Professional Documents
Culture Documents
BENGALURU
(ORIGINAL WRIT JURISDICTION)
BETWEEN:
Mr. A. P. RANGANATHA
Son of Mr. Padmanabha
aged 41 Years, Advocate
Residing at Agara Village,
Tataguni Post
Bangalore South Taluk,
Bangalore Urban District
.. PETITIONER
AND
RESPONDENTS
1. The Petitioner has preferred this Writ Petition being highly aggrieved by
the passing and publication of the Certificate and place of Practice
(Verification) Rules, 2015 (the Impugned Rules) passed and notified
vide Notification dated 12th January, 2015 and published in Section 4 of
the Gazette of India (Extraordinary) dated 13th January, 2015, produced
herein and referred to hereinafter as ANNEXURE A, on the following
set of
2.
BRIEF FACTS
Re: Petitioner
3. The Petitioner is a citizen of India and an Advocate enrolled with the roll
maintained by the 2nd Respondent herein, under the Enrollment Number:
571 of 1999. Ever since his enrolment, the Petitioner has been practicing
before this Honble Court and its subordinate courts in the State of
Karnataka.
4. The Petitioner has been a member and an office bearer of the Advocates
Association Bengaluru (AAB). The Petitioner was the General Secretary
of the AAB from 2011 to 2014. Pursuant thereto, in the year 2014, the
Petitioner contested for the post of the President but could not succeed in
the elections.
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 interest of the
general public by ensuring them that the professionals rendering the legal
services maintain high and noble traditions of the profession. The Act is a
complete code enacted with intent to amend and consolidate the law
relating to legal practitioners.
6. 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 of persons entitled
to practise the profession of law, namely, advocates. But Section 17 subsection (2) of the Act lays down that there can be only two classes of
advocates; senior 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.
(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;
(ag) the class or category of persons entitled to be enrolled as
advocates;
(ah) the conditions subject to which an advocate shall have
the right to practise and the circumstances under which a
person shall be deemed to practise as an advocate in a court;
(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;
(h) the fees which may be levied in respect of any matter under this
Act;
(i) general principles for guidance of State Bar Councils and
the manner in which directions issued or orders made by the
Bar Council of India may be enforced;
(j) any other matter which may be prescribed:
4. It is submitted that under Act, the 1st Respondent made rules known as
the Bar Council of India Rules (BCI Rules). The BCI Rules, as revised,
in January, 2015
b) 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.
7. The stated 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, the Bar
Council of India.
8. 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 12th January, 2015 and Forms contained therein, stated to have
been published in Gazette are in variance to the forms published by the
1st Respondent on its website. Moreover, the Gazette dated 12th
January, 2015 does not contain any Rules or Forms as stated by the 2nd
Respondent. Hence, there is considerable confusion and ambiguity
resulting in the vitiating of the whole process.
Respondent
on
29th
January,
2015
at
the
link
of
the
2nd
Respondent
at
http://ksbc.org.in/Images/certificate%20of%20practice.pdf is produced at
Annexure D.
9. 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
Honble Court.
10.
legislative
treatment
cannot
be
subrogated
through
subordinate legislation.
11.
12.
13.
14.
(ag), and 49 (1) (ah) and 49 (i) of the Act and purportedly in exercise of
the some of the BCI Rules, the 1st Respondent has passed and notified
the Impugned Rules, which is challenged by the Petitioner inter alia on
the following set of
GROUNDS
15.
illegal, unconstitutional,
Re: Unconstitutional
16.
17.
18.
Because the impugned rules are beyond the rules making power of
the 1st respondent. Even assuming that the impugned rules fall within the
rule making power of the 1st respondent Bar Council of India, the Rules
framed are so obnoxious, arbitrary, unreasonable and unworkable that
they violate the fundamental right of the petitioners under Article 14 of the
Constitution of India.
Re: Ultra Vires the Act
19.
Because the Impugned Rules are restricting the right of the petitioner
20.
21.
Because, under Rule 4(l) of the impugned Rules, all terms and
phrases used in 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.
22.
23.
Because the terms in the Forms published by the 1st 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.
24.
wake of the fact that 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 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 2nd 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 is wholly vitiates the
Impugned Rules.
25.
India vis a vis as published by the 1st Respondent vis a vis as published
by the 2nd Respondent are in total variance and contradiction. On this
26.
the Impugned Rules is in total variance with the Rules published in the
Gazette of India and the publication of the 1st Respondent on its official
website. In fact, the 2nd respondent states that the impugned Rules are
published in the Gazette of India dated 12th 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.
27.
28.
starting from Harla vs. State of Rajasthan (AIR 1951 SC 467) to the
latest case on point viz., Gulf Goan Gulf Goans Hotels Company
Limited vs. Union of India [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 Honble Supreme Court in the case of B.K.
Srinivasan, vs. State Of Karnataka [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 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. 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
29.
entered in any roll under the provisions of the Act. Once an Advocates
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.
30.
31.
(4)
On
the
32.
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 practise 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 2nd Respondent, is being usurped by the 1st
Respondent.
33.
34.
Re: Discrimination
35.
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 Honble 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 Verification.
While it may be true that 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.
36.
37.
38.
Because under the scheme of the Constitution of India and the Act or
any other law for the time being in force ever 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 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.
39.
40.
41.
Because drafting the case, settling it and filing it, attending office
42.
Because the bar to be created under the impugned Rules for non-
43.
Because the very object of the Act and the Rules framed by the 1st
respondent Bar Council of India are to ensure that the persons practising
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 practising in non litigious matters cannot excluded
from practicing merely because they are doing non-litigious matters alone.
