Bar Council of India in its notification issued on 12th January, 2015 enforced Resolution no. 216 of 2014 repealing the Bar Council of India Certification of Practice and Renewal Rules, 2014 and replacing them with Certificate and Place of Practice (Verification) Rules, 2015 [“the Rules”]. The new amended rules have the potential to affect the legal profession by drawing a clear distinction between practising and non-practising advocates. In what may be construed as a targeted attempt at garnering more professional space for practising litigation advocates in Courts and Bar Associations, the Bar Council of India’s amended rules are heavily biased against “non-practising advocates”. Allegations are rife that the rules’ short sightedness stems from the insecurity felt by the BCI owing to the gradual dissemination of control of Bar Associations from practising advocates to lawyers with prestigious and successful commercial legal practices. The new Rules have deliberately ignored the evolution of legal practice and its continuous development into non-litigation commercial practice, which has ramifications beyond Courts and litigation. In shunting non-litigation advocates from the political amplitude of Bar Association, the Bar Council of India may have made a grievous error.
Better administrative and disciplinary control of Bar Associations: Wolf in Sheep’s garb
The Statement of Objects and Reasons associated with the Rules point towards a bona fide effort at weeding out such non-practising advocates who have long since left litigation to pursue other career and livelihood options, but are still availing the benefits of welfare schemes framed exclusively for advocates. It observes that advocates who are enrolled with the State Bar Councils obtain a “provisional certificate of practice” which is in vogue for 2 years, and thereafter, do not feel the need to renew it by passing the All India Bar Examination. Though they do not carry a permanent “certificate of practice”, they continue to practise in Courts.
The BCI has also stated the imminent need to lay down clear cut conditions for practicing law in the different courts of the country opining that advocates interested in practising law must first gather enough experience in lower courts before moving on the higher courts.
However, the crowning glory of BCI’s faux pas is the declaration of its intent to ensure improvement in the administrative and disciplinary control of local Bar Associations by casting out “non-practising advocates” and denying them the right to contest Bar Association elections or even staying on the State Bar Council Rolls. It is most respectfully submitted that what the BCI seeks to do under the guise of electoral reforms, records management and administrative efficiency is no more than a wolf in sheep’s clothing; the wolf being the regulatory coup d’état perpetrated by a section of litigation advocates against commercial legal/non-litigation practice.
“Practice of Law”: Condition sine qua non for advocates
Rule 4(j) of the BCI Rules defines the term “non-practising advocates” as that class of advocates which are enrolled with any State Bar Council but are not engaged in the practice of law in any Court. These advocates, au contraire are earning their livelihood by way of a different career option and have long since left the practise of law for a job, business, contract etc. (public or private), which is not related to the legal profession. Rule 13 and Rule 20.2 disqualify such candidates from practising in any Court (primarily barring them from being a part of Bar Associations).
The above rule, which at first read may seem perfectly logical and seemingly innocuous, is dicey in its impact. Rule 4(l) of BCI Rules states that all terms and phrases in the Rules shall have the same connotation as the one provided to them under the Advocates Act, 1961. Section 29 of the Advocates Act postulates that the only class of persons entitled to practise law in India are advocates. However, it seems that the Bar Council of India has taken section 29 at face value without bothering to pursue judicial pronouncements in the context of the said section. The Bombay High Court in Lawyers Collective v. Bar Council of India postulated that it would not be proper to hold that non-litigious practice is unregulated in Indian law as it does not fall within the ambit of the 1961 Act. Further, the Court observed that the 1961 Act was codified with the intent to include all persons within the profession of law, whether they be litigious or non-litigious.
It is noteworthy, that though the term “practice” has not been expressly and unambiguously defined under the Act, an explanation to Rule 14 which relates to Objection Petition and the prerogative of the “Administrative Committee” of the State Bar Council to disqualify a person from practicing law. The said Explanation postulates that an advocate shall be “deemed to be in practice, 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.”  Clearly, the position taken by the Bar Council is in conflict with judicial pronouncements relating to section 29 of the Advocates Act, as it seeks to shut out advocates who aren’t involved in active litigation practice.
Crafty drafting: A regulatory coup?
However, the subtlety of Bar Council is evident only if one looks closer and ponders over the potential impact of rules concerning mandatory certification of practice and the consequent disqualification in its absence. Rule 5 provides that an advocate is not entitled to practise law unless and until he is in possession of a “valid and verified certificate of practice”, which will be issued to him under All India Bar Examination Rules. If the said rules are not applicable, then the certificate shall be issued under the present BCI Rules.
