1
1.
1961
Advocates Act, 1961 comes into force without section 30
2.
06th September, 1975
The Bar Council of India Rules, as revised were published in the Gazette of India in Part III, Section 4 (pages 1671 to 1697)
1995
The 1st Respondent framed Bar Council of India Training Rules, 1995
1999
Hon‟ble Supreme Court of India struck down the Bar Council of India Training Rules, 1995 as unconstitutional and illegal
15th June, 2011
Section 30 of the Advocates Act, 1961 comes into effect
2014
Bar Council of India Certificate of Practice and Renewal Rules 2014 framed by 1st Respondent but after severe opposition from all quarters the said rules were annulled.
12th January, 2015
A resolution is passed for notification of Certificate and place
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of Practice (Verification) Rules, 2015 (the “ 13th January, 2015
”)
Impugned Rules were published vide in in Section 4 of the Gazette of India (Extraordinary)
29th January, 2015
The 1st Respondent published a version of the Bar Council of India Certificate and place of Practice (Verification) Rules, 2015, on its official
website,
which
was
in
variance to the one earlier published in the Gazette of India April, 2015
The 2nd Respondent a version of the Certificate and place of Practice (Verification) Rules, 2015, on its official
website,
which
was
in
variance to the one earlier published in the Gazette of India by the 1 st Respondent
and
also
the
one
published by the 1 st Respondent on its website 20th April, 2015
This Writ Petition is filed
The Petitioners are enrolled with the 2 nd Respondent and have been practicing before this Hon‟ble Court and its subordinate courts in the State of Karnataka.
In the later part of the year 2014, the 1 st Respondent had passed rules known as On 12th January, 2015, the 1st Respondent initially passed a resolution to notify and published Bar Council of India Certificate of Practice and Renewal Rules 2014. After severe valid opposition from all quarters the said 2014 Rules were scrapped and replaced by the same by Bar Council of India Certificate and place of Practice (Verification) Rules, 2015 the (“
”). The said Impugned Rules were published in
the Extraordinary Gazette of India on 13th January, 2015.
3
Later, on 29 th January, 2015, in variance to the Impugned Rules, the 1st Respondent has published certain forms, enclosures containing new terms and conditions in its official website. Thereafter, in April, 2015, the 2 nd Respondent published on its official website (and also published a booklet and circulated it widely) another version of the Rules, which contain some other forms and enclosures. In gist, there is large-scale confusion and ambiguity as to which are the actual Rules which one need to comply with.
Be that as it may, going by the version of the Impugned Rules, published in the Gazette, it is noticed that certain forms and declarations have to be filed by the Advocates. Interestingly, there the forms and enclosures to the Impugned Rules are NOT published in the Gazette of India. Further, the Impugned Rules are opposed to the scheme of the Act as well as the Constitution of India as they seek to make an unjust discrimination between the litigious and non litigious Advocates and oust all those practicing in non-litigious matters from the affairs of the Association and Councils. Section 30 of the Advocates Act, 1961 is rendered otiose and rights of the Advocates are being made subjugated to the wills and discretion of a few individuals. Practice of law is being restricted to filing of one or more Vakalathnamas. The rights of the members of the Associations, being hitherto governed respective legislation viz., Societies Registration Act, is now made subservient to rules, framed without any rule making authority. There is large scale discrimination and schism crafted and created under the Rules Ru les and same classes of Advocates are being discriminated against one another, thereby violating section 29 of the Advocates Act, 1961. It is settled in law that the practicing the profession of law involves a larger concept whereas, practicing before the Courts is only a part of that concept. While practice is the genus and appearance or filing vakalathnama is species. However, under the Impugned Rules, the species is being made genus. Therefore, the Impugned Rules are ultra vires the Constitution of India and the law governing the Advocates profession. Hence this Writ Petition.
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D/o Late Suresh Mundkur, Aged about 38 years, years, Having chambers at, 21/2 Cubbon Road, Off Union Street, Bangalore-560001.
S/o Ramesh Rao, Aged about 34 years, years, Residing at, No. 218, Shashira, Teachers Colony, Nagarabhavi, Bangalore – 560072.
W/o Nitin R., Aged about 31 years, years, Residing at, No. 218, Shashira, Teachers Colony, Nagarabhavi, Bangalore – 560072.
Established under the provisions of the Advocates Act, 1961 having its Office at 21, Rouse Avenue Institutional Area, Near Bal Bhawan, New Delhi – 110 002 (Represented by its Chairperson)
5
Old K.G.I.D Building Dr. Ambedkar Veedhi Bengaluru - 560 001 (Represented by its Chairperson)
…
The Petitioners above-named most respectfully submit as under:
The Petitioners have preferred this Writ Petition being highly aggrieved by the passing and publication of the Certificate and Place of Practice (Verification) Rules, 2015 (the “
”) passed and notified vide
Notification dated 12 th January, 2015 and published in Section 4 of the Gazette of India (Extraordinary) dated 13 th January, 2015, produced herein and referred to hereinafter as
, on the following set of
Re:
The Petitioners are practicing advocates and are not members of any Bar Associations. The Petitioner Petitioner nos. 1, 2 & 3 enrolled as Advocates on the rolls of the Karnataka State Bar Council bearing enrollment nos. KAR/242/2008 dated 1/2/2008, KAR/3626/2004 dated 19/11/2004 & KAR/993/2008 KAR/993/2008 dated 30/5/2008 respectively.
Re:
Indian Parliament enacted the Advocates Act, 1961 (the “Act”) “Act” ) to regulate the persons practicing the profession of law, ensure the dignity and purity of the noble profession of law, and for other matters, morefully stated in the Act itself. The Act provides for establishment of the State Bar Councils and the Bar Council of India. The Respondent and other State Bar Councils have been created not only to protect the rights, interests and privileges of its members but also to protect the interests of the general public by ensuring
6
them that the professionals rendering the legal services maintain high and noble traditions of the profession. The Act is a complete code enacted with the intent to amend and consolidate the law relating to legal practitioners.
