Saturday, June 3, 2023

Plea in Delhi HC against BCI rule barring advocates from some pro bono work

The petitioner has submitted that such an interpretation bars an Advocate from representing an organisation, of which he is in the executive body, in public interest cases without fees.

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A writ petition has been filed in Delhi High Court challenging the constitutional validity of Rule 8 of the Standards of Professional Conduct and Etiquette framed by the Bar Council of India under Section 49(1)(c) of the Advocates Act, 1961, in so far as Rule 8 is being used to prevent an Advocate from appearing in a pro bono public interest case on behalf of an organisation of which he/she happens to be an office-bearer or member of its an executive committee.

Rule 8 states:-

“B. an Advocate shall not appear in or before any Court or Tribunal or any other authority for or against an organisation or an institution, society or corporation if he is a member of the Executive Committee of such organisation or institution or society or corporation.

“Executive Committee, by whatever name it may be called, shall include any Committee or body ofpersons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation. Provided that this Rule shall not apply to such a member appearing as ‘amicus curiae, or without a fees in a matter affecting the affairs of a Bar Council, Incorporated Law Society or a Bar Association.

The petitioner has submitted that such an interpretation bars an Advocate from representing an organisation, of which he is in the executive body, in public interest cases without fees. He has submitted that there is no rationale or justification for a rule which bars an organisation from engaging one of its members who happens to be an Advocate to represent the organisation in a case which it takes up in the public interest.

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The petition has been filed by Advocate Prashant Bhushan, who happened to be the former member of governing council of the organisations Centre for Public Interest Litigation (CPIL), Common Cause and Swaraj Abhiyan. Following the complaint filed by one Major S.K. Punia (Retd) before the Bar Council of Delhi (BCD), the petitioner in the present case had to resign from the above mentioned organisations. The complainant had submitted that the said conduct of an advocate is against Clause 8 of the Standard of Professional Conduct and Etiquette under the Bar Council of India Rules.

The petitioner in the present matter before the Delhi High Court has also sought directions to quash the said proceedings initiated by the Bar Council of Delhi on the Complaint of Major Punia. The petitioner submitted that since he had resigned from the said NGOs, the complaint no longer survives and should be quashed.

The petitioner has further alleged that

“respondent no 1/ Bar Council of Delhi has failed to take the cognisance of his submissions during the proceedings and referred the matter to the Disciplinary Committee for ‘Clarification’ vide a non-speaking order. Therefore, the act of the Respondents is highly arbitrary, without jurisdiction, discriminatory and unconstitutional. Hence, it is prayed that the complaint and proceeding pending before the Disciplinary Committee is liable to be quashed.”

The Supreme Court in case of N.G. Dastane Vs Shrikant S. Shivde & Anr., (2001) 6 SCC 135, had said, “where on the receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee…

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The collocation of the words guilty of professional or other misconduct has been used for the purpose of conferring power on the Disciplinary Committee of the State Bar Council. It is for equipping the Bar Council with the binocular as well as whip to be on the qui vive for tracing out delinquent advocates who transgress the norms or standards expected of them in the discharge of their professional duties. The central function of the legal profession is to help promotion of administration of justice. Any misdemeanor or misdeed or misbehaviour can become an act of delinquency, if it infringes such norms or standards and it can be regarded as misconduct.

In Blacks Law Dictionary, misconduct is defined as a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour; its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.”

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