44.
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
means and includes within its ambit the advising, drawing of the plaints too
and NOT just physical filing of vakalathnama and appearances in the
courts.
45.
46.
47.
48.
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
practise 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 the chamber practise, namely, practise in non
litigious matters is also a legal practice under the Act. Excluding the
practise in non litigious matters for granting the certificate of practice is per
se opposed to the scheme of the Act.
49.
Because the Impugned Rules impair the rights of the Notaries and
50.
Because similar is the case with the Patent Attorneys, Sales Tax
Practitioners,
Public
Prosecutors,
Central
Government
Standing
situated
professional
bodies
viz.,
Institute
of
Chartered
52.
53.
54.
by their own Bye Laws made under the governing legislation. Such
Associations cannot be vested with the powers of issuing Verification
Certificates.
hence, such Associations are not statutory in nature for the purposes of
and under the scheme of the Act.
55.
intimate the same to the State Bar Council and he shall have to explain
as to how shall he 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 why he or she does not want to become member of a
voluntary association. In fact, the right to practise in law granted under
Section 30 of the Act and other provisions of the Act cannot be denied to
the petitioner merely on the basis of his not becoming a member of a
voluntary association called as Bar Associations.
Re: Special Field Associations
56.
57.
58.
59.
creating of Tribunals to try persons who are protesting against the Rules.
This is preposterous to curb the democratic rights of protest of any
individual to state the least. Furthermore, there is already an institutional
mechanism to adjudicate upon professional misconduct. Over and above
this, by creating certain rights ultra vires the Act, under a subordinate
legislation, the Respondent cannot create courts or tribunals to
adjudicate upon matters involving protests against the Impugned Rules.
60.
61.
62.
63.
64.
Rules. For detecting the non-practicing advocates and who have taken
other employment, a stipulation requiring the submission of copy of the
Income Tax Returns and an affidavit about ones practice by each
advocate to the State Bar Council, once in five years or such other
intervals of time, would clearly identify who is really practicing law or who
has taken up employment or other vocation or who is alive or dead and
the object sought to be achieved by the impugned Rules would be
achieved, without any hassles. Further, the respondents can use the
technology and make available the data base of the advocates on the roll
in the internet so that any Court, tribunal or authority can easily verify the
antecedents of person acting before them as an advocate. Further, the
respondents may make arrangements to receive complaints from the
public and other advocates, Courts or tribunals etc. against any
advocate, who is suspected of as fake advocate, for verification. Even the
procedures
contemplated
under
the
impugned
Rules
have
not
65.
66.
67.
are not members of any Bar Association how they are going to get the
benefits of welfare schemes of the respondents, implying that getting the
benefits of the so called welfare schemes of the respondents are also
mandatory in nature. This is also illegal and arbitrary.
68.
unreasonable, ultra virus to 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.
69.
70.
Impugned Rules are not stayed gross injustice would be caused to the
Petitioner which cannot be measured in terms of money. Per contra, no
injustice or prejudice would be caused to the Respondents. Balance of
convenience is in favour of the Petitioner and against the Respondent.
71.
another. The Petitioner craves the leave of this Honble Court to add or
amend or modify or delete any of aforesaid grounds at the time of
arguments.
72.
73.
PRAYER
WHEREFORE, it is most respectfully prayed that this Honble
74.
INTERIM PRAYER
Pending final disposal of the present Petition on merits, this Honble
Court may be pleased to stay the operation of the Certificate and
Place of Practice (Verification) Rules, 2015 notified vide Notification
dated 12th January, 2015 and published in Section 4 of the Gazette
of India (Extraordinary) dated 13th January, 2015, at ANNEXURE
A, in the interest of justice and equity.
Date:
Place:
Shridhar Prabhu
Advocate
Link Legal India Law Services
No. 10, First Floor, 12th Main, Palace Road, Vasanth Nagar,
Bengaluru - 560 052, India
T: +91 (80) 4123 1072 +91 (80) 4123 1073
Email: Shridhar.Prabhu@linklegal.in
/2015 (GM-
BETWEEN:
Petitioner
Mr. A. P. RANGANATHA
AND
Respondents
AFFIDAVIT
respective originals.
Date
Place: Bengaluru
Identified by:
Deponent
/2015 (GM-
BETWEEN:
Mr. A. P. RANGANATHA
Applicant / Petitioner
AND
BAR COUNCIL OF INDIA AND ANOTHER Respondents
AFFIDAVIT
this Honble Court within eight weeks from the date of filing
of this Petition.
Date:
Place: Bengaluru
Deponent
/2015 (GM-
BETWEEN:
Petitioner
Mr. A. P. RANGANATHA
AND
Sl.
Date
Event
1961
No.
1.
06th September,
1975
1995
1999
2014
website,
variance
to
which
the
was
one
in
earlier
Certificate
and
place
of
to
the
one
earlier
published
by
the
1st
The Petitioner is a citizen of India and an Advocate enrolled with the roll
maintained by the 2nd Respondent herein, under the Enrollment Number:
571 of 1999. Ever since his enrolment, the Petitioner has been practicing
before this Honble Court and its subordinate courts in the State of
Karnataka.
In the later part of the year 2014, the 1st 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 (Impugned Rules). The said Impugned Rules were
published in the Extraordinary Gazette of India on 13th January, 2015.
Later, on 29th 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
2nd 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.
/2015 (GM-RES)
BETWEEN:
Mr. A. P. RANGANATHA
Applicant / Petitioner
AND
BAR COUNCIL OF INDIA AND ANOTHER Respondents