Under Section 29 of the Act, subject to the provisions of the Act and any rules made there under, there shall, be only one class c lass of persons entitled to practice the profession of law, namely, advocates. But Section 17 sub-section (2) of the Act lays down that there there can be only two classes of advocates; advocates; senior advocates advocates and non-senior or ordinary advocates. Thus, the Act permitted only two classes of advocates and any further classification within non-senior advocates is not permitted under the Act.
It is submitted that section 30 of the Act provides that subject to provisions of the Act, (and not under any rules made thereunder) every advocate whose name is entered in the State roll shall be entitled as matter of right to practice throughout the territories to which the Act extends. Thus, every advocate whose name is entered in the State roll is entitled as matter of right to practice and appear in all courts including the Supreme Court; any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice. The said Section 30 of the Act was brought into force with effect from 15th June 2011, vide Notification No. SO 1349(E) dated 09 th June, 2011. A true copy of Notification No. SO 1349(E) dated 09 th June, 2011, is produced as
As per section 7 of the Act, the 1st Respondent is required to discharge the following functions: a. to lay down standards of professional conduct and etiquette for advocates;
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b. to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council; c. to safeguard the rights, privileges and interests of advocates; d. to promote and support law reform; e. to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council; f. to exercise general supervision and control over State Bar Councils; g. to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils; h. to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf; i. to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest; j. to organise legal aid to the poor in the prescribed manner; k. to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this Act; l. to manage and invest the funds of the Bar Council; m. to provide for the election of its members; n. to perform all other functions conferred on it by or under this Act. o. to do all other things necessary for discharging the aforesaid functions;
It is submitted that in order to discharge the aforesaid functions, the 1 st Respondent has been empowered under the Act to make rules as per Section 49 (1) of the Act and such rules may specify the following:
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a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including aa) the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council; (ab) qualifications for membership of a Bar Council and the disqualifications for such membership; (ac) the time within which and the manner in which effect may be given to the proviso to sub-section (2) of section (3); (ad) the manner in which the name of any advocate may be prevented from being entered in more than one State roll; (ae) the manner in which the seniority among advocates may be determined; [(af) the minimum qualifications required for admission to a course of degree in law in any recognized University; (
(b) the form in which an application shall be made for the transfer of the name of an advocate from one State roll to another; (c) the standard of professional conduct and etiquette to be observed by advocates; (d) the standards of legal education to be observed by universities in India and the inspection of universities for that purpose; (e) the foreign qualifications in law obtained by persons other than citizens of India which shall be recognised for the purpose of admission as an advocate under this Act; (f) the procedure to be followed by the disciplinary committee of a State Bar Council and by its own disciplinary committee; (g) the restrictions in the matter of practice to which senior advocates shall be subject; (gg) the form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any court or tribunal;
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(h) the fees which may be levied in respect of any matter under this Act;
(j) any other matter which may be prescribed:
It is submitted that under the Act, the 1 st Respondent made rules known as the Bar Council of India Rules (“
”). The BCI Rules, as revised,
have been published in the Gazette of India on 06th September, 1975 in Part III, Section 4 (pages 1671 to 1697) and have been subsequently amended from time to time. The aforesaid Rules contain the conditions subject to which an advocate should have the right to practice and other sufficient institutional mechanisms for the regulation of the Advocates, after their enrolment in the rolls of the State Bar Council.
Re:
This being the case, the 1 st Respondent initially framed the Bar Council of India Training Rules, 1995, which was struck down by the Hon‟ble Supreme Court of India in reported in AIR 1999 SC 1167.
Thereafter, the 1 st Respondent initially passed the Bar Council of India Certificate of Practice and Renewal Rules 2014. After receiving severe objections from the advocates‟ advocates‟ community, in January, 2015, the 1st Respondent passed the Impugned Rules which were promulgated by superseding the 2014 Rules, purportedly in the exercise of powers conferred on it by Section 49(1) (ag), 49 (ah) 49(i) of the Advocates Act, 1961 and by all other enabling and residuary powers vested in it. The gist of the Impugned Rules is as under:
As per Rule 6, an advocate, after having obtained a Certificate or Enrollment under section 22 of the Act is required to get himself registered as a member of the Bar Association where he ordinarily practices law or intends to practice law. And if any Advocate does not
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intend to be a member of any Bar Association duly recognized by the concerned State Bar Council, then he shall be required to intimate the same to the State Bar Council and he shall have to explain as to how he will be getting the benefits of any welfare scheme floated by the State Bar Council or the Local Bar Associations. The decision of the State Bar Council shall be final in this regard.
As per Rule 9.2: All applications for verification shall be filed in the format as given in Form A annexed with these Rules and it shall be accompanied by such documents, certificates, declaration, fee etc as are mentioned in clauses (i), (ii) and (iv) of Rule 8.4 and the same may be submitted as per Rule 8.5.
As per Rule 13: Order Order on the application application for verification of Certificate Certificate of Practice: Every application for verification of certificate of practice and place of practice received shall be scrutinized by the Office within a period of one month from the date of its receipt and if found in order, it shall be placed along with the personal title of the applicant before the Administrative Committee, for passing the requisite order allowing or dismissing the application.
As per Rule 14: An advocate or any person may file an objection petition before the State Bar Council seeking to add the name/names of an advocate/advocates in the List of Non-Practicing Advocates on the ground that such an advocate has left law practice and that he/she has no bona fide intent intent and interest in continuing it in future also.
As per Rule 21 of the Impugned Rules, from the date of publication of the list of non-practicing advocates, all such advocate/s whose name/names has/have been included in the list of „non-practicing „non -practicing advocates‟, shall not be entitled to appear in any Court of Law, before any Tribunal or person legally authorized to take evidence and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice, notwithstanding the fact that name/names of such advocates is/are entered in the State Roll and that he is holding certificate of
11
enrolment under section 22 of the Advocates Act. Further, name/s of such advocate/s shall not be included in the electoral roll for the purposes of elections to the State Bar Councils. Such an advocate/s shall cease to be a member of any Bar Association and further he/she shall not be entitled to cast vote/s in any elections of the Bar Associations.