Furthermore, Rule 8 introduces a dichotomy by laying down differential guidelines for 2 classes of advocates- 1) Advocates who have graduated in or after 2009-10 and enrolled with any State Bar Council (SBC) on or after 12th June, 2010 and, 2) Advocates who have graduated before 2009-10. The former class of advocates must obtain a mandatory certificate of practice under All India Bar Examination Rules for a period of 5 years subject to a constant renewal (for another 5 years) by the relevant SBC, whereas the latter class has to apply for a verification of certificate of practice by the relevant SBC within 6 months from the date of enforcement of the Rules. Rule 8.4 points out that the verification process includes obtaining a declaration from the President/Secretary or any other office-bearer of a Bar Association or a member of a State Bar Council or the Bar Council of India to the effect that the relevant person has not “left the practice of law”. If an advocate is found to have “left the practice of law” or to not have any interest in continuing in the practice of law by choosing another profession, his application will be dismissed and he shall be included in the list of non-practising advocates. The presumption that an advocate has “left the law practice” shall also be taken under Rule 17 as a consequence of the failure to provide an application within the ambit of Rules 7-11.
A list of such non-practising advocates is to be maintained and the State Bar Council will also have the power to take action against any authority which attempts to shield a potentially “non-practising advocate” from such disqualification. Further, Rule 21 disqualifies these non-practising advocates from practising before any Court of law/Tribunal or any other judicial/quasi-judicial forum, forbids them from being included in the electoral rolls of the State Bar Council or the membership of Bar Associations. Moreover, the said advocates can’t even avail the benefits of welfare schemes framed for advocates by the Bar Council of India or State Bar Councils.
The effect of said provision has the potential to exclude lawyers involved in transactional practice who may not have appeared before a Court for a substantial amount of time, as those in the relevant Bar Association or State Bar Council might not be willing to risk their neck to certify that such advocates have ‘not’ left the law practice. The import of such provisions can be far reaching and extremely disastrous.
BCI’s short-sightedness or Legal Profession’s doom?
While the myopia of Bar Council of India has worsened in recent times, the new Rules are possibly the rock bottom when it comes to regulating the legal profession in the country. The new rules give a certain command to Bar Associations and State Bar Councils over the transactional practice of law vis-à-vis their inherent ambiguity and crafty drafting whereas non-litigation advocates have been completely ousted from the power structure. Allegations have been made that this may be the handiwork of vested interests. However, the evidence is still merely anecdotal. What is concerning is that such a situation does not bode well for the legal profession in the country and may not be able to stand public scrutiny or the test of time.
by Siddhartha Singh.
- Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015[hereinafter, “the Rules”] (http://www.barcouncilofindia.org/wp-content/uploads/2015/01/BCI-Cert.-and-Place-of-PracticeVerification-Rules-2015..pdf) accessed 20 February, 2015.
- See Pratik Datta, The BCI and its new rules: What does it mean for non-litigation advocates? (2015) (http://www.barandbench.com/content/212/bci-and-its-new-rules-what-does-it-mean-non-litigation#.VOuHRS42X7k) accessed 18 February, 2015.
- The Rules, supra note i, Statement of Objects and Reasons.
- Pratik Datta, supra note ii.
- The Rules, supra note i, Rule 4(j).
- The Rules, supra note i, Rules 13 and 20.2.
- The Rules, supra note i, Rule 4(l).
- The Advocates Act, 1961, §29 (http://www.barcouncilofindia.org/wp-content/uploads/2010/05/Advocates-Act1961.pdf) accessed 22 February, 2015.
- Lawyers Collective v. Bar Council of India &Ors. (2009) Bom HC W.P. No. 1526 of 1995 (http://www.barandbench.com/userfiles/files/File/Lawyers%20Collective%20foreign%20firms%20Bbay%20HC.pdf) accessed 22 February, 2015.
- Id., at 36.
- Id., at 37.
- The Rules, supra note i, Rule 14.
- The Rules, supra note i, Rule 14 [Explanation].
- The Rules, supra note i, Rule 5.
- The Rules, supra note i, Rule 8.
- The Rules, supra note i, Rule 8.1.
- The Rules, supra note i, Rule 8.2.
- The Rules, supra note i, Rule 9.1.
- The Rules, supra note i, Rule 8.4.
- The Rules, supra note i, Rule 13.
- The Rules, supra note i, Rule 17.
- The Rules, supra note i, Rule 18.
- The Rules, supra note i, Rule 14.
- The Rules, supra note i, Rule 21.
- Pratik Datta, supra note ii.