Challenge to Bar Council Rules of Practice, Delhi High Court agrees to hear plea alleging ‘violations’ to Advocates Act

In yet another instance of a person clashing with the institution to which he belongs and thus exposing institutional infirmities, an advocate moved a writ petition before the Delhi High Court on Wednesday, challenging the recently notified Bar Council of India Certificate and place of Practice (Verification) Rules 2015. The Rules in question were notified in January this year and comprise of various provisions relating to certificate of practice, exemption from possessing the certificate, mandatory registration of advocates with local state bar councils etc. They also make it compulsory for advocates who have ceased to practice/resumed their practice to notify the concerned bar councils regarding the same..The Petition which arraigns the Bar Council of India, Bar Council of Delhi and Union of India as Respondents was filed by Advocate Ajayendra Sangwan and stated that the said Rules had been enacted with the sole purpose of extending the term and tenure of State Bar Councils, thereby contravening certain provisions of the Advocates Act, 1961 which mandates for holding of elections after every five years..Rubbishing the purported intention behind the enactment of Rules in order to streamline the profession, the Petition further goes on to state:-.“These Rules have been framed only with the purpose of unauthorized extension of term and tenure of some of the office-bearers of respondent No. 2 and the members of some of the State Bar Councils whose term and tenure has either expired or is likely to expire shortly”.The Petition while describing the Advocates Act as ‘sufficient enough’ to monitor effective control over advocates, also stated that the Rules were in direct violation of the said act, patently ultra-vires and ought to be struck down as unconstitutional..“Besides being frivolous, these Rules are also inconsistent with the specific provisions of the Advocates Act, 1961 and are thus ultra vires. In any case, the verification of genuineness and correctness of the enrolled Advocates is a continuous process and can always be undertaken by the newly elected State Bar Council, which may be elected in the elections held under the provisions of the Advocates Act, 1961.”.The Petition specifically singles out Rule 23 and Rule 32 for indefinitely extending the tenure of State Bar Council Members and thus being in direct violation to the scheme of the Advocates Act while stating:-.“When this entire process of preparation of List of non- practicing advocates and identifying fake advocates is linked to the elections of the State Bar Council, the mala fides and the vested interests of some of the office bearers/members of the Respondents are clearly exposed.”““Moreover, no time period or outer limit has been prescribed for completion of the verification process under these Rules and as such, an infinite and perpetual extension has been granted to the existing members of all State Bar Councils as well as the members of the Respondent No. 2 to continue to hold their respective offices which is absolutely contrary to law.”.While Rule 23 stipulates that every Bar Council ought to prepare election rolls for conducting elections to the Councils immediately after verification of certificate of practice and identification of non-practicing advocates is completed, Rule 32 provides for an ad-hoc committee to ensure smooth functioning of the Bar Council and expeditious execution of the verification process in a situation where term of elected members is due to expire because of delay in the identification process of non – practicing advocates..Speaking to Bar & Bench over the issue, the DHCBA President Rajiv Khosla said,.“To say that the current Rules are no different than the earlier enacted Rules would be wrong. The earlier Rules did not call for preparation of a list of non-practicing advocates after the verification is complete, which is expressly provided for in the current Rules. So far as postponement of elections is concerned, once the process of verification is complete, elections will have to be conducted either by the Bar Council of India or the respective State Bar Councils. But since this verification process given in the Rules is extremely essential for upkeep of records and consequent preparation of Voter’s List of the advocates, elections can be conducted only when it’s completed. Therefore, the writ petition should have prayed for the verification process to be concluded expeditiously to ensure that elections are conducted well within time. Even the Bar Council of Delhi should see to it that this task is completed as soon as possible to make sure that elections are not delayed by virtue of administrative shortcomings.”.A Division Bench of Chief Justice G. Rohini and Justice Rajiv Sahai Endlaw issued notice to all three respondents and posted the matter for further hearing on April 13, 2015.