As per Rule 24 Appellate Tribunal for disposal of appeals under these rules with respect to each State Bar Council has been set up.
As per Rule 28 if an advocate whose name has been included in the “list of nonnon-practicing advocate” published under Rule 20.4, intends to resume law practice in the changed circumstances, s/he may apply to the State Bar Council that his/her name may be taken out of such list.
The stated/claimed main objects of the impugned Rules are to achieve better and effective administrative and disciplinary control of the local Bar Associations, State Bar Councils and the Bar Council of India over the advocates entered on the Rolls of advocates being maintained by different State Bar Councils under section 22 of the Advocates Act and further in order to weed out advocates who have left practice. practice . However, the said object is not achieved by way of the Impugned I mpugned illegal rules.
Even though the Impugned Rules are published in the Gazette of India dated 13th January, 2015, the Forms and Enclosures mentioned in the body of the Impugned Rules are not published in the Gazette, so far. Furthermore, the 2nd Respondent on its website has published the Impugned Rules stated to have been published in the Gazette of India dated 12 th January, 2015 and Forms contained therein, stated to have been published in Gazette are in variance to the forms published by the 1 st Respondent on its website. Moreover, the Gazette dated 12th January, 2015 does not contain any Rules or Forms as stated by the 2 nd Respondent. Hence, there is considerable confusion and ambiguity resulting in the vitiating of the whole process.
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A copy of the Impugned Rules as published in the official website of the 1 st Respondent
on
29 th
January,
2015
at
the
link
http://www.barcouncilofindia.org/wphttp://www.barcouncilofindia.org/wp-content/upload content/uploads/2015/01/BC s/2015/01/BCI-Cert.I-Cert.and-Place-of-PracticeVerification-Rules-2015.pdf are produced herein as
A copy of the Impugned Rules and Forms as published on the official website
of
the
2nd
Respondent
at
http://ksbc.org.in/Images/certificate%20of%20practice.pdf is produced at
The 2nd Respondent has given wide publicity to the draft published by it on its official website and has even published booklets and displayed the said publication in all notice boards, including the notice board at this Hon‟ble Court.
As per the Act the enrolment as an Advocate on the rolls of the 2nd Respondent or any State Bar Council automatically entitles an individual to practice. On the other hand, in respect of laws governing other similarly situated professional bodies viz., Institute of Chartered Accountants of India, Institute of Company Secretaries of India, Institute of Actuaries of India, Institute of Cost Accountants of India, there is a clear cut separation of the Membership of the respective institutions with that of certificate of practice. However, as per the Indian Medical Council Act, 1956, the profession and the membership of the Medical Council and certificate of practice are one and the same - similar to that of the scheme of the Act. In sum, in case of the Medical and Legal professions, the respective governing laws do not differentiate between the membership of the respective professional body and their practice of the profession. This conscious legislative treatment cannot be subrogated through a subordinate legislation.
It is submitted that under the scheme of the Constitution of India and Act there is no distinction drawn between the litigious and non-litigious Advocates and hence, the non-litigious lawyers have every right to participate in the affairs of the Bar Councils and Bar Associations. In fact, the Constitution of
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India confers every right on the non-litigious Advocates to occupy the highest post of judiciary viz., Chief Justice of India. However, the Impugned Rules seek to oust the non-litigious Advocates from the affairs of the Bar Council and Bar Associations and thus, violate the scheme of the Act and the Constitution of India.
It is precisely, therefore, there is no bar or prohibition for the non-litigious advocates to become the judges of any Constitutional Courts or Civil or Criminal Courts in India. It is pertinent to submit at this stage that on 30 th March, 2015, under the provisions of the Karnataka Judicial Services (Recruitment) Rules, 2004 and rules made there under from time to time this Hon‟ble Court has invited applications for the post of Civil Judg es. Judg es. It is pertinent that the only qualifying requirement under the notification is that the candidate should have been enrolled as an Advocate. A copy of the notification inviting applications for the post of Civil Judges Gazette Notification dated 30 th March, 2015, published in the Extraordinary Gazette of Karnataka dated 31st March, 2015 is produced herein as
.
The Petitioners declare that they have no other alternative efficacious remedy other than to approach this Hon‟ble C ourt and further declare that they have not filed any other Writ, Case or Petition before any other Court or Tribunal or Authority based on the same cause of action.
It is submitted that ostensibly deriving power from sections 49 (1) (ag), and 49 (1) (ah) and 49 (i) of the Act and purportedly in exercise of some of the BCI Rules, the 1st Respondent has passed and notified the Impugned Rules, which is challenged challenged by the Petitioners Petitioners inter alia on on the following set of
Because the Impugned Rules are illegal, unconstitutional, untenable, arbitrary, discriminating and are ultra vires the the Act.
Re:
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Because the right of the Petitioners to practice Law as made available under the relevant provisions of the Act is being arbitrarily denied by the Impugned Rules framed by the 1 st respondent Bar Council of India and, therefore, the fundamental right of the Petitioners under Article 19(1)(g) of the Constitution of India is being violated.
Because the impugned Rules do not impose any reasonable restrictions on the exercise of the fundamental right of the Petitioners. In any case, the impugned Rules are so framed as to be totally unworkable and are highly unreasonable and discriminatory in character and hence, they offend Article 14 of the Constitution of India.
Re:
Because the impugned rules are beyond the rule making power of the 1 st respondent. Even assuming that the impugned rules fall within the rule making power of the 1 st respondent Bar Council of India, the Rules framed are so arbitrary, unreasonable and unworkable that they violate the fundamental right of the Petitioners under Article 14 of the Constitution of India. Re: Because the Impugned Rules are restricting the right of the Petitioners to practice, as provided under Section 30 of the Act, under which, the right to practice of the Petitioners is subjected to the provisions of the Act only, and not subjected to the provisions of the Rules. The words – „under the Act‟ employed under Section 30 of the Act cannot be enlarged so as to mean the same as the rules framed under the Act also, in view of the fact that there was no express provision – “ or under the Rule framed under the Act” Act” similar to the one contained under Section 29 of the Act. Hence, the restriction imposed on the right of Practice envisaged under section 30 of the Act by the impugned Rules is ultra vires to Section 30 of the Act.
