Court in Mahipal Singh Rana (supra), as under:

"We, however, wish to avail of this opportunity to place on record our feeling of distress and dismay at the fact that a public servant who is found guilty of an offence of taking an illegal gratification in the discharge of his official duties by a competent court can be enrolled as a member of the Bar even after a lapse of two years from the date of his release from imprisonment. It is for the authorities who are concerned with this question to reflect on the question as to whether such a provision is in keeping with the high stature which the profession (which we so often describe as the noble profession) enjoys and from which even the members of highest judiciary are drawn.

It is not a crime of passion committed in a moment of loss of equilibrium. Corruption is an offence which is committed after deliberation and it becomes a way of life for him. It is for the legal profession to consider whether it would like such a provision to continue to remain on the statute book and would like to continue to admit persons who have been convicted for offences involving moral turpitude and persons who have been found guilty of acceptance of illegal gratification, rape, dacoity, forgery, misappropriation of public funds, relating to counterfeit currency and coins and other offences of like nature to be enrolled as members merely because two years have elapsed after the date of their release from imprisonment. Does passage of 2 years cleanse such a person of the corrupt character trait, purify his mind and transform him into a person fit for being enrolled as a member of this noble profession?

Enrolled so that widows can go to him, matters pertaining to properties of minors and matters on behalf of workers pitted against rich and influential persons can be entrusted to him without qualms, court records can be placed at his disposal, his word at the Bar should be accepted? Should a character certificate in the form of a black gown be given to him so that a promise of probity and trustworthiness is held out to the unwary litigants seeking justice? A copy of this order may, therefore, be sent to the appropriate authorities concerned with the administration of the Bar Council of India and the State Bar Council, Ministry of Law of the Government of India and Law Commission in order that the matter may be examined fully and closely with the end in view to preserve the image of the profession and protect the seekers for justice from dangers inherent in admitting such persons on the rolls of the Bar Council.".

10.2. The Law Commission is of the view that wiping out the bar after enrolment, in case of conviction of an advocate after two years in the nature of cases mentioned in section 24A, does not render the person in any way desirable to plead on behalf of a person seeking redressal of his grievance through the justice delivery system. The legal profession, as such, has been placed on a very high pedestal acknowledging advocates' legal status and authority to plead on behalf of a person in court of law. Similarly, there can be hardly any justification for wiping out such disqualification, which is otherwise applicable for enrolment, after the enrolment is made. Having regard to the broader objective of the provision, the said bar should certainly operate post enrolment. With this in view, the Commission recommends the substitution of section 24A and 26A with new provisions to take care of the objectives of undesirability of a convicted person being allowed to perform important public functions.

Advocates Act, 1961 - Regulation of Legal Profession Back

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