Because the impugned Rules also create four parts/categories of rolls of advocates namely : „Practicing Advocates‟ „Non-practicing „Non-practicing Advocates‟ Advocates‟, Advocate „Advocate on R ecord ecord of the Hon‟ble Supreme Court of India‟ India‟ and Senior
15
Advocates. As per the scheme of the Act there are only two parts/categories of rolls of advocates namely Senior Advocates and other Advocates. Hence, this artificial and arbitrary classification is against the provisions of Section 29 of the Act read with Section 17(2) of the Act.
Because, under Rule 4(l) of the impugned Rules, all terms and phrases used in the impugned Rules shall have the same meaning as they have under the Act, unless the context in which such words and phrases are used expressly suggests to the contrary implying that the scope of the Impugned Rules could be expanded beyond the letter and spirit of the Act itself, which is not permitted, while formulating delegated legislation. The formation of the Appellate Tribunal bodies i.e., judicial or quasi judicial bodies in a subordinate legislation when the main Act does not empower or create any such Tribunals is clearly beyond the scope of powers and violative of the rudimentary rudimentary principles of constitutional-administrative constitutional-administrative law
Re:
Because the Impugned Rules provide for certification through certain set of forms of applications, declarations and certifications in certain formats. While the terms and conditions on which an Advocate can secure Certificate of Practice, Resume Practice etc., are contained not just in the Impugned Rules but are contained in the forms. In fact, the crucial terms and conditions based on which an Advocate is entitled for Certificate of Practice are contained in Forms. While the Minutes of the Meeting of the Respondent that resulted in the passing of the Impugned Rules and the Impugned Rules are published and gazetted, the aforesaid forms viz., Form A (Columns 1 – Application for Issuance of Certificate of Practice, Column 2 – Declaration by the Applicant and Column 3 – Certification), Form – B (Certificate of Practice), Form C (Application for Resumption of Practice), Form D (Identity (Identity Card), Form - E (Application for for the Senior Advocates Advocates and Advocates on Record) are not gazetted.
16
Because the terms in the Forms published by the 1 st and 2nd Respondent are at complete variance with one another and in fact, the Impugned Rules as published in the Gazette of India do not contain any Forms.
Because this variation becomes even more crucial particularly in the wake of the fact that the 1st Respondent has stated in the Impugned Rules that they shall come into effect from the date of publication of the Rules in the Official Gazette. Since the Forms are not published in the Official Gazette, it cannot be said that the Rules are properly published in the Official Gazette. Without proper publication of the Gazette in the first place, the Respondents cannot give effect to the Rules. In fact, the 2 nd Respondent - Karnataka State Bar Council too has published the Rules along with the Forms, to give an impression that Forms too are Gazetted. Non-gazetting of the Forms that contain vital terms and conditions wholly vitiates the Impugned Impugned Rules.
Because in gist the Impugned Rules as published in the Gazette of India by the 1st Respondent vis-a-vis the the Rules as published by the 2 nd Respondent are in total variance and contradiction. On this ground alone, the Impugned Rules are unsustainable and liable to be quashed.
Because the 2nd Respondent ‟s ‟s publication of the text of the Impugned Rules on its website, is in total variance with the Rules published in the Gazette of India and the publication of the 1 st Respondent on its official website. In fact, the 2nd respondent states that the impugned Rules are published in the Gazette of India dated 12 th January, 2015. However, upon verification, it is found that no such publication is published in any parts of the Gazette of India dated 12th January, 2015 at all.
Because as per the Form A Column III of the Impugned Rules published in the website of the Bar Council of India, five Vakalathnamas or any other document/cause list establishing that the advocate has been in practice for the last five years have to be produced along with the Declaration therein. However, as per the 2 nd Respondent‟s Forms no such stipulation exists. Furthermore, in the Gazette none of the Forms have been published.
17
Because the Hon‟ble Supreme Court of India in a number of cases starting from
AIR 1951 SC 467) to the latest case on
point viz.,
[2014
(10) SCC 673] has consistently discussed the effect of non publication of any notification or rules or laws in the Gazette. It is now settled that law will take effect if the same is not published in the Gazette. The Hon‟ble Supreme Court in the case of
[1987] 1 SCR
1054 has held that "where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication” publication”. While the Impugned Rules are published in the Gazette, the forms referred to in the Impugned Rules are not published in the Gazette. Moreover, there is drastic variance to the respective versions published by both Respondents to the official publication in the Gazette. Hence, the whole process process is vitiated.
Re:
Because an Advocate under the Act is defined to mean an Advocate entered in any roll under the provisions of the Act. Once an Advocate‟s name is entered in any roll under the provisions of the Act, by virtue of the statutory right conferred under section 33 of the Act, an Advocate gets the right to practice as a matter to right. However, under under the Impugned Rules, in order to qualify as practicing Advocates, the Petitioners have to apply to the President or Secretary of the Bar Association or any person nominated by them. The recognition of the Petitioners as practicing Advocates is at the complete discretion, if not at the mercy of another individual advocate who is manning the Bar Association which is not a statutory body as per the Act but only a voluntary association of advocates.
Because the 1st Respondent has no competence to make rules that goes to negative the statutory right of practice to an Advocate whose name is
18
enrolled with the 2 nd Respondent. The rule making powers under section 49 (1) (ah) of the Act pertain to the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court. However, once the name of an Advocate is entered in the Rolls, by way of conditions subsequent, the 1st Respondent cannot negate the right to practice of the Petitioners, vested with him.
Because Part VI, Chapter-Ill of the BCI Rules already prescribe certain terms and conditions subject to which an Advocate has a right to practice, the 1st respondent cannot prescribe an altogether fresh set of impugned rules, while keeping the earlier set of Rules intact.
1. Every Advocate shall be under an obligation to see that his name appears on the roll of the State Council within whose jurisdiction he ordinarily practices. PROVIDED that if an advocate does not apply for transfer of his name to the roll of the State Bar Council within whose jurisdiction he is ordinarily practicing within six months of the start of such practice, it shall be deemed that he is guilty of professional misconduct within the meaning of Section 35 of the Advocates Act."
2. An Advocate shall not enter into a partnership or any other arrangement for sharing remuneration with any person or legal Practitioner who is not an Advocate. 3. Every Advocate shall keep informed the Bar Council on the roll of which his name stands, of every change of his address. 4. The Council or a State Council can call upon an advocate to furnish the name of the State Council on the roll of which his name is entered, and call for other particulars. 5. (1) An Advocate who voluntarily suspends his practice for any reason whatsoever, shall intimate by registered post to the State Bar Council on the rolls of which his name is entered, of such suspension together with his certificate of enrolment in original.
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(2) Whenever any such advocate who has suspended his practice desires to resume his practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, along with an affidavit stating whether he has incurred any of the disqualifications under Section 24A Section 24A , Chapter III of the Act during the period of suspension. (3) The Enrolment Committee of the State Bar Council may order the resumption of his practice and return the certificate to him with necessary endorsement. If the Enrolment Committee is of the view that the Advocate has incurred any of the disqualifications the Committee shall refer the matter under proviso to Section 26(1) Section 26(1) of of the Act. (4) On suspension and resumption of practice the Secretary shall act in terms of Rule 24 of Part IX. 6. (1) An Advocate whose name has been removed by order of the Supreme Court or a High Court or the Bar Council as the case may be, shall not be entitled to practice the profession of Law either before the Court and authorities mentioned under Section 30 Section 30 of of the Act, or in chambers, or otherwise. (2) An Advocate who is under suspension, shall be under same disability during the period of such suspension as an Advocate whose name has been removed from the roll. 7. An officer after his retirement or otherwise ceasing to be in service shall not practice for a period of two years in the area in which he exercised jurisdiction for a period of 3 years before his retirement or otherwise ceasing to be in service. RESOLVED that nothing in these Rules shall prevent any such person from practicing in any Court or tribunal or authority of superior jurisdiction to one in which he held office. Explanation: 'Officer' shall include a Judicial Officer, Additional Judge of the High Court and Presiding Officer or Member of the Tribunal or authority or such other Officer or authority as referred to in Section 30 Section 30 of of the Act.
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'Area' shall mean area in which the person concerned exercising jurisdiction. 8. No Advocate shall be entitled to practice if in the opinion of the Council he is suffering from such contagious disease as makes the practice of Law a hazard to the health of others. This disqualification shall last for such period as the Council directs from time to time. ********** As can be seen the above Rules are prescribed pursuant to one‟s enrolment enrolm ent as an Advocate, however, the Impugned Rules mandate certain precedents in order to practice. This apart, the Impugned Rules are in contravention or deviation to the aforesaid BCI Rules.
Re:
Because the Parliament while enacting the Act created agencies at the State level as well as at the Central level in the form of State Bar Councils and Bar Council of India and invested them with rule making powers on diverse matters touching the legal profession, presumably because it must have realised that matter pertaining to the profession are best left to informed bodies comprising of members of the said profession. However, while doing so it provided for basic substantive matters, e.g., eligibility for entry into the profession (Section 24), disqualification for enrolment (Section 24A), authority entitled to grant admission (Sections 25 and 26), the authority which can remove any name from the roll (Section 26A), etc., and placed them within the domain of a State Bar Council. Thus it is the State Bar Council which alone must decide on the question of enrolment of an applicant on its roll. Every person whose name is entered in the list of advocates has a right to practice in all courts including the Supreme Court, before any tribunal or other authority. It is, therefore, within the exclusive domain of the State Bar Councils to admit persons as advocates on their rolls or to remove their names from the rolls. This right consciously invested by the legislature on the 2 nd Respondent, is being usurped by the 1 st Respondent.
21
Because as per section 6 of Act it is the function of the 2 nd Respondent to maintain the roll of Advocates. Under the scheme of the Act, the legislature consciously created and vested exclusive powers of the maintenance of the rolls on the State Bar Councils. Consciously, under section 7 of the Act, the 1st Respondent was NOT vested with any role in preparing and maintaining the rolls. The Impugned Rules infringe upon the role of the State Bar Councils in so far as the enrolled Advocates are being subjected to the unreasonable conditions imposed under the Impugned Rules.
Because creating sub category and thereby inflicting disabilities and discrimination within the enrolled Advocates is nothing but undue interference into the roll maintenance function of the State Bar Councils. The 1st Respondent Bar Council by interfering into the affairs of the State Bar Councils has breached the letter and spirit of the Act.
Re:
Because the Rule 5 of the Impugned Rules provides that an advocate shall not be entitled to practice law unless he holds a valid and verified certificate of practice issued either under All India Bar Examination Rules or under the Impugned Rules by all Advocates but vitally excludes from its ambit two category of Advocates viz., Senior Advocates and Advocates on Record of the Hon‟ble Supreme Court of India, in so far as Rule 5 provides that Senior Advocates designated under Section 16 of the Act and the Advocates on Record of Supreme Court of India shall not be required to fill up the form for for Verification. Verification.
While it may be true that AORs AORs and Senior
Advocates have institutional mechanisms for their appointment or designation, however, if the true objective of the Rules is to see that non serious Advocates or those engaged in business ventures, partnerships are kept out, then, they should have included both the aforesaid categories. This shows that true objective of the Impugned Rules is anything but the one mentioned in their preamble. This is also highly illegal and discriminatory and violative of Articles 14 and 19 of the Constitution of India.
Because the exclusion of AORs and Senior Advocates from the ambit of the impugned Rules is highly arbitrary and discriminatory. Any person, in order
22
to be designated as Senior Advocate under the Act is required to be enrolled with the State Bar Council. No separate procedure or special exception or exemptions are carved out for the Senior Advocates. Similarly, only Advocates enrolled with the State Bar Council are qualified to be AORs. Hence, exemption these two classes of Advocates are without any basis, rhyme or rationale.
Because it is true that before being designated as Senior Advocates and being appointed as the AORs, there are institutional mechanisms that ensure that Advocates are designated / appointed as Senior Advocates or AORs. However, once any person is designated as AOR or Senior Advocate, there are no mechanisms, much less legislative mechanisms or restrictions imposed under any law for the time being in force to check or validate whether they are practicing or not. If the true objective of the Impugned Rules is to separate the practicing Advocates from the nonpracticing Advocates, then, it would not have excluded the AORs and Senior Advocates from its ambit.
Re:
Because under the scheme of the Constitution of India and the Act or any other law for the time being in force never prescribes that practice of an Advocate means and equals the physical appearance in courts or filing vakalathnamas. Precisely therefore, for being appointed as the Judge of any a ny of the Constitutional Courts and the subordinate courts, the physical appearance is not mandated. The Constitution as well as legislature has clearly understood that the right of an Advocate flows from his being enrolled as Advocate in the rolls of the Bar Councils. The recent applications for the post of Civil Judge or any other notification/s, notified after the publication of the Impugned Rules, reaffirm the correct position of law. Utterly disregarding this correct position of law that non-litigious and litigious Advocates are practicing Advocates and these artificial schisms cannot be created in law. Hence, the Impugned Rules are bad in law.
23
Because the Impugned Rules create an artificial distinction between a practicing Advocate and a non-practicing Advocate. While according to the impugned Rules, a person who has filed a single vakalathnama in the year prior to publication of the Impugned Rules is said to be a practicing Advocate and all those who have not filed a single vakalathnama are non practicing Advocates. It is highly absurd and ludicrous to segregate Advocates on the basis of one vakalathnama or for that matter a set of Vakalathnamas.
Because the the right to practice the profession profession of law cannot be reduced down down to the act of filing one vakalathnama or be confined to physical appearances in Courts / Tribunals / other authorities. The function of practicing the profession of law includes giving legal advice to a client, drafting, conveyance and providing any other other form form of legal assistance. However, However, as per the Explanation to Rule 14 of the impugned Rules, an Advocate shall be deemed to be in practice, ONLY if he is able to establish that he has appeared in any Court of law or has filed Vakalatnama even in one case before any Court of Law/other Forum in a year before these Rules came into force. Excluding the lawyers engaged in pleadings, drafting, conveyance, legal advice to a client, drafting and providing any other form of legal assistance and practicing on non-litigious matters is highly illegal, perverse and discriminatory.
Because drafting the case, settling it and filing it, attending office objections, research work leading to such drafting, conveyance, advising clients, client counseling, mediation, arbitration and conciliation, drafting of rules, regulations, contract drafting and like activities is also practice. By no stretch of imagination can Advocates undertaking these and many more allied activities be treated as non-practicing Advocates. The impugned Rules are totally blind to any form of practice other than filing vakalathnamas and/ or physical appearance in courts.
Because the bar to be created under the impugned Rules for non-practicing advocates unless enrolled as an advocate cannot bar a person from being enrolled as an advocate under section 29 of the Act for practicing the profession of law in non-litigious matters also. a lso.
24
Because the very object of the Act and the Rules framed by the 1 st respondent -Bar Council of India are to ensure that the persons practicing the profession of law whether in litigious matters or in non litigious matters, maintain high standards in professional conduct and etiquette and, therefore, the persons practicing in non litigious matters cannot excluded from practicing merely because they are doing non-litigious matters alone.
Because as per Rule 33 of the CHAPTER - II Standards of Professional Conduct and Etiquette (Rules under Section 49 (1) (c) of the Act read with the Proviso thereto) of BCI Rules, an advocate who has, at any time, advised in connection with the institution of a suit, appeal pleadings, party.
other matter or has drawn
acted for a party, shall not act, appear
plead for the opposite
The above said Rule including the usage of the term
shows that
term practice means and includes within its ambit advising, or just drawing of the plaints etc. too and NOT just physical filing of vakalathnama and appearances in the courts.
Re:
Because practicing the profession of law involves a larger concept whereas, practicing before the Courts is only a part of that concept. In other words, practice is the genus and litigious and non-litigious matters are species.
Because once a person is enrolled as an advocate under the Act, he is entitled to practice the profession of law in litigious matters as well as non-litigious matters. But non-consideration of practicing in non-litigious matters for issuing certificate of Practice, under the impugned Rules in ultra virus the scheme of the Constitution of India and provisions of the Act.
Because it is settled in law that practicing the profession of law involves a larger concept whereas, practicing before the Courts is only a part of that concept. While practice is the genus and appearance or filing vakalathnama is species. However, under the Impugned Rules, the species is being made
25
genus. Therefore, the Impugned Rules are ultra vires the Constitution of India and the law governing the Advocates profession.
Because Rule 6(1) in Chapter III Part VI of the Bar Council of India Rules framed under section 49(1) (ah) of the Act provides that an advocate whose name has been removed by an order of the Supreme Court or a High Court or the Bar Council as the case may be, shall not be entitled to practice the profession of law either before the Court and authorities mentioned under section 30 of the 1961 Act, or in chambers, or otherwise, which clearly shows that chamber practice, namely, practice in non litigious matters is also a legal practice under the Act. Excluding the practice in non litigious matters for granting the certificate of practice is per is per se opposed opposed to the scheme of the Act.
Re:
Because the Impugned Rules impair the rights of the Notaries and Oath Commissioners in so far as the Vakalathnama is made the basis for certifying practicing Advocates. If this criterion of Vakalathnamas is followed, Notaries and Oath Commissioners will cease to be practicing Advocates and consequently be deprived of the right to vote or contest for the Associations and Bar Councils. More importantly, the right of practice of the Notaries and Oath Commissioners will be impaired. No Advocate, including the Petitioners, therefore, can volunteer to be an Oath Oa th Commissioner or Notary Public, under the Notaries Act, 1952. Under the Notaries Act, 1952 and the Rules made thereunder, practicing advocates alone are eligible to become Notaries apart from other qualified persons.
Because similar is the case with Patent Attorneys, Sales Tax Practitioners, Public Prosecutors, Central Government Standing Counsels, who will all face disqualifications if the Vakalathnama norms prescribed under the Impugned Rules is implemented. The Law officers of the Governments are exempted from filing vakalathnamas and are allowed to file Memorandum of Appearances only and hence, they also do not come under the eligibility of getting certificate of Practice based on the vakalathnamas they have filed. All these issues have been totally overlooked while framing the impugned Rules.
26
Because as per the Act, the enrolment as an Advocate on the rolls of the 2 nd Respondent or any State Bar Council automatically entitles an individual to practice. On the other hand, in respect of laws governing other similarly situated professional bodies viz., Institute of Chartered Accountants of India, Institutes of Company Secretaries of India, Institute of Actuaries of India, Institute of Cost Accountants of India, there is a clear cut separation of the Membership of the respective institutions with that of certificate of practice. However, as per the Indian Medical Council Act, 1956, the profession and the membership of the Institute and certificate of practice are similar to that of the Act. In sum, in case of the Medical and Legal professions, the respective governing laws do not differentiate between the membership of the respective professional body and their practice of the profession. This conscious legislative treatment cannot be subrogated through a subordinate legislation.
Re:
Because prohibiting the voting rights and contesting rights in the election of Bar Councils and Bar Associations through a subordinate legislation, when the parent statute does not envisage any such thing is highly illegal and arbitrary. Hence, the Impugned Rules are liable to be quashed.
Because the Bar Associations are voluntary associations governed by the respective legislation under which they have been incorporated and their respective Bye Laws, as regards the voting rights and contest of elections. When the statutes under which Bar Associations are created or their Bye Laws do not create any such restrictions as to the voting rights and election contesting rights, the Impugned Rules, cannot provide for the the same.
The
automatic cessation of membership of Bar Associations once an advocate becomes a non-practicing Advocate envisaged under Rule 21.1 of the impugned Rules is also beyond the Rule making power of the 1 st respondent and is also arbitrary.
27
Because the Bar Associations are voluntary associations regulated by their own Bye Laws made under the governing legislation. Such Associations cannot be vested vested with the the powers of issuing Verification Verification Certificates. The Act does not even recognize the Bar Associations; hence, such Associations are not statutory in nature for the purposes of and under the scheme of the Act.
Because as per Rule 6 of the Rules, an Advocate, after having obtained a Certificate of Enrollment under section 22 of the Act is required to get himself registered as a member of the Bar Association where he ordinarily practices law or intends to practice law. And if any Advocate does not intend to be a member of any Bar Association duly recognized by the concerned State Bar Council, then he shall be required to intimate the same to the State Bar Council and he shall have to explain as to how he would be getting the benefits of any welfare scheme floated by the State Bar Council or the Local Bar Association. It is also provided that the decision of State Bar Council shall be final in this regard. No individual can be compelled by any law or Rules much less the Impugned Rules to become a Member of any voluntary association. Moreover, such voluntary associations are not even recognized under the scheme of the Act. The Act provides for mere promotion of the Associations by the Councils and NOT to designate them as statutory authorities for certifying or verifying practice. Furthermore, an individual cannot be compelled to disclose reasons as to why he or she does not want to become member of a voluntary association. In fact, the right to practice in law granted under Section 30 of the Act and other provisions of the Act cannot be denied to the Petitioners merely on the basis of their not becoming members of a voluntary association called as Bar Associations.
Re:
Because the Impugned Rules define a Bar Association to include Bar Association exclusively dealing in specific fields of law viz. Income Tax, Corporate Law, Central/State Excise Law etc. in relation to the authorities/tribunals/boards etc. thereunder. Further, the Impugned Rules empower these special field Associations with certain powers of recognizing Advocates as practicing Advocates. If any member secures a membership of
28
any special field association or files only one vakalath a year prior to the date of the publication of the Impugned Rules, s/he can practice any fields of law in any court. This is self defeating and self contradictory. Hence, the Impugned Rules are arbitrary and hence, are liable to quashed.
Re:
Because Rule 14 contemplat es es under the head “Objection “ Objection Petitions” Petitions” that a n advocate or any person may file an objection petition before the 2nd Respondent seeking to add the name/names of an advocate/advocates in the List of Non-Practicing Advocates on the ground that such an advocate has left law practice and that he/she has no bona fide intent and interest in continuing it in future also. This kind of arbitrary power conferred under the Rules create animosity, inimical attitude among the lawyers‟ lawyers ‟ fraternity and moreover if opposite lawyers or some third persons are allowed to lodge complaints in this regard, it will give rise to a vexatious situation, which could be easily misused by the opposite clients. This will greatly hamper the professional freedom of the Petitioners as advocates and as officers of the Courts where they are practicing.
Because the Impugned Rules envisage creation of tribunals for dispute adjudication
as
regards
verification
of
practicing
Advocates.
The
Respondents are creatures of the Act and the Act only empowers dispute resolution by the Respondents as regards professional misconduct. It is beyond the competence of the Respondents to create tribunals much less the ones envisaged under the Impugned Rules.
Because it is pertinent to note that the Respondents are envisaging creation of Tribunals to try persons who are protesting against the Rules. It is preposterous to curb the democratic rights of protest of any individual to state the least. least. Furthermore, there is already an institutional institutional mechanism to adjudicate upon professional misconduct. Over and above this, by creating certain rights ultra vires the Act, under a subordinate legislation, the
29
Respondent cannot create courts or tribunals to adjudicate upon matters involving protests against the Impugned Rules.
Because of the implementation of the Impugned Rules and due to the possibility of branding the Petitioners as non-practicing advocates, the Petitioners will be deprived of the privileges they hitherto enjoyed under Sections 126 and 129 of the Indian Evidence Act, 1872.
Because the Impugned Rules are prima facie illegal, untenable, arbitrary, discriminatory and unconstitutional, if the Impugned Rules are allowed to operate, the Petitioners will suffer great hardship. At the outset, there is considerable ambiguity as to which Rules are applicable in so far as different Rules are published by the Respondents herein. In fact, the Forms that form the integral and inseparable part of the Rules are not published in the Gazette of India. The Impugned Rules subjugate the statutory right guaranteed under the Act to the discretion of the office bearers of a voluntary Association which is not statutory for the purposes of the Act. Unbridled powers are conferred on such non statutory bodies and the Bar Council to curb and infringe upon every constitutional and statutorily guaranteed right.
This violation cannot be measured in terms of money.
The Petitioners have a good case on merits and have a fair chance of succeeding in the matter. If the impugned Rules are not stayed, the Petitioners will not able to get Certificate of Practice under the impugned Rules and they will be prohibited from practicing law since 12 th July 2015, i.e. 6 months from the date of commencement of the impugned Rules. This will put great hardship hardship and injury to to the Petitioners and their clients.
The impugned Rules totally prohibit chamber practice and non-litigious legal practice, practiced by non-litigious lawyers and retired Judges, especially retired Hon‟ble Justices Justices of the Hon‟ble Supreme Court of India and Hon‟ble High Courts, which is also against Article 19(1)(g) of the Constitution of India.
30
The impugned Rules have unnecessarily given importance to the office bearers of the Bar Associations and control over advocates. An Advocate cannot be compelled to prove one‟s one ‟s bona fides to an office bearer of an Association much less a voluntary association, which is not even statutory in nature. The impugned Rules compel advocates to become the members of any one Bar Association, without any authority to do so, which is arbitrary. The impugned Rules are seeking explanations from advocates who are not members of any Bar Association as to how they are going to get the benefits of welfare schemes of the respondents, thereby implying: a) that getting the benefits of the so-called welfare schemes of the respondents are also mandatory in nature, b) that for this reason becoming part of the Bar Association is essential. essential. This is also illegal illegal and arbitrary. Because, all the provisions of the impugned Rules are arbitrary, unreasonable, ultra vires the provisions of the Act and also hit by Article 14 and Article 19(1)(g) of the Constitution of India, the same is unsustainable and liable to be struck down.
Because the Petitioners have a prima facie case case on merits. If the Impugned Rules are not stayed, gross injustice would be caused to the Petitioners which cannot be measured in terms of money. Per contra, no injustice or prejudice would be caused to the Respondents. The Balance of convenience is in favour of the Petitioners and against the Respondents.
The grounds urged herein above are without prejudice to one another. The Petitioners crave the leave of this Hon‟ble Court to add or amend or modify or delete any of aforesaid grounds at the time of arguments.
31
WHEREFORE it is most respectfully prayed that this Hon‟ble Court may be pleased to:
a) Declare that the Certificate and place of Practice (Verification) Rules, 2015, at ANNEXURE – A, as ultra virus the Advocates Act, 1961, totally unworkable and are highly unreasonable and discriminatory in character and offending Article 14 and Article 19(1)(g) of the Constitution of India; b) To issue a Writ of Certiorari or any other appropriate Writ, Order Order or Direction and quash the Certificate and place of Practice (Verification) Rules, 2015 notified vide Notification dated 12 th January, 2015 and published in Section 4 of the Gazette of India (Extraordinary) dated 13th January, 2015, produced herein and referred to hereinafter as
c) Grant costs of this petition and
d) Pass such other and incidental order/s including an order as to costs, in the interest of justice and equity
Pending final disposal of the present Petition on merits, this Hon‟ble Court may be pleased to stay the operation of the Certificate and Place of Practice (Verification) Rules, 2015 notified vide Notification dated 12 th January, 2015 and published in Section 4 of the Gazette of India (Extraordinary) dated 13 th January, 2015, at ANNEXURE – A, in the interest of justice and equity.
32
I, Nitin R, son of K Ramesh Rao, aged 34 years, Advocate by profession, residing at no. 218, Shashira, Teachers Colony, Nagarabhavi, Bangalore – 72, do hereby solemnly affirm and state on oath as under: I am the Petitioner no.2 in the above case and am conversant with the facts herein and as such I am competent to swear to this Affidavit on behalf of the other Petitioners as well. I state that averments averments made in paragraphs 1 to are true true to the best of my knowledge, information and belief and Paragraphs 1 to 73 are based on the information and nothing material is concealed therefrom. I state that Annexure A to Annexure respective originals.
are true copies of their
VERIFICATION I state that this is my name and signature and what is stated above are true and correct to the best of my knowledge and information.
Identified by:
Advocate Date: Place: Bengaluru
DEPONENT
33
For the reasons mentioned in the accompanying Affidavit, this Hon‟ble Court may be pleased to dispense with the production of the original Gazette Publication of the Certificate and place of Practice (Verification) Rules, 2015 (the “Impugned Rules”) passed and notified vide Notification dated 12 th January, 2015 and published in Section 4 of the Gazette of India (Extraordinary) dated 13 th January, 2015, produced along with the Writ Petition as Annexure A for a period of eight weeks from the date of admission of this Writ Petition, in the interest of justice and equity.
34
I, Nitin R, son of K Ramesh Rao, aged 34 years, Advocate by profession, residing at no. 218, Shashira, Teachers Colony, Nagarabhavi, Bangalore – 72, do hereby solemnly affirm and state on oath as under: I am the Petitioner no.2 in the above case and am conversant with the facts herein and as such I am competent to swear to this Affidavit on behalf of the other Petitioners as well. I pray that this Affidavit and the Interlocutory Application accompanying this Affidavit may be read as part and parcel of the Memorandum of Writ Petition filed by me. I state that I am challenging the constitutional validity and legality of the Certificate and place of Practice (Verification) Rules, 2015 passed by the 1 st Respondent herein, produced produced at Annexure -A to the Writ Petition. I state that despite due diligence, I could not secure the original Gazette of India in which the aforesaid Rules are published. I undertake the secure the same produce before this Hon‟ble Court within eight weeks from the date of filing of this Petition. Wherefore, I pray that that the accompanying application may be allowed, allowed, as prayed. I state that what is stated in paragraphs 1 to 6 hereinabove is true to the best of my information, knowledge and belief and nothing material is concealed therefrom. This is my name and